On May 28, the North Carolina State Board of Elections filed this brief in Pisano v Bartlett, the lawsuit challenging the May petition deadline for petitions for newly-qualifying parties. The brief argues that because the two plaintiff parties, the Constitution Party and the Green Party, have made only feeble attempts to qualify for the ballot this year, the case should be dismissed.

The brief ignores all the reported court decisions that have held that unqualified parties, and independent candidates, have standing to challenge early petition deadlines, whether those parties and candidates have tried to get on the ballot or not. The U.S. Supreme Court itself struck down Ohio’s petition deadline for newly-qualifying parties in 1968 in Williams v Rhodes, 393 U.S. 23, even though one of the political parties in that case, the Socialist Labor Party, had not made any attempt to petition in Ohio that year.

Other cases in which courts held that parties or independent candidates have standing to challenge early deadlines, even if they haven’t tried (or barely tried) to get the signatures or registrations in which they filed the lawsuit, are:

1. Lendall v Bryant, 387 F Supp 398 (1975), struck down Arkansas’ April petition deadline for independent candidates.
2. California Justice Committee, decision of May 22, 2012, enjoined California’s January deadline for new parties.
3. Lee v Keith, 463 F 3d 763 (1986), struck down Illinois’ December of the year before the election deadline for non-presidential independent candidates.
4. Libertarian Party of Kentucky v Ehrler, 776 F Supp 1200 (1991), struck down Kentucky’s February petition deadline for non-presidential independents.
5. Kelly v McCulloch, decision of May 25, 2012, struck down Montana’s March deadline for non-presidential independent candidates.
6. LaRouche v Burgio, 594 F Supp 614 (1984) struck down New Jersey’s April petition deadline for independent candidates.
7. Greaves v North Carolina State Board of Elections, 508 F Supp 78 (1980) struck down North Carolina’s April deadline for independent candidates.
8. McLain v Meier, 637 F 2d 1159 (1980) struck down North Dakota’s June deadline for newly-qualifying parties.
9. Nader 2000 Primary Committee v Hazeltine (2000) struck down South Dakota’s June deadline for independent candidates.
10. Libertarian Party of Tennessee v Goins, 793 F Supp 2d 1064 (2010 struck down Tennessee’s March deadline for newly-qualifying parties.
11. Green Party of Tennessee v Hargett, decision of Feb. 3, 2012), struck down Tennessee’s April deadline for newly-qualifying parties.

In all of these instances, the plaintiff parties or candidates didn’t collect any signatures, or just collected a very small amount. Also, in Stevenson v State Board of Elections, 794 F 2d 1176 (1986) and in Rainbow Coalition of Oklahoma v Oklahoma State Board of Elections, 844 F 2d 740 (1988), courts said parties or candidates who collect no signatures still have standing to challenge early deadlines, although in those two cases the deadlines were upheld.

The North Carolina brief also claims that many states have petition deadlines that are earlier than North Carolina’s May deadline. But the state’s brief confuses procedures to establish a new fully-qualified party, with procedures that have later deadlines that permit a newly-qualifying party to place its nominees on the November ballot with the party label.

Chuck Muth, a Republican activist in Nevada, suggests here that “vote-swapping”, an idea pioneered by Ralph Nader supporters and Al Gore supporters in 2000, should be revived this year. “Vote-swapping” depends on the internet. The facilitator sets up a web page, and voters in swing states are placed in touch with voters in non-swing states. The idea depends on trust. In 2000, Gore supporters in non-swing states were matched with Nader supporters in swing states, via the web page. The Gore supporter promised his or her “partner” to vote for Nader; in return, the Nader supporter promised to vote for Gore.

California’s Secretary of State in 2000, Bill Jones, had believed that the vote-swapping web page broke election laws, but the 9th circuit rejected Jones’ theory and upheld the legality of the practice.

Muth presumes that many, if not most, voters who lean toward Gary Johnson would be more sympathetic to Mitt Romney than to President Obama, but his assumption isn’t necessarily correct. Muth advocates that someone set up a web page to facilitate vote-swapping to match up Johnson supporters with Romney supporters.

Muth has not been a friend of minor parties and independent candidates. He used his influence to help persuade the 2011 session of the Nevada legislature to make ballot access more difficult. Muth did this because he was angry that in 2010, the Tea Party had placed a candidate for U.S. Senate on the general election ballot, using an easy method for a new party to place someone on the ballot. The Nevada legislature in 2011 repealed the easy method, leaving only a much more difficult procedure in place.