On September 20, a Maine Superior Court ruled that Ralph Nader’s lawsuit against the Democratic National Committee and some of its allies may proceed to a jury trial. The trial is many months away, and will be proceeded by discovery. This means that Nader’s attorneys will be able to take depositions from witnesses and defendants and learn previously unknown information about “the ballot project”, the 2004 Democratic Party plan to keep Nader off the ballot in as many states as possible. The case is Nader v The Maine Democratic Party, Washington County, Maine, macsc-cv-2009-57.

This trial is only possible because Maine has a six-year statute of limitations. The 15-page order says, “This Court is satisfied…that Plaintiffs have made a prima facie showing of both a civil conspiracy, including an ulterior motive, and the improper use of discovery and subpoenas to establish an abuse of process claim.” Here is a brief newspaper story about the order. Here is a press release from Ralph Nader’s attorneys.

On September 25, the U.S. Supreme Court issued a ten-page opinion in Tennant v Jefferson County Commission, 11-1184, a congressional redistricting case from West Virginia. The Court ruled that population deviations between U.S. House districts of up to eight-tenths of 1% are constitutionally permissible, if the plan has certain practical advantages, such as not splitting counties and making the fewest changes to the old map.

The Court had already stayed the opinion of the 3-judge U.S. District Court that had invalidated the districts that had the .8% population deviation, so the decision is no surprise. The Court wrote the opinion without holding an oral argument in the matter. The Court hasn’t reconvened yet from its summer recess, but did issue this one opinion before convening. Also on September 25, the Court accepted six cert petitions, but none of them are election law cases or high-profile cases on such topics as same-sex marriage. Two of the cert petitions were filed by pro se litigants; see this story. “Pro se” means the individual who filed the case is not an attorney and is representing himself. Thanks to How Appealing for the link.

The Socialist Workers Party presidential ticket is not on the Florida ballot this year, because the party said in an August 23 letter to the Florida Secretary of State that the party is not recognized by the Federal Election Commission as a “national committee.” In 2011, the Florida legislature had passed a law saying qualified parties cannot be on the ballot for President unless (1) they are recognized by the FEC as a “national committee”; (2) or, they submit a petition signed by 1% of the registered voters, which would be 112,174 valid signatures.

However, last year, the Florida Secretary of State told Americans Elect that the Secretary of State has no official knowledge of which parties are recognized by the FEC as a national committee, and therefore the state would not enforce the FEC recognition rule. So, if the SWP has merely said nothing to the Secretary of State about its status with the FEC, its presidential ticket would now be on the Florida ballot.

An attorney for the SWP, Michael Krinsky, wrote a letter to the Secretary of State, making arguments why the FEC recognition rule should not be imposed. However, he did not mention the best argument. That argument is that the FEC will not recognize a new party as a “national committee”, but will only grant that recognition after a party has gone through one federal election. It is true the FEC recognized the Natural Law Party in October 1992, just prior the the Natural Law Party’s going through its first federal election. But the FEC only did that because the Natural Law Party confirmed the large number of congressional candidates it had placed on the ballot in 1992, and that could not have been done in time for the party to have qualified for the Florida ballot, if the existing law had existed back then.

The U.S. Supreme Court ruled in Williams v Rhodes, and also in Communist Party of Indiana v Whitcomb (concurring opinion of four justices) that states cannot discriminate against new parties, relative to old parties. Therefore, the Florida election law relating to FEC recognition is unconstitutional, and cannot be enforced.

Another reason the FEC standard is unconstitutional is that the FEC has utterly no objective standards for deciding what a party must do to be recognized as a “national committee.” In 1975 it recognized the Libertarian Party, even though the party’s presidential candidate had appeared on the ballot in only two states in 1972, and the party had congressional candidates on the ballot in only one state in 1972 and only in four states in 1974. In December 1980 the FEC recognized the Socialist Party even though its presidential nominee had been on the ballot in only seven states and the party had congressional candidates on the ballot in only two states. But in 1998 the FEC refused to recognize the Green Party, even though it had placed its presidential nominee in 1996 on the ballot in 23 states (and that candidate had placed fourth in the election), and even though it had congressional candidates on the ballot in eight states.