On January 19, the 9th circuit upheld the Washington state “top-two” system. Here is the decision.

The part of the decision about ballot access is very short. It quotes the dicta from the U.S. Supreme Court decision Munro v Socialist Workers Party that says the burden on minor parties is slight as long as their candidates can run in the primary. But it does not mention the holding in Munro v Socialist Workers Party, that there is no constitutional distinction between a petition for ballot access to the November ballot, and a prior vote test.

It says, “We recognize the possibility that I-872 makes it more difficult for minor-party candidates to qualify for the general election ballot than regulations permitting a minor-party candidate to qualify for a general election ballot by filing a required number of petition signatures. This additional burden, however, is an inherent feature of any top two primary system, and the Supreme Court has expressly approved of top two primary systems. See California Democratic Party v Jones, 530 U.S. 567, 585-86 (2000).”

The U.S. Supreme Court did not expressly approve of top-two systems in the 2000 decision that struck down blanket primaries. Justice Scalia wrote the 2000 decision that struck down the California blanket primary, and he added that a non-partisan system with no party labels would be constitutional. It is obvious that Justice Scalia did not mean in his dicta to approve of the type of top-two system used by California and Washington currently, because he dissented in the March 2008 decision Washington State Grange v Washington State Republican Party.

The U.S. Supreme Court didn’t think, in its March 2008 opinion, that the ballot access issue had been settled by the 2000 California blanket primary case. Otherwise, the March 2008 decision would not have included footnote eleven, which says the ballot access issue has not been decided and must be decided by lower courts.

The 9th circuit decision is also factually wrong, in the part of the decision that discusses freedom of association. The decision says, of the experimental evidence about voting confusion, that the ballots in the experiment differed from actual Washington state ballots. The decision is factually mistaken. The experimental ballots were an exact copy of actual Washington state ballots.

Petitioning in Virginia for minor party and independent candidates for President and both houses of Congress cannot begin until Virginia U.S. House boundaries are known. This is because statewide petitions have a distribution requirement; they need 400 signatures from each U.S. House district. Also, aside from that, presidential petitions cannot circulate before the districts are known because the petitions must carry the name of a presidential elector candidate who resides in each district.

The Virginia bills to redistrict the U.S. House seats are HB 251 and SB 455. The house bill passed the House on January 13, and both bills passed the Senate Committee that handles election law bills on January 17. However, the vote in the Senate Committee was 8-7. Democrats, who all opposed the bill, charge that the plan violates the Voting Rights Act. They also charge that because the Virginia Constitution says redistricting for U.S. House must be accomplished in the odd year after the census, any bill passed in the 2012 session of the legislature violates the State Constitution. See this story.

On January 18, the Delaware bill for the National Popular Vote Plan was heard in the Senate Administrative Services/Election Committee. After hearing testimony on both sides, the Committee chair decided not to bring the bill up for a Committee vote. The bill had passed the House last year by a vote of 21-19. See this story. One of Delaware’s Republican National Committee members testified against the bill.