On May 10, U.S. District Court Judge Jed Rakoff issued an 18-page opinion in Conservative Party v Walsh, southern district, 10 cv-6923. This is the lawsuit in which the Conservative Party of New York, the Working Families Party of New York, and the Taxpayers Party, sued to overturn a discriminatory New York state election policy on counting votes.

New York permits two parties to jointly nominate the same candidate, and generally when a candidate is nominated by two parties, he or she is listed twice on the ballot, so that a voter can vote for that candidate under either party label. Some misinformed voters invariably vote for such a candidate under both labels. New York credits this vote to the party that has the top spot on the ballot, which means, almost always, that the Democratic Party or the Republican Party gets that vote, and the smaller party does not. Judge Rakoff ruled against the state’s motion to dismiss the case.

A trial will now be held to determine if there is solution (to the problem of voters who cast a double-vote) that does not discriminate against smaller parties. The opinion has some excellent language in support of the idea that the U.S. Constitution does not permit states to discriminate against minor parties. The Brennan Center for Justice is representing the minor parties in this case. The Brennan Center did a great deal of litigation for minor parties and independent candidates in the years 2000 through 2003, but then seemed to lose interest in minor party and independent candidate election law problems. The Brennan Center has even injured minor parties in the litigation in Connecticut over discriminatory public funding, by defending the Connecticut law in court (the case is pending before the U.S Supreme Court). However, the Brennan Center did take this New York case last year, and is doing an excellent job with it.

On May 12, the 4th circuit heard arguments in Lux v Judd, 10-1997. This is the case that challenges Virginia’s law making it illegal for anyone to circulate a petition for a candidate for U.S. House of Representatives, if that petitioner doesn’t live in the district. The U.S. District Court had upheld the law. The plaintiff, Herb Lux, had tried to get on the ballot in 2010 as an independent. He doesn’t live in the district he was running in. The state invalidated all the signatures he had collected for himself, because he doesn’t live in the district. The U.S. Constitution provides that candidates need not live in the district they are seeking to represent, so Virginia accepted him as a potential candidate, but said only residents could circulate his petition.

The three judges were Allyson Duncan, a Bush Jr. appointee from North Carolina; G. Steven Agee, a Bush. Jr. appointee from Virginia; and David Norton, a Bush Sr. appointee from South Carolina. The state tried to argue that the case is moot, but the judges didn’t seem to accept that argument. The judges seemed surprised that the only state interest asserted by Virginia is that the residency requirement guarantees that the candidate has a modicum of support within the district. This is a weak argument, because ever since the U.S. Supreme Court decision Meyer v Grant in 1988, no state has been permitted to stop anyone from paying anyone else to circulate a petition. Therefore, since any candidate is potentially free to hire residents of the district and pay them, the residency requirement is clearly not an indicator that all the candidate’s circulators necessarily support him or her.

Washington Governor Christine Gregoire is set to sign HB 5119 on May 12. It eliminates the presidential primary. Also on March 12, the Kansas Senate passed HB 2080, which cancels that state’s presidential primary. Because the Kansas provision has passed both houses, it is extremely likely to be signed into law. The motivation for these bills in both states is to save money. Thanks to Frontloading HQ for this news. UPDATE: the Washington bill did get signed, as expected; see this story.