U.S. Court of Appeals, D.C. Circuit, Asks Board of Elections to Respond to Libertarian Party Request for Rehearing in Case on Counting Write-ins

Posted on by July 19, 2012
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On July 19, the U.S. Court of Appeals, D.C. Circuit, asked the Board of Elections to file a response to the Libertarian Party’s petition for rehearing. The case is Libertarian Party v D.C. Board of Elections, 11-7029. This is the case over whether declared write-in presidential candidates are entitled to have their votes counted.

On June 8, a 3-judge panel in this court had upheld the Board of Elections policy of refusing to count the write-ins for declared presidential candidates. The Libertarian Party had then asked for a rehearing en banc. It is somewhat unusual for a court to ask for a response, when a petition for rehearing is filed. This means that the judges are seriously considering whether to grant a rehearing.

The original decision erroneously said that the Libertarian Party believes that all write-ins must be counted, when actually the party’s briefs have been very clear that the party only asks that the write-ins for the declared presidential candidates be counted. In 2008, Bob Barr was the only presidential candidate who filed to have his write-ins counted. Filing for write-ins status requires a certain amount of work, including finding three candidates for presidential elector who have lived in the District of Columbia for the past three years.

U.S. District Court in Alabama Refuses to Enjoin March Petition Deadline for Newly-Qualifying Parties

Posted on by July 19, 2012
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On July 19, U.S. District Court Judge W. Keith Watkins refused to enjoin Alabama’s March petition deadline for newly-qualifying parties. The case is Stein v Chapman, Middle District, 2:12-cv-42. His 19-page opinion says that the three plaintiff parties, the Constitution, Green, and Libertarian Parties, failed to show that the March deadline injured them.

The opinion acknowledges the U.S. Supreme Court precedent Anderson v Celebrezze, which struck down Ohio’s March 20 deadline for independent presidential candidates. It also acknowledges the 11th circuit opinion New Alliance Party v Hand, which struck down Alabama’s April petition deadline in 1991, at a time when Alabama only required signatures of 1% of the last gubernatorial vote, instead of the 3% currently required. But it says those cases submitted much more evidence about the harm done by the early deadlines. That is a peculiar conclusion. The point of precedent in law is that once a law has been declared unconstitutional, if a state continues to enforce that law (or if the state repeals the law but later restores it), plaintiffs in a new lawsuit should not be required to build an evidentiary record from scratch; the prior precedent is supposed to control.

The opinion mentions Bergland v Harris, which says that states have less interest in keeping presidential candidates off their ballot than in keeping other candidates off the ballot. But the opinion does not discuss Bergland v Harris; there is just a sentence acknowledging that the judge is aware of the decision.

The case is still alive, and a decision about declaratory relief is months away, and won’t effect the 2012 election in Alabama.

West Virginia Democrat Files Challenge to Extra Public Funding for Certain Publicly-Funded Candidates

Posted on by July 19, 2012
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On July 18, a Democrat who wants to contribute large amounts of money to a Democratic nominee for West Virginia Supreme Court Justice filed a lawsuit to stop extra public funding for a Republican nominee. The case is Callaghan v Tennant, 2:12-3419, southern district.

This is a switch, because generally, lawsuits against extra public funding for publicly-funded candidates who have well-funded opponents are filed by Republicans. The U.S. Supreme Court ruled in 2011 that extra public funding for publicly-funded candidates who have well-funded opponents violates the U.S. Constitution. There is a conceivable argument that the U.S. Supreme Court decision doesn’t apply to judicial races, so the outcome of this lawsuit is not completely predictable. The Republican candidate who would receive extra public funding if the law were upheld is Allen Loughry. He is the only candidate for Justice of the Supreme Court who even applied for public funding. West Virginia is electing two State Supreme Court judges this November, in partisan races. Here is a story about the case.