February 10 at noon was the deadline for Indiana candidates running in a primary to file. The Indiana Secretary of State’s web page now lists five candidates who filed for the Republican presidential primary ballot: Newt Gingrich, Ron Paul, Mitt Romney, Rick Santorum, and Patricia Inez Sandifer, who lives in Indiana. She only submitted one signature, her own. However, under Indiana law, anyone who files a petition for a primary ballot, no matter how few signatures, is on the ballot unless the person is challenged and the challenge succeeds.

On the Democratic presidential primary, only President Obama filed.

The challenge period in Indiana is now open, and closes next week. It seems somewhat likely that Rick Santorum will be challenged, because according to elections officials in Marion County, he does not have as many as 500 valid signatures from the 7th U.S. House district. The law requires presidential primary petitions to have 4,500 signatures, with at least 500 from each U.S. House district.

No one can predict if Patricia Sandifer will be challenged. Indiana’s policy of leaving candidates on the ballot, even if they didn’t submit the raw number of signatures required (assuming they aren’t challenged), only applies to primaries. Indiana would not print the name of someone on the general election ballot as an independent or minor party candidate if that person’s petition lacked the required number of signatures, whether anyone challenged or not.

The only state that leaves people on the November ballot, regardless of how few signatures they have, if they are not challenged, is Illinois. In 2008, an independent presidential candidate, John Joseph Polachek, filed one signature to be on the November ballot in Illinois, and no one challenged him, so he remained on the ballot.

The challenge system is basically subversive of democratic values, because typically, candidates are not challenged if they are not perceived as threatening to anyone, but they are challenged if they have the potential to receive a high vote total. So the challenge system perversely often means that the less support a candidate has, the more likely he or she is to appear on the ballot, relative to a candidate who has substantial support.

On February 10, three Montana corporations asked the U.S. Supreme Court to let them make independent expenditures in the 2012 election. The case is American Tradition Partnership, Inc., v Attorney General of the State of Montana, no number assigned yet. Here is the document.

On December 30, 2011, the Montana Supreme Court had ruled 5-2 that Montana’s law, making it illegal for corporations to make independent expenditures supporting or opposing candidates for state office, is constitutional. This decision seems to contradict the U.S. Supreme Court opinion Citizens United v Federal Election Commission, issued in 2010, and of course the request to the U.S. Supreme Court points this out. The document to the U.S. Supreme Court is not only a request that the U.S. Supreme Court take the case, but that the Court also issue a stay of the Montana Supreme Court’s ruling while the case is under consideration. Thanks to Thomas Jones for this news. UPDATE: the U.S. Supreme Court has already asked Montana to respond, and that response is due February 15, only five days from now. Thanks to Rick Hasen for the update.

On February 9, the Massachusetts State Supreme Court heard oral arguments in Libertarian Political Association v Galvin, sj 2011-0348. The issue is whether Massachusetts law lets unqualified parties use a stand-in presidential candidate on its ballot access petition, and then, if the stand-in withdraws, whether the state party can replace him or her with the actual presidential nominee of that party.

The state takes the position that unqualified parties can never replace the person listed on the petition with anyone else. Near the end of the hearing, when the attorney for the Secretary of State was speaking, Justice Ralph Gants asked what would happen if the person listed on the petition for either President or Vice-President were to die. Justice Gants wanted to use a concrete example, so he asked what would have happened if the person listed for vice-president on Ross Perot’s 1992 petition were to die after the petition had been submitted, and there was little or no time remaining for a new petition to be submitted by the deadline. The attorney for the Secretary of State said the Perot campaign would have been “out of luck”. That answer was the only logical response that could have been given, but it illustrated the problems with the state’s position. A decision will probably come fairly quickly.

On February 10, the U.S. Court of Appeals, D.C. Circuit, heard arguments in Libertarian Party v D.C. Board of Elections, over whether the U.S. Constitution requires the Board to count valid write-in votes for president at the general election. Judge David S. Tatel’s comments and questions seemed to indicate that he believes that the Board of Elections’ interest in saving money is more important than the right of voters to have their valid votes counted, but Judge Brett M. Kavanaugh seemed to have the opposite opinion. The D.C. Board already counts other kinds of write-ins. For example, in 2004, the D.C. courts ruled that the Board must count write-in votes in the Green Party’s primary, in a case called Best v D.C. Board of Elections, 852 A.2d 915. The third judge on the panel was Merrick Garland, and it was not easy to ascertain which way he leans.