Law Professor Rick Hasen, whose blog is ElectionLawBlog.org, sometimes allows guest posters. Here is a link to a guest post by Professor Darry Sragow, which is fairly lengthy, and which defends Americans Elect against various criticisms made by Hasen himself, and others, of Americans Elect.

One minor criticism of the Sragow article is that implies that California requires 1,030,080 valid signatures to qualify a new party. The piece is referring to the California procedure that says if a new party wishes to qualify by petition, it needs the signatures of voters equal to 10% of the last gubernatorial vote. But California does not require new parties to qualify by petition; instead they may qualify if they persuade 103,008 voters to fill out voter registration cards, listing themselves as members of the new group. Both choices are far too difficult, but it is not strictly accurate to say that California requires over 1,000,000 signatures. If the only method for a new party to get on the California ballot were a petition of 10%, then the California law would be unconstitutional. All mandatory ballot access requirements for new parties, and for independent candidates, in excess of 5% of the number of registered voters, have long ago been held unconstitutional. Such cases have been won in Arkansas, Illinois, North Carolina, and Ohio.

Michael Medved has this opinion piece, titled, “Constitution Kills Third Party Bid.” His thesis is that the electoral college makes it impossible for a new party to win the presidency, and therefore no new party will ever replace the Democratic and Republican Parties.

This ignores the fact that the U.S. had the same Constitution (for the most part) in the 19th century, and three times in the 19th century, a new party rose to power on the ashes of an old major party. The Federalist Party died out after 1818 and was replaced by the National Republican Party, the party that ran John Quincy Adams for President in 1828 and Henry Clay for President in 1832.

The National Republican Party died out after 1834 and was replaced by the Whig Party, which continued to exist until the eve of the Civil War, although it didn’t run anyone for President in 1856 and 1860. The Republican Party, which had been formed on July 6, 1854, quickly became a major party.

It is true that the Electoral College system injures a new party, by providing that if no one gets a majority of the electoral college vote, then the U.S. House picks the President, with each state getting one vote. Even though the newly-elected U.S. House, not the outgoing House, chooses the President in January (if no one received an electoral college majority in December), and even though in theory a new party could have also done well in the U.S. House elections, this is a significant problem for new major parties.

December 7 is the deadline in Ohio for petitions to get on the primary ballot. The Washington Times reported that Newt Gingrich probably would fail to submit petitions on time, but then other newspapers reported that the Washington Times is story is not really accurate.

Ohio doesn’t require any petitions for presidential candidates to appear on the primary ballot, but does require 50 signatures for the presidential candidate’s delegates from each U.S. House district, for major party presidential primaries. Because the presidential primary delegate selection process is tied to separate contests in each U.S. House district, it is possible for a candidate to be on the ballot in some U.S. House districts and not others. Also, it means that Ohio can’t hold a presidential primary until it has its U.S. House district boundaries settled.

Because Ohio is late to have its U.S. House district boundaries known for sure, the legislature passed a bill earlier this year moving the presidential primary and the U.S. House primary to June 14. So, even though under the existing law all presidential primary petitions are due today, along with U.S. House petitions, the Secretary of State expects to have a second, later deadline for those kind of petitions as soon as the district lines are settled. That is why Gingrich will get another chance to submit primary petitions later.

Here is the original Washington Times story, which is very worth reading, because it quotes various Republican Party leaders who say the ballot access process for presidential primaries is ridiculously complex and burdensome. And it is, but anyone who says the presidential primary petitioning process is too difficult really ought to look at the process for minor party and independent candidate ballot access. Here is a later story from the Cleveland Plain Dealer. Thanks to Rick Hasen for the links.