On December 22, the 9th circuit issued a 29-page opinion in Drake v Obama, 09-56827. The case had been filed on January 20, 2009, a few hours after President Obama had been sworn into office. Among the plaintiffs were Alan Keyes, his vice-presidential running mate Wiley S. Drake, and Markham Robinson. Keyes and Drake were on the November 2008 ballot in California as the American Independent Party nominees.

The decision says that none of the plaintiffs have standing. The decision suggests that if Keyes and Drake had filed the lawsuit while the 2008 election was proceeding, they might have had standing. But it says the election was over when the lawsuit was filed, and that they haven’t alleged they will run again in 2012 against Obama. Thanks to Bill Van Allen for this news.

The petition deadline for candidates seeking a place on the Virginia Republican presidential primary is today. The State Board of Elections will remain open somewhat later than usual today, because some Republican presidential candidates haven’t filed yet, and may be filing at the very last minute. The requirement is 10,000 signatures, the toughest mandatory presidential primary requirement of any state. The petition must include at least 400 signatures from each U.S. House district. Any registered voter may sign.

Newt Gingrich told the press that he will submit at least 14,000 signatures, and maybe as many as 15,000. See this story.

Traditionally, presidential primary petitions are not checked for validity. An independent candidate in Virginia is suing over the policy that says general election petitions are checked for validity, whereas primary petitions are deemed to be sufficient.

Texas has a unique law which requires parties that intend to qualify by petition to notify the state that they intend to do that. The intention form is due January 2, 2012. Here is a link to the form.

The requirement discriminates against parties that are formed in the spring of election years, because by then it is too late to complete the form. If Texas had had a law like this in 1912, Theodore Roosevelt could not have put his new Progressive Party on the ballot, because even the idea for the party did not occur to Roosevelt until after Roosevelt failed to get the Republican presidential nomination in June 1912. Similarly, Strom Thurmond and his States Rights Party did get on the ballot in Texas in 1948, because Texas did not have this law back then. Thurmond’s party was not created until July 1948.

The law was passed in 1993 and has never been challenged in court. There is no election administration-related need for the form, because a party can’t begin to petition until after the primary anyway. in 2012 a party can’t begin to petition until April. If a new party were formed in the spring of 2012 that had not existed as of January 2, 2012, it would seem to be in a position to challenge the law, especially as applied to a presidential election.

The last time that a new party was formed in the United States in the election year itself, and which proved to have a fairly strong ability to get on ballots, was the Natural Law Party. It was formed in April 1992. Of course, the Texas law didn’t exist that year. Since the formation of the Natural Law Party in 1992, all the new parties formed in the U.S., and which had any heft, have been formed in the odd years before the election.