This Chicago Tribune article reveals that Rahm Emanuel’s voter registration in Chicago was switched to “inactive” status after the post office returned mail sent to the address in Chicago at which he is registered to vote. Emanuel has been President Obama’s chief of staff but is now the leading candidate for Mayor of Chicago in the February 2011 non-partisan election. However, the Chicago city charter requires candidates to “reside” in Chicago for the year before running. Although Rahm can make a convincing argument that his domicile has long been in Chicago, there is a legal difference between a person’s domicile and his or her residence.
In a massive defeat for ballot access for minor parties, on November 16 the First Circuit ruled that the Constitution permits the states to let qualified parties make a substitute nomination, but does not require that the state extend the same ability to non-qualified parties. The case reverses the U.S. District Court’s decision in Barr v Galvin, the Massachusetts decision that enabled Bob Barr to be listed on the Massachusetts ballot in 2008. The 30-page opinion is Barr v Galvin, 09-2426.
The 30-page decision says that allowing the qualified parties to substitute, but not allowing the unqualified parties to substitute, does not violate Equal Protection because all parties have an equal right to become ballot-qualified. New and minor parties may theoretically do this in advance of any election by persuading at least 1% of the voters to register as members of that party on their voter registration forms. Massachusetts has permitted this procedure for 20 years, but no new or minor party has ever been able to comply with it. The opinion ignores the U.S. Supreme Court’s admonishment in Jenness v Fortson that “sometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike.”
Any well-written opinion mentions precedents that disagree with the holding of the decision. This new First Circuit decision, by contrast, simply ignores all the precedents that say substitution is constitutionally required. Three federal courts (two from Florida, and one from Virginia) had previously ruled that the Constitution does require substitution, and the opinion does not mention any of those precedents. All states permit qualified parties to make substitutions. The most conspicuous example occurred in 1972, when the Democratic national convention in July chose Thomas Eagleton for vice-president, but the Democratic National Committee in August substituted Sargent Shriver.
Worse, the opinion does not discuss the core finding of Anderson v Celebrezze, the 1983 U.S. Supreme Court decision that said states cannot discriminate against independent candidates, and unqualified parties, in the matter of timing. Anderson v Celebrezze said that if states let the qualified parties have until late summer to firm up their national tickets, states must extend the same freedom to others. Anderson v Celebrezze is the case most on-point, and the First Circuit did not discuss it.
The opinion says that a Massachusetts state court should interpret the statute, to determine if the statute actually does permit unqualified parties to participate in presidential substitution. As to the Libertarian Party’s point that the state did permit the Reform Party and the Constitution Party to engage in substitution in the past, footnote five says those parties were having their national conventions in August, so the state was justified in letting them engage in substitution, but not letting the Libertarian Party engage in substitution. The Libertarian Party national convention had been May 23-25, 2008, and the petition deadline in Massachusetts is in July. The opinion says there was time for the party to circulate a petition with Bob Barr’s name on it during June and early July. But of course, this point (about special treatment for minor parties that nominate in August) just shows that the state has no real interest in preventing substitution, or it would be banned in all circumstances.
Maine lets any voter vote early, starting in mid-September. Eliot Cutler, who came within 10,000 votes of being elected Maine’s independent Governor this year, has this Wall Street Journal op-ed, criticizing the Maine system. He makes the point that it distorts the collective decision of the voters when the voting period extends over such a long period of time, because many voters vote before the campaign is complete. Thanks to Tim Brace for the link.
Modern Times Magazine has a lengthy story about the Constitution, Green and Libertarian Parties on its web page. See here.
The Colorado Constitution Party only had 1,271 registered members in June 2010. Now it has 2,731. That is still very small, but the rate of growth is unusual. It is almost unheard of for any party to double its registration in a short time, unless it is doing a registration drive to qualify for the ballot. It seems clear that the growth is related to the publicity the party received when Tom Tancredo became its gubernatorial candidate.
Party registration statistics are slow to change. Even though the Republican Party is the dominant party in the south, the Democratic Party still has substantially more registered members than the Republican Party in all the southern states that have registration by party. The only states in which the Republican Party has more registered voters than the Democratic Party are Alaska, Arizona, Colorado, Kansas, Nebraska, New Hampshire, South Dakota, Utah, and Wyoming.