On August 12, a lower state court in Colorado ruled that Saguache County, Colorado, must turn over its ballots from the August 2010 primary, and the November 2010 general election, for a hand recount. The Secretary of State’s office will do the recount. The Secretary of State has been working for this outcome for several months. See this story. Several lawsuits have been filed by individuals and groups who do not believe the ES&S machine count was accurate.
On August 12, the Massachusetts Libertarian Party filed a request with the Massachusetts Supreme Judicial Court, that the Court accept the party’s lawsuit on whether the election law permits stand-in presidential and vice-presidential candidates on petitions. Everyone agrees that the election law permits stand-ins on petitions for other office (relative to independent candidates, and to the nominees of unqualified parties), but the law is not clear on whether stand-ins are permitted for President, Vice-President, and presidential elector. The case is Libertarian Assn. of Mass. v Galvin, sj2011-0348.
Earlier this year the First Circuit ruled that the U.S. Constitution does not requires states to permit stand-ins on candidate petitions, but the First Circuit also said that the law is unclear and a state court should construe the law. In some states, there is no need for stand-ins, because the petition doesn’t require any candidates to be named. But in other states, stand-ins are important, because otherwise minor parties must hold their presidential conventions very early in the season, so as to have enough time to petition. States that do permit presidential stand-ins include Connecticut, Illinois, Indiana, Kentucky, Missouri, New York, Ohio, Pennsylvania, Virginia, and West Virginia. Massachusetts permitted it in past years, but arbitrarily refused to permit it in 2008 for the Libertarians, even though earlier the state had told the party that it would permit it that year.
On August 12, the Ohio Supreme Court unanimously rejected a challenge to the validity of a statewide initiative petition. Here is the 3-page decision. Opponents of the initiative had charged that the petition is invalid because not all of the paid petition circulators filed a compensation statement. Opponents had also charged that the petition is invalid because some of the circulators had listed as their employer the name of the group that is sponsoring the initiative, instead of listing the company that had been hired to gather the signatures. The case is Rothenberg v Husted, 2011-4003.
The initiative will now appear on the November 8, 2011 ballot. It adds a state constitutional provision that says “No federal, state or local law shall compel, directly or indirectly, any person, employer, or health care provider to participate in a health care system.”
On August 11, Washington state filed its brief in the 9th circuit in Washington State Republican Party v State, 11-35122. The state’s brief is 89 pages. It argues that even if the evidence shows that voters are confused by the party labels that appear on Washington state ballots, the system is constitutional. On page 35, the state says confusion exists “in any electoral system”…”confusion about political facts – particularly about matters relating to political parties and political processes – is the norm among voters.”
As to the Libertarian Party’s ballot access arguments, the state quotes selectively from a 1986 U.S. Supreme Court decision, Munro v Socialist Workers Party, 479 U.S. 189. In that 1986 decision, the U.S. Supreme Court upheld Washington state’s old law, which required a candidate who wanted to be on the general election to poll at least 1% of the total primary vote in the state’s blanket primary. The state’s brief quotes from dicta in that case on page 199, which said, “Because Washington affords a minor-party candidate easy access to the primary election ballot and the opportunity for the candidate to wage a ballot-connected campaign, we conclude that the magnitude of 29.18.110’s effect on constitutional rights is slight.” This is dicta, because the case did not involve a system that kept all minor party and independent candidates off the November ballot. As the decision says in footnote eleven, a majority of minor party and independent candidates who ran in Washington state under the old system went on to poll more than 1% of the primary vote and to advance to the November ballot.
The state’s brief does not mention the Munro holding on pages 197-198 that the 1% primary vote test is constitutional because of the U.S. Supreme Court’s prior ballot access cases on petition requirements for getting on the November ballot. In Munro, the U.S. Supreme Court said, “We are unpersuaded, however, that the differences between the two mechanisms are of constitutional dimension…requiring candidates to demonstrate such support is precisely what we have held States are permitted to do.” In other words, because the U.S. Supreme Court had previously held that states could require petitions of up to 5% of the electorate as a condition of a candidate appearing on the general election ballot, and because there is no difference between a petition and a primary vote test, then obviously a primary vote test of up to 5% would also be constitutional. But, in the Washington state top-two system, prior experience shows a candidate needs a vote of 30%, on the average, to place second. 30% is far too high to be constitutional.
The Grange also filed a brief on August 11, on the side of the state. However, it is much shorter than the state’s brief, and says nothing about ballot access.
Brookfield, Connecticut, like all cities and towns in Connecticut, has partisan local elections. According to this story, Brookfield also has a law that requires that appointed commissioners may not all be from the same political party. Currently the only qualified parties for Brookfield elections are the Democratic and Republican Parties. However, Republicans are in the process of creating a new municipal party called the Brookfield Party. Assuming the party polls at least 1% of the vote in the November 2009 election, members of that party will be eligible to serve on the minority slots on town commissions. That way, there will be no legal obligation that Democrats be appointed to any of those slots.
