Kansas has registration by party, but the Kansas voter registration form does not have a blank line in which a voter can write in a party. The form mentions the qualified parties, so a voter in Kansas is forced to either register as an independent, or as a member of a qualified party. On August 8, the Constitution Party, which is not ballot-qualified in Kansas, filed this brief in the 10th circuit, in its lawsuit to force the state to let voters register into unqualified parties that are active in the state. The case is Constitution Party of Kansas v Kobach, 11-3152.

The 10th circuit already ruled in 1984 in Baer v Meyer, a Colorado case, that the Constitution requires states to let voters register into active unqualified parties. Kansas is in the 10th circuit. But the U.S. District Court still ruled in this case in favor of the state, saying that if there were a write-in space, perhaps the voter would have illegible handwriting and elections officials might not be able to read the party name. This ignores the obvious points that, first, the form asks voters to print; second, if this were a problem for the party name, theoretically it would be an even bigger problem for reading the voter’s name and address.

On August 5, Ohio Secretary of State Jon Husted mailed a letter to the Ohio Libertarian Party, saying he will not keep the Libertarian Party on the ballot for 2012. Obviously, his decision relates to the Constitution, Green, and Socialist Parties as well. Here is the letter.

His letter says he has no authority to keep the parties on the ballot for 2012. He did not mention all the evidence that the Ohio Libertarian Party had presented to him, showing that he does have such authority. Two previous Ohio Republican Secretaries of State, Robert Taft in 1996 and Ted W. Brown in 1971, felt they had such authority. In 1970 the Socialist Labor Party had won a ballot access decision against the petition requirement for new and minor parties, and the judges had put the SLP on the November 1970 ballot. In 1971 the legislature passed a new law, lowering the petition requirement from 7% of the last gubernatorial vote, to 1% of the last vote cast. Nevertheless, then-Secretary of State Ted Brown ruled that the SLP should also remain on the ballot for 1972, even though the party had polled less than one-half of 1% for Governor in 1970 and even though the new law required a 5% vote for that office for a party to remain on the ballot. Brown felt it violated due process to eliminate a party during the middle of the petitioning period.

Somewhat similarly, in 1996 then-Secretary of State Robert Taft ruled that even though the Reform Party did not have enough signatures on its party petition by the deadline, he would waive the petition deadline, for any party (including the Reform Party) that just wanted to appear on the November ballot for President and Vice-President, but no other office.

It is very likely that the Ohio Libertarian Party will bring a new lawsuit, very soon, arguing that the new ballot access law passed by the 2011 legislature is just as unconstitutional as the old one that was declared unconstitutional in 2006. The new law requires 38,525 valid signatures by the first week in February 2012, a deadline that the U.S. Supreme Court already invalidated in 1968. In another U.S. Supreme Court decision issued in 1971, the U.S. Supreme Court said that the Ohio petition deadline of early February had been “unreasonably early.”