On July 20, the U.S. Court of Appeals, 4th circuit, upheld a South Carolina law that limits the usefulness of fusion.  South Carolina permits fusion (the practice of letting two parties jointly nominate the same candidate).  However, South Carolina law also says that if a candidate tries for two nominations, and loses one nomination but gains another party’s nomination, the fact that the candidate lost the battle for one party’s nomination also cancels out the other nomination.  The Court upheld that law.  The decision, South  Carolina Green Party v State Election Commission, 09-1915, is 14 pages.

The case had been filed by the South Carolina Green Party, which had nominated a candidate for the legislature early in 2008.  When that candidate, Eugene Platt, then also tried to get the Democratic nomination, he lost the Democratic primary and then he couldn’t even run as the Green Party nominee in November.  The Court said this was not a severe burden on the Green Party because the Green Party was free at that point to substitute some other candidate.

The opinion makes no reference to the recent events in the South Carolina U.S. Senate election, in which the leadership of the Democratic Party had supported a former state legislator, Vic Rawls, who had won the Working Families Party nomination, but then lost the Democratic primary in a surprise upset.  If the Green Party had won this case, then the Democratic Party’s preferred candidate this year would have been able to appear on the November ballot as the Working Families Party nominee.

In South Carolina, any qualified party is free to nominate either by convention or by primary, but the practice is that the major parties always choose to nominate by primary, and the other parties always choose to nominate by convention.  One might imagine that a minor party convention might consider nominating a particular major party person at its convention, but then reject that person and thereby cause that major party member to be ineligible for the major party nomination.  This scenario never happens, because no candidate may be considered for a minor party nomination if that candidate doesn’t file a declaration of candidacy.  So a major party member simply refrains from filing a declaration of candidacy in time to be considered at a minor party convention.

One of the leading ways that minor party members ever get elected to state legislatures is through fusion, in which a minor party member gets his or her own party’s nomination, and then is also able to win a major party nomination.  Most of the Libertarians who have been elected to state legislatures in the party’s history have won this way.  The opinion does not acknowledge this point.

On the evening of July 19, the West Virginia legislature passed HB 201, and Governor Joe Manchin has already signed it.  The bill sets up procedures for a special election for U.S. Senate this November.  The bill is ambiguous about independent candidates, and the nominees of unqualified parties.  It can be construed to mean than an independent, or the nominee of an unqualified party, may run if he or she pays a filing fee this week, and then submits a petition signed by 7,024 valid signatures by August 27.  UDATE:  the final version of the bill, which had not been available when this post was first written, shows that the signatures are due August 23.

If the new law is construed to mean that independent candidates, and the nominees of unqualified parties, must submit the petition by July 23, then it would be unconstitutional under Mathers v Morris, 649 F.2d 280, a 4th circuit opinion from 1981 that said when special elections are called with little notice, the normal deadline must be extended.  West Virginia is in the 4th circuit.

In any event, the three qualified parties are free to nominate someone with no petition.  The three qualified parties are the Democratic, Republican, and Mountain Parties (the Mountain Party is the West Virginia affiliate of the Green Party).  The Mountain Party is free to hold a nominating convention or hold a primary, and the two major parties will nominate by primary held on August 28.  The bill permits Republican Congressmember Shelley Capito to run simultaneously in November 2010, both for her U.S. House seat, and the U.S. Senate seat.  UPDATE:  the latest version of the bill, according to Jeff Becker, is not posted on the legislature’s web page.  But it apparently says independent candidates, and the nominees of unqualified parties, need one-fourth of the usual number of signatures, which means they need 1,756 valid signatures.  It is not clear what the deadline for those signatures is.