Matthew Damschroder, Ohio Director of Elections, still has not decided whether his office will disqualify the Constitution, Green, Libertarian and Socialist Parties from the 2012 ballot. However, if he follows the precedent set by former Secretary of State Ted Brown in 1972, he will leave them on the ballot.

In 1970, the Socialist Labor Party won a lawsuit against the Ohio ballot access law for minor parties. That unconstitutional law required a party to submit a petition of 7% of the last gubernatorial vote in order to get on the ballot, and to poll 7% of vote for the office at the top of the ballot in order to remain on the ballot. In response, in 1971 the legislature lowered the petition to 1% of the last vote cast, and lowered the vote test to 5%.

The Socialist Labor Party had not met the new 5% vote test in 1970. It only polled .44% for Governor in 1970. Also in 1970, the American Independent Party only polled 1.93% for Governor. Nevertheless, Secretary of State Ted Brown left the two parties on the ballot for 1972.

In November 2010, none of the ballot-qualified minor parties polled as much as 5% for Governor, nor had they petitioned in 2010. They were on the ballot in 2010, and 2008, because the old ballot access law had been held unconstitutional in 2006, and the legislature had not passed a new law. Therefore, the position of those four modern-day minor parties is perfectly analogous to the sitution in 1972 for the Socialist Labor and American Independent Parties. By precedent, the current Ohio Secretary of State ought to leave the four minor parties on the ballot in 2012.

On June 29, a U.S. District Court in Florida invalidated part of Florida’s public funding program for gubernatorial candidates. Struck down is the provision for extra public funding for publicly-funded candidates who have privately-financed opponents with a great deal of resources. The decision was no surprise, given the U.S. Supreme Court’s ruling in the similar Arizona case on June 27.

The Florida case is Scott v Roberts, northern district, 4:10-cv-283. This case had been filed by Rick Scott when he was running for Governor. Now, of course, he is Governor. Scott had filed the case to stop extra public funding from going to his Republican primary opponent, Bill McCollum.

On June 29, the Ohio House again passed HB 194. It had already been passed by the Senate. The House then (on June 29) accepted the Senate’s amendments, so the bill is through the legislature. The bill moves the presidential primary to the first week in May, and sets the petition deadline for new parties at 90 days before the primary. This gives Ohio a petition deadline that is almost certainly unconstitutionally early, even though the bill does improve the deadline. There are no reported decisions that uphold a petition deadline that early, and there are 15 decisions that strike down petition deadlines that early, including Williams v Rhodes, a U.S. Supreme Court decision.

The old deadline, in November of odd years, was declared unconstitutional in 2006, and Ohio officials will now probably say that HB 194 cures the constitutional infirmity.