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.”

On August 8, a 3-judge U.S. District Court in Washington, D.C., upheld the federal laws that make it illegal for aliens who are not admitted for permanent residency from spending money advocating the election or defeat of candidates for federal office, or for donating money to political parties. The 18-page decision is here. The case is Bluman v FEC, 10-1766.

The decision says, “It is fundamental to the definition of our national political community that foreign citizens do not have a constitutional right to participate in, and thus may be excluded from, activities of democratic self-government.” The decision also notes that the two plaintiffs are citizens of countries that would not permit a U.S. citizen who lived in those countries (Canada and Israel) to spend money to influence candidate elections in those countries. Finally, the decision notes that neither plaintiff is willing to say that he wants to become a resident alien.

The decision did not decide what would happen if Congress should also make it illegal for permanent-residency aliens to spend money to influence U.S. federal elections. But the decision notes that permanent-residency aliens may serve in the U.S. armed forces, whereas non-permanent aliens may not. The decision has an interesting discussion of which constitutional rights apply to non-resident aliens, and which parts don’t. Thanks to Rick Hasen for the link.