On July 12, Montana’s Attorney General submitted this 72-page brief in Kelly v McCulloch, 10-35174, the ballot access case pending in the 9th circuit.  The case had been filed in U.S. District Court in 2008 on behalf of an independent candidate for the U.S. Senate, Steve Kelly.  The U.S. District Court had ruled earlier this year that Kelly lacks standing.

The chief complaint against Montana is that in 2007, the Montana legislature moved the petition deadline for non-presidential independent candidates from June to March.  The case also challenges the number of signatures, 5% of the winning candidate’s vote for that office in the last election.  No statewide independent candidates have qualified for office (other than President) in Montana since 1994, when Kelly himself qualified as an independent candidate for U.S. House-at-large.  Independent presidential candidate require fewer than half the number of signatures that are required for non-presidential independents, and also independent presidential candidates have a deadline that is five months later.

The U.S. Supreme Court has ruled three times that independent or minor party candidates have standing to challenge ballot access restrictions, even if that minor party or independent candidate submits no signatures.  Those three cases involved the Socialist Labor Party in Ohio in 1968, independent presidential candidate Eugene McCarthy in Texas in 1976, and independent presidential candidate Gus Hall in California in 1972.  Also, the 9th circuit in Erum v Cayetano in 1988 said that even a voter has standing to challenge a ballot access law, and Kelly’s case has a voter co-plaintiff.  Despite these precedents, the state labors at great length to persuade the 9th circuit that Kelly lacks standing because he didn’t submit any signatures, nor pay the filing fee, nor publicly announce his candidacy before filing the lawsuit on April 8.

The state also repeatedly emphasizes that Montana has had many minor party candidates on the ballot during the last 121 years.  However, this is not surprising, because Montana required no petition whatsoever for minor parties from the start of government-printed ballots in 1889, until 1969.  And even today, Montana requires fewer than half as many signatures for minor parties as for non-presidential statewide independent candidates.  In any event, the U.S. Supreme Court said in Storer v Brown in 1974 that states must have constitutional ballot access procedures for independent candidates, separate from ballot access procedures for new or previously unqualified parties.

On July 13, the Georgia petition deadline for independent candidates, Mary Norwood submitted approximately 32,000 signatures.  She is an independent candidate for Chair of the Fulton County Commission, and she needs somewhat more than 22,000 valid signatures.

It is not clear if she can win any relief from the problem that her declaration of candidacy on July 2 was four hours late.  She will seek administrative relief from the Fulton County Election Board, and if she is denied any relief there, she will sue to overturn the requirement that independent candidates must pay the filing fee and submit a declaration of candidacy before the petition itself is due.  The Georgia primary is on July 20, with any needed run-off on August 10.  UPDATE:  the County Elections Board voted 3-1 not to excuse the late filing.  See this story.  The County will nevertheless check her signatures, in case she wins a court ruling against the deadline.  This probably means that a court will also need to decide whether to accept as valid her petition sheets in which the name of the county was pre-printed on each line.  Because she was running for county office, she used petition forms at the beginning of her drive in which the name of the county was pre-printed, to save the signer from the bother of adding the county name as well as the voter’s name, address, and date of signing.  Earlier a court refused to decide the issue, because at the time it was speculative as to whether it would make any difference, but now it probably will make a difference, if she gets relief from the filing deadline.

On July 13, a Reuters/Ipsos poll was released for the U.S. Senate race in Florida.  Independent candidate Charlie Crist has 35%; Republican Marco Rubio 28%; Democrat Kendrick Meek 17%.  See this story.

The Florida primary has not been held yet, and it is possible the Democratic nominee will be Jeff Greene, not Kendrick Meek.  But when the poll asks the same question, only assuming Greene is the Democratic nominee, Crist still has 35%.

It seems obvious that if Florida had a public funding law like Connecticut’s, which was applicable to U.S. Senate, the results would be different.  Requiring Crist to submit a petition of 20% of the last vote cast in Florida, as a condition of receiving public funding, and also requiring him to collect qualifying contributions, while at the same time relieving Rubio of the need to collect any signatures, would create a huge imbalance in funds available to each candidate.