Elena Kagan, President Obama’s pick for the U.S. Supreme Court, has never been a judge. Therefore, we don’t know for certain anything about her views on ballot access.

But, she clerked for Judge Abner Mikva, and also U.S. Supreme Court Justice Thurgood Marshall. Both were very good judges who cared about justice for minor parties and independent candidates. Judge Mikva was on the U.S. Court of Appeals, D.C. Circuit. The D.C. Circuit never hears ballot access cases, but it does hear cases on presidential debates. In 1991, Mikva cast a very favorable vote in Fulani v Brady, a case concerning the Commission on Presidential Debates. Fulani lost the case by a 2-1 vote, but Mikva dissented. The plaintiff was Lenora Fulani of the New Alliance Party. She had been that party’s presidential nominee in 1988, the year she filed the lawsuit. She had been on the ballot in all 50 states, yet the Commission on Presidential Debates refused to include her in the general election presidential debates. She sued the U.S. government, arguing that the Commission should not enjoy tax-exempt status, since it was not neutral, but was instead making a very large boost for the two candidates who were invited into the debate, Michael Dukakis and George H. W. Bush.

Justice Thurgood Marshall cast votes favorable to ballot access in almost every ballot access case he heard. Kagan was his law clerk in the 1987-1988 term.

Scotusblog has an article about Kagan, but of course it doesn’t discuss ballot access or any other election law issue except campaign finance. Kagan has been the Solicitor General, so her job required her to defend the McCain-Feingold law last year.

The Orange County Register has this editorial, opposing California’s Proposition 14, the top-two election measure.

The editorial does seem to suggest that a true open primary would be an improvement. See the fifth paragraph. An “open primary”, as defined in political science books and U.S. Supreme Court decisions for over 100 years, is a primary in which any voter is free, on primary day, to choose any party’s primary ballot. But, each party has its own primary ballot and its own nominees. The open primary originated in Wisconsin in 1907, and today almost half the states use an open primary. They are popular. True open primaries do not restrict choices in the general election. By contrast, Proposition 14 gives voters only two choices on the November ballot and does not permit write-ins to be counted.

Proponents of Proposition 14 have tried to mislead California voters by constantly referring to their measure as an “open primary.” But, top-two systems have been on state ballots four times now, and they have never been described as “open primaries” on any state’s ballot. In 2008, the Oregon Supreme Court refused to permit a top-two ballot measure to be labeled “open primary”; and in 2004, a California Superior Court also refused to allow that label.

In 2008, the Oregon ballot label was, “Changes general election nomination processes.” In Washington in 2004, the label was, “Concerns elections for partisan offices.” In California in 2004, it was, “Elections. Primaries.” This year in California, the title is simply, “Elections.”

The Orange County Register assumes that a top-two system produces more moderate office-holders. The evidence does not support that conclusion, and it is unfortunate that the Register didn’t acknowledge that point.

So far, every major California newspaper that has taken a position on Proposition 14 has stuck to the same position it had in November 2004 for the earlier top-two measure, Proposition 62. So far, every newspaper that was in favor of Proposition 62 back then is for Proposition 14 today. And every newspaper that was opposed in 2004 is opposed this year. The most prominent newspaper besides the Orange County Register that has taken a “No” position, this year, is the San Francisco Bay Guardian. Both newspapers also opposed Proposition 62 in 2004.

This year, none of the newspapers that have editorialized in favor of Proposition 14 invited any opponents of the measure to speak to their editorial boards, except that the Sacramento Bee did hear from both sides before it endorsed Proposition 14.

The Detroit Free Press has this story about Joe Schwarz, a former Republican member of the U.S. House who has been pondering whether to be an independent candidate this year for Governor of Michigan. He still seems undecided. The petition deadline is July 15.

If Schwarz runs as an independent, he needs 30,000 valid signatures. If he creates a new party and runs as its gubernatorial candidate, he needs 38,024 valid signatures. In Michigan, new parties nominate by convention, so a “Joe Schwarz Party” or a “Moderate Party” would be free to nominate only for Governor-Lieutenant Governor, and have no nominees for any other office.

The advantage to creating a new party is that the new party would have its own straight-ticket device, whereas an independent candidate has no straight-ticket device. Also, if Schwarz created a new party and were elected, that new party would be ballot-qualified automatically in 2012 as well, and at that point, a Governor Schwarz might get a boost in the middle of his term if such a party ran legislative candidates in 2012 pledged to support his program.

The Free Press is in error to say that Jesse Ventura was an independent candidate for Governor of Minnesota in 1998. Ventura was the nominee of the Reform Party, which recruited him and then nominated him in its primary.