On May 6, the U.S. Court of Appeals, 3rd circuit, rejected a case filed in 2008 by Chuck Baldwin, presidential nominee of the Constitution Party that year. Here is the 8-page decision in Baldwin v Cortes, 09-2227.
The Pennsylvania election code says that minor party and independent candidate petitions are due in early May in presidential election years. However, the state does not enforce this deadline. The Libertarian Party and the Communist Party had both sued Pennsylvania in 1984, arguing that the petition deadline is unconstitutional. The state felt it could not defend the May deadline, so it signed a consent decree promising to accept petitions until August 1. But, in all those 26 years, the legislature has never amended the election code to put the August 1 deadline in the law.
In 2008, a U.S. District Court in Ohio ordered the Secretary of State to put the Libertarian Party, and the Socialist Party, on the ballot with no petition. The basis was that Article II of the U.S. Constitution says only state legislatures (not “states”) can write election laws for presidential elections. Because Ohio’s ballot access law had been held unconstitutional in 2006, and the legislature had not replaced it, the Secretary of State had drafted emergency regulations cutting the number of signatures in half. The court in Ohio said only legislatures can write ballot access restrictions, and left Ohio with no petition requirement for new parties. So, in 2008, when the Constitution Party didn’t finish its Pennsylvania petition until August 26, and the state rejected its petition for being late, the party filed a lawsuit, hoping to use the Ohio precedent to avoid being subject to the August 1 deadline.
The 3rd circuit says, “Unlike the Ohio Secretary of State in Brunner, here the Secretary of the Commonwealth promulgated no new rule. Instead, the Secretary merely enforced a rule that had been in place by court-approved consent decree since 1984.” The 3rd circuit decision does not actually say whether it agrees with the theory used in Ohio.