As noted earlier, a Republican candidate for State Senate in California filed a lawsuit on February 2, 2010, to force the Secretary of State to enforce Article IV, sec. 2(c) of the State Constitution. That provision, since 1879, has required candidates for the legislature to have lived in the district for a year before the election. California Secretaries of State have not been enforcing it since 1975, when the State Supreme Court ruled that California’s duration of residency laws for candidates violate the U.S. Constitution.

The recent lawsuit, filed by Heidi Fuller to keep her opponent, Tom Berryhill, off the ballot, had been filed in the State Court of Appeals in Fresno. That was the wrong place to file the case. California election law requires such lawsuits to be filed in Superior Court in Sacramento. The case, Fuller v Bowen, has now been re-filed in Sacramento, where it is in front of Judge Frawley, 34-2010-80000452-CU-WM-GDS.

This story from the Lodi Sentinel erroneously says the U.S. Supreme Court in 1972 struck down a law requiring candidates to have been a resident of the district for one year. That is not true. The 1972 case, Dunn v Blumstein, struck down residency requirements for voters, not candidates. In 1975 the U.S. Supreme Court summarily affirmed a lower court decision upholding a 7-year residency requirement for candidates for New Hampshire State Senate. Also in 1982, the U.S. Supreme Court ruled in Clements v Fashing that there is no constitutional right to be a candidate. Note that Clements v Fashing is not a ballot access case; it relates to whether a particular individual may hold the office, not whether any individual should be on the ballot.

On February 18, the Vermont House passed S117, the bill to move the primary from September to August. Unfortunately the House also amended the bill to move the petition deadline for independent candidates, and the nominees of unqualified parties, from September, to the second Thursday after the first Monday in June. In 2010, that would be June 17.

S117 passed the Senate last year, so now the bill returns to the Senate. The date change is certainly unconstitutional as to presidential independent petitions, and almost certainly unconstitutional for candidates for other office as well. The ostensible change, from September to June, is to prevent “sore losers”. However, if the only state interest is to outlaw “sore losers”, the sensible approach is not to move the deadline ahead three months, but to simply say that someone who runs in a primary and loses is not eligible to be on the general election ballot by petition.

The U.S. Supreme Court ruled in Anderson v Celebrezze in 1983 that independent presidential candidate petition deadlines in the first half of the year are unconstitutional. Except for an oddly deviant decision from Texas in 2004 (Nader v Connor), no state has won declaratory judgment for any independent presidential petition deadline that is earlier than July 15, since before 1983.

For office other than president, courts have ruled that independent petition deadlines cannot be earlier than primary day. Such decisions have been won in Alabama, Alaska, Illinois, Indiana, Kansas, Kentucky, Maine, Maryland, Massachusetts, New Jersey, Ohio, Pennsylvania, and South Carolina.

On February 22, the Colorado House Judiciary Committee unanimously passed HB 1271, the bill to shorten the prior registration period for independent candidates. Existing law says no one can be an independent candidate if that person was a registered member of any qualified party, for even one day, in the 17 months before the election. The bill shortens that to January 1 of an election year.