The Los Angeles Times of January 28 has this op-ed by Stephen Weissman, associate director for policy for the Campaign Finance Institute between 2002 through 2009. Thanks to Rick Hasen for the link.
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On January 28, the Delaware Senate passed HB 245, so now it goes to the Governor. The bill takes effect as soon as the Governor signs it. UPDATE: the Governor signed it on February 1. The bill doubles the number of registrants for a party to be recognized from one-twentieth of 1%, to one-tenth of 1%.
There are court precedents that say it violates due process for a state to increase ballot access requirements in an election season and then implement that change in that very same election year. They are: (1) Campbell v Bennett, 212 F Supp 2d 1339 (Alabama 2002); (2) Arizona Green Party v Bennett, injunction granted January 15, 2010; (3) four precedents from Michigan in 1988, all unreported, called Fulani v Austin, McCarthy v Austin, Warren v Austin, and Holmes v Austin; (4) Nader 2000 Primary Committee v Hechler, 112 F Supp 2d 575 (West Virginia 2000); (5) Blomquist v Thomsen, 739 F 2d 525 (Wyoming 10th circuit 1984).
Also there are precedents set by state elections offices, such as the one in Kansas in 1990 by then-Secretary of State Bill Graves. The 1990 session of the Kansas legislature doubled the statewide independent requirement from 2,500 to 5,000 signatures, effective immediately, but the Secretary of State refused to implement it that year, because it was concerned about fairness to an independent candidate who was petitioning to get on the ballot for Governor that year.
The Voting Rights Section of the U.S. Justice Department refused to let Alabama implement its new petition requirement for minor parties, passed in 1981, until 1983, because it was also concerned about fairness to parties that wanted to participate in the 1982 election.
All these precedents have been mentioned to the Delaware Commissioner of Elections, Elaine Manlove. She has not yet responded. If she implements the change this year, it is unlikely that the Green Party, or the Working Families Party, or the Constitution Party, or the Socialist Workers Party, will be on the ballot this year. The old requirement is approximately 310 registrations and the new requirement is approximately 620. The problem is that Delaware voters can’t change their registration from one party to another party in the months before a primary, or before a general election either, so any registration drive by a party that needs more registrants will be difficult this year.
Delaware minor parties that have enough registrations to meet the new requirements are the Independent Party and the Libertarian Party.
On January 28, the Libertarian Party filed this brief for a rehearing en banc with the 5th circuit, in its 2008 ballot access case from Louisiana. The 5th circuit had ruled earlier that the case is moot. The brief for rehearing is 21 pages. The issue, to begin with, was whether the Secretary of State was wrong to keep the Libertarian, Socialist, and Reform Party presidential candidates off the 2008 ballot. The parties did not meet the Secretary of State’s deadline, although they did comply with the deadline established by the Governor.
Alaska state representative Harry Crawford (D-Anchorage) has introduced HB 248, which would establish a new, additional primary ballot (in partisan races) just for independent voters. Alaska has registration by party, and over half the voters are registered independents. The primary ballot for independent voters would include the names of all candidates running for partisan office, from all the qualified parties.
The votes cast in the independent voter primary would be tallied into the vote tallies for the partisan primaries.
Under existing Alaska law and procedures, the Republican Party has its own primary ballot, and independents and Republicans are free to choose that primary ballot. Then there is a blanket primary ballot, which contains the names of all Democrats, Libertarians, and Alaskan Independence candidates. Any voter is free to choose that ballot.
So, already, independents can vote in either type of primary ballot. But if HB 248 became law, an independent voter would be free to vote for any candidate of any party, so that the independent could vote for a Republican for Governor and a Democrat for U.S. Senator.
Since all qualified parties in Alaska already let independent voters voter in their primaries, it doesn’t seem likely that any qualified party would object to the bill or the idea behind the bill. Although there are already a multitude of primary systems in the United States, it seems that the idea behind HB 248 is a new idea, something that has never been tried before. Missouri once had a primary ballot just for independent voters, but the purpose of that primary was to nominate independent candidates for inclusion on the general election ballot. Aside from that Missouri procedure (which no longer exists), no state has ever printed up primary ballots for partisan elections that are intended only for independent voters. Thanks to Scott Kohlhaas for this news.
The lawsuit McComish v Brewer, which challenged the part of Arizona public funding that gives extra public funds to candidates who have well-funded opponents who aren’t using the public funding system, is likely to receive attention from the 9th circuit any day now.
The U.S. District Court Judge had invalidated part of the public funding law. The judge had also said that because she couldn’t seperate the valid parts of the program from the invalid parts, the entire program is suspended for now. But she stayed her own order to give the 9th circuit time to review her work. In the 9th circuit, the case is number 10-15165, and also 10-15166. This newspaper story says the 9th circuit has already taken some temporary action in the case, but according to the 9th circuit clerk’s office, the newspaper story is incorrect and the 9th circuit has done nothing so far with the case.