The Socialist Equality Party has this commentary on the January 21 U.S. Supreme Court decision Citizens United v FEC. The commentary points out that the U.S. Supreme Court now appears hypocritical, because it has not protected the First Amendment in its ballot access precedents. The criticism is valid. The Court has not struck down any ballot access law since 1992. Two particular justices, Antonin Scalia and Clarence Thomas, have never voted to strike down any state ballot access law, even though they each have been on the court for more than 17 years. The Court has refused cert petitions on ballot access constitutional changes in the last fifteen years from Alabama, Arizona, California, Georgia, Idaho, Illinois, Louisiana, Maine, North Carolina, Ohio, Oregon, Pennsylvania, and Texas.

The election of Republican Scott P. Brown to the U.S. Senate from Massachusetts on January 19 has been big news all week. Brown, and his Democratic opponent Martha Coakley, were each nominated by their parties in primaries on December 8, 2009.

The Democratic primary results in December 2009 were: Martha Coakley 311,548; Michael Capuano 185,157; Alan Khazei 89,294; Stephen Pagliuca 80,217; write-ins 1,800.

The Republican primary results were: Scott P. Brown 146,057; Jack E. Robinson 17,344.

Massachusetts independent voters may vote in any party’s primary. Over half the Massachusetts voters are registered independents. All four of the Democrats running in the primary had significant support. Martha Coakley is the state Attorney General and had the highest name recognition of the four candidates. U.S. House of Representatives Speaker Nancy Pelosi endorsed Congressman Michael Capuano and donated $10,000 to his campaign. The Boston Globe endorsed philanthropist Alan Khazei. The fourth Democrat, Stephen Pagliuca, was a well-funded financier and co-owner of the Boston Celtics.

Consequently, it isn’t surprising that two of the Democrats each received higher vote totals than the man who won the Republican primary, State Senator Scott P. Brown. This suggests, but does not prove, that if Massachusetts had been using a “top-two open primary” system, the two candidates in the final round would have been Coakley and Capuano, and Scott Brown (the actual winner in the real world) would have washed out in the first round.

It is true that registered Democrats in Massachusetts had no choice but to vote in the Democratic primary, if they voted in the primary. But registered Democrats were free to cast a write-in vote for Scott Brown, and undoubtably some of them did. However, only 1,800 write-in votes were cast in the Democratic primary, so it isn’t likely that many Democrats did vote for Brown. As noted above, registered independents were free to vote in either the Democratic primary, or the Republican primary, so any independent would have been free to choose a Republican primary ballot and vote for Brown. Yet, he was not one of the top two vote-getters in the primary.

On January 21, the U.S. Court of Appeals, 5th circuit, ruled that the lawsuit Libertarian Party v Dardenne is moot. Therefore, the court declined to express an opinion about the merits of the case. The issue was whether the Louisiana Secretary of State was right or wrong to keep the Libertarian Party’s presidential candidate off the ballot in 2008, on the basis that its paperwork for presidential elector candidates was late.

The decision is only 6 pages long. It is somewhat surprising, because on December 18, a different panel of judges in the 5th circuit had ruled that Brian Moore’s ballot access case against Mississippi is not moot. That case concerned whether the Socialist Party presidential candidate should have been on the Mississippi ballot in 2008. He was kept off because his paperwork arrived ten minutes too late.

The new Louisiana decision says that the reason the Mississippi case is not moot, and the Louisiana case is moot, is because in Mississippi, the Secretary of State has said he will in the future continue to enforce a 5 p.m. deadline. The new Louisiana decision says that Louisiana is different, because the Louisiana Secretary of State has not said what he will do in the future, should severe weather make it difficult for the paperwork to be filed on time. Oddly, though, the Louisiana situation is far more likely to recur than the Mississippi situation. In Louisiana in 2008, three presidential candidates were kept off the ballot for being late with paperwork (the Libertarian, the Reform, and the Socialist Party presidential candidates).

The new Louisiana decision’s logic also seems faulty because the Constitutional issue of whether only legislatures can pass laws relating to ballot access for presidential elections is an important issue that certainly will recur in some state, if not Louisiana. Article II of the Constitution says “Each state shall appoint, in such manner as the Legislature thereof may direct, a Number of (Presidential) Electors.” The issue of whether state executive officials, such as a Secretary of State, may also issue regulations relating to presidential candidate ballot access is a significant issue. It came up in Bush v Gore in 2000. It came up in Ohio in 2008, and is pending in Pennsylvania. It is an issue in Louisiana because the Secretary of State himself extended the deadline so as to include the Democratic and Republican Parties, but his extension was shorter than the deadline extension issued by the Governor.

It is expected that the Libertarian Party will ask the entire 5th circuit to rehear the conclusion that its lawsuit is moot.