U.S. Supreme Court Denies Lux Application, Says Law on Circulator Residency is Still Unsettled

On September 30, U.S. Supreme Court Chief Justice John Roberts denied injunctive relief to Herb Lux, independent candidate for U.S. House in Virginia.  The 3-page order says, “Lux may very well be correct that the Fourth Circuit precedent relied on by the District Court (Libertarian Party of Virginia, a case decided in 1985) has been undermined by our more recent decisions addressing the validity of petition circulation restrictions.  At the same time, we were careful in American Constitutional Law Foundation to differentiate between registration requirements, which were before the Court, and residency requirements, which were not.  Lux himself notes that the courts of appeals appear to be reaching divergent results in this area, at least with respect to the validity of state residency requirements.  Accordingly, even if the reasoning in Meyer and American Constitutional Law Foundation does support Lux’s claim, it cannot be said that his right to relief is ‘indisputably clear’.”

The order notes that to obtain injunctive relief from a Circuit Justice of the U.S. Supreme Court, the applicant must demonstrate that the legal rights at issue are “indisputably clear.”  The U.S. Supreme Court ruled in 1999 that states can’t require circulators to be registered voters, but has never decided whether states can require them to be residents of the district or the state in which they are working.  The 2nd, 6th, 7th, 9th, and 10th circuits have struck down residency requirements for circulators, along with state courts or U.S. District Courts in states not in those circuits, namely New Jersey, and Pennsylvania.  On the other hand, the 4th circuit upheld a district residency requirement back in 1985, and the 8th circuit upheld an in-state residency requirement in 2001.

There is a good chance the U.S. Supreme Court will eventually agree to hear this case to decide the issue, but first it must go through the 4th circuit, which may take a year.

U.S. Government Asks for More Time to Respond to Lawsuit in U.S. Supreme Court on Size of U.S. House

On August 26, 2010, the plaintiffs in Clemons v U.S. Department of Commerce had asked the U.S. Supreme Court to hear that case, 10-291.  The issue is whether the Constitution implicitly requires that the size of the U.S. House of Representatives be increased, because at its current size, it is impossible for “one man, one vote” principles to apply, because U.S. House districts cannot cross state lines.  As a result, the voters of Montana only have one member of the U.S. House, and the voters of Wyoming also have one member of the U.S. House, but Montana has almost twice as many people as Wyoming.

The response of the Solicitor General was due September 29, but the Solicitor General has obtained an extension until October 29.  One can read the Jurisdictional Statement of the plaintiffs at www.apportionment.us.

First Circuit Hears New Hampshire Presidential Substitution Case on November 2

The First Circuit will hear Libertarian Party of New Hampshire v Gardner on November 2, at 9:30 a.m., in Boston.  This is the case that challenges New Hampshire’s refusal to allow unqualified parties to use a stand-in presidential candidate on a candidate petition, and later substitute the actual presidential nominee.  It also challenges the state’s policy of not providing any name protection for unqualified parties.

November 2, is, of course, election day as well.

Delaware Supreme Court Will Hear Fusion Lawsuit Filed by Libertarians, After Election

The Delaware Supreme Court has set a briefing schedule in McVay v Department of Elections for Kent County, number 528(2010).  The opening brief is due October 25, 2010.  The schedule is such that the case will be decided after the November 2, 2010 election.  The case had been filed by a Libertarian nominee for the State House of Representatives, William McVay.  He had tried to run in the major party primaries for the same office, but the major parties objected, and he was not permitted to run in those primaries.

Delaware permits fusion, and Delaware has no law making McVay’s filing illegal.  The lower state court seemed to feel the major parties have an implied right to exclude candidates from their own primaries.

Chicago Tribune Endorses Green Party Legislative Nominee

On September 29, the Chicago Tribune endorsed Jeremy Karpen, Green Party nominee for Illinois State House, 39th district, in Chicago.  See this story from GreenPartyWatch.  Karpen and the Democratic nominee, incumbent Maria Antonia “Toni” Berrios, are the only two candidates on the ballot.  They were also the only two candidates on the ballot in November 2008, when Karpen received 20.84% of the vote.