For some time, Jesse Ventura and his family have been living in the Mexican state of Baja California Sur. Ventura gave an interview to “Gringo Gazette”, an English language newspaper in Southern Baja California. The interview, printed in the March 30, 2009 edition, quotes Ventura as saying he moved to Mexico “to escape politics.” However, the interview also asked if Ventura will live permanently in Mexico, and he responded, “I have found in life that nothing is permanent.”
On April 17, Arthur B. Culvahouse, Jr., a well-known attorney who has done work for the Republican Party, spoke to a Republican lawyers group. The talk was broadcast on C-SPAN.
The attorney said that John McCain was legally barred from nominating Senator Joseph Lieberman for vice-president, since Lieberman was a registered Democrat. The attorney said that West Virginia law made it legally impossible for Lieberman to appear on the November ballot in that state as the Republican nominee for vice-president.
It is true that West Virginia law, section 3-5-7(6), says that someone running in a primary election, or someone petitioning for the November election, must sign a form that says the candidate is “a member of and affiliated with that political party, as is evidenced by the candidate’s current registration as a voter affiliated with that party, and that the candidate has not been registered as a voter affiliated with any other political party for a period of 60 days before the date of filing the announcement.” However, that West Virginia law has never been interpreted to apply to presidential or vice-presidential candidates running in November. There are 4 separate reasons for that:
(1) If West Virginia did apply that law to candidates for president or vice-president running in the general election, it would be unconstitutional. The U.S. Supreme Court said in Tashjian v Republican Party of Connecticut, 479 US 208 (1986), on page 215, “Were the state by statute to…provide that only Party members might be selected as the Party’s chosen nominees for public office, such a prohibition would clearly infringe upon the rights of the party’s members under the First Amendment to organize with like-minded citizens in support of common political goals.”
(2) West Virginia has never applied this law (which has existed unchanged since 1991) to presidential or vice-presidential candidates in the past. For example, Ralph Nader was listed as the Green Party’s presidential candidate in West Virginia in 2000, yet he has always been a registered independent, his entire life. Also, in 2008, the Mountain Party was permitted to nominate both a presidential and a vice-presidential candidate who were registered as members of the Green Party. And in 2000 and 2004 the Republican Party was permitted to nominate George W. Bush, who was not a registered Republican because Texas registration forms do not ask about party membership. Also, the Democratic Party in 2000 was able to nominate Al Gore for president, and he was not a registered Democrat since Tennessee also does not ask for party affiliation on voter registration forms.
(3) Section 3-5-7 only applies to candidates seeking to run in a party primary anyway, or to candidates who are not the nominees of a qualified party. Neither West Virginia nor any other state requires the presidential or vice-presidential candidates of any qualified party to fill out any declaration of candidacy in order to appear on the November ballot. There would have been no occasion for any West Virginia elections official to expect a declaration of candidacy form from Lieberman. West Virginia would have no official knowledge of how Lieberman was registered, and no occasion to ask him about it.
(4) The true candidates in November of presidential election years are the candidates for presidential elector. Presidential and vice-presidential candidates appear on the ballot in their capacity as labels for competing slates of presidential electors, not as candidates themselves. If the candidates for presidential elector meet the qualifications to hold the elector job, the state has no authority to censor their statement of whom they will vote for in December in the electoral college. As the U.S. District Court said in Robinson v Bowen, 567 F Supp 2d 1144 (2008), “Arguments concerning qualifications or lack thereof (of presidential and vice-presidential candidates) can be laid before the voting public and, once the election is over, can be raised as objections as the electoral votes are counted in Congress…Therefore, this order holds that the challenge presented by plaintiff is committed under the Constitution to the electors (the voters) and the legislative branch (Congress).” Thanks to Matt from DemConWatch for the news.
Most states routinely decide which political parties are qualified, within days of tabulating their official election returns. But in recent decades, the New Mexico Secretary of State has developed a habit of not declaring which parties are qualified until months after the election.
The employee of the Secretary of State’s office who is in charge of determining which parties are qualified says he will release his analysis on Monday, April 20. It seems obvious that the Independent Party is ballot-qualified, because it polled over one-half of 1% of the vote for president in November 2008 (its nominee was Ralph Nader). It is likely that the Green Party and the Constitution Party are also ballot-qualified. The Green Party polled over 5% of the entire statewide vote in November 2008 for a candidate for State Regulation Commission. The Constitution Party submitted a party petition in 2008, and precedent says that when a party submits a party petition, it gets two elections, not just one.
On April 17, U.S. District Court Judge W. Allen Pepper, of the Northern District of Mississippi, denied a request by the Democratic Party that James Lowe be kept off the Democratic Party primary ballot as a candidate for Mayor of Leland. The primary is set for May 5. The party argued that Lowe should be kept off the Democratic primary ballot because he has recently been a member of the Republican Municipal Executive Committee. However, Judge Pepper said that there is no legal basis for the party’s request, neither in state law, nor in Democratic Party bylaws. The party did hastily pass a Bylaw barring candidates from its primary who have recently served on the committee of a different party, but the rule was passed after the candidate filed. Lowe v Democratic Municipal Executive Committee of the City of Leland, Mississippi, 4:09-cv-35. Thanks to Rick Hasen for this news.
On April 16, the Pennsylvania Supreme Court noted probable jurisdiction in Ralph Nader’s new appeal of the fees that were assessed against him in 2004. The Pennsylvania Supreme Court had taken a similar action last month in the Green Party’s 2006 case, which was very similar.
Although most readers of this blog are probably already familiar with the issue, to restate it: Pennsylvania is the only state that has ever had a policy of charging petitioning candidates for the administrative costs of removing them from the ballot. Even Pennsylvania had never done such a thing, until 2004, when it was invented to be used against Nader.
