Back on June 17, 2009, the Florida Supreme Court issued an order, striking down Florida laws and regulations that let initiative signers remove their names from the petition after they have signed it. The Court did not then explain its reasoning. On February 18, 2010, the Court issued a lengthy opinion in the same case, explaining the basis for its earlier action. Here is the opinion, which is Browning v Florida Hometown Democracy, SC08-884. The vote was 4-2, with one justice not participating. The decision is 39 pages and the dissent is 26 pages.

The law might have withstood constitutional scrutiny if it had been more even-handed. But, it seemed to give opponents of an initiative the ability to keep any initiative off the ballot. This is because it provided that voters could revoke their signatures as late as the date on which the petition was due. Consequently, it would be impossible for initiative proponents to ever know for sure how many signatures they had, because the proponents could not know how many people were revoking their signatures. Also, the law was not symmetrical, because although it let signers remove their names, it did not let signers who had revoked their signatures change their mind again. The law said if anyone revoked his or her signature, that voter could not sign the petition again, and could not even sign a similar initiative in the future.

Page 30 of the decision says, “Placing a signature upon an initiative petition does not signify one’s definitive agreement with a proposed amendment or revision; rather, one is merely agreeing that the proposal is worthy of statewide consideration and discourse for a vote at a later date. If an elector simply changes his or her mind, he or she remains free to participate in public discussion and to vote against the proposal.”

On February 17, a U.S. District Magistrate issued a 30-page opinion, upholding New Hampshire’s policy of not allowing stand-ins on presidential petitions, and also upholding New Hampshire’s policy of not having any procedure by which an unqualified party may protect its name from use by independent candidates who choose the party label as a ballot label, regardless of whether the party has nominated that person.

In 2008, the New Hampshire Libertarian Party was not a qualified party. It submitted a petition for Bob Barr for President, and he appeared on the ballot with the “Libertarian” label. Supporters of George Phillies also submitted a petition for President, and he also appeared on the ballot with the “Libertarian” label. The party filed a lawsuit to gain the right to use stand-in presidential candidates, and also to argue that the ballot label “Libertarian” should be reserved for candidates nominated by the state party, but Magistrate James Muirhead ruled against the party on both issues.

The Magistrate appears not to have read the party’s reply brief of November 6, 2009. The party’s reply brief says on page one, “The post-election declaratory relief that plaintiffs now seek need not include a determination that Phillies should have been removed from the ballot entirely, as defendant suggests. After all, Phillies met the New Hampshire requirements for being listed on the ballot as an independent candidate for president.”

Notwithstanding that, the Magistrate Judge says in his opinion that the Libertarian Party wanted the Secretary of State to remove George Phillies from November 2008 ballot. The decision does not name any of the many precedents that say unqualified parties do have certain rights in election law, including a decision from New Hampshire courts that unqualified parties have a constitutional right to a list of the registered voters. The decision does not mention the four precedents that say unqualified parties have a constitutional right to substitute new nominees for old ones. The decision does not mention the five precedents that voters have a right to register into unqualified parties, or the many decisions that unqualified parties have a right to the list of registered voters, on the same basis as the qualified parties. The Magistrate simply assumes that if a party is not a qualified party, then it enjoys none of the rights that qualified parties enjoy. The Libertarian Party will exercise its right to have the U.S. District Court Judge review the Magistrate’s decision. UPDATE: the party will instead appeal to the First Circuit. It turns out that rules in U.S. District Court in New Hampshire do not permit the party to ask a U.S. District Court Judge for relief.