On February 3, U.S. District Court Judge Sam Haddon issued an opinion in Kelly v Johnson, cv-08-25, the case filed in 2008 against Montana’s ballot access laws for independent candidates for office other than President. The judge ruled that neither the candidate-plaintiff, nor the voter-plaintiff, have standing to challenge that ballot access law. The plaintiff, Steve Kelly, will appeal.

The opinion is only 7 pages. It says that because the candidate-plaintiff had not made a certain decision to run for U.S. Senate in Montana on the date he filed his complaint (April 8, 2008), therefore he lacks standing. And the voter-plaintiff lacks standing because she said she wanted to vote for Kelly, whom the judge characterized as a non-candidate. UPDATE: it turns out that the judge’s conclusion that Kelly had not decided whether to run when he filed the complaint is not factually accurate. The quotation from Kelly’s statement on the witness stand does not really say what the judge said he said. Also, Kelly’s verified complaint, under oath, says he had decided to run.

The decision cites many cases on standing, but none of them are ballot access cases. The decision does not mention the U.S. Supreme Court opinion Burdick v Takushi, in which a voter challenged Hawaii’s ban on write-in voting and never named any particular candidate he wanted to cast a write-in vote for. The decision also does not mention Erum v Cayetano, a 1989 decision of the 9th circuit in which the plaintiff challenged a ballot access law in Hawaii. Although the plaintiff in that case, Ted Erum, lost the case, the 9th circuit said he had standing. It said, “The Lieutenant Governor contends that Erum lacks standing to challenge the 10% reqirement of section 12-41 because it did not come into play to exclude him in his 1984 bid to gain access to the general election ballot. But Erum brought this action in his capacity as a registered voter of the State of Hawaii as well in his capacity as an erstwhile and potentially future candidate. Candidate eligibility requirements implicate basic constitutional rights of voters as well as those of candidates. Erum possesses standing to challenge the whole of section 12-41’s ballot access restrictions in his capacity as a registered voter.”

Montana is in the 9th circuit, so the Erum controls. The judge knew about the Erum precedent but he chose not to mention it in his opinion.

The Montana case challenges the March petition deadline for independent candidate petitions (for office other than president), and the number of signatures, 5% of the winning candidate’s vote in the last election for that office. Judge Haddon has a reputation for virtually always ruling in favor of the government in any cases before him in which an individual is challenging a government policy or a law.

Several New York newspapers have reported that much of the money that New York City Mayor Mike Bloomberg contributed to the statewide Independence Party was really intended for a Republican Party official in Queens. So the Mayor contributed $1,200,000 to the Independence Party statewide office, but then the state office of the Independence Party gave $750,000 to the Republican and his group. See this story. Thanks to Bill Van Allen for the link.

California’s Constitution, ever since 1879, has said, “A person is ineligible to be a member of the Legislature unless the person is an elector and has been a resident of the legislative district for one year, and a citizen of the United States and a resident of California for three years, immediately preceding the election.” Article 4, section 2.

Ever since the 1970’s, California elections officials have not enforced that provision of the Constitution. The Secretary of State at the time ruled that the California Constitutional provision violates the U.S. Constitution.

However, the California Secretary of State’s old ruling is probably erroneous. In 1982 the U.S. Supreme Court ruled in Clements v Fashing that there is no U.S. Constitutional right to be a candidate for public office. Also, on March 3, 1975, the U.S. Supreme Court summarily affirmed a U.S. District Court 3-judge decision that upheld a New Hampshire Constitutional requirement, that no one could run for State Senate in New Hampshire who had not been a resident of the state for 7 years. Sununu v Stark, 383 F.Supp. 1287 (1974), affirmed, 420 U.S. 958.

The California Supreme Court had ruled on October 27, 1975, in Johnson v Hamilton, that the U.S. Constitution prohibits duration of residency requirements for candidates, but that decision is probably no longer good law. Federal courts since then have almost unanimously upheld duration of residency requirements for candidates.

In any event, the California Supreme Court decision Johnson v Hamilton didn’t deal with residency requirements for legislative candidates. Instead it struck down a Long Beach charter provision that candidates for city council must have lived in the city for one year, and in the district for six months, before filing for office. There are no reported decisions in California on residency requirements for state legislative candidates in non-redistricting years.

On February 2, a Republican candidate for State Senate in California’s 14th district filed a lawsuit, asking that the Secretary of State be compelled to enforce the California Constitution’s residency requirement. The case was filed by Heidi Fuller, who wants a decision that one of her Republican opponents, Assemblyman Tom Berryhill, is not eligible to run. Berryhill moved into the district late last year, less than one year before the November 2010 election. The lawsuit is now pending in the State Court of Appeals. It is called Fuller v Bowen, C064080. Here is the brief.