California Ballot Pamphlet Arguments on Propositions Now On-Line

Posted on by February 23, 2010
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Anyone may read the California ballot pamphlet arguments on the statewide measures, pro and con, at this link to the Secretary of State’s web page. The material will only be on-line between February 23 and March 15. It is possible that some of the neutral descriptions about the measures will change.

Proposition 15 is the measure for public funding of campaigns. The public funding measure arguments in favor are by officers of the American Association of Retired Persons, the California Nurses Association, and California Church Impact. The public funding opponents are officers of the California Senior Advocates League, the California Manufacturers and Technology Association, and the Los Angeles Police Protective League.

Proposition 14 is the top-two open primary measure. Arguments in favor are by officers of the Chamber of Commerce, the American Association of Retired Persons, and the Alliance for Jobs. Arguments in opposition are by officers of the California Firefighters Association, the United Nurses Association of California/Union of Health Care Professionals, and the California School Employees Association. The argument in opposition also quotes the President of the Howard Jarvis Taxpayers Association, with his permission.

California Case on Duration of Residency for Candidates Starts Over Again

Posted on by February 23, 2010
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As noted earlier, a Republican candidate for State Senate in California filed a lawsuit on February 2, 2010, to force the Secretary of State to enforce Article IV, sec. 2(c) of the State Constitution. That provision, since 1879, has required candidates for the legislature to have lived in the district for a year before the election. California Secretaries of State have not been enforcing it since 1975, when the State Supreme Court ruled that California’s duration of residency laws for candidates violate the U.S. Constitution.

The recent lawsuit, filed by Heidi Fuller to keep her opponent, Tom Berryhill, off the ballot, had been filed in the State Court of Appeals in Fresno. That was the wrong place to file the case. California election law requires such lawsuits to be filed in Superior Court in Sacramento. The case, Fuller v Bowen, has now been re-filed in Sacramento, where it is in front of Judge Frawley, 34-2010-80000452-CU-WM-GDS.

This story from the Lodi Sentinel erroneously says the U.S. Supreme Court in 1972 struck down a law requiring candidates to have been a resident of the district for one year. That is not true. The 1972 case, Dunn v Blumstein, struck down residency requirements for voters, not candidates. In 1975 the U.S. Supreme Court summarily affirmed a lower court decision upholding a 7-year residency requirement for candidates for New Hampshire State Senate. Also in 1982, the U.S. Supreme Court ruled in Clements v Fashing that there is no constitutional right to be a candidate. Note that Clements v Fashing is not a ballot access case; it relates to whether a particular individual may hold the office, not whether any individual should be on the ballot.

Billings Gazette Covers Montana Ballot Access Case

Posted on by February 23, 2010
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The February 22 issue of the Billings Gazette has this brief story about the pending Montana ballot access case, Kelly v McCulloch. The case challenges the March petition deadline for non-presidential independent candidates.

U.S. District Judge Sam Haddon had ruled earlier this month that the plaintiff, Steve Kelly, lacks standing, because, so the Judge said, Kelly had not made up his mind to be a candidate when he filed his lawsuit. The judge is mistaken. Kelly’s attorneys submitted a verified complaint, which means a signed statement by Kelly that his complaint is accurate. The complaint says he was an independent candidate for U.S. Senate in 2008. There is no equivocation in his complaint. The judge appears to have overlooked that document.

The newspaper story is not accurate when it says the judge found a lack of standing because Kelly’s campaign wasn’t serious enough. If the judge had said that, that would also have been an error. Three decisions of the U.S. Supreme Court, and numerous decisions of lower courts, have held that candidates do not need to have tried to comply with a ballot access law in order to have standing. Also, a 9th circuit decision, Erum v Cayetano, says even a voter has standing to challenge a state ballot access law, and the existing Montana lawsuit has a voter-plaintiff as well as a candidate-plaintiff.

The three plaintiff parties or candidates whom the U.S. Supreme Court felt had standing to challenge ballot access laws, even though they hadn’t tried to comply with the laws, are the Socialist Labor Party (which was a co-plaintiff in Williams v Rhodes), Gus Hall (who was a co-plaintiff in Storer v Brown), and Jim Lendall (in Lendall v Jernigan I, which received a summary affirmance from the U.S. Supreme Court, striking down an April petition deadline for independent candidates).

Vermont House Amends Primary Date Bill to Move Independent Deadline from September to June

Posted on by February 22, 2010
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On February 18, the Vermont House passed S117, the bill to move the primary from September to August. Unfortunately the House also amended the bill to move the petition deadline for independent candidates, and the nominees of unqualified parties, from September, to the second Thursday after the first Monday in June. In 2010, that would be June 17.

S117 passed the Senate last year, so now the bill returns to the Senate. The date change is certainly unconstitutional as to presidential independent petitions, and almost certainly unconstitutional for candidates for other office as well. The ostensible change, from September to June, is to prevent “sore losers”. However, if the only state interest is to outlaw “sore losers”, the sensible approach is not to move the deadline ahead three months, but to simply say that someone who runs in a primary and loses is not eligible to be on the general election ballot by petition.

The U.S. Supreme Court ruled in Anderson v Celebrezze in 1983 that independent presidential candidate petition deadlines in the first half of the year are unconstitutional. Except for an oddly deviant decision from Texas in 2004 (Nader v Connor), no state has won declaratory judgment for any independent presidential petition deadline that is earlier than July 15, since before 1983.

For office other than president, courts have ruled that independent petition deadlines cannot be earlier than primary day. Such decisions have been won in Alabama, Alaska, Illinois, Indiana, Kansas, Kentucky, Maine, Maryland, Massachusetts, New Jersey, Ohio, Pennsylvania, and South Carolina.

Maryland Bill for Public Funding is Not Discriminatory

Posted on by February 22, 2010
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Maryland State Senator Paul Pinsky and 16 other Maryland State Senators have introduced SB 681, to provide for public funding for candidates for the state legislature. The bill does not discriminate for or against any candidates on the basis of the candidate’s partisan affiliation or lack of affiliation. Candidates would need to obtain $5 donations from at least 350 individuals.

Brian Bittner points out that the bill may in practice be discriminatory, because it funds candidates in the primary season if they are running in a primary, or if they are petitioning as an independent candidate, but not if they are seeking the convention nomination of a ballot-qualified minor party. The bill’s authors probably wrote the bill that way, on the theory that it doesn’t cost much money to win nomination at a convention of a small ballot-qualified party. But one danger is that if the fund runs out of money in the primary season, there might not be funding for the general election season. The bill has a hearing on March 11.