On December 18, U.S. District Court Judge Robert Holmes Bell struck down Michigan election law 168.957, which says that circulators of recall petitions must be registered voters who live in the electoral district of the official sought to be recalled. Bogaert v Land, 1:08-cv-687, western district. See this story.

The decision was no surprise, because the same judge had issued an injunction against that same law last year, so that a recall petition against a state legislator would not be found lacking in valid signatures. The recall had enough otherwise valid signatures, except that some of the signatures had been collected by people who didn’t live in the district. Last year, after Judge Bell had granted injunctive relief, the state had appealed to the 6th circuit, but the 6th circuit had said the matter of injunctive relief was moot, because the recall election had already been held by the time the case reached the 6th circuit. Thanks to Bill Hall for the link.

This case is the first one in which a residency requirement for circulators of a recall petition has been invalidated. Michigan had argued that even if residency requirements for initiatives and candidates are unconstitutional, that recall petitions are different. But the ruling says that the same First Amendment principles apply, no matter what kind of petition is being circulated.

On March 9, 2010, oral argument will be held in Striving Towards a New Daytona v City of Daytona Beach, in Florida circuit court, 7th judicial district. One of the issues is whether it is legal for a group to ask voters to sign three separate petitions by a single signature. A group trying to get three city initiatives on the ballot prepared a petition form in which the upper two petitions are on paper with the characteristics of carbon paper. Thus, a voter who wants to sign all three initiatives can do so by signing name and address on the top initiative sheet, which also creates a carbon-paper-like signature on the two lower sheets. Obviously this saves time, not only for the signers, but for elections officials who check petition validity.

The Daytona Beach group that is backing these initiatives also provides single sheets, for voters who only want to sign one, or only two, of the three initiatives. The three initiatives are all on the same general subject, but initiative rules require separate petitions because they are amending three separate city laws.

In 2008, Alabama activists wanted to use the same approach to place Ralph Nader, Bob Barr, and Chuck Baldwin on the ballot as independent presidential candidates. Alabama, like most states, lets voters sign for multiple independent candidates for the same office. However, the Secretary of State refused to allow carbon-paper petitioning, and so all three campaigns just gave up the idea and circulated ordinary petitions for each of the three.

On December 18, the 5th circuit issued an opinion in Moore v Hosemann, 09-60272, the case filed by Socialist Party presidential candidate Brian Moore last year, when the Mississippi Secretary of State refused to accept his presidential elector paperwork because it was submitted at 5:10 p.m. on the filing deadline. The Secretary of State rejected the paperwork because it arrived ten minutes after he had closed his office. The building itself was still open, so the paperwork had been left at the door of the Secretary of State’s office.

On March 10, 2009, the U.S. District Court had ruled against Moore, saying the case is moot. The District Court said, “It does not seem reasonably likely that other prospective presidential candidates will fail to timely file their qualifying papers before the Secretary of State’s office closes at 5 p.m. on the date of the qualifying deadline.”

But, the 5th circuit disagreed, saying, “The Secretary has made it plain that he intends to enforce the 5 p.m. deadline in future elections. He adds that the chance is very small that Moore or any other presidential candidate will miss the deadline again. That is beside the point, however. As long as the complained-of deadline is in place, future candidates in Mississippi will be subject to it and will need to conform to its demands. Thus, the effects of the deadline will persist.”

Therefore, the case goes back to the U.S. District Court, to settle the main issue. Moore’s case depends on the fact that Mississippi election laws do specify an hourly deadline for some kinds of paperwork. However, the law governing filings of presidential electors does not mention an hourly deadline, so the implication is that if the paperwork comes in on the deadline day at any hour, it is timely. The 5th circuit opinion also says that the U.S. District Court should refer the case to the Mississippi state courts, because generally, federal courts do not interpret or construe the actual meaning of state laws; that is a job for state courts. Therefore, probably a state court will eventually make the decision as to whether Moore’s paperwork should have been accepted.

The decision is by Judge Jerry Smith, a Reagan appointee, and is co-signed by Judge Edith Jones, another Reagan appointee, and Judge Harold DeMoss, a Bush, Sr. appointee. This is the first time the 5th Circuit has issued an opinion favorable to a minor party or independent candidate since 1996, when it invalidated a Texas law requiring independent candidate petitions to include the voter registration affidavit number of each petition signer. That case was Texas Independent Party v Kirk, 84 F.3d 178.