Faye Coffield, an independent candidate for U.S. House in Georgia last year, brought a lawsuit in federal court last year, alleging that the requirements are so severe for an independent to get on the ballot for U.S. House, that they are unconstitutional. They have not been used since 1964, and back then no one checked the signatures, they were due in October of the election year, and congressional boundaries followed county lines (except that Fulton County was split into two districts).

The U.S. District Court ruled against Coffield on April 30, 2009, and she appealed. Her 11th circuit brief was submitted on August 17, 2009, and the state’s response was due September 17. However, according to the Clerk’s office at the 11th circuit, the state neither filed a brief, nor asked for more time. So, the case has been submitted to the judges, whose identities are not known.

It is very rare for a state to fail to file a brief in a constitutional ballot access case. In 1988, when Lenora Fulani challenged the start date for an independent petition to begin circulating in California, the state of California accidentally didn’t respond, and the U.S. District Court Judge declared the start date unconstitutional. When the state asked for permission to file a brief late, the Judge accepted a late brief, but she did not reverse her opinion, and so Fulani won the case. The state was forced to move the start date for independent presidential petitions from June to April of the election year. Such petitions were (and still are) due in August.

Earlier in 2009, the New Mexico Secretary of State’s office had been saying the blank petition forms to qualify a new party for the 2010 election would not be available until October 1, 2009. The reason they would not be available earlier was that the Secretary of State might wish to alter them.

However, in response to a lawsuit filed on May 7, 2009, by the New Mexico Libertarian Party and the New Mexico Green Party, the state submitted an affidavit on September 21, 2009, saying “The forms minor parties must use to collect the signatures required by Sec. 1-7-2(A) are available to the public at any time.” Although this concession comes too late to be particularly helpful for the upcoming election, it certainly will be helpful in the future. Thanks to Alan Woodruff for this news. The lawsuit is proceeding, and the New Mexico Secretary of State participated in a deposition on September 25.

The 5th circuit will hear oral arguments in Brian Moore v Hosemann, 09-60272, on November 4, 2009, in Houston. This is the case on whether the Mississippi Secretary of State should have accepted paperwork to put Brian Moore on the November 2008 ballot. The paperwork arrived ten minutes past 5 p.m. However, the Mississippi election code only gives the date on which such paperwork is due, not the hour. Other election law deadlines in Mississippi do provide a precise hourly deadline, but the law on when presidential elector declarations of candidacy are due does not.

In many states it is common for state elections officials to keep extended hours on deadline days when there is no hour specified.

Brian Moore was the Socialist Party’s presidential candidate last year, but he had also been nominated by the Natural Law Party of Mississippi, which is still ballot-qualified. The only other state in which the Natural Law Party is still ballot-qualified is Michigan. The Michigan unit of the party nominated Ralph Nader for president in 2008.