| Page 5578

Massachusetts Libertarians Win Presidential Substitution Case in U.S. District Court

Posted on September 18, 2009 by Richard WingerSeptember 18, 2009

On September 18, the Massachusetts Libertarian Party won its 2008 case on presidential substitution. The decision was not surprising, because the same court had granted injunctive relief last year. The issue is whether an unqualified party can use a stand-in presidential candidate on its petition, if it is circulating its petition before it knows who its actual presidential candidate will be. The decision is 13 pages long and says, “”Such a right to substitute is guaranteed by the Equal Protection Clause of the Constitution to ensure that the names of the actual candidates appear on the ballot.” The case is Barr v Galvan, civ. 08-11340-NMG. It is not known if the state will appeal to the First Circuit.

The Equal Protection Clause is relevant because Massachusetts, and all states, lets qualified parties substitute a new nominee for President or Vice-President if the original nominee withdraws before the ballots are printed. For example, in July 1972, the Democratic National Convention chose Thomas Eagleton for vice-president, and his name was certified to the elections officials of all states. In August 1972, Eagleton resigned from the ticket, and the Democratic Party replaced him with R. Sargent Shriver. All states printed Shriver’s name on the ballot (except for Arizona and North Dakota, the two states that never print any vice-presidential nominees on general election ballots).

U.S. Court of Appeals Strikes Down Limits on Contributions to Non-Profit Groups That Use Money to Run Ads for or Against Candidates

Posted on September 18, 2009 by Richard WingerSeptember 18, 2009

On September 18, the U.S. Court of Appeals, D.C. Circuit, held unconstitutional several Federal Election Commission regulations on campaign spending by non-profit groups, often known as “527’s”. The case is Emily’s List v FEC, 08-5422. Here is the decision. The majority decision is 44 pages, and the partial dissent/partial concurrence is 29 pages.

The FEC regulations held that non-profit groups that run their own ads campaigning for or against candidates for federal office are limited, in how they raise the money to pay for those ads. The FEC said individual contributions to such non-profit groups could not exceed $5,000. Two judges in the 3-judge panel said such contribution limits are unconstitutional. The third judge said that the Court should not have reached the constitutional issue, but should have limited its holding to finding that the FEC lacked authority to issue the regulations.

A paradox of the decision is that now (assuming the decision stands), non-profits have more ability to raise money to run their own political ads referring to candidates for federal office than political parties do. When political parties raise money, contributions from individuals are limited.

Of course, under the decision, non-profits are still limited in how much money individuals may contribute, if the non-profit then uses those contributions to contribute directly to particular candidates. The decision does not deal with contributions from non-profits to candidates. It only deals with contributions to non-profits when the non-profit uses its money to produce and run its own ads.

This decision, if it stands, should be very helpful to Unity08 in its pending lawsuit against FEC regulations that limited contributions to it. Thanks to Howard Bashman’s HowAppealing for the link.

Brian Moore Ballot Access Case Against Mississippi Gets Hearing Date in 5th Circuit

Posted on September 18, 2009 by Richard WingerSeptember 18, 2009

The Fifth Circuit will hear oral arguments in Moore v Hosemann in New Orleans, the week of November 2-6. The case concerns the Mississippi Secretary of State’s refusal to accept presidential elector paperwork for Brian Moore, the 2008 Socialist Party presidential candidate. The Secretary of State said the paperwork arrived ten minutes too late. However, the Mississippi law setting the deadline does not specify any particular hour for receiving such paperwork. Certain other election-related deadlines do specify 5 p.m. in the election law, but this deadline doesn’t.

Moore also argues that if the Secretary of State says he had administratively set the closing deadline at 5 p.m., that would have violated Article II of the U.S. Constitution, because that part of the Constitution, setting forth rules for presidential elector selection, says only state legislatures can set forth rules for that topic.

A somewhat similar case is pending in the 5th circuit against Louisiana, concerning the Libertarian Party, but no oral argument date has been set for that case, called Libertarian Party v Dardenne.

Massachusetts House Passes Bill on Senate Vacancies

Posted on September 17, 2009 by Richard WingerSeptember 17, 2009

Late on September 17, the Massachusetts House passed HB 656 by a vote of 95-58. This is the bill that lets the Governor fill a U.S. Senate vacancy almost immediately after the seat becomes vacant. The appointee would only serve until the special election, which would normally be held five months after the vacancy occurs.

As far as is known, the Massachusetts bill (if it becomes law) will be unique among the 50 states. Generally speaking, states that call a special U.S. Senate election fairly quickly after the vacancy occurs do not also provide for a gubernatorial appointment between the date of the vacancy and the special election.

Of course, most states don’t call early special elections to fill Senate vacancies. Instead, in most states, the Governor appoints someone who serves until the next regularly-scheduled Congressional election. And, sometimes the gubernatorial appointee is even permitted to serve more than two years. For example, Robert Kennedy was killed in early June 1968, and New York law permitted the man appointed by Governor Nelson Rockefeller (Charles Goodell) to serve all the way until January 1971, more than two and one-half years.

Chris Daggett Sues New Jersey Over Discriminatory Ballot Format

Posted on September 17, 2009 by Richard WingerSeptember 17, 2009

On September 18, Chris Daggett, independent candidate for Governor of New Jersey in the November 2009 election, filed a lawsuit in state court, alleging that the ballot design in most New Jersey counties severely discriminates against candidates (in the general election) who are not the nominees of a qualified party. No party except the Republican and Democratic Parties has been a qualified party in New Jersey since 1920. Most counties have a column headed “Republican Party” and a column headed “Democratic Party”, and a third column (or several columns) headed “Nomination by petition.” It is easy to overlook voters in the “Nomination by Petition” column. The case is Olson v Corzine, filed in Morris County. UPDATE: Ken Kaplan, the Libertarian candidate for Governor, is a co-plaintiff. See this story.