Federal Legislation May Doom September Primaries

The bill moving through Congress to fund the military has an amendment that requires states to postally mail ballots to overseas absentee voters no later than 45 days before the general election. This New York Times story says that New York state officials believe that if the bill passes, the state will be forced to move its primary (for office other than president) from September, to an earlier month. About a dozen other states also have September primaries, and what is true for New York will probably be true for them as well.

Brennan Center Press Release on Connecticut Public Funding Decision is Inaccurate

The Brennan Center for Justice, which was once a friend of voting rights for minor party and independent voters, did most of the legal work of defending the discriminatory Connecticut public funding law in court. On August 28, the Brennan Center issued an angry press release about yesterday’s decision. It says, “This decision by a single judge completely disregards binding constitutional precedent regarding public financing programs – which have been consistently upheld by the Supreme Court and other federal courts.”

The U.S. Supreme Court has only had one case involving public funding, Buckley v Valeo. The decision, released in 1976, upheld federal law that gives political parties general election funding for the presidential campaigns if that party polled at least 5% of the vote in the last presidential election. It also gives general election public funding to new parties that surpass 5%, but immediately after the election is over (so, parties that expect to poll 5% for President are usually able to borrow money on hopes of meeting the goal; John Anderson used this strategy in 1980).

The U.S. Supreme Court upheld the differential in treatment by noting that the general election public funding was only upholding the status quo, because no minor party or independent presidential candidate had won the presidency since before the Civil War, and only once since the Civil War had such a candidate even placed second.

By contrast, the Connecticut law affects candidates for state office. Over 180 non-Republican, non-Democratic nominees for state office (in the 50 states) have been elected in the last 32 years. Connecticut elected an independent Governor in 1990 and an independent U.S. Senator in 2006. Green Party and Working Families Party nominees (who were not also major party nominees) have been elected recently to partisan city office in Connecticut. All of the New England states except Connecticut have minor party or independent state legislators.

The Brennan Center would apparently have people believe that Buckley v Valeo was intended to make it possible for governments to discriminate against minor party and independent candidates, even in elections in which those candidates sometimes do win. The press release also ignores the fact that the U.S. Supreme Court ruled in Cook v Gralike that the Constitution forbids the government from discriminating for or against any candidates for Congress. The press release also ignores the fact that Arizona and Maine public funding programs do not discriminate, and that the bills for public funding of Congressional candidates, S752 and HR 1826, do not discriminate. Nor does the Brennan Center mention the Helsinki Accords, in which the United States pledged not to discriminate for or against any parties or candidates. If Justice William Brennan were alive today, he would be disappointed in the Brennan Center.

Ohio 21-Year-Old Will Challenge Age Limit to Be Mayor

Brett McClafferty, a 21-year-old who wishes to run for Mayor of Streetsboro, Ohio, says he will sue to overturn the charter provision that says Mayors must be at least 23 years old. See this story. Thanks to Carter Momberger for the link.

In Clements v Fashing, in 1982, the U.S. Supreme Court said in a 4-4-1 decision that there is no constitutional right to be a candidate. The 6th circuit had struck down other age limits on candidacy during the early 1970’s, but the current case law is against a challenge of this kind.

Pennsylvania Official on Warpath Against Petition-Checking Flaws

Wieslaw Niemoczynski, the Monroe County (Pennsylvania) Chief Public Defender, says in this news story that he will challenge the system for checking signatures in Pennsylvania. On August 21 his own petition to be an independent candidate for Common Pleas judge had been invalidated, not because he didn’t have enough signatures of registered voters, but because of irregularities in the way addresses are recorded in the Pennsylvania SURE voter registration database.

The article quotes several Pennsylvania state legislators as saying there is nothing they can do about the problem. That is a surprising statement, since bills are pending in both houses of the Pennsylvania legislature to sharply reduce the number of signatures needed for independent candidates. The bills are bottled up in committees.