On February 3, the Rhode Island chapter of the American Civil Liberties Union filed a federal lawsuit on behalf of the Moderate Party, a party that exists only in Rhode Island. It challenges one restriction on petitioning to get a new party on the ballot. That restriction makes it illegal to circulate that petition in an odd year. The case is Block v Mollis, 09-047.
The procedure to qualify a new party by petition has existed in Rhode Island since 1994, and it has never been used. It requires signatures of 5% of the last vote cast, and also says the petition can’t be circulated until January 1 of the election year. There seems to be no state interest in stopping a group from circulating the petition in an odd year.
There are few precedents on this issue. The U.S. Supreme Court has seemed to approve of short petitioning windows for petitions that name candidates, but the only case in the U.S. Supreme Court concerning a party petition that had a restriction on when the petition could start to circulate was American Party of Texas v White. The Court upheld the Texas procedure, which doesn’t permit a group to circulate its party petition until primary day. However, the state interest in that start restriction was that the petition could not be signed by voters who had voted in the primary. Neither Rhode Island nor any other state except Texas has a “primary screenout” for petitions to create a new party, so the Texas precedent shouldn’t apply to Rhode Island. Also, the plaintiffs in Texas weren’t complaining about the start date in any event.
Also, Texas special elections were always non-partisan, so if an odd year election were held, it was irrelevant whether a party could petition in that year. Rhode Island special elections are partisan, so it is rational that a new party would want to qualify (or be qualified) in an odd year.