New York state still uses mechanical voting machines, so it is possible for elections administrators to delete candidates at the last minute, and substitute new candidates. On October 31, the New York State Supreme Court, Appellate Division, 4th district, deleted Jonathan Powers from the ballot as the Working Families Party nominee for U.S. House, 26th district. The court replaced him with Alice Kryzan. Kryzan is also the Democratic nominee.

Of course, voters who voted absentee in this district will lose their votes, if they voted for Powers. Powers had been the only Working Families Party nominee this year for Congress who is not also the Democratic Party nominee.

Powers did not want to be on the November ballot as the Working Families Party nominee. After he lost the Democratic primary in September, he moved from New York to Washington, D.C. The issue in this case is whether his move made him ineligible. If he were ineligible, the party had a right to replace him with someone else.

The New York Supreme Court had ruled that under the U.S. Constitution, Powers was still eligible, and therefore there was no legal means for him to be removed from the ballot and replaced by anyone else. However, the Appellate Division reversed that. The Appellate Division decision contradicts the decision of the 5th circuit from 2006, Texas Democratic Party v Benkiser, 459 F.3d 582. That decision pointed out that the U.S. Constitution’s residency requirement for U.S. House candidates is only that the candidate live in the state “when elected”, meaning on the election day itself. However, one could argue that there is a meaningful difference between the Texas decision, filed in June of an election year, and this case, which was filed in October of the election year and decided only 4 days before the election.

On October 31, a Utah state court ordered Libertarian Party nominee Mike Stoddard back onto the ballot for State Auditor. The case is Stoddard v Herbert, 3rd judicial district, 080923182.

Utah uses DRE vote-casting machines, so there is no problem with printing ballots; a candidate can be deleted or added to the ballot by a manipulation of the computer program. Of course, absentee mail voters use a paper ballot, but here again there was no problem, because the absentee ballots had been printed with Stoddard’s name on them. If he had not won the case, though, absentee voters who voted for him would have not had their votes counted.

Stoddard had been removed from the ballot on October 28 because he didn’t file a final campaign finance report. But he immediately filed the report, and then won the lawsuit on the basis that the law, although ambiguous, seems to say that when candidates file late, they should not be stricken from the ballot. Thanks to Rob Latham for this news.

On October 31, Louisiana TV station WWL-TV released a presidential poll. The results: McCain 43%, Obama 40%, other 3%, undecided/refused 15%. See here for more detail. The article does not mention the “other” figure, but if one clicks on the link inside the article, one goes to a page that does include it. Ron Paul is on the Louisiana ballot as the candidate of the Louisiana Taxpayers Party, which is just a ballot slogan, not an actual organization.