One of the scandals of elections in the United States is that the Democratic and Republican Parties field so few nominees for state legislative posts. This year, there are 5,773 regularly-scheduled state partisan legislative elections. In 2,281 of those elections, either the Democratic Party, or the Republican Party, has no nominee. That means that 39.5% of the legislative races have no Democratic-Republican contest.

This is the worst competitive posture since 2000. The percentage in previous even-numbered years has been: 2006 37.6%; 2004 38.7%; 2002 36.9%; 2000 40.6%; 1998 41.1%; 1996 32.7%; 1994 35.8%; 1992 32.8%; 1990 35.9%; 1988 36.6%.

Of course the major parties ought to be free to decide to skip running candidates in districts in which they feel they can’t win. But, given the large number of districts with no contest between the two major parties, it is infuriating that ballot access laws in many states keep minor parties and independent candidates from contesting legislative seats and giving the voters a choice.

On October 17, the Alaskan Independence Party filed for a rehearing en banc in the 9th circuit, in Alaskan Independence Party v State, no. 07-35186. The brief emphasizes that the original 9th circuit decision of October 6 made factual errors.

The original 9th circuit decision, footnote 3, says that the party had not filed an “as applied” challenge. But the petition for rehearing quotes from the party’s original complaint and its memo in the U.S. District Court to show that the party did file an “as applied” challenge. The party experienced problems with a rogue member in the elections of 2004, 2006, and this year. The whole point of the lawsuit was to keep that particular individual from running in the party’s primaries, now and in the future. An “as applied” challenge always has specific instances in which a state law is causing harm, whereas a “facial” challenge just says the law is always unconstitutional, regardless of specific problems.

Even more important, the 9th circuit had said that there is no conflict between any AIP bylaw and state law. But the petition for rehearing shows that the AIP has a bylaw which says, “Only those candidates endorsed by the Alaskan Independence Party may run as Alaskan Independence Party candidates in the primary or general election in the State of Alaska.”