A U.S. District Court Judge in Montana will hear Kelly v Johnson on Friday, September 19. The issue is whether Montana’s new independent deadline for non-presidential candidates is constitutional or not. The deadline was moved last year from June to March. Another issue in the case is whether it is constitutional for Montana to require more than twice as many signatures for a single independent candidate, than for an entire new party.
The Montana Secretary of State has told Ron Paul that his request to be removed from the ballot arrived too late, so he will definitely be on the November ballot as the Constitution Party nominee, along with Michael Peroutka for vice-president.
Paul’s letter, dated September 10, says, “It has come to my attention that I was nominated by the Constitution Party of Montana as its presidential nominee. While I certainly appreciate the Constitution Party of Montana’s nomination, and all the hard work of its members, I am writing to respectfully request that you remove my name from the ballot in Montana as I did not seek nor consent to this nomination.”
On September 15, the Pennsylvania Commonwealth ruled against the challenge to Bob Barr’s substitution paperwork. The challenge had been filed by a Republican Party official in Cumberland County, and he had been represented by several attorneys, including one who regularly handles legal business for the Republican Party of Pennsylvania. The decision is seven pages.
The decision says, “In nominating Etzel prior to the Libertarian National Convention and substituting Barr thereafter, the Party and LPPa merely complied with the Party’s election process as it has been established in Pennsylvania since 1996 when, nationally, the Party moved its convention from a date prior to the legal date for circulation of Pennsylvania nomination papers to a subsequent date. Since then, given the time constraints, the Party and LPPa have deemed it necessary to circulate nomination papers prior to their national convention in order to take full and fair advantage of the time period allotted under Pennsylvania’s Election Code to secure the necessary signatures in support of their candidate…the Party simply took reasonable action to abide by the Election Code while furthering its legitimate interest.”
Click here to read the Complaint in Libertarian Party of New Hampshire v Gardner. It was filed September 12, case no. 08-cv-367-JM.
On Thursday at 7:30 a.m, September 11, U.S. District Court Judge William Alsup held a motions hearing in San Francisco in Robinson v Bowen, 08-cv-3836. The issue is whether John McCain should be removed from the November 4, 2008 ballot in California. The hearing lasted 50 minutes.
There have been two earlier lawsuits in federal court that also argued that McCain is not eligible to be president because of the circumstances of his birth. They were Inland Empire Voters v USA (in federal court in Riverside, California), and Hollander v McCain (in federal court in New Hampshire). However, those two cases were quickly dismissed on standing grounds, since the plaintiffs were ordinary voters (or a group of ordinary voters).
Robinson v Bowen is different, because it was filed by the state chairman of the American Independent Party, Markham Robinson (although that party has an internal factional dispute and Robinson’s office is not completely, permanently secure). Robinson is also a candidate for presidential elector, pledged to Alan Keyes. The leading precedent on who has standing to challenge the ballot access of a major party nominee is Fulani v Hogsett, 917 F 2d 1028 (7th cir., 1990). It said that Lenora Fulani did have standing to challenge the ballot placement of George H. W. Bush and Michael Dukakis, since their presidential elector candidates had been filed after the legal deadline in Indiana. Fulani was also on the ballot. She still lost the case on laches, since she had not filed it until eleven weeks after the Republicans and Democrats had failed to file timely.
In 1968, the California Supreme Court voted 6-1 that a presidential candidate who is not eligible to be president should not be placed on the ballot. Cleaver v Jordan, Calif. Supreme Court minutes, Sep. 26, 1968, case no. 7838, not reported. Thus if it were true that McCain were not eligible to be president, under the Eldridge Cleaver precedent, the California ballot should list a blank for president, and Sarah Palin for vice-president, for the Republican ticket. Of course, it is extremely unlikely that any federal judge would rule that McCain is not eligible to be president. There are scholarly articles on both sides of the issue, and the Robinson pleadings do attach one scholarly article that supports Robinson’s position. But the weight of authority is that someone born outside the United States, to parents who are citizens, is eligible.
The Robinson lawsuit notes that there is some controversy as to whether McCain was born in Colon, Panama (which was never part of the Canal Zone), or whether he was born in the Panama Canal Zone, but for purposes of the lawsuit, it assumes he was born in the Canal Zone.
