In 2000, the U.S. Supreme Court said that it violates the First Amendment for a state to require that parties let non-members help choose their nominees (California Democratic Party v Jones). However, some states require an unqualified party to circulate petitions that carry the names of that party’s nominees. The language on these petitions typically says that the signers “hereby nominate” the candidates who are listed on the petition.

In 2006, the Constitution, Green and Libertarian Parties jointly filed a lawsuit against Pennsylvania, which has no procedure for an unqualified party to place its nominees on the November ballot, except by a petition that lists the party’s candidates. The three parties argued that this system violates the core principle of California Democratic Party v Jones. However, the lawsuit lost. The 3rd circuit said that the miscellaneous voters on the street who sign the petition are not really nominating that party’s nominees.

The 3rd circuit said, at page 198 (the decision is at 468 F 3d 189), “Jones is not applicable to a ballot access case like the present one, in which internal party deliberations on the choice of party candidates are not implicated. Unlike the law at issue in Jones, Pennsylvania election law does not open the intra-party deliberations of minor political parties to persons who are unaffiliated with the party. Forced association caused by sec. 2911b occurs only as a minor party candidate solicits signatures from registered voters, who may be registered with any party or as an independent…In Pennsylvania, a minor political party is free to select anyone it chooses as its candidate.”

So, even though the Pennsylvania petitions have signature lines under a heading that says, “I hereby nominate…”, the court, in order to save the Pennsylvania law from a judgment of unconstitutionality, interpreted the procedure to mean that the petition signers are not nominating anyone. Instead, the 3rd circuit said, petition signers are saying only they want that party to be on the ballot. This interpretation will help the Libertarian Party with its pending lawsuits over whether it can have nominees on the November ballot who are different individuals than the individuals who had been listed on petitions.

The California Assembly, late on Saturday, August 30, concurred in the Senate amendments to AB 583, so the bill is now through the legislature. It sets up public funding for the Secretary of State’s race in 2014. The voters must vote on the idea, though, in 2010. As noted earlier, the bill requires twice as many qualifying contributions for independent candidates, as for Democrats and Republicans.

Although that it seems undisputed that both the Republican and Democratic Parties missed the August 26 Texas deadline for filing a certificate naming their presidential and vice-presidential nominees, there are two Texas Supreme Court decisions that say that candidates should not suffer the loss of ballot access due to the mistakes of state party officials. The cases are Davis v Taylor, 930 SW 2d 581, and Bird v Rothstein, 930 SW 2d 586. The first case put a Republican nominee for State Court of Appeals Justice on the November ballot; the second one put a Democratic nominee for state house on the November ballot.

Texas parties play a big role in Texas primary elections. Candidates running for a party nomination file declarations of candidacy with their party, not with any county or state official. Therefore, party officials have serious responsibilities for certifying various kinds of paperwork, and sometimes they make mistakes.

Given the Davis and Bird precedents, it seems plausible that Texas cannot enforce its law that requires unqualified parties to file a notice with the Secretary of State on January 2 of any election year, that it intends to petition later that year. The responsibility to file such a form rests with party officers. If they fail to file the form, but the party later submits a petition and nominates candidates, the candidates ought to be able to use the Davis and Bird precedents, along with any precedent created this year to help John McCain and Barack Obama, to avoid suffering any consequences for the failure to file the form. This policy also raises equal protection problems for the state, relative to independent candidates. In 2004, Ralph Nader submitted his independent presidential petition two weeks late. He submitted it on the more lenient deadline for minor party petitions, but the federal courts upheld the earlier deadline and kept Nader off the ballot.