On August 27, the Ohio Green Party filed its lawsuit get on the ballot. McKinney v Brunner, U.S. District Court, 2:08-cv-819. As regular readers of this blog know, the federal courts in Ohio earlier put the Libertarian Party and the Socialist Party on the Ohio ballot, since each party showed it has some support, and the state has no valid law in place regulating which parties should be on the ballot.
On August 27, Patty Lovaas filed a federal lawsuit, challenging Montana’s March petition deadline for non-presidential independent candidates. The case is Lovaas v Johnson, Missoula, 9:08-cv-127. The case was assigned to Judge Donald Molloy, a Clinton appointee. Lovaas is an independent candidate for U.S. Senate from Montana.
The U.S. District Court in Butte has been asked to set a hearing date to consider injunctive relief against that deadline, on behalf of another independent candidate for U.S. Senate, Steve Kelly. That case, Kelly v Johnson, was filed in April 2008.
On August 26, the Constitution Party submitted another 8,000 signatures, to supplement the 22,000 they submitted on the legal deadline, August 1. Not surprisingly, the Pennsylvania Elections Department rejected the additional signatures. The requirement is 24,666 signatures.
The Constitution Party will sue to overturn the August 1 deadline, on two grounds: (1) it is too early and violates Anderson v Celebrezze; (2) the August 1 deadline was never passed or created by the Pennsylvania state legislature. It was created in 1984 in an effort by the Secretary of State to settle two lawsuits, filed by the Libertarian Party and the Communist Party. The statutory deadline is in May, but the state in the 1984 agreement promised to accept petitions up until August 1. Under the federal court ruling in Ohio last month, ballot access laws for president are not valid unless they were passed by a state legislature. Article II of the U.S. Constitution says, “Each state shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors.”
Texas has an August 26 deadline for declared write-ins to file to have their write-ins counted. Presidential candidates meeting the deadline are: Ralph Nader, Cynthia McKinney, Brian Moore, Alan Keyes, Jonathan Allen, and Thaddeus Hill.
Although Chuck Baldwin appears not to have filed, it is difficult to imagine how Texas could refuse his late filing, given that the Republican and Democratic Parties failed to meet the parallel deadline for ballot-listed parties to certify their presidential and vice-presidential nominees. UPDATE: the Texas Constitution Party did file the write-in documents and can prove it.
Section 192.031 of the Texas election code says that political parties must certify their presidential and vice-presidential candidates for the November ballot no later than 70 days before the general election. It says, “A political party is entitled to have the names of its nominees for president and vice-president placed on the ballot if before 5 p.m. of the 70th day before presidential election day, the party’s state chair signs and delivers to the secretary of state a written certification of the name’s of the party’s nominees for president and vice-president.”
This year, that deadline is August 26. UPDATE: At 2:30 pm Texas time, August 27, Kim Kizer of the Texas Secretary of State’s elections division says neither major party’s certification has been received in the Elections Division. The Executive Office of the Secretary of State refers all questions back to the Elections Division.
This year, neither the Democratic Party nor the Republican Party obeyed this law. See this link to the Secretary of State’s web page showing a blank for the Republicans and Democrats for president. It does show Bob Barr on the ballot; scroll down a little bit. If the Republicans have indeed filed, one wonders who they listed for vice-president, and why their filing is missing from the state web page.
That deadline had always been 60 days before the general election, until 2005, when for some reason the Texas legislature amended it to 70 days.
The major parties take these statutory deadlines seriously. Both major parties worked together in the period 1953-1955 to move these deadlines to accomodate late national conventions in 1956. Both major party conventions were in August in 1956. In all prior presidential elections, both major party national conventions had always been in July at the latest. Throughout U.S. history, most of them have been in June.
Then, in 1998 and 1999, the Republican National Committee worked with state legislators to move these deadlines even closer to the election, in preparation for the 2000 Republican national convention, which was the latest in U.S. history for a major party, ending on September 1. And when the Republican National Committee chose the 2008 dates (September 1-4), again, state legislatures were asked to move the deadlines, and all the states did so, to accomodate the late Republican convention. It is very peculiar that the Texas legislature moved the deadline to an earlier date in 2005. Thanks to Art DiBianca for this news.
In 1988, the Democratic and Republican Parties missed a similar Indiana deadline. Lenora Fulani sued the State Election Board to force the Board to enforce the deadline. The 7th circuit ruled that Fulani did have standing to file such a lawsuit. Fulani v Hogsett, 917 F 2d 1028 (1990). However, the 7th circuit also said that Fulani waited too long to file her lawsuit. The implication is that if she had filed the lawsuit promptly, it would have been successful; or, more likely, the Indiana deadline for the major parties to certify their nominees might have been held unconstitutional. Fulani in 1988 was the only ballot-listed presidential candidate other than the Democratic and Republican nominees. This year, the Texas Libertarian Party and Bob Barr are the only ballot-listed presidential candidates on the Texas ballot, so the Texas Libertarian Party could, if it wished, bring a lawsuit. However, the result of the lawsuit would probably be to get the deadline declared unconstitutional; no court would order that Obama and McCain be kept off the ballot.
