The lawsuit filed last month by a Florida Democrat, alleging that the date of the presidential primary is unconstitutional (because it indirectly disenfranchises Florida Democrats from having national convention delegates) will be expedited. The case, Ausman v Browning, 4:07-cv519, is in U.S. District Court in Tallahassee before Judge Robert Hinkle.

A scheduling hearing is set for December 19. The case is novel and very interesting. The plaintiff depends on the fact that Judge Hinkle has already ruled that the national Democratic Party has a right to deprive Florida Democrats of any national convention delegates, because Florida Democrats are choosing delegates too early. Therefore, the lawsuit argues, the state is to blame for this disenfranchisement, because it is state law that set the primary in January. Therefore, the lawsuit argues, the state should be compelled to hold the Democratic primary in February, when it would not violate national party rules.

Of course, the rebuttal to this is that the state Democratic Party is free to set up February caucuses to choose delegates. But, the plaintiff argues, Florida major parties have never set up caucuses before, and there was no time to organize them.

On December 16, former Georgia Congressmember Cynthia McKinney formally declared her candidacy for the Green Party presidential nomination. See here for her statement.

If she wins the Green nomination, she will be the first minor party female presidential candidate who had previously held an important elected office. By contrast, just since World War II, there have been quite a few male minor party and independent presidential candidates who had previously held high elected office, such as Henry Wallace, Strom Thurmond, George Wallace, John Schmitz, Eugene McCarthy, Lester Maddox, John B. Anderson, John Rarick, and Ron Paul.

On December 11, the 10th circuit refused to rehear Libertarian Party of New Mexico v Herrera, the ballot access lawsuit filed in 2006. The issue was whether the U.S. District Court should have heard the party’s evidence.

The 10th circuit did re-write its opinion slightly. The November 7, 2007 opinion had said on page 12, “Affidavits from other similarly situated minor parties, such as the Green Party, were not obtained to prove the burden imposed.” The new opinion changes “prove the burden” to “establish the character and magnitude of the injury”. Also, on page 14, the old opinion had said, “Without evidence to prove the burden of New Mexico law is severe as to minor party candidates, there was no genuine issue of material fact”; the new opinion says, “Without any evidence to prove that the New Mexico ballot-access law is unconstitutionally burdensome to minor party candidates, there was no genuine issue of material fact.”

It is Orwellian of the 10th circuit to criticize the Libertarian Party for failing to provide evidence, since the party had planned to introduce the evidence at the trial. However, the U.S. District Court had cancelled the trial, with only one business day’s warning to the witnesses and the attorneys, and thus the party was unable to present the extensive evidence it had planned to present.

The ACLU, which brought this lawsuit, might ask for U.S. Supreme Court review, or it might file an entirely new lawsuit focused on the 2008 election. That lawsuit could perhaps be filed on behalf of both the Libertarian and Green Parties, but could not be filed until these parties hold nominating conventions and nominate candidates (for office other than president). Those two parties are on automatically for president, but not other office.