On November 7, 2006, voters in Kentucky’s 2nd State Senate district elected an independent candidate to represent them in the State Senate. Kentucky almost never elects independent candidates to state or federal office. Independent candidates must contend against the “straight-ticket” device in use in that state, which damages independent candidates (since independent candidates are excluded from the use of the device).

Bob Leeper won the election with 41.1% of the vote. The Democratic nominee, former Congressman Carroll Hubbard, received 40.9%, and the Republican nominee, Neil Archer, received 18.0%. Leeper had been elected to the State Senate as a Democrat in 1990 and 1994, and as a Republican in 1998 and 2002. He became unhappy with the Republican Party in 2005 and at that time changed his registration to “independent”.

The only other independents who were elected to state legislatures on November 7, 2006, are Daryl Pillsbury of Brattleboro, Vermont; Will Stevens of Shoreham, Vermont; Thomas Saviello of Wilton, Maine; and Richard Woodbury of Yarmouth, Maine. There were seven minor party members elected to state legislatures (6 Progressives in Vermont and one Constitution Party member in Montana).

Every state had at least one minor party or independent candidate for the state legislature on its ballot, in 2006 (if that state was electing state legislators in 2006, of course). The same was true in 2004; every state had at least one minor party or independent on the ballot for state legislature.

On January 15, 2007, the last brief was filed in the 9th circuit in Nader v Brewer, 06-16251. Nader challenges Arizona laws that (1) forbid out-of-state residents to circulate an independent presidential petition; (2) require independent presidential candidates to submit petitions no later than early June; (3) depend on a challenge procedure, rather than having elections official themselves check petition validity.

In 1999 the U.S. Supreme Court struck down a Colorado law that made it illegal for states to require initiative petition circulators to be registered voters. That left open the question of whether states may require circulators to be residents of the state. Surprisingly, the Nader Arizona case is the first case to challenge a state residency law in the context of a presidential election. If there is any type of petitioning in which the state interest in having the circulator be a resident of that state is weakest, it surely is petitioning for a presidential candidate. The entire nation elects a president. The U.S. Supreme Court said in 1983 in Anderson v Celebrezze that states have less interest in keeping presidential candidates off their ballots, than in keeping off candidates for lesser office, since a presidential election is the business of the entire nation.

Many courts have struck down laws that require a circulator to be a resident of the particular congressional or legislative district, if the petition is for a candidate for congress or for a state legislature. On the other hand, several courts have upheld laws requiring initiative circulators to be residents of that state.

Arizona says the ban on out-of-state circulators is justified because it may want to subpoena the circulators in case a circulator is charged with fraud. In response, Nader points out that Arizona could simply require circulators to agree in advance to be subject to subpoena power regardless of where they live. Nader also points out that the existing situation leaves circulators free to move out of Arizona when they are done petitioning, and thus the state would still have the subpoena problem for such circulators.

On the matter of the early June petition deadline, the state says the deadline (146 days before the general election) is needed to check the signatures. But the state cannot explain why candidates seeking a place on the September primary ballot face of deadline of only 90 days before the primary. Candidates seeking a spot on the September primary ballot must submit petitions. If the state can check primary petitions with a 90-day deadline, why does it need a 146-day deadline for general election petitions?

The 9th circuit contains nine states, so the ruling in Nader v Brewer will have a big impact. It will be binding on all nine states.

On January 8, bills were introduced in each house of the Oregon legislature to provide that only the two candidates who received the most votes in the primary could be on the November ballot. The bills would affect all federal and state office except president. They are SB 53 and HB 2061. They appear to be sponsored by the Public Commission on the Oregon Legislature, rather than being sponsored by any particular legislators.