On August 30, the 2nd circuit reaffirmed the U.S. District Court decision in Lopez Torres v New York State Board of Elections, 06-6035. The 2nd circuit agreed with the US District Court that New York ballot access laws, for candidates for Delegate to County Judicial Conventions, are too difficult. They require 500 valid signatures (per Assembly district), of party members, to be collected in 37 days. These petitions are for access to a party primary ballot.

Most ballot access litigation involves minor or new party, or independent candidate, access to the general election ballot. But a handful of states, including especially New York, Massachusetts and Maine, make candidate access to a major party primary ballot also very difficult.

This is the second time the 2nd circuit has invalidated the number of signatures needed for a candidate to get on a New York primary ballot. The first time was in 1996, in Rockefeller v Powers. That case struck down the 5% petition requirement for candidates for delegate to the Republican Party national convention.

The 2nd circuit depended on the historical record, which showed that no one was ever able to get on the primary ballot for Delegate to the County Judicial Convention, except candidates sponsored by the major party organizations.

On August 30, a U.S. District Court ruled that Michigan’s anti-affirmative action initiative should remain on the ballot. Operation King’s Dream v Connerly, 06-12773. Plaintiffs charged it should be removed from the ballot because some circulators told the potential signers that the initiative would save affirmative action. Judge Arthur Tarnow, a Clinton appointee, accepted this evidence, but ruled that the initiative still would have had enough valid signatures even without the misrepresentation. He also noted that nothing in state law addresses statements made by circulators to potential signers. He said the Voting Rights Act does not apply, because the misstatements were made to voters of all racial and ethnic groups, not just to African-American voters. The case is being appealed to the 6th circuit.

Charlie Morrison is trying to be placed on the Ohio ballot for U.S. House, 15th district, as an independent. His petition was approved, but he was still rejected because he had voted in this year’s Republican primary. Ohio law is very vague about whether voting in a major party primary disqualifies one as running as an independent (for example, the Green Party’s candidate for Governor this year, who qualified as an independent, also voted in a major party primary this year, and he was not disqualified). Ohio does not have registration by party.

Morrison’s lawsuit in federal court to get on the ballot had been scheduled for an oral argument on August 30. However, both sides agreed to let the judge decide, based on the briefs; the hearing itself was cancelled and a decision will be out next week.