On May 23, the 4th circuit heard the Republican Party’s appeal in Miller v Brown. The issue is whether the party can exclude non-members from voting in Republican primaries. This is not easy, since Virginia doesn’t have registration by parties. The hearing went well for the Republican Party, on the procedural issue of whether the case is ripe for adjudication. Since the Republican Party’s rule won’t be applied until the 2007 state elections, the lower court had dismissed it on the grounds that it had been filed too early. The 4th circuit is likely to send it back to the U.S. District Court, with instructions to decide the main issue without further delay.

On May 23, the Conservative Party of New York endorsed candidates for statewide office. These statewide endorsements are tantamont to nomination, since it is extremely difficult for a non-endorsed candidate to force a small qualified party in New York to hold a primary (15,000 signatures of Conservative Party registrants would be needed to set up a Conservative Party primary; otherwise the endorsed candidates become the party’s nominees by default). The Conservative Party endorsed John Faso for Governor. He is one of the two contenders for the Republican Party’s nomination; the other contender is William Weld, who is also the Libertarian Party nominee. The Republicans won’t choose between them until a September primary.

On May 23, the Pennsylvania qualified minor parties filed their appeal brief in the 3rd circuit. The brief points out that the U.S. District Court Judge totally ignored the main point of the lawsuit…that the Green, Libertarian and Constitution Parties already meet Pennsylvania’s definition of “qualified party” (by polling over 67,000 votes in 2004 for at least one of their statewide nominees). Therefore, it is redundant to require them to submit 67,000 signatures on petitions, before their statewide nominees can be on the November ballot.

The brief also is noteworthy for its criticism of the 1971 U.S. Supreme Court precedent Jenness v Fortson. Normally it is not a good idea for any brief to criticize a U.S. Supreme Court precedent; briefs (at least in courts below the U.S. Supreme Court level) generally must simply accept all U.S. Supreme Court precedents, not criticize them. However, the new Pennsylvania brief’s criticism of Jenness v Fortson is not essential to that brief’s main argument. And it is valuable that a brief break with tradition and criticize Jenness v Fortson. Jenness v Fortson is a deeply flawed decision; it needs to be criticized. Jenness v Fortson was a unanimous U.S. Supreme Court decision in 1971 that upheld petition requirements (for independent candidates and new and unqualified political parties) of 5% of the number of registered voters. Jenness v Fortson is replete with factual errors, and also with doctrines that have since been repudiated by the U.S. Supreme Court itself. For example, a footnote in Jenness v Fortson suggests that if the plaintiff Socialist Workers Party nominees couldn’t get 88,000 signatures, they were free to run in the major party primaries. Since then, U.S. Supreme Court decisions have supported the right of political parties to exclude individuals who are not in sympathy with party principles, so Jenness is outdated.