On August 10, Michigan state rep. Leon Drolet introduced HB5082, which would relax the law concerning the deadline for a qualified minor party to certify the name of its presidential and vice-presidential candidates to the Secretary of State. Current law requires that the names be certified within one business day after the national convention ends. The bill would say that the parties must certify the names no later than 60 days before the general election. Last year, the Libertarian Party failed to certify the names of its national ticket to the Secretary of State within one day after the close of the convention, because the state party officers were driving home to Michigan from Atlanta, Georgia, a trip which took longer than one day. However, the Michigan Secretary of State overlooked this technical transgression.

In 1996, a U.S. District Court ruled that the number of signatures needed for a new party in Arkansas (3% of the last gubernatorial vote, or about 22,000 signatures) violates the U.S. Constitution. Citizens to Establish the Reform Party in Arkansas v Priest, 970 F Supp 690. On August 10, 2005, Arkansas Attorney General ruled that the state need not obey the 1996 court ruling.

The Attorney General’s Opinion is 16 pages long, but it never acknowledges that a specific finding of law in the 1996 opinion (#18, on page 698) says that the number of signatures is invalid, without regard to the petition deadline. Instead, the Attorney General Opinion quotes from some of the decision’s findings of fact, which seem to indicate that the number of signatures was invalid only in conjunction with the early deadline. The state had cured the deadline defect but has never amended the number of signatures.

The Attorney General’s Opinion acknowledges that the same U.S. District Court judge repeated his finding in 2001 in Green Party of Arkansas v Priest, 159 F Supp 2d 1140 (a decision that also struck down the inability of the state to have any procedures for a new party to get on the ballot in an odd-year special election). But he says that this was just “dicta”.

The Attorney General also suggests that only a U.S. Court of Appeals ruling is binding on the state. He ignores the fact that Arkansas did file notice of appeal in the 1996 case to the 8th circuit, and then abandoned its own appeal. In any event, even U.S. District Court findings that laws are unconstitutional are binding, if the state doesn’t appeal them.

Finally, the Attorney General’s Opinion contradicts a Secretary of State’s ruling earlier this year, which said that since the 2003 legislature had eliminated the law explaining what the deadline is for a new party petition is, but retained the law saying a party petition must be completed in 5 months, that therefore a new party petition can be circulated in any 5 months period.
The Attorney General Opinion says the Secretary of State was wrong, but does not explain a basis, nor does he say what the start period and the deadline should be.

If this posting is difficult to understand, one can only say that is because one doesn’t ordinarily expect state officials to issue rulings of such poor reasoning quality. The ruling seems to be from Alice in Wonderland’s world.

On August 9, the US Court of Appeals, DC circuit, issued its opinion in Initiative and Referendum Institute v US Postal Service, 04-5045. By a vote of 3-0, that Court ruled that at least some post office sidewalks are public fora. They also concluded that petitioning cannot be banned on such sidewalks. These would be sidewalks that people would use, even if they weren’t going to the post office building itself. They would be sidewalks that are parallel to streets.

The Court of Appeals remanded the case back to the US District Court (which had upheld the postal regulation) to determine whether a substantial portion of all post office-owned sidewalks are the type of sidewalks that are parallel to streets. If the answer is “yes”, then the postal regulation is unconstitutional on its face. It seems obvious that the answer will be “yes”.

Probably the post office will now re-write its regulation, rather than going through the expense and uncertainty of more litigation. The probable outcome will be a new postal regulation that differentiates between types of sidewalks; or possibly the post office will just drop its ban on petitioning on its own sidewalks.

The court did not say that the interior sidewalks are necessarily off-limits to petitioning. This has not been decided yet. The decision will be in effect when the government’s 45-day period to ask for a rehearing is up (Sep. 23).