Capital University law professor and Ballot Access attorney Mark Brown writes in today’s Cleveland Plain Dealer that the fix will be in should anyone try to exclude Donald Trump from the ballot in Ohio in 2024 due to Republican Party dominance of the Executive, Legislative, and Judicial branches of its government.
On November 24, the Eleventh Circuit issued an opinion in Rose v Raffensperger, 22-12593. The issue was whether Georgia is required by the Voting Rights Act to elect its Public Service Commissioners by district. The state has long elected all five Commissioners in statewide elections. The Eleventh Circuit opinion upholds statewide elections, reversing the U.S. District Court.
Here is the opinion. It is by Judge Elizabeth Branch, a Trump appointee. It is also signed by Judge Britt Grant, a Trump appointee; and U.S. District Court Judge Harvey Schlesinger, a Bush Sr. appointee from Florida.
The ruling is good news for the ability of minor parties to obtain or retain qualified ballot status for statewide office. The Georgia law says a party is ballot-qualified if it polls at least 1% of the number of registered voters for any statewide office, although that status only extends to statewide office. In 2024, there are no statewide races except President and Public Service Commission. If the Commissioners were elected in districts, that office wouldn’t be a statewide office, so the vote test wouldn’t apply to that office. Therefore, without this ruling, a party would need to poll 1% of the number of registered voters for President. Minor parties always poll far higher percentages of the vote for Public Service Commission than for President. For example, the Georgia Libertarian Party has never polled as much as 1% of the number of registered voters for president, except in 2016. No other third party has either, in the period from 1950 to the present, except for the Reform Party in 1996 and the American Party in 1968.
It is not certain that the next Public Service Commission election will be in November 2024, but there will be at least one such election in November 2024, even if the other two seats are filled in a special election sometime sooner than November 2024. There should have been two statewide Commissioners up in 2022, but the election was never held and two commissioners had their terms extended. The Eleventh Circuit opinion does not express any opinion about when the two 2022 seats should be filled.
On November 20, the Tenth Circuit refused to rehear Frank v Lee, 21-8060, the case challenging the “no-politics” zone around polling places in Wyoming. The law forbids petitioning and other free speech activity within 300 feet.
It is likely the plaintiffs will now ask for U.S. Supreme Court review.
The Georgia Libertarian Party filed a request for rehearing in Cowen v Raffensperger, n.d., 1:17cv-4660, on October 23. It is still pending. This is the lawsuit against the ballot access requirements for U.S. House in Georgia. The reconsideration deals with the part involving the Equal Protection Clause of the 14th amendment.
On November 15, former President Donald Trump filed this brief in Castro v New York State Board of Elections, n.d., 1:23cv-1223. This is one of the cases filed by Republican presidential candidate John Anthony Castro to keep Trump off various ballots.
The New York State Board of Elections has informed the judge that the Board takes no position, so effectively this is a case in which the fight is between Castro and Trump. The case is assigned to U.S. District Court Judge Glenn Suddaby, a Bush Jr. appointee.
