On July 11, U.S. District Court Magistrate Michael J. Roemer, an Obama appointee, issued a 35-page opinion in Meadors v Erie Co. Board of Electiions, w.d. n.y., 1:21cv-982. The opinion upholds the New York independent candidate petition deadline, which was moved in 2019 from August to May. The deadline is 28 days before the June primary. The case had been filed in 2019 by the incumbent Mayor of Buffalo, Byron Brown, who had lost the Democratic primary and wanted to then be an independent candidate. New York has never banned “sore losers”, so the only impediment to Brown’s getting on the ballot as an independent was the deadline.
The opinion expresses the viewpoint that it is not fair to the major parties if independent candidates can get on the ballot after the primaries. See pages 34-35. That belief was rebutted by the U.S. Supreme Court in Anderson v Celebrezze, the 1983 decision that struck down Ohio’s March 20 deadline for independent presidential candidates. The state of Ohio had argued all the same points made by Magistrate Roemer, but the U.S. Supreme Court had disagreed.
The decision says that Anderson v Celebrezze doesn’t apply to this case because Anderson v Celebrezze involved a presidential election. See page thirty. This ignores the fact that early petition deadlines for non-presidential elections have been declared unconstitutional or enjoined in Alabama, Alaska, Arkansas, Hawai, Illinois, Indiana, Iowa, Kentucky, Maine, Maryland, Montana, Nevada, New Jersey, North Dakota, Ohio, Pennsylvania, South Dakota, and Tennessee. The Arkansas and Pensylvania decisions against early deadlines involved candidates for the state legislature and U.S. House, and both of them were summarily affirmed by the U.S. Supreme Court. Salera v Tucker, 424 U.S. 959 (Pennsylvania) and Lendall v Jernigan, 433 U.S. 901 (Arkansas).
The decision says that other decisions have upheld early deadlines, but every case cited by Magistrate Roemer for that point, except two, involved laws in which the filing deadline was on primary day, whereas New York’s deadline is 28 days before the primary. The two decisions cited by Magistrate Roemer that involved earlier deadlines were from North Dakota and Washington, but in the Washington instance the state law required the candidate to run in the primary, so naturally the deadline had to be earlier than the primary. In New York and 46 other states, independent candidates do not run in the primary. As to the North Dakota precedent, that involved new parties, which had to nominate candidates in a primary, so again, naturally, the deadline for the party to qualify had to be earlier than the primary. But the North Dakota independent petition has always been due in September.
The decision also cites a 1986 Illinois case that upheld an early deadline, but does not reveal that the 1986 decision, Stevenson v Illinois State Board of Elections, was overridden by the Seventh Circuit in 2006 in Lee v Keith.
The decision shows no concern for the voting rights of voters. A majority of Buffalo voters wanted to re-elect Mayor Brown in 2021. This is obvious, because he won the general election with over 60% of the vote via write-ins. A law forcing a candidate who is supported by a majority of the voters to carry on a write-in campaign discriminates against those voters. It is more difficult for a voter to cast a write-in vote than to vote for a candidate who is listed on the ballot. A law that discriminates against a majority of voters is a severe burden on voting rights, yet Magistrate Roemer says the law nrepresents only a “slight” burden.
The decision says the state interest in an early deadline is to help overseas absentee voters, but the decision admits the overseas ballots don’t need to be mailed until September, so obviously a May petition deadline is not needed. New York had a petition deadline in August, September, or October, for its entire history of government-printed ballots, until 2019. There is no election-administration reason whatsoever for a deadline as early as May. It is hoped this case will be appealed.
