New York state still uses mechanical voting machines, so it is possible for elections administrators to delete candidates at the last minute, and substitute new candidates. On October 31, the New York State Supreme Court, Appellate Division, 4th district, deleted Jonathan Powers from the ballot as the Working Families Party nominee for U.S. House, 26th district. The court replaced him with Alice Kryzan. Kryzan is also the Democratic nominee.
Of course, voters who voted absentee in this district will lose their votes, if they voted for Powers. Powers had been the only Working Families Party nominee this year for Congress who is not also the Democratic Party nominee.
Powers did not want to be on the November ballot as the Working Families Party nominee. After he lost the Democratic primary in September, he moved from New York to Washington, D.C. The issue in this case is whether his move made him ineligible. If he were ineligible, the party had a right to replace him with someone else.
The New York Supreme Court had ruled that under the U.S. Constitution, Powers was still eligible, and therefore there was no legal means for him to be removed from the ballot and replaced by anyone else. However, the Appellate Division reversed that. The Appellate Division decision contradicts the decision of the 5th circuit from 2006, Texas Democratic Party v Benkiser, 459 F.3d 582. That decision pointed out that the U.S. Constitution’s residency requirement for U.S. House candidates is only that the candidate live in the state “when elected”, meaning on the election day itself. However, one could argue that there is a meaningful difference between the Texas decision, filed in June of an election year, and this case, which was filed in October of the election year and decided only 4 days before the election.
Again, still, one more time:
it is no accident that All Saints Eve
and Nationa Election Day are so close!
California [and else where] vote early
and laugh at expensive, untruthful,
obnoxious political advertising.
Chicogo [New Orleans, Kansas City, South
Central Texas] vote early and vote often!
The Texas case missed the whole point of the Philip Key case (who moved to Maryland 2 weeks prior to his election in 1806).
The problem isn’t one of getting off the ballot, but one of getting on the ballot.
Texas requires candidates who seek party nomination or who will attempt to petition as an independent to file in December or very early January. The reason for allowing filings so late as the first few days of January is so that current officeholders can file for election in the last year of their term and not trigger a resignation.
So under Texas law, you may not appear on the November election ballot unless you begin the formal process 10 months before the People choose their representative. It is questionable whether a party official would accept a filing from a non-resident to run in the primary, or the secretary of state for a potential independent petitioner.
In the term limit cases, the US Supreme Court ruled that requiring certain classes of candidates to run as a write-in candidate, or to have pejorative text next to their names on the ballot was the equivalent to introducing an extra-constitutional qualification, rather than merely a manner regulation as Arkansas and Missouri had argued.
So why isn’t requiring a filing 10 months before the election, the same as introducing a qualification of a residency period? Even if a person is permitted to file for nomination by a party primary, voters in the primary will be different than those who supposedly will choose their representative eight months later on “election” day. Some will have died, others moved from the district or even Texas, some will have been judged mentally incompetent, or convicted of a felony. Meanwhile, by November there will voters who will have turned 18, became naturalized citizens, moved into the district, had been determined to be mentally competent, or had their franchise restored after serving a felony sentence.
The ultimate qualification for being a US representative is to be elected by the voters of their district on the election day set by Congress. The manner of election and uniform election date are legitimate exercises of Congressional authority. And yet Texas excludes candidates from being on the November ballot, partially on the basis of votes cast by persons who won’t (legally) be permitted to vote in the November election.
Sore loser laws (and the January filing deadline) disqualify losing primary candidates from running as independent candidates, or even being write-in candidates. Even primary voters are prevented from signing petitions for independent candidates.
The petition signing period for independent candidates is immediately after the primary election or the primary runoff, so independent candidates also face the task of securing signatures from among voters who may not be able to vote for them, and denied the opportunity to gather signatures from persons who would be able to vote for them.
Even to run as a write-in candidate for Congress in Texas requires a filing by early September, and requires either payment of a filing fee, or a petition with 500 signatures.
And even if a non-resident convinces primary voters that he should be the party nominee, there is no way to remove him from the ballot, should it turn out that he didn’t actually move to Texas.
In Spring 1806, Philip Key had told the voters of Maryland’s 3rd district that he intended to run for Congress, and that he was building a house on land he owned their. While this may have had practical effect on his eventual election, it had no legal impact. Since there is no property qualification for US representatives, even the fact that he owned land and was building a house meant nothing.
In 1806, there were no government printed ballots and no draconian ballot access laws. Voters simply went to the polls on election day and chose their representative.
As it turned out, construction of Key’s new home was somewhat delayed, and he did not want to expose his children to the fumes from the drying plaster, and he was only able to move in 2 weeks before the election, after which he returned to his out-of-state residence.
But what if his construction had not (partially) been completed before the election? Or perhaps he might have decided to move to Virginia. The voters would have been quite free to choose another person, and not faced any impediment in doing so. But if a similar situation occured in Texas in 2008, voters would be given a ballot with a candidate who did not live in the state, and could not constitutionally be elected.