Ballot Access News

On March 21, the Alabama Supreme Court ruled 7-2 that the Alabama Secretary of State has no duty to examine the constitutional qualifications of presidential candidates. McInnish and Goode v Bennett, 1120465. Here is the Opinion.

The case originated in state court on October 11, 2012. It was filed by individuals who asserted that the Secretary of State should not print any presidential candidate on a primary or general election ballot without first determining if the candidate meets the constitutional qualifications. The court majority refused to issue an opinion. However, two justices wrote separately to say explain why they believe the plaintiffs should not prevail. Justice Michael F. Bolin wrote a 25-page opinion, saying that nothing in Alabama law requires the Secretary of State to investigate presidential qualifications. That opinion also says the plaintiffs should have filed the case much earlier. Justice Tommy Bryan wrote a two-page opinion agreeing with Justice Bolin.

Chief Justice Roy Moore wrote a 44-page dissent, which expresses the opinion that the Secretary of State took an oath to support the U.S. Constitution, and that oath implies that, as chief election officer, she had a responsibility to examine the qualifications of all presidential candidates. Justice Tom Parker wrote a 3-page dissent, agreeing with Moore, except that the Secretary’s duty is only to examine qualifications after a challenge has been filed.

All justices seemed to agree that the plaintiffs had standing. That is because one of the plaintiffs is Virgil Goode, who was on the Alabama general election ballot as an independent presidential candidate. Generally, courts find that candidates have standing to challenge the qualifications of their opponents. Thanks to Bill Van Allen for this news.

New filings entered on March 20 and March 21 in Libertarian Party of Ohio v Husted include documents explaining that the party’s appeal to the Sixth Circuit need not be decided immediately. U.S. District Court Judge Michael Watson issued a supplemental order on March 20, which says that if the Sixth Circuit reverses him and puts the statewide Libertarian candidates on the party’s primary ballot, there is ample time to do that.

This is because some counties in Ohio use touch-screen ballots. A name can be added to a ballot on a touch-screen computer only days before the election is to be held. The Ohio primary is May 6. Because there are no declared write-in candidates for Governor in the Ohio Libertarian primary (and it is too late for any to emerge now), and because Earl is the only candidate who filed a petition to be on the primary ballot, if his name is added to the electronic ballot shortly before the primary, he will the primary winner by default. He only needs one vote to be declared the victor. Normally, when a candidate is left off the ballot in most parts of the state, that is a serious blow; but in this case, it is not.

The attorney for the individual who challenged Earl’s petition filed a brief on March 21. That brief makes the same point, and says there is no time emergency. The brief also defends the constitutionality of the Ohio law that requires circulators to list their employer on each petition sheet. The challenger’s brief says that the privacy of circulators is not injured by that requirement, because anyone can always look at the candidate’s financial disclosure report and find out the name of the individual or group paying for the petition. But this argument cuts the other way. If the state’s interest in knowing who paid for the petitioning can be satisfied by the candidate’s disclosure report, why does the state also need this information on each petition sheet?

On March 20, Theodora “Tonie” Nathan died at the age of 91. She was the 1972 Libertarian nominee for vice-president, and because the Libertarian ticket received one electoral vote that year, she was the first woman in U.S. history to receive an electoral vote. See this story.