Ballot Access News

On December 16, the New Mexico Attorney General filed a 10-page brief in the New Mexico Supreme Court, in response to the Constitution Party’s filing. The case is The Constitution Party of New Mexico v Duran, 34431. The issue in the case is whether the Constitution Party should have been disqualified after the November 2012 election for failing to poll one-half of 1% of the presidential vote.

The law says when a party is disqualified, the state must notify the party’s state chair by March 15 of the disqualification, and the state must mail notice to all the party’s registered members by May 30. Actually, in 2013, the Secretary of State did not notify the state chair until July, and did not send the letter to the party members until November.

The state says this error does not affect the validity of the action disqualifying the party, and implies that the notices were late because the Secretary of State wasn’t certain whether the law required her to disqualify the party and it took a while for the Attorney General to advise her that they should be disqualified. Then the state says that in the past, when parties weren’t disqualified, they didn’t receive notices at all. The brief does not mention that the law requiring the notices was not passed until 2011. It was SB 403, signed April 7, 2011.

The state’s brief also asserts that parties have always been disqualified after failing to poll as much as one-half of 1% for president, in a presidential year. It asserts that the Constitution Party (which has never polled as much as one-half of 1% in New Mexico) was similarly removed from the ballot after the 2004 election, and after the 2008 election. This assertion is not true. Evidence that the Constitution Party was not decertified after the 2004 election is a letter from the former Secretary of State, dated in 2006, which says the party is still on the ballot. Evidence that it was not decertified after the 2008 election is that it was listed on the state income tax form printed in late 2009. New Mexico state income tax forms list qualified parties and give taxpayers a chance to send them a $2 voluntary contribution. The Constitution Party got $94 during 2010. UPDATE: here is the 2009 tax return form PIT-D, listing the Constitution Party as a qualified party.

Most deceptively, the state quotes 1-7-2(C), on how a party loses its qualified status, but does not quote the full sentence. The state’s brief leaves out the first half of the sentence, which contains the words “If two successive general elections are held”. Past practice in New Mexico has been to give a party two elections after it completes a party petition.

On December 16, the U.S. Supreme Court revealed that it has refused to hear Libertarian Party of Michigan v Ruth Miller, 13-442. This is the case over whether Gary Johnson should have been on the Michigan ballot as the Libertarian nominee in November 2012.

The U.S. Supreme Court has not agreed to hear any election law case brought solely by a minor party, or an independent candidate, or their voters, since 1991, if that minor party or independent candidate had lost in the lower court. The only exception is a case from Georgia in which a Libertarian nominee was kept off the ballot because he had refused to take a test for illegal drugs, in defiance of a state law that did not permit candidates to get on the ballot for state office unless they took a urine test.

Here is a short news article about the denial.

On December 13, U.S. District Court Judge Eric Melgren issued an order in Kobach v U.S. Election Assistance Commission, 5:13cv-4095. This is the case in which the Secretaries of State of Kansas and Arizona sued the U.S. Election Assistance Commission in order to get permission to change the federal voter registration postcard form within those two states. The federal form asks applicants to sign under penalty of perjury that they are citizens. Those two states want applicants to be told that they must attach paperwork proving they are citizens. The states want the federal form altered, for use within those two states.

The judge’s order tells the U.S. Election Assistance Commission to make a decision on whether those two states may have their wish granted. The order notes that even though there are no sitting Commissioners on that agency, that the federal government has alleged that the staff of the Election Assistance Commission has the authority to decide. The judge’s order says that if the Election Assistance Commission has done nothing by January 17, then the inaction will be deemed to be a refusal. Thanks to Rick Hasen for this news.