Retired U.S. Court of Appeals Judge Richard Posner died on November 10. He was more renowned that most Appellate Judges, and there are many obituaries for him. Unfortunately, he was a leading opponent of tolerant ballot access. He wrote four opinions, each one worse than the last. Three of them upheld severe Illinois restrictions, and one upheld a severe Indiana restriction.

In 1985 he wrote Hall v Simcox, an Indiana case filed by the Communist Party’s 1984 presidential nominee. Indiana had recently quadrupled its petition requirement. The Communist Party had been able to qualify under the old one-half of 1% standard, most recently in 1980. But the new requirement kept him off the ballot in 1984, when 35,040 signatures were required. Posner upheld the new law on the grounds that the U.S. Supreme Court decision Jenness v Fortson, a 1971 decision, had upheld Georgia’s 5% requirement. He wrote that he had no choice. But he ignored the 1974 U.S. Supreme Court teaching in Storer v Brown,which said that there is no litmus test for judging ballot access requirements, and that courts should determine the constitutionality of a requirement by seeing how many candidates or parties were able to qualify. No statewide minor party or independent petition had succeeded in Indiana in 1984, the first year the requirement was in effect, but he ignored that fact.

In 2004 he wrote Nader v Keith, upholding the Illinois June petition deadline for minor party and independent candidates. That same deadline had been enjoined in 2000 by a U.S. District Court judge, but its constitutionality had not been settled. Ralph Nader had filed the 2000 case as well, and unfortunately after he won injunctive relief in 2000, he never finished the case. Instead, tripped up by the same deadline in his 2004 independent run, he filed a new case, and lost. Judge Posner wrote that lenient ballot access laws would make politics more ideological by reducing the influence of the median voter. He cited no evidence and no precedent for that conclusion.

In 2008 he wrote Stevo v Keith, which upheld the Illinois number of signatures for a minor party or independent candidate for U.S. House. The law required a petition of 5% of the last vote cast in most election years, which was generally between 12,000 and 16,000 signatures. But in years ending with the digit “2”, the number of signatures was exactly 5,000 signatures. The plaintiff was not running in a year in which the 5,000 signature requirement was in effect. But he did submit more than 5,000 valid signatures. He argued that if the 5,000 signature requirement worked in years ending in “2” by keeping ballots uncrowded, there is no state interest in requiring as many as 16,000 signatures in other years. But Judge Posner upheld the Illinois law, stating that if the 5,000 signature law were in effect in all years, that was not good policy because some U.S. House districts have greater populations than other districts. He ignored the history that showed even in years ending in “2”, there had never been more than four candidates on the ballot for U.S. House. He also ignored the fact that approximately half the states have flat numbers of signatures for all election years.

In 2016, a U.S. District Court Judge in Illinois had enjoined the 5% petition for U.S. House after noting the evidence that no petitioning candidate for U.S. House had managed to surmount the 5% petition since 1974, if the petitioning candidate had been challenged. The U.S. District Court Judge accepted this evidence and based her ruling on the U.S. Supreme Court’s 1974 teaching that prior experience matters for courts to consider. The state appealed, and Judge Posner and his two colleagues on the Seventh Circuit reversed the U.S. District Court, without a word about their rationale.

This Honolulu Civil Beat story describes the energized state of the Hawaii Green Party, due to Electing a State Legislator