Rocky De La Fuente is suing to overturn the California law for independent presidential candidate ballot access, which required 178,039 signatures in 2016, and which will probably require 200,000 in 2020. The percentage requirement is 1% of the number of registered voters in the previous election. The case is in the Ninth Circuit. De La Fuente v Padilla, 17-56668. On June 13, California filed its brief.
The brief opens with an attack on De La Fuente, pointing out that he has frequently switched parties, and has run for two different offices in the same election year, and that he has participated in presidential primaries as well as the general election. This seems to be an attempt to deflect the attention of the judges to De La Fuente’s personal political behavior, and away from the law that is being challenged.
The California independent procedure is so difficult that it has kept the following candidates off the ballot: Eugene McCarthy in 1976, Ralph Nader in 2004, and Evan McMullin in 2016. All of them had substantial support in the states in which they were on the ballot. McCarthy and Nader placed third nationally in the listed races, and McMullin placed fifth.
The brief argues that because the Ninth Circuit upheld Hawaii’s independent presidential petition requirement in 2010 in Nader v Cronin, 620 F.3d 1214, the California law is also constitutional. The Hawaii requirement was a petition of 1% of the last presidential vote cast, which was only 3,711 signatures in 2004, the year the case was filed. The Hawaii deadline was September 3, 2004, and an independent presidential candidate could start petitioning as early as he or she wished. By contrast, the California petition in 2016 had to be completed in 105 days and was due August 12. The brief says that the Hawaii case is “directly on-point”. It is ludicrous for anyone to suggest that a requirement to collect 3,711 signatures in an unlimited time period is the same as collecting 178,039 signatures in 105 days.
The brief makes no mention of Nader v Brewer, 531 F.3d 1028, a Ninth Circuit case from 2008 that struck down Arizona’s independent petition requirement of 14,694 signatures, due in June.
The California state brief says in footnote 13 that “California’s 1% requirement falls in the middle of the range of, or is less than, what other U.S. states require.” To support this point, the brief cites a 2016 report by the National Association of Secretaries of State. But the brief does not attach the NASS report, and the NASS Report does not support the state’s assertion. There are only two states with a more severe independent presidential independent petition requirement than California, New Mexico and Wyoming, even if one assumes that the best way to compare states is on a percentage basis. There are three states that are tied with California: Arizona, Delaware and Florida. There are some errors in the NASS Report: it is incorrect for Arizona, Colorado, Georgia, Pennsylvania, and Virginia, even as of mid-2016; and it is out-of-date for Maryland, North Carolina, and Oklahoma (those three states all eased their independent presidential petition requirements in 2017).
In 2017, the Eleventh Circuit struck down Georgia’s petition requirement for independent presidential candidates and the presidential nominees of unqualified parties. The Georgia law was virtually identical to the California law being challenged, 1% of the registered voters as of the preceding election. The California brief dismissed the Georgia decision by saying that Georgia “systematically excluded third-party candidates.” But actually, the Georgia decision mentions that the Reform Party was on the Georgia ballot for president in 1996 and 2000, and the Libertarian Party was on in all presidential elections 1988 through the present.