In 49 of the 50 states, Neal Katyal is known as a stalwart defender of democracy. And then there’s New Jersey.
In the Garden State, Katyal — the Beltway-famous legal combatant against Trump-era assaults on democratic norms — has thrown himself into a very different legal battle: He’s working to restore a voting rule that enables machine-politics bosses to stack the ballot against anyone they don’t favor. A federal judge last month declared the system unconstitutional for the upcoming primary. Now Katyal’s admirers say they’re enraged by their erstwhile ally’s efforts to snatch away their victory.
“We are all amazed and disappointed and all the related words,” said Yael Niv of the Good Government Coalition of New Jersey. “He’s on the wrong side of history.”…
Democracy advocates have long derided the rule as something out of a banana republic, “an unconstitutional governmental thumb on the scale,” in the words of New Jersey Rep. Andy Kim, the Democratic Senate candidate who filed suit against the “fundamentally unjust and undemocratic” system in February.
When Kim’s lawsuit prevailed on March 29, it represented a political earthquake in the state — and set off impromptu celebrations among activists who’d fought the system for years and couldn’t quite believe they’d won.
But instead of joining the celebrations, Katyal joined the other side, filing an amicus brief last Saturday on behalf of the Middlesex County Democratic Organization, one of the state’s venerable local machines.
Katyal declined comment, saying he was busy preparing for arguments in a gun-control case in San Francisco this week. But his filing does not strike the high notes that might be familiar to those who read his anti-Trump book or watched his successful Supreme Court evisceration of the “independent state legislature” doctrine that could have allowed state legislatures to overturn election results.
Nonetheless, the brief makes a coherent argument for the old status quo: The line system, Katyal writes, “makes voting more efficient by allowing primary voters to easily identify and quickly vote for all candidates belonging to a single political organization or affiliating with a single slogan.” According to the brief, it’s about protecting “low-information” voters: “Only political junkies learn enough about each primary candidate to make an informed choice about who should be their party’s nominee for Surrogate, township council, or County Clerk.”
It’s an argument that draws scoffs from attorneys who fought to kill off the system….
Category Archives: ballot access
“Alabama secretary of state says Democratic convention too late to get Biden on ballot this fall”
Alabama Secretary of State Wes Allen has notified the state and national Democratic parties that the scheduled date of the Democratic National Convention is a few days after the deadline for the party to put its nominees for president and vice president on the ballot for the general election in November.
The Republican National Convention came after the same deadline in 2020, but the Legislature passed a bill to allow ballot access. President Joe Biden’s campaign released a statement Tuesday night in response to Allen’s letter, saying the deadline would not keep the president off the ballot.
“Joe Biden will be on the ballot in all 50 states,” the campaign said. “State officials have the ability to grant provisional ballot access certification prior to the conclusion of presidential nominating conventions. In 2020 alone, states like Alabama, Illinois, Montana, and Washington all allowed provisional certification for Democratic and Republican nominees.”
Allen, who is a Republican, said state law requires parties to provide a certification of nomination for president and vice president no later than Aug. 15….
“Biden could face obstacle getting on Ohio’s ballot, secretary of state’s office says”
President Joe Biden may face complications getting on Ohio’s 2024 general election ballot unless Democrats make changes or the state legislature takes action, according to a letter issued by the office of Ohio’s secretary of state, Frank LaRose.
According to Ohio law, there is an August 7 deadline “to certify a presidential candidate to this office.” But this year’s Democratic National Convention — where delegates officially select the party’s nominees for president and vice president — starts August 19.
Paul Disantis, chief legal counsel for the Ohio secretary of state, laid out the options for getting Biden on the ballot in a Friday letter addressed to Ohio Democratic Party Chairwoman Liz Walters.
“I am left to conclude that the Democratic National Committee must either move up its nominating convention or the Ohio General Assembly must act by May 9, 2024 (90 days prior to a new law’s effective date) to create an exception to this statutory requirement,” Disantis wrote.
“We’re looking into the matter,” Ohio Democratic Party Communications Director Matt Keyes told CNN on Saturday.
“Democratic tactics against RFK Jr. are rattling his campaign”
A billboard truck paid for by the DNC has been circling Robert F. Kennedy Jr.’s campaign events. Protesters picketed his vice presidential announcement rally. The website’s grassroots organizing forum was flooded with fake, provocative event pages. And a job ad from the progressive group MoveOn showed in real-time how progressive organizations are staffing up to confront the independent campaign.
The bombardment against Kennedy has grown so intense that the campaign is crying foul. Democrats are taking third-party threats seriously, and anti-Kennedy antagonism has spiked now that the general election is underway and the independent candidate continues to draw significant support in the polls. Despite the political prowess associated with his family name, Kennedy is a first-time candidate, and is now receiving his first real political vetting….
Kennedy is averaging about 12.5 percent in polls, according to RealClearPolitics. While that’s not enough support to win an election, even single-digit support in swing states could shift the 2024 results. Democrats have so far been the more proactive party to define Kennedy as a spoiler, but former President Donald Trump’s team is starting to turn its attention to Kennedy as well, calling him “a radical leftist.”
“RFK Jr. threatens to sue Nevada over ballot access”
Robert F. Kennedy Jr. is threatening legal action against Nevada over his petition to appear on the ballot as an independent candidate, his campaign said Monday, after CBS News reported that the signatures he had gathered could be invalid because his petition did not include a vice presidential candidate.
The Kennedy campaign claimed that the Democratic Party invented a new rule to invalidate his Nevada signatures. But Nevada’s requirement for a vice presidential candidate to be named in an independent candidate’s petition has been on the books since 1993.
“After successfully collecting all of the signatures we need in Nevada, the DNC Goon Squad and their lackeys in the Nevada Secretary of State’s office are outright inventing a new requirement for the petition with zero legal basis,” said Kennedy ballot access attorney Paul Rossi. “The Nevada statute does not require the VP on the petition. The petition does not even have a field for a VP on it.”
“This corrupt attempt by the Nevada Secretary of State must be enjoined by a federal judge,” Rossi said. “The Kennedy campaign intends to depose the Secretary of State to find out exactly which White House or DNC official concocted this scheme.”
Rossi also linked to an email exchange on Nov. 14 between the campaign and the secretary of state’s office in which the office erroneously said the petition did not require a named running mate.
“Does the vice presidential candidate have to be listed on the petition forms,” a Kennedy ballot access manager asked in the email. “No,” the office staffer replied, referring the campaign to the petition format on page 5 of the state’s petition guide. Rossi also linked to Jan. 9 correspondence from the secretary of state’s office approving Kennedy’s petition.
This differs from Nevada statutes, which say that in an independent candidate’s petition of candidacy, “the person must also designate a nominee for Vice President.”
Documents requested from the Nevada office revealed that Kennedy only named himself, without a running mate, on his candidate petition, in violation of the rules, potentially making the signatures collected in the state void.
The secretary of state’s office acknowledged its staff had misinformed Kennedy….
Federal court relies on Cook v. Gralike to find New Jersey ballot design likely violates the Elections Clause
Rick H. links to the story about the New Jersey ballot design case and a federal judge finding that the “party line” was unconstitutional. The first claim, unsurprisingly, is an Anderson-Burdick balancing test. But I wanted to draw attention to the holding for the second claim, under the Elections Clause. The court found a likelihood of success on the claim that the law exceeds the state’s power to direct the time, place, and manner of holding elections:
The Elections Clause of the United States Constitution provides that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of [choosing] Senators.” U.S. Const. art. I, § 4, cl. 1. When the regulation involves the time, place, and manner of primary elections, the only question is whether the state system is preempted by federal election law on the subject. U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 832 (1995). However, when the regulation does not regulate the “time, place, or manner,” courts must consider whether the regulation on its face or as applied falls outside that grant of power to the state by, for example, “dictat[ing] electoral outcomes, favor[ing] or disfavor[ing] a class of candidates, or evad[ing] important constitutional restraints. Cook v. Gralike, 531 U.S. 510, 523 (2001). The Supreme Court has struck down such regulations when they “attach[ ] a concrete consequence to noncompliance” rather than informing voters about some topic. Id. at 524. The timing may also add to the gravity of injury, especially when it occurs “at the most crucial stage in the election process – the instant before the vote is cast.” Id. at 525 (quoting Anderson v. Martin, 375 U.S. 399, 402 (1964)).
Here, as set forth above, the State conferred its power to regulate the “manner” of federal elections to the county clerks, including the Defendant County Clerks, by requiring them to design and print ballots. N.J. Stat. Ann. 19:23-26.1, 19:42-2. In Defendants’ view, the Bracketing Structure is a permissible regulation on the “manner” of federal elections. On the record already reviewed, Plaintiffs’ evidence is sufficient to make their showing of a likelihood they will succeed in establishing that the Bracketing Structure and ballot placement is improperly influencing primary election outcomes by virtue of the layout on the primary ballots. This would clearly exceed a State’s right to regulate the “manner” of federal elections. Cook, 531 U.S. at 525 (“the instant before the vote is cast” is the “most crucial stage in the election process”).
Cook v. Gralike involved a state attempting to print on the ballot whether the candidate supported or opposed a term limits pledge. The court here also cites Anderson v. Martin, where a state attempted to list the race of candidates on the ballot. (For a look at a ballot from the era with racial designations, check out my blog post here.) Both cases, in my judgment, are underappreciated in how we think about election administration and ballot design (I write about both in “Ballot Speech“), and it’s interesting to see how they’re used here in the New Jersey ballot design case. (Of course, this only applies to congressional elections, not state elections.)
“Judge kills NJ’s controversial ballot design for Senate primary”
New Jersey’s controversial ballot design that gives party-backed candidates an advantage will be scrapped in the June primary, a federal judge ruled on Friday.
U.S. District Judge Zahid Quraishi granted the preliminary injunction sought by Rep. Andy Kim and two Congressional candidates to eliminate the so-called county line, a feature unique to New Jersey elections that’s given local party bosses inordinate influence over elections. In 19 of 21 counties in the state, candidates backed by county political parties appear in a single column or row, placing them more prominently on the ballot and giving them a nearly insurmountable edge.
The judge ordered the use of office block ballots for the June primary, where candidates are placed together by the office they are seeking. His ruling applies to all offices on the ballot.
The decision is likely to be appealed, but until then it takes away a key tool wielded by political bosses in the state. …
“Democrats Prepare Aggressive Counter to Third-Party Threats”
The Democratic Party, increasingly alarmed by the potential for third-party candidates to swing the election to former President Donald J. Trump, has put together a new team of lawyers aimed at tracking the threat, especially in key battleground states.
The effort comes as challengers — including the independent candidates Robert F. Kennedy Jr. and Cornel West plus groups like No Labels as well as the Green Party — have ramped up their push to qualify for states’ ballots ahead of critical deadlines in the spring and summer.
The legal offensive, led by Dana Remus, who until 2022 served as President Biden’s White House counsel, and Robert Lenhard, an outside lawyer for the party, will be aided by a communications team dedicated to countering candidates who Democrats fear could play spoiler to Mr. Biden. It amounts to a kind of legal Whac-a-Mole, a state-by-state counterinsurgency plan ahead of an election that could hinge on just a few thousand votes in swing states.
The aim “is to ensure all the candidates are playing by the rules, and to seek to hold them accountable when they are not,” Mr. Lenhard said….
State rules limiting ballot access “ensure that the people who are on the ballot have legitimate bases of support, and it’s not simply a vanity project,” Mr. Lenhard said.
Independent candidates and third-party leadership see restrictive ballot laws, and efforts to monitor and enforce them, as anti-democratic, exemplifying the kind of two-party political machinations they say they are trying to combat.
“What are ballot access barriers? They are barriers against free speech,” said Mr. Nader, who has made four third-party runs for president. He described state ballot laws in the United States as “the worst in the Western world, by orders of magnitude.”
“Why Everyone in New Jersey Politics Is Talking About ‘the Line'”
New Jersey election ballots have long been designed to benefit the favored candidates of local political leaders. But now, in the middle of a high-stakes Democratic primary for U.S. Senate, a move to declare the ballot design unconstitutional could upend the state’s entire electoral system.
In the current ballot design, the candidates officially endorsed by the leaders of the local Democratic and Republican parties are listed in a single column or row in a prominent position known as “the line.”
The names of challengers appear off to the side, sometimes at the ballot’s edge. Candidates call this “ballot Siberia.”
Studies have shown that candidates whose names appear on “the line” generally win. County political leaders use the system to encourage fealty. As a result, party leaders have outsize control over policy decisions, jobs and government contracts.
A lawsuit challenging the system was filed in 2020. But it was not until last month — when Andy Kim, a Democratic congressman from South Jersey who is competing for a Senate seat now held by Robert Menendez, filed his own legal challenge to the practice — that the long-smoldering issue caught fire.
Mr. Kim is asking a federal judge, Zahid N. Quraishi of U.S. District Court for the District of New Jersey, to force the state to redesign the ballot before the June 4 primary.
The judge held a daylong hearing in Trenton, N.J., on Monday.
Tammy Murphy, New Jersey’s first lady and Mr. Kim’s main opponent in the primary, has the most to lose if Judge Quraishi grants Mr. Kim’s request….
“Potential 2024 candidates keep saying no, but No Labels is pressing forward anyway”
No Labels is still working to find its dream third-party presidential ticket for 2024 — but there’s a hitch: It keeps getting turned down.
The deep-pocketed centrist group once envisioned a vigorous public competition to join its ticket, which it planned to put on the ballot in all 50 states. Instead, it has been spurned by at least a dozen prominent figures from across the ideological spectrum and secured ballot access in just 17 states so far, despite having said it hoped to be on 27 state ballots by the end of last year.
Among the Republicans who have said no after approaches from the group: former Rep. Liz Cheney of Wyoming, former Maryland Gov. Larry Hogan, Georgia Gov. Brian Kemp, former New Jersey Gov. Chris Christie, former Indiana Gov. Mitch Daniels and New Hampshire Gov. Chris Sununu, according to public statements and sources familiar with their responses. The group was still trying to lure Sununu to the ticket within the last two weeks as Sununu, an avowed critic of former President Donald Trump, fell in line behind Trump, the GOP’s presumptive nominee.
No Labels had also openly suggested that it was interested in former U.N. Ambassador Nikki Haley, who shut down any openness to running on a third-party ticket in an interview early this month.
On the Democratic side, Sen. Joe Manchin of West Virginia and former Massachusetts Gov. Deval Patrick declined No Labels’ entreaties, as did Democratic-turned-independent Sen. Kyrsten Sinema of Arizona. The group also engaged with former New York Gov. Andrew Cuomo.
Well-known non-politicians like businessman Mark Cuban and retired Navy Adm. William McRaven did not reciprocate interest from No Labels, either. No Labels’ search has gone far and wide — it even tried to make overtures to Dwayne “The Rock” Johnson.
The latest rejection, on Monday, came from former Georgia Lt. Gov. Geoff Duncan, an anti-Trump Republican who had been reported to be under consideration to lead the No Labels ticket. But Duncan told The Atlanta Journal Constitution that he withdrew himself from consideration to instead focus on “healing and improving the Republican Party.”…
New Jersey: “Attorney General says organization lines are unconstitutional”
Attorney General Matt Platkin has told a federal judge that New Jersey’s county organization line is unconstitutional, and he is not prepared to defend it in court, the New Jersey Globe has confirmed.
Platkin sent a letter to U.S. District Court Judge Zahid Quraishi saying his office will not intervene in a lawsuit filed by Rep. Andy Kim (D-Moorestown).
“The attorney general will not otherwise provide a defense of the challenged statutes on the merits in that case,” the attorney general’s office told Quraishi.
“A central reason for the attorney general’s defense of state statutes is to implement the will of the democratic process that enacted them, but as explained above, subsequent court decisions and practices on the ground have overtaken the Legislature’s original intent in enacting the challenged state statutes,” the AG’s office said. “The traditional need for the Attorney General to defend the results of the democratic process does not apply neatly to a case where the plaintiffs produced substantial record evidence to challenge the statutes as undermining the democratic process.”
In his brief, the AG’s office said that “New Jersey stands alone across the nation in the use of bracketing for primary-election machine ballots, which further undermines the claim that these laws are necessary to advance the government interests on which the attorney general would have relied.”
“No official that the attorney general represents in court implements these laws, so there is no risk that any state agencies would simultaneously be enforcing but declining to defend a particular statute,” the AG’s office said. “This court has made clear in its prior decisions that the constitutional question at issue turns on the evidence. The attorney general has concluded that the evidence presented does not support a defense of the constitutionality of these statutes.”
His move does not necessarily mean that Quraishi will abolish the line system, but it could give the judge plenty of cover if he does.
Ending the line comes at a terrible time for Tammy Murphy, who is depending on organization endorsements from large Democratic counties, including Bergen, Essex, Camden, Middlesex, and Hudson, to defeat Kim in the Democratic U.S. Senate primary….
“No Labels Considering Georgia Republican Geoff Duncan to Lead ‘Unity’ Presidential Ticket”
The centrist group No Labels is considering picking Geoff Duncan, the Republican former lieutenant governor of Georgia, to lead a “unity” presidential ticket, people familiar with the discussions said.
The group’s delegates voted Friday to press forward with its efforts to field an independent presidential ticket, based on the idea that voters want an alternative to President Biden and former President Donald Trump, but didn’t name any candidates.
Some prominent politicians who had been on the group’s radar—including Republicans Nikki Haley and Larry Hogan and Democrat Joe Manchin—have ruled out making presidential bids. If No Labels can’t succeed in recruiting sufficiently high-profile candidates, that could drain enthusiasm among delegates for moving forward with an independent ticket, according to people familiar with its discussions.
Duncan didn’t immediately respond to a call for comment Friday.
“Third-party group No Labels is expected to move forward with a 2024 campaign, AP sources say”
The third-party presidential movement No Labels is planning to move toward fielding a presidential candidate in the November election, even as high-profile contenders for the ticket have decided not to run, two people familiar with the matter said Wednesday.
After months of leaving open whether the group would offer a ticket, No Labels delegates are expected to vote Friday in favor of launching a presidential campaign for this fall’s election, according to the people familiar with the matter, who spoke on condition of anonymity to discuss the group’s internal deliberations.
No Labels will not name its presidential and vice presidential picks on Friday, when roughly 800 delegates meet virtually in a private meeting. The group is instead expected to debut a formal selection process late next week for potential candidates who would be selected in the coming weeks, the people said.
“Waiting on Supreme Court, States Go It Alone in Trump Ballot Cases”
NYT:
When the U.S. Supreme Court agreed in January to hear an appeal of a Colorado ruling that disqualified former President Donald J. Trump from that state’s primary ballot, many thought the court would soon resolve the issue for the entire country.
That sense only grew after oral arguments in early February, when justices across the ideological spectrum appeared skeptical of the reasoning used to disqualify Mr. Trump.
But three weeks have passed, Mr. Trump has solidified his lead in the race for the Republican presidential nomination and, with Super Tuesday looming, there remains no nationally binding answer to questions that strike at the heart of American democracy: Did a major political party’s likely nominee participate in insurrection? If he did, does that disqualify him from running for president?
The uncertainty from the Supreme Court has left states to go it alone, with divergent results that have left some voters confused. On Wednesday in Illinois, a Democratic state judge disqualified Mr. Trump from the state’s primary ballot, a decision that she stayed until Friday to give Mr. Trump time to appeal. By Thursday morning, Republicans were calling the clerk’s office in McLean County, in central Illinois, unsure of what it all might mean for them. After all, early balloting in the March primary was already underway….