Free & Equal supports Supreme Court appeal

The Free & Equal Elections Foundation is funding a Supreme Court appeal by Brian Moore, the Socialist Party candidate for president in 2008, to remove obstacles created recently by the 5th Circuit Court of Appeals to his lawsuit against the Secretary of the State of Mississippi.

In 2008, Moore submitted his paperwork to appear on the Mississippi ballot on the last day of filing at 5:10 p.m. The state refused to accept it and kept him off the Mississippi ballot. That state’s law does not specify the time of day, although it does specify the time of deadlines in similar statutes.

It may seem that the practical significance of this lawsuit is small, said Richard Winger of Ballot Access News. On the other hand, this type of dispute is surprisingly common.

You may recall in 2008, the state of Texas allowed both the Democratic and Republican parties to place their presidential candidates on the ballot despite the fact that both parties filed days after the state’s statutory deadline. Libertarian presidential candidate Bob Barr sued to force Texas to apply the same standards to Democrats and Republicans that are all too quickly enforced upon other parties. His case was dismissed out of hand by Texas courts.

The Moore case is very similar to one also brought before the 5th Circuit by the Louisiana Libertarian Party. In that case, the Secretary of State’s office was closed due to flooding in the wake of Hurricane Gustav. Despite the order of Governor Bobby Jindal to close all state offices on the day of that deadline, the Secretary of State chose to enforce the deadline anyway.

In January, the 5th Circuit ruled the Louisiana case is moot, although a different three-judge panel of that same court said in December that the Mississippi case should continue. The next step there is to request a hearing from the full nine-member court. Free & Equal is also supporting the continuing appeals by the Libertarians in Louisiana.

Mark Brown of the Capital University Law School in Columbus, Ohio is the attorney in both cases. Brown has conducted these cases pro bono up to this point. Free & Equal is chipping in to cover the rather high costs of filing these cases with the U.S. Supreme Court.

Brown draws out the significance of these cases, saying, “Minor party candidates are routinely dismissed by elections officials. Major party candidates, by way of contrast, are generally given red carpet treatment. Thus, a Socialist candidate who is five minutes late is refused ballot access. The Republican or Democratic parties, in contrast, are always allowed to miss deadlines.”

“The Constitutional issue of whether only legislatures can pass laws relating to ballot access for presidential elections is an important issue that certainly will recur,” Winger added. “The issue of whether state executive officials, such as a Secretary of State, may also issue regulations relating to presidential candidate ballot access is significant. It came up in Bush v. Gore in 2000. It came up in Ohio in 2008, and is pending in Pennsylvania.”

That’s exactly why Free & Equal is keenly interested in these lawsuits. Our core mission is to eliminate the unequal protection mandated by two sets of election law in this country, one for Democrats and Republicans with special benefits, and another that places special burdens on everyone else.

We are proud to support the stalwart efforts by ballot access attorneys like Brown and candidates like Moore and Barr to make our elections truly free and equal.