As I pointed out earlier, in addition to the storm of litigation ensuing from the laws that passed this last session of the Alabama Legislature, there appear to more on the way: this time from third parties and independent candidates. From Ballot Access News:

On June 1, HB 425 became law. It moves the petition deadline for newly qualifying parties, and non-presidential independent candidates, from June to the second Tuesday in March, in presidential election years. The purpose of the bill was not to move the deadline; the purpose of the bill was to move the primary (for all office) in presidential years from June to March. The bill eliminated the February presidential primary.

But because the petition deadline is tied to the date of the primary, by moving the primary three months earlier, the legislature caused the petition deadline to become three months earlier. It is not known if the legislature noticed the effect on minor party and independent candidate petition deadlines.

In Alabama, as in most states, newly-qualifying parties nominate by convention, not by primary. Alabama has a “sore loser” law preventing anyone who ran in the primary from becoming an independent candidate (for office other than President). Therefore, there is no state interest in a petition deadline as early as March.

In 1990, a U.S. District Court ruled that the old petition deadline, 60 days before the primary, was unconstitutional.

In 1991, the 11th circuit unanimously affirmed that decision, New Alliance Party of Alabama v Hand, 933 F.2d 1568. Thus, that decision struck down an April petition deadline. At the time, the number of signatures was 1% of the last gubernatorial vote, and there had been many minor party and independent candidates on the ballot during the preceding ten years. The court opinion noted that the April deadline has not blocked all minor party and independent candidates from the ballot, but still struck it down because it couldn’t see any good reason for the deadline to be as early as April.

It is very likely that a new lawsuit will be filed against the March petition deadline, perhaps by the Constitution, Green and Libertarian Parties. That case will be stronger than the 1990 case, because in the last eight years, there have been no minor party or independent candidates on the statewide ballot (except that independent presidential candidates have qualified, because they only need 5,000 signatures and that petition is not due until early September). In 2010, Alabama was one of only five states with no minor party or independent candidates on the ballot for statewide office.

Another reason the new lawsuit will be stronger than the 2012 lawsuit is that the 2012 lawsuit involves presidential elections. Precedents against early petition deadlines involving presidential elections are even stronger than precedents involving elections for other office, especially in the 11th Circuit.

And, of course, a third reason the new lawsuit will be stronger than the 1990 case is that the new deadline, in March, is earlier than the April deadline that had been struck down.

Although it may cut against its own self-interest short-term, the Democratic Party should openly favor and advocate for more open access to the ballots. The health of our democratic institutions depends upon the moral legitimacy of our institutions. If the people continue to believe that our politics are rigged by money, corporations or political party insiders, our democracy will continue to writhe away. A key plank of the Democratic Party should be the “Revitalization of our Democracy:”

The greatest existential danger America faces is not al Quida but our own loss of trust in our government and accompanying failure of moral legitimacy of our democratic institutions. While Republicans will try to close the system against broad-based participation, Alabama Democrats need to lead the charge to enhance the legitimacy of elections,  encourage civic participation,  and invigorate every person’s vote to really mean something.

This means even encouraging and opening the process to third parties and independents.

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