Are August 1 petition deadlines for President vulnerable to legal challenge?

Ballot Access News

Both Pennsylvania and West Virginia require minor party and independent presidential petitions to be submitted on August 1. In both states, one or another minor party is struggling with that deadline.

The Pennsylvania deadline seems very vulnerable to challenge. The legislature has never passed any law saying the deadline is August 1. Instead, in 1984, both the Libertarian Party and the Communist Party sued Pennsylvania over the May deadline. The state gave in and signed a consent decree, promising to accept petitions up until August 1.

But the July 17,2008 court order in Libertarian Party of Ohio v Brunner says that only state legislatures may create ballot access barriers, for president. In the Ohio case, the Secretary of State had created a ballot access barrier, but the Court interpreted Article II, section 1, to mean that only legislatures can do this. That part of the U.S. Constitution says “Each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” Applying the same logic to Pennsylvania, the August 1 deadline is void.

No similar argument can be made against the West Virginia deadline of August 1, since it was passed by the legislature. But one can argue that it is too early, because the U.S. Supreme Court said in Anderson v Celebrezze that states may not discriminate against independent and minor party presidential candidates in the matter of timing. The major parties have not chosen their vice-presidential nominees, not even informally, and they won’t formally choose their presidential candidates until August 24-28 (Democrats) and September 1-4 (Republicans). There are two court precedents finding early August deadlines to be unconstitutionally early, one from Rhode Island in 1976 and one giving injunctive relief in Alaska in 1992.

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