Libertarians Prevail in 9th Circuit Nomination Circulators Dispute

It’s rough being a third party in America. When was the last time a third party was truly relevant? Was it Teddy Roosevelt’s Bull Moose Party in the early 20th century? Our country has been a dual-party system by default for so long that it is nearly impossible for a third party to break into the popular conscience, or into office for that matter.

It shouldn’t be that way, however. It should be as simple as making stump speeches, getting signatures, and running for office on ideas. Unfortunately, third party candidates and independents often run up against bigger budgets, more volunteers, and in this case, state regulations.

To get on the ballot, candidates in California have to gather signatures to attach to their paperwork. Those who distribute the petitions are referred to as "circulators." Unfortunately, California has a rule that states:

"Circulators shall be voters in the district or political subdivision in which the candidate is to be voted on and shall serve only in that district or political subdivision."

For larger parties, this might not be an issue - they can always recruit locally. For smaller parties or independents, their lack of name recognition makes finding volunteers in every voting district far more difficult.

One of the plaintiffs, Christopher Agrella, was a Libertarian candidate for the House of Representatives. Though he circulated petitions for his own nomination, he was unable to circulate petitions for fellow candidates for other offices, including the state senate district that overlapped his district, for fear of prosecution.

The question is, do the plaintiffs have standing? Without a case or controversy, standing is ordinarily denied. (i.e., break the law, then fight it.) However, in First Amendment cases, the burden is far less, or as the court stated, "the inquiry tilts dramatically toward a finding of standing," as the self-censoring of First Amendment rights out of fear of prosecution is, itself, an injury.

In these types of cases, there are three factors to consider:

1. Have the plaintiffs articulated a 'concrete plan' to violate the law in question?
2. Have the prosecuting authorities communicated a specific warning or threat of enforcement?
3. Is there a history of past prosecution and enforcement?

Agrella has already demonstrated a concrete plan. Not only has he previously refrained from becoming a circulator, but he desires to do so in future elections.

As for the warning, there are regulations listed on the Secretary of State's website that highlight the requirement. Also, a memorandum issued by their office states that if circulators sign a false affidavit about their qualifications, they could be prosecuted for perjury and elections code violations.

In terms of past enforcement -- there really hasn't been any. This factor is not dispositive, however. "Because the challenged provisions have not been commonly and notoriously violated the record of non-enforcement is not the end of the inquiry."

After weighing the factors, the court held that this qualified as a "case or controversy." The dismissal was reversed, and the case remanded.

Related Resources:

• Libertarian Party v. Bowen (Ninth Circuit Court of Appeals)
• Ninth Circuit Says Montana Can Limit State Campaign Donations (FindLaw's Ninth Circuit Blog)
• 9th Cir: 'None of these Candidates' Can Stay on Nevada Ballot (FindLaw's Ninth Circuit Blog)