Monday, August 29, 2005

Ballot Access News reports that Alaska's primary case, which allowed a blanket primary by everybody but the Republicans, was upheld on state constitutional grounds, after Beaver v. Klingman diluted the federal grounds. PDF.
I haven't read the case yet - been watching hurricanes.
I got interested in state constitutions as a source of minor party ballot access rights ten years ago while getting an LLM, and had hoped to make a career out of it, but
that never quite came together. I'm going to be regrouping, opening a new office in Wisconsin, closing out my existing caseload in Indiana.
I see from ban the N Carolina Libertarians are about to do a state constitutional ballot access suit.
Alaska v Green Party, et al.:
The court noted that the Alaska constitution goes further than the US constitution, and adopted the Anderson test as its test of election regulations, while noting this was consistent with a prior ruling applying strict scrutiny in ballot access cases.
The court rejected the state's proposed interests as too abstract and mostly not present. It found that it would consider hypothetical situations, but that the state interests must have some grounding in reality.
The court, citing Stevens' dissent in Clingman, found no state interest in stunting the growth of new parties, and that there was no state interest in promoting a two-party system. The court relied on freedom of association - I was somewhat unclear which state constitutional clause was at issue. The court cited article I section 5, a free speech provision, but section 5 says nothing about association.
In short, this is the kind of case that justifies the positions I took in my 1994 thesis about using state constitutions for minor party ballot access rights where federal rights were not reliable. There's a great deal of work to be done to promote this approach in other states. Alaska is forward-looking, progressive, in interpreting its state consitution to promote democracy and privacy and liberty.
Many states are regressive, holding that their state constitutions can be abridged by any allegation of rational basis. Alaska has it right. Cases like this are few and far between, but give me hope. Now I need to get off my ass, go to the bank, do the laundry, come back and do some serious writing - my writer's block has been strong this week and I have deadlines coming up.

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