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Souter probes Maine ballot access issue

Supreme Court Justice David H. Souter has asked the state of Maine and the state Democratic Party chairman to supply their views on the right of an independent candidate for U.S. Senate to have his name on the November election ballot.  In an order issued Friday (found here), Souter — in his role as Circuit Justice for the area that includes Maine — sought responses to First Amendment issues raised by the non-party candidate, Herbert J. Hoffman, and told all of the lawyers involved to discuss what kind of legal remedy, if any, should be available to Hoffman. Those filings are due Tuesday.

Souter has the authority to act alone, but also may choose to share the issue with his colleagues.

In an application (08A138) filed Thursday seeking an order to block a Maine Supreme Court ruling of July 28, Hoffman contended that he has submitted 4,038 valid signatures on nominating petitions — over the 4,000 minimum required by state law.  But, because of the state court decision, throwing out three separate petitions that each included only a single invalid signature, he would wind up with a total of only 3, 929, and thus would be barred from the ballot.

The state ruling, Hoffman’s application argued, violates the First Amendment right of political expression of himself and voters who support him, the right to gather politically to support a candidate, and the actual right to vote.

The state Supreme Court, the application argued, “decided the weighty First Amendment issues at stake with a few conclusory sentences, two case citations, and a declaration that it need ‘not address the constitutional concern further.’…Significantly, Maine’s own Secretary of State — the state officer charged with enforcing state election law — advised the Maine Supreme Court that the nullification of Hoffman’s three petitions would be ‘draconian,’ ‘absurd’ and imposed an ‘undue burden’ on First Amendment rights.”  The state court’s review of the constitutional claim, the application added, “was not strict or even intermediate but perfunctory.”

Hoffman’s lawyers said that he had just learned that state officials intend to finalize the ballot by Aug. 29, and begin printing ballots by Sept. 2.  Actual design of the ballot will begin on Thursday of this week, the application said.

Under Maine law, 4,000 signatures are required to place a U.S. Senate candidate’s name on the ballot.  State law provides that “all of the signatures to the petition” must be made “in the circulator’s presence.”

Hoffman told Justice Souter in the application that he presented 355 nomination petitions, with a total of 4,112 names.  John Knutson of Brooklin, state Democratic chair, filed a challenge, contending that some of the petitions were invalid because of legal flaws.  A state hearing officer ruled that petitions with 71 signatures were invalid because they were made by unregistered voters, were duplicates, or the signers were ineligible.  That still left more than enough to qualify.

The Democratic chair, according to the application, challenged several petitions as invalid because they included signatures not put down in the circulator’s presence — that is, Hoffman’s presence.  The hearing officer concluded that it was not enough for Hoffman to be nearby; he had to actually witness the signing personally. 

Based on that approach, the officer rejected three specific signatures, one on each of three petitions; those petitions also contained a total of 90 valid signatures.  Still, the officer struck only the invalid signatures, not the entire petitions containing them, as Knutson had requested.  The bottom line was that Hoffman would wind up with 4,038 valid signatures.  Secretary of State Matthew Dunlap accepted that report, but Knutson then appealed to state courts, ultimately winning in the Maine Supreme Cour

The state’s highest court concluded that state law did require Hoffman to witness each signature, as the hearing officer and Secretary of State had ruled, but went on to rule that the three petitions which each contained one invalid signature had to be rejected. “Long-standing jurisprudence in Maine confirms that voiding  petitions that fail to comply with the statute falls well within acceptable constitutional parameters,” the state court concluded.

Challenging this result, Hoffman’s application contended that “a rule that requires the voiding of 90 valid signatures on three petitions on the ground that each petition contained one otherwised valid signature made in technical violation of the presence requirement — where there is no claim, evidenced, or finding of fraud — is not narrowly tailored to serve any legitimate state interest.”