US Supreme Court Rules Against Oklahoma Libertarian Party

On May 23, the US Supreme Court upheld Oklahoma state law, against a Libertarian Party challenge. Specifically the court upheld a law that does not permit a qualified party to invite members of other parties to vote in its primary. The vote was 6-3. Justice Thomas wrote the opinion.

However, two of the Justices who voted to uphold the law, Justices O’Connor and Breyer, wrote separately to say that state laws that make it difficult for minor parties and independents to get on the ballot may very well be unconstitutional. O’Connor wrote that if all the election laws of Oklahoma that impact on minor parties had been brought into the case at the first stage, the decision might well have been different. This is the first time Justice O’Connor has expressed any sympathy or interest in minor party ballot access problems.

The 3 dissenting justices (Stevens, Souter and Ginsburg) also were critical of state election laws that make it difficult for minor parties and independent candidates to get on the ballot or otherwise carry out successful election campaigns. Therefore, an actual majority of the court (the 2 concurrers, and the 3 dissenters) have now expressed support for attempts to strike down restrictive ballot access laws. This is the first time a majority of the Court has been sympathetic to minor parties since 1992.

Also on May 23, the US Supreme Court refused to hear Ralph Nader’s ballot access case against Oregon, Kucera v Bradbury. Justice Breyer voted to hear it, but it takes 4 justices to agree to hear a case.


US Supreme Court Rules Against Oklahoma Libertarian Party — 5 Comments

  1. I think we should applaud the Supreme Court for refusing to hear a time-limited bad appeal from Nader.

  2. Only people who vote on election day effectively constitute what we customarily call a ‘political party’, or, more precisely, a person seeking election to public office is an effective “official” candidate only at the point of decision by the voters on election day.

    I derive this proposition as an implication of public choice theory described by James N. Buchanan.

    Voters do not actually become constituent members of a “party” until they cast an irrevocable vote for a candidate-person. This is the sole and unique act which reveals “partisanship” in any sense which is decisive to the government. People are admitted to the government (elected) as officials because people actually voted for them. Justice Stevens seems to grasp this more clearly than some other Justices.

    Everything that people do as a ‘political’ association is ‘unofficial’ activity that has no necessary connection to the each person’s individual act of decision on election day when she votes.

    By way of illustration, suppose that everyone anticipates that an election will be held on November 7, 2006. People act with that expectation. Campaigns are waged, money is raised and spent, people form intentions to vote for one candidate or another. The only thing remaining is the actual voting – the cost of decision will be imposed and the consequences of decision revealed.

    Then just after midnight on 11/7/2006 the state announces that the election is cancelled. The consequence is that political parties and candidates no longer exist in any effective political sense. People may still exercise all their First Amendment rights to speak and associate and go through all the motions of collective decision-making, but no decisions will be made collectively. The candidates are moot candidates and the political parties are moot parties. It’s just all talk and no action.

    The same proposition applies those classes of persons to which the state announces “You are excluded from this election.” The person in those classes are moot voters and moot candidates. They may hold exactly the same opinions, intentions and associational identifications after they are excluded from the election as they held before they were excluded. For those persons the election has been cancelled even though they formally enjoy all their First Amendment rights afterward as they did before.

    In the American system of politics, voting is often characterized as a “privilege” not a “right”. This implies that elections are also “privileges” which may be extended to some and denied to others. If this “privilege” is extended to virtually everyone capable of making a decision, then it becomes a nearly universal privilege and tantamount to a “right”. Such has never been the case in the U.S.

    So, political parties are ephermal groups because elections are episodic and parties have no political authority until individuals congregate to reveal the parties at the polls. Then the parties vanish when the voters decisions have been revealed. Nevertheless, the government asserts the necessity to regulate individuals on the assumption that individuals belong to parties that actually exist before and after election day in the same sense that the parties existed on election day.

    The decision by the majority on the U. S. Supreme Court in the case of Clingman v Beaver is rich in irony.

  3. First I’d like to thank Richard Winger for this wonderful website, and all of the hard work and dedication that it takes to collect this information and present it to us in one comprehensive package.

    My favorite part of the complete article (that was printed in the July Ballot Access News) says, “While party identity is important to our system, it should not be immunized from the risk of change. If states were able to protect the incumbent parties in the name of protecting the stability of the two-party system in general, we might still have the Federalists, the Anti-Federalists, or the Whigs.”

    As I point out to the students in my Constitution classes, the Anti-Federalists were really Federalists, and the Federalists were really Nationalists. In other words, before our Constitution was even ratified, our politicians were already LYING to us! Even worse, when we refer to the strong, centralized government in Washington D.C. – we refer to it as the “Federal” government even though it reflects the national aspect of our government. Not only did Alexander Hamilton lie to us – we’re still falling for the same lie over two centuries later.

    Mr. Robinson mentions “Rights vs Privleges” in his comment. That just HAPPENS to be the title for Chapter Two of my book which is available for free download at

    Keep up the great work, Richard! You are…

    Lighting the fires of Liberty, one heart at a time!

  4. I have read and endorse Mr. Badnarik’s book and I certainly agree that Mr Winger has been providing a great value for many years.

    I know I am not alone in criticising the Supreme Court for having blacked out the “privileges or immunities” clause of the 14th Amendment since the Slaughter House cases in 1876(?). Legal scholars have recently re-examined the PoI clause as the most logical and original meaning for extending all the protections of the Constitution (not just the Bill of Rights) to all citizens against the state governments.

    Whatever the PoI clause meant when it was ratified was most clearly relevant to political or voting rights, privileges, or immunities of individual citizens. Justice Thomas recently cited the PoI in a California case. Perhaps, if the issue of political rights and ballot access were analyzed in terms of “privileges and/or immunities” (both phrases are used in the Constitution), then the next such case before the Court will be seen and decided differently.

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