Libertarians Lose Oklahoma Ballot Access Case in State Court of Appeals

On February 27, the Oklahoma State Court of Appeals upheld Oklahoma’s laws on how a new or previously unqualified party may appear on the ballot. The case is Libertarian Political Organization v Clingman, no. 103,592. The vote was 3-0. The party will appeal to the Oklahoma Supreme Court, which may choose whether or not to hear the case. The case had been filed in 2004, the year in which the party submitted 26,462 signatures. The requirement that year was 51,781. No other group submitted any signatures in Oklahoma in 2004, and no one appeared on the Oklahoma ballot in November 2004 for president except President Bush and Senator Kerry.

The decision discusses the evidence the party presented, but seems not to accept that the evidence is necessarily true. The decision says, “The Libertarian Party of Oklahoma claims that the statute has a substantial effect upon its associational rights, as shown by the following historical ‘facts’.”
By putting the word “facts” in quotes, the Court is saying it doesn’t necessarily believe the evidence, even though it was uncontradicted and given under penalty of perjury. Those facts, the Court goes on to say, are: “(1) In 2004, Oklahoma allegedly was the only state that had no other political party choices on its presidential ballot besides the Republican and Democrat (sic) parties; (2) When no other parties besides besides the two major parties appear, there is no possibility of voting for a candidate other than a Republican or Democrat for president since Oklahoma does not permit ‘write-in’ voting; (3) Most other states require a political party to obtain signatures equivalent to 2.5% or less of the total number of voters.” The court then says, “Even if we accept all these allegations as true, they do not support Plaintiff’s argument that Oklahoma’s ballot access laws are unreasonably (with “unreasonably” in italics) restrictive, severe, or discriminatory.”

The Court does not seem to understand that the median petition requirement for new parties in the 50 states is less than 1%. The decision says, “Many states only have a 2.5% signature requirement.” Actually, only two states, South Dakota and Tennessee, have a 2.5% petition requirement for new parties.

The decision says the law is not severe because the Libertarian Party was able to comply with it in 1980, 1996 and 2000, and because the Reform Party was able to comply with it in 1996 and 2000. It says the 5% petition requirement is needed “to discourage ‘frivolous’ candidates, party raiding, and ‘sore loser’ candidates by spurned contenders.” Party raiding and sore losers have nothing to do with the number of signatures required. And as to frivolous candidates, the court fails to say that Oklahoma law permits independent candidates (for all office except president) to get on the November ballot with no petition at all. They merely pay the filing fee, which is never more than $600.

The Oklahoma Constitution says that elections shall be “free and equal”, and this case was filed in state court to argue that the State Constitution does not permit Oklahoma to keep all parties and all presidential candidates off its ballot. The decision contains no discussion whatsoever of the Oklahoma Constitutional provision. That part of the Oklahoma Constitution is not even mentioned in the decision.

Instead, the decision says that since the 10th circuit upheld the law in 1988, therefore it must be constitutional. The deadline is 30 days earlier than it had been in 1988, but the Court dismisses this.

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