On May 11, the 8th circuit heard arguments in Libertarian Party of North Dakota v Jaeger, 10-3212. The lawsuit challenges a North Dakota law that does not let parties nominate any candidates for state legislature unless approximately 10% to 15% of all the primary voters choose that particular party’s primary ballot. North Dakota has open primaries, so that any voter is free to choose any party’s primary ballot. But, once a voter chooses one party’s primary ballot, that voter is then unable to vote for anyone running in another party’s primary.

When open primary states hold primaries for minor parties, typically very few voters choose a minor party primary, because generally minor party primaries are uncontested, whereas major party primaries are generally contested. Here is an account of the oral argument. The three judges are Roger Wollman, a Reagan appointee from South Dakota; Kermit Bye, a Clinton appointee from North Dakota; and Bobby Sheppard, a Bush Jr. appointee from Arkansas.