On July 2, the Oklahoma State Election Board filed this brief in Libertarian Party of Oklahoma v Ziriax, the pending ballot access case filed in January 2012 by the Libertarian Party and the Green Party. In June the parties requested permission to file an amended complaint which argues that is it is unconstitutional for states to require newly-qualifying parties to nominate by primary, if that means the petition deadline must be early in the year.

The state’s July 2 brief opposes the request to amend the Complaint, and says that if a state wants a newly-qualifying party to nominate by primary, that is more important than the need for newly-qualifying parties to have a petition deadline that is not early in the year. The state’s brief says the U.S. Supreme Court already ruled that states may always require parties to nominate by primary. The state’s brief cites two cases for this proposition, American Party of Texas v White, and Lightfoot v Eu. But neither of those cases say that states have an interest in preventing newly-qualifying parties from nominating by convention instead of by primary.

In American Party of Texas v White, the American Party was demanding that the state provide a primary for it. Texas law, then and now, says that newly-qualifying and small qualified parties nominate by convention, and only large parties may have a primary. American Party of Texas did not deal with the issue of parties that don’t want a primary. Lightfoot v Eu, a 9th circuit case, was about whether a party that has a primary may supplement its primary (with post-primary conventions) after the primary is over, for races in which no one was nominated in that party’s primary.

One can argue that the U.S. Supreme Court has already ruled that states may not require a primary for newly-qualifying parties. In Williams v Rhodes, the U.S. Supreme Court put the American Independent Party on the ballot in 1968 even though Ohio law said all parties, even newly-qualifying parties, must nominate by primary. When the U.S. Supreme Court put the American Independent Party on the ballot, it was already too late for it to nominate by primary, but that didn’t deter the U.S. Supreme Court from putting it on the ballot anyway. The party nominated its candidates that year by convention.

Many other courts have also put newly-qualifying parties on the November ballot, even though the state law required newly-qualifying parties to nominate by primary and it was too late for a primary when the Court acted. Such cases are:

1. Socialist Labor Party v Rhodes, 318 F Supp 1262 (1970), put the Socialist Labor Party on the Ohio ballot on July 29, after the May primary was over.
2. Citizens to Establish the Reform Party v Priest, 970 F Supp 690 (1996), put the Reform Party on the Arkansas ballot on July 31, after the May primary was over.
3. Libertarian Party of Hawaii v Waihee, unreported, cv-86-439, put the Libertarian Party on the ballot on July 17, 1986, too late for that year’s primary.
4. Populist Party v Evans, ureported, 9th circuit, 84-4108, put the Populist Party on the Idaho ballot on September 6, 1984, after the May primary was over.
5. MacBride v Exon, 558 F 2d 443 (8th circuit, 1977) said the U.S. District Court was correct to have put the Libertarian Party on the Nebraska ballot on September 3, 1976, too late for the May primary.
6. Libertarian Party of Nevada v Swackhamer, 638 F Supp 565 (1986) put the Libertarian Party on the ballot on May 27, too late for that year’s primary.
7. Libertarian Party of Ohio v Brunner, put the Libertarian Party on the ballot in July 17, 2008, too late for that year’s primary.
8. Libertarian Party of Oklahoma v Oklahoma State Election Board, 593 F Supp 118 (1984) put the Libertarian Party on the ballot on July 30, too late for that year’s primary.
9. Green Party of Tennessee v Hargett, 2012 WL 379774 (2012) put the Green Party and the Constitution Party on the ballot on February 3, and said that requiring newly-qualifying parties to nominate by primary is unconstitutional.

Oklahoma’s brief says the state’s interest in requiring primaries for newly-qualifying parties is to insure the “party bosses” do not control the party. This argument, as applied to the Oklahoma Libertarian Party, seems detached from reality. In previous briefs in this case, the state has belittled the Libertarian Party for having few dues-paying members, and few registered voters ten years ago when voters were permitted to register as Libertarians, and for having few people attend its state convention. The idea that the Oklahoma Libertarian Party has “party bosses” who are attempting to exclude rank-and-file Libertarians from running for office is not realistic.

Oklahoma’s brief does not mention any of the nine decisions mentioned above, except for the 1984 Oklahoma Libertarian case. The state attempts to defeat that precedent by saying that precedent only came about because in 1984, the state accidentally was late to file a brief and therefore lost the case by default. But judges do not make important decisions in constitutional cases, nor do they take the significant step of ordering a party put on the ballot, just because a state was late to file a brief. Judges always forgive such errors in cases of this magnitude.