Sixth Circuit, in Very Short Opinion, Says Michigan was Right to Keep Gary Johnson Off the 2012 Ballot

On May 1, the Sixth Circuit issued a brief opinion, saying the U.S. District Court in Michigan was correct when it kept Gary Johnson, or any other Libertarian Party presidential candidate, off the ballot in November 2012. The part of the decision on the merits is only one short paragraph long, and does not discuss the factual error in the U.S. District Court’s decision. The U.S. District Court had said in its original opinion that John B. Anderson had not appeared on the 1980 Michigan Republican presidential primary ballot, so the precedent created when Anderson appeared as a minor party presidential nominee in November was not relevant. Later the District Court amended its opinion to acknowledge the error, but did not then re-think the conclusion.

The brevity of the Sixth Circuit opinion, Libertarian Party of Michigan v Johnson, 12-2153, disguises something very important about the case. Gary Johnson in 2012 was the first presidential candidate in U.S. history to be kept off the November ballot as a minor party nominee, on the grounds that his name had appeared on a major party presidential primary ballot. Presidential candidates whose names appeared on the November ballot as a minor party or independent nominee, even though they had run in a major party presidential primary, include Theodore Roosevelt, Robert La Follette, John Anderson, David Duke, Lyndon LaRouche, and Alan Keyes.

The logical reason that “sore loser” laws have not been applied to presidential candidates is that Article II of the U.S. Constitution, and the state election codes of all 50 states, make it clear that presidential electors, not presidential candidates, are the true candidates in November. Candidates for president may be “candidates” for purposes of campaign finance law, but in relation to ballot position, they are not candidates; instead their names appear on November ballots as identifiers for competing slates of presidential elector candidates.


Sixth Circuit, in Very Short Opinion, Says Michigan was Right to Keep Gary Johnson Off the 2012 Ballot — No Comments

  1. States should use direct nominating primaries for President, and this would not be an issue.

  2. Except for the little matter of Article II, which says presidential electors are the true candidates.

  3. Did Pat Buchanan (in 2000) and Alan Keyes (in 2008) face this during their runs for President? I seem to remember that both men ran for President in the GOP primaries then switched to third parties.

  4. Pat Buchanan declared for the 2000 Republican presidential nomination early in 1999, but he switched over to seeking the Reform Party nomination in October 1999. So he didn’t enter any Republican presidential primaries in 2000.

    In 2008, Alan Keyes was on the Republican presidential primary ballots in Alabama, Arizona, California, Connecticut, Florida, Georgia, Illinois, Kentucky, Louisiana, Maryland, Mississippi, Missouri, New Hampshire, North Carolina, Oklahoma, Rhode Island, Tennessee, Texas, Utah, Washington, and West Virginia (21 states). He was on the November ballot in only 3 states as the nominee of America’s Independent Party. Those 3 states were California, Colorado, and Florida. So, yes, Alan Keyes belongs on the list and I will amend it. Thank you.

  5. The E.C. is a super timebomb — waiting to go off again as in 1860 — Lincoln minority rule election.

    Uniform definition of Elector in ALL of the USA (even in the occupied areas – Puerto Rico, Guam, etc.).

    P.R. and nonpartisan App.V.

  6. #2 Article II says that a State is free to appoint its presidential electors in whatever way the legislature directs. This power is supreme and plenary.

    In Texas, independent presidential candidates are the true candidates. They personally file for the office, and include the name of the Vice-Presidential candidate, and 38 presidential-elector candidates.

    Qualification for a direct primary is similar to qualifying as qualifying for a general election as an independent candidate. The candidate files a declaration of candidacy, a petition, and a filing fee.

    If Michigan had a direct presidential primary, and assuming it was in August, then Johnson would presumably have filed in the Libertarian primary. If he won, then he, his running mate, and 16 electors would then advance to the general election, where they would all run under the name of the presidential candidate.

    Of course a state legislature is free to direct the use of a Top 2 primary.

  7. # 7 NOT quite supreme and plenary.

    See 14th Amdt, Secs. 1 and 2.

    See Bush v. Gore 2000.

  8. # 9 IF the robot party hacks have a POPULAR election for E.C. Electors, then the EQUAL protection clause applies to such election.

    See the FL MORONS in 2000 — NO definition of a LEGAL VOTE – esp. with the now dead punch card ballots.

    Result Bush v. Gore — smashing the FL morons flat.

    See the 2002 HAVA law with a sentence written especially for such FL MORONS.

    14th Amdt, Sec. 2 — brackets added

    Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when [[the right to vote at any election for the choice of electors for President and Vice-President of the United States]], Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, [[is denied]] to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, [[or in any way abridged]], except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

    Sorry females – male domination in 1866-1868.

    The Congress robot party hack MORONS did not rewrite 14-2 in the 19th Amdt – women right to vote.

  9. Also – the Congress morons did NOT rewrite 14-2 in doing the 17th Amdt – popular election of USA Senators.

    Too many Congress MORONS to count since 1789.

  10. Also – the Congress morons did NOT rewrite 14-2 in doing the 26th Amdt – 18 year old right to vote.

    17-19-26 NO re-writes — 3 strikes and OUT ???

  11. #10 The primary would be limited to Michigan. There is no difference between having a primary for presidential electors, and senator, or governor.

  12. # 1,7,13 — the appointed robot party hack SCOTUS morons have had UNEQUAL ballot access laws since 1968 — Williams v. Rhodes — for primary and general elections.

    = THE problem.

    Mr. Winger can inform us about how many States allow a new or minor party to have a regular primary like the Donkeys/Elephants

    — no matter how large such new or minor party becomes in an election cycle.

    P.R. and nonpartisan App.V.
    NO primaries.

  13. Richard writes: “In 2008, Alan Keyes … was on the November ballot in only 3 states [as AIP] …”

    However, do California, Colorado, or Florida have “sore loser” laws?

    I agree that states should be “regulating” the election of EC *delegates*, not candidates. In which case, “sore loser” is irrelevant … as are “natural born” requirements.

  14. California and Colorado do have sore loser laws, but California has never interpreted its sore loser law to apply to president. If California did do that, Roseanne Barr could not have been on the November 2012 ballot as the presidential nominee of the Peace & Freedom Party, because she had run in the June 2012 Green Party presidential primary. Also John Anderson had run in the Republican presidential primary in California in 1980 but he was on the California ballot in November 1980 as an independent.

    Colorado didn’t have a presidential primary in 2012, so the issue didn’t arise. Florida doesn’t have a sore loser law; it has no need for one because all candidates running for non-presidential office file simultaneously.

  15. So, the three states where Keyes appeared aren’t really relevant to Johnson’s circumstance in Michigan?

    As far as presidential candidates are concerned, it seems to me that a court case could be made against any “sore loser” law, since it can hardly be applied to Presidential Electors, who are the *real* candidates being elected.

    Did Johnson challenge the merits of the law, or just the application to his circumstance? If it was on the merits, then an appeal to federal court seems promising.

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