On August 26, the Sixth Circuit issued an opinion in Libertarian Party of Kentucky v Grimes, 16-6107. The opinion upholds Kentucky’s failure to have any procedure for a group to transform itself into a qualified party, in advance of any particular election. Kentucky is one of only eleven states that lacks any such procedure. Instead, Kentucky, and the other ten states, only have candidate petitions. A group can’t become a qualified party in Kentucky until after it puts a candidate for President on the ballot who then gets at least 2% of the vote. The other states that lack such a procedure for a group to become qualified in advance of an election are Connecticut, Illinois, Indiana, Iowa, New Jersey, New York, Pennsylvania, Virginia, Washington, and West Virginia.

The case also challenged the Kentucky law (unique in the nation, except for Washington), that confines the vote test to just President.

The 10-page opinion says Kentucky is justified because of the need to prevent a crowded ballot, and then mentions that Florida had voter confusion in November 2000 because there were ten presidential candidates on the ballot. This statement is not true. Palm Beach County, Florida, had voter confusion in 2000 because of poor ballot design, not because there were ten candidates on the ballot. Palm Beach County used punch card ballots in 2000, and the confusion arose from the fact of the “butterfly” design, in which the arrows connecting the name of candidates to the appropriate punch card chad did not line up clearly. Kentucky had eleven presidential candidates in the Democratic presidential primary of 1988, and that did not cause any confusion.

The plaintiffs had complained that there are many one-state parties in the United States who do not run presidential candidates, and they could never achieve party status in Kentucky, no matter how much support they had. But the opinion says that neither of the plaintiff parties, the Libertarian Party and the Constitution Party, have that characteristic, so as to them the problem is just hypothetical. This opens the door for any party that is only organized in Kentucky, and which has no interest in running anyone for President, to file a similar case in the future.

The plaintiffs had complained that if they wanted to run a full slate of candidates for all partisan office, they would need hundreds of thousands of signatures, and would need to ask signers to sign multiple petitions, including six different petitions for the nine statewide offices in gubernatorial years. The opinion says there is no evidence that the plaintiffs would want to run that many nominees. This point contradicts the part of the decision that says the state interest is to keep the ballot from being crowded. The Court contradicts itself when on the one hand it worries about too many names on the ballot, but on the other hand says if there were a party petition procedure in existence, it wouldn’t matter because the parties don’t want to run that many nominees anyway.

The decision is by Judge Danny Boggs, a Reagan appointee, and signed by Judge Gilbert Merritt, a Carter appointee; and Judge David McKeague, a Bush Jr. appointee.