On April 21, the U.S. Court of Appeals, D.C. Circuit, heard Gary Johnson et al v Commission on Presidential Debates, 16-7107. The two judges who spoke gave both sides a tough time. The oral argument, which lasted 34 minutes, can be heard at this link. The three judges were Laurence Silberman, Cornelia Pillard, and Janice Rogers Brown. Only the two first-named judges asked questions and made comments.
The attorney for the Commission on Presidential Debates, near the 21-minute mark, made the statement that when candidates get on the ballot in states containing a majority of the electoral college, that does not mean they have any popular support whatever. He said all getting on the ballot in states with a majority of the electoral college only shows that they are well-organized and have some financial resources. This may be true, but it contradicts all the ballot access jurisprudence. The U.S. Supreme Court, in all its ballot access cases, has always taught that the ability to complete petitions is a means for knowing how much popular support the candidate or party has.
The attorney for the Commission on Presidential Debates also said that if Gary Johnson and Jill Stein want relief, they should ask the Federal Election Commission for relief, and if the FEC won’t give such relief (which, so far, it won’t), then they should sue the FEC. And, it is true that both candidates are suing the FEC.