On September 14, the US Court of Appeals, 6th circuit, heard oral argument in Libertarian Party of Ohio v Blackwell. Only 15 minutes for each side was permitted. The issues are the deadline to submit signatures for a new party (one year before the general election), and whether it violated due process for the state to change the petition form while the drive was in progress, not inform the Libertarian Party of the change, and then reject all 57,000 signatures.
Most of the oral argument was on the deadline issue. The U.S. Supreme Court has ruled against early petition deadlines for minor parties and independent candidates on five occasions, and that court has never upheld any particular deadline. 21 states have had early deadlines thrown out by some level of court. Therefore, since Ohio’s deadline is earlier than any other state’s, and far earlier than any deadline for a new party that has ever been upheld, this should be an easy victory for the Libertarian Party. No published court opinion has ever upheld a petition deadline for a new party earlier than April of the election year.
Judge Richard Griffin, a fairly new Bush Jr. appointee from Michigan, dominated the questioning. His first question was to ask the Libertarian Party’s attorney to acknowledge that in 2000 in California Democratic Party v Jones, the U.S. Supreme Court had said, “It is too plain for argument that a state can require a party to nominate by primary”. The Ohio Libertarian Party had argued that since the reason the deadline is so early (November 2003) is because Ohio insists on providing a primary for new parties, and since Ohio holds its primary in presidential years in March, therefore a way to resolve the conflict between principles is to either let new parties have a later primary, or else let them nominate by convention. Judge Griffin wanted the Libertarian Party’s attorney to agree that Ohio may require a primary. He seemed not to have read the party’s brief, mentioning all the times in the past in Ohio when the state let parties nominate by convention.
Then Judge Griffin started a litany of statements that consumed much of the time allotted to the Libertarian Party’s attorney. The judge asked, didn’t the attorney agree that it probably takes Ohio 30 days to check the signatures? And didn’t he agree that if the party was told it didn’t have enough, and it wanted to sue, that the proceedings in the lower state court would take at least 15 days? And didn’t he agree that if that were appealed to the State Court of Appeals, another 10 days would be consumed? And didn’t he agree that if it were appealed again to the State Supreme Court, that would take another 10 days? And didn’t he agree that it probably takes 30 days to then print the ballots? And didn’t he agree that the absentee ballots must be mailed off 30 days before the election?
This line of questioning was all pointless. It is already the law in Ohio that independent presidential petitions are due 75 days before the general election. Therefore, regardless of the hypothetical list of time periods Judge Griffin presented, we already know that all of the process are successfully handled in Ohio with a deadline 75 days before the general election.
When the attorney for the Libertarian Party pointed out that no court had ever upheld a deadline earlier than April (for a new party petition), Judge Griffin seemed to snort decisively and say, “Well, that won’t stop us; we can be the first” or words to that effect.
It seemed likely that none of the three judges had read the Libertarian Party’s evidence, which illustrated that other courts have struck down early deadlines for new parties, even when those states required primaries for new parties.
Judge Griffin also said that the Libertarian Party, by advocating a later nomination procedure for itself, is demanding special treatment for itself. He seemed not to have read Anderson v Celebrezze, part II, which says that in the matter of petition deadlines, states may discriminate in favor of minor parties and independent candidates, and against the major parties, on the matter of timing. Anderson v Celebrezze said that minor parties and independent candidates play their role best when the voters are free to get them on the ballot, after learning the identity of the major party nominees and platforms. This is so that all voters are able to vote for someone in the general election whom they can support. Anderson v Celebrezze leaned heavily on the analysis of historian Alexander Bickel, who said that the two-party system works better when minor party and independent candidate deadlines are after the major parties have nominated.
The other two judges said little. Judge Eric Clay, a Clinton appointee, wondered if a better solution would be to move the primary, but of course a state is free to set the major party primaries whenever it wants, and the attorney for Ohio said Ohio wants an early presidential primary so that its voters have influence over who gets nominated for the major parties. Judge Julia Gibbons, who was first appointed to the US District Court by Reagan and then elevated to the 6th circuit by our current president, seemed to explore the idea that the case is moot.
A longer and more comprehensive report will be in the October 1 Ballot Access News print edition.