On June 20, the New Hampshire Secretary of State, Bill Gardner, said that the only parties that will have their own party column on the November ballot this year are the Republican and Democratic Parties. He said all other candidates will be in the “Other” column. However, he is aware that the Libertarian Party is working hard on its petition to be a “political organization”, which requires 13,698 signatures by August 8. The party is mostly finished and expects its petition to succeed.

In 2011, the U.S. Court of Appeals, First Circuit, interpreted New Hampshire law to mean that a group that successfully petitions to be a “political organization” does then get a party column on the general election ballot. The decision in Libertarian Party of New Hampshire v Gardner, 638 F.3d 6, says, “There are two ways in which a column on the ballot may be obtained. Any party recognized under state law (that is, one that received at least 4% of the prior vote for the pertinent offices) is able to obtain a column and choose the candidates who appear in it; these candidates ‘shall be arranged upon the state general election ballot in successive party columns.’ Any political organization that is recognized under state law (that is, one that obtained nomination signatures equalling at least 3% of the total votes cast in the prior state general election) has the same entitlement to a column, according to the affidavit of the Deputy Secretary of State David M. Scanlan.”

I was able to reach David Scanlan by phone on June 22. He said was not aware of what the First Circuit had said in its opinion. It is possible the Secretary of State will reconsider his decision not to give the Libertarian Party its own party column. In New Hampshire, the State Supreme Court has already ruled in Akins v Secretary of State, 904 A.2d 702, that discriminatory ballot placement is unconstitutional. Depriving one of the three parties expected to be on the November ballot of its own party column, while giving such a column to the Democratic and Republican Parties, certainly violates the spirit of the Akins decision. Every other state that uses party columns, except New Jersey and Wisconsin, routinely gives all political parties their own party column, whether they meet the statutory defintion of “party” or not.

The Libertarian Party was forced to nominate all its candidates this year in June, under the terms of a new law that didn’t even exist until May 2012. By contrast, the two major parties don’t nominate their candidates until the September primary. The Libertarian Party nominated a presidential and vice-presidential candidate, a nominee for Governor, for U.S. House in both districts, for Executive Council in three districts, for State Senate in three districts, and has 22 nominees for State House. There is no U.S. Senate race in New Hampshire this year, and there are no other statewide offices. Despite this, Mr. Scanlan said on the phone that the Libertarian Party should not be given its own party column because it doesn’t have a “full slate” of candidates. If “full slate” means a party must have nominees for all the state offices, neither the Democratic Party nor the Republican Party will have a full slate of candidates either; neither major party in New Hampshire ever runs for all 400 of the State House seats.

The June 23 Arizona Republic has this op-ed opposing the Arizona top-two open primary initiative. It is authored by Ed Phillips, who was a State Senator 1990-1994 but who is better known in Arizona as a television commentator. Here is more information about Phillips.

On June 22, Washington State, and also the Washington State Grange, each asked the U.S. Supreme Court not to hear the Democratic Party and the Libertarian Party lawsuit against the top-two open primary system. The case is Washington State Democratic Central Committee v Washington State Grange, 11-1263 and 11-1266. Here is the state’s brief. Here is the Grange brief.

The briefs are more notable for what they omit than for what they say. Neither brief acknowledges the existence of footnote eleven in the first U.S. Supreme Court’s opinion in this case. That opinion, issued in March 2008, said in footnote eleven, “Respondent Libertarian Party of Washington argues that I-872 is unconstitutional because of its implications for ballot access, trademark protection of party names, and campaign finance. We do not consider the ballot access and trademark arguments as they were not addressed below and are not encompassed by the question on which we granted certiorari: ‘Does Washington’s primary election system…violate the associational rights of political parties because candidates are permitted to identify their political party preference on the ballot?’ Petition for cert. in No. 06-730, p. i. The campaign finance issue also was not addressed below and is more suitable for consideration on remand.”

The Grange brief ignores footnote eleven. The state’s brief not only ignores footnote eleven, the state asserts repeatedly that the ballot access and trademark issues were already decided by the U.S. Supreme Court, which is not true.

The state’s brief does talk about the ballot access issue, however. It quotes dicta from the 1986 U.S. Supreme Court decision Munro v Socialist Workers Party, but it never quotes that decision’s holding. In Munro v Socialist Workers Party, the U.S. Supreme Court upheld Washington state’s old system, in which all candidates ran in the blanket primary, and the top vote-getter from the ranks of each party advanced to the November election. The U.S. Supreme Court in the Munro decision was not deciding the constitutionality of blanket primaries, but instead was only deciding whether another feature of that old blanket primary was constitutional. The special feature was that no candidate could advance to the November election unless he or she polled at least 1% of the blanket primary vote. The holding said that there is no constitutional distinction between a petition requirement for general election ballot access, versus a prior vote test for general election ballot access. The dicta in that case, at the very end, said the burden on a minor party from being kept entirely off the general election ballot is “slight” if it may participate in the primary.

In the old Washington state system, a large majority of minor party candidates were not kept off the November ballot. Most of the minor party candidates under the old system met the 1% vote test, and the Munro decision notes that. That is why the unfortunate statement at the end of the Munro decision, that even if the system did keep all minor party candidates off the November ballot, that would only impose a “slight burden”, is dicta; it is a statement about a hypothetical system that did not actually exist.

The Grange brief, on page 17, refers to the November election as a “run-off”, but the U.S. Supreme Court already rebutted the idea that November could ever be a run-off election in congressional elections, in its unanimous decision in 1997, Foster v Love. Neither the Grange nor the State mention Foster v Love. Congressional run-offs, which exist only in Georgia and Louisiana, must be held after the November election.

The state’s brief, in footnote 12, says that the Court should not consider the evidence submitted to the U.S. District Court that in reality, top-two systems always mean minor party candidates are excluded from the November ballot, when there are at least two major party candidates in the same race. The state says this evidence should be excluded because it was submitted to the U.S. District Court after the U.S. District Court had already issued a preliminary opinion against the ballot access argument. However, the U.S. District Court did accept that evidence, so it is in the record.

The state’s brief does not directly challenge the experimental evidence in this case that most voters interpret party labels on the ballot to mean that there is a connection between the party and the candidate who uses that party’s label. Instead, the state attempts to avoid this problem by indirectly and repeatedly asserting that the only voters who matter are the well-informed voters.

The Grange’s brief is somewhat misleading because it reprints the ballot language (concerning what party labels mean) in very large type. In the actual ballots, that language is much smaller.