On November 21, the New Hampshire State Supreme Court upheld New Hampshire’s ballot access laws. The case is Libertarian Party v State of New Hampshire, 2005-0606. The outcome is very disappointing, since at oral argument, it had seemed that the court was leaning in favor of the plaintiffs.

New Hampshire requires a group to poll 4% for Governor or U.S. Senator before it can be recognized as a “party”. This definition, passed in 1997, has never been met by any group except the Democratic and Republican Parties. The former law, requiring 3% for Governor, had been met by the Libertarians in 1990, 1992 and 1994, but previously, had not been met by any party (other than the two major parties) since the 1910’s decade.

Since the lower court had also ruled against the plaintiffs, without even granting a hearing at which evidence could be presented, plaintiffs had felt sure that even if the Supreme Court didn’t uphold the laws, it would remand the case and permit evidence to be admitted. But, the Supreme Court denied even that. The Court depended on the unfavorable ballot access decisions from the U.S. Supreme Court, and didn’t discuss the favorable decisions from the U.S. Supreme Court.

The flaw in the New Hampshire State Supreme Court’s reasoning is this: the court said that the state is not making it more difficult for minor party members to run for office, since major party members must fight to win a party primary. However, minor party members may also need to fight to win their party’s nomination. For example, Pat Buchanan had a very difficult time winning the Reform Party nomination in 2000, since Ross Perot was fighting him. Buchanan spent over $1,000,000 on the battle for the 2000 Reform Party nomination. Another example is the New Hampshire Libertarian Party gubernatorial fight, when 3 Libertarians sought the nomination.

Since members of ALL parties must fight to win their own party’s nomination, but since only the Democratic and Republican nominee is on the November ballot automatically, it is not true that state laws are giving each candidate an “equal opportunity to be elected” (The State Constitution mandates that all candidates must be given an “equal opportunity to be elected”).