New Mexico has filed its brief with the 10th circuit in the Libertarian Party’s ballot access case. The chief issue for the 10th circuit is whether the U.S. District Court Judge should have gathered evidence before she ruled (instead, she cancelled the trial and upheld the law before either side had submitted any factual evidence).

The state’s 10th circuit brief is internally contradictory. One the one hand, it argues that no possible set of facts is relevant to the case. This is so, the state says, because in 1971 the U.S. Supreme Court upheld Georgia’s 5% petition for minor party and independent candidates; therefore it must be constitutional for New Mexico to require qualified minor parties to submit petitions for their nominees. On the other hand, the state’s brief argues that since New Mexico had 10 presidential candidates on its 1992 ballot, the existing law is needed to prevent ballot-crowding. Reference to the 1992 situation is a fact, so the state implicitly acknowledges the relevance of facts.

The problem with the state’s reference to 1992, is that New Mexico’s old law for retention of party status was in effect in 1992. The old law permitted parties to remain on the ballot indefinitely, no matter how few votes they polled or how few members they had. Starting in 1993, New Mexico required old parties to poll one-half of 1% for president or governor to remain on the ballot. Since that law has been in effect, New Mexico has never had more than 7 candidates on the ballot for any federal or state office. This is the sort of fact that a trial would have brought out (the history is somewhat confusing because the 1993 change was actually passed in 1989, but didn’t go into complete effect until after the 1992 election).