On October 27, the New Hampshire Attorney General filed his brief in Libertarian Party of New Hampshire v Gardner, the case filed in 2008 challenging the state’s policy of refusing to let unqualified parties use a stand-in presidential candidate on their ballot access petitions. The brief is only six pages long and seems to say that the U.S. Constitution permits states to discriminate against unqualified parties, relative to qualified parties, in all realms of election law.

The brief says that courts have permitted states to keep small parties off the ballot; to keep members of small parties from serving on Election Boards; and to deprive them of their own government-funded primaries. However, there are other areas of the law in which the courts have said that states may not discriminate against unqualified parties, that the state’s brief does not mention.

These include five cases that say if the state lets people register into qualified parties, it must let them register into unqualified parties. Also, there are five cases that say if a state gives a list of the registered voters to the qualified parties, it must give the list on the same terms to the unqualified parties. Ironically, one of these precedents is from New Hampshire. And, there are three cases that say the government must not discriminate against small parties on matters of public benefits. One is from Rhode Island and says if the government lets the qualified parties hold a lottery, it must let the unqualified parties do so as well. One is from Connecticut and says if the government gives money to candidates for their campaign expenses, it can’t discriminate against unqualified, new and small parties and independent candidates. And one says if the federal government gives inexpensive postal rates to large political parties, it must give the same rates to smaller political parties.

Another failing of New Hampshire’s brief is that it completely fails to mention any of the precedents from other states that say that if a state lets the qualified parties substitute, it must let the unqualified parties have the same substitution ability. These cases are from Massachusetts, Virginia, Florida and Pennsylvania.