On September 15, the U.S. Court of Appeals, First Circuit, held oral arguments in Barr v Galvin, the Massachusetts case over whether unqualified parties may use stand-in presidential candidates on their petition, and then substitute the actual presidential candidate later.  The three judges were Michael Boudin, Bruce Selya, and Kenneth Ripple.  Judge Ripple is a visiting judge from Indiana.

In 2008, the Massachusetts Libertarian Party was not a ballot-qualified party, so it needed to submit a petition to be on the November 2008 ballot for president.  The party had asked the Massachusetts Secretary of State if it could use a stand-in presidential candidate on its petition, because the party wouldn’t know who its actual presidential candidate was going to be until the national convention at the end of May 2008.  Massachusetts said “Yes”.  Later, the state changed its mind and refused to list Bob Barr on the ballot.  The party sued and won in U.S. District Court in time for relief.  The state then filed its appeal.

All three judges participated in the oral argument and all three seemed very familiar with the facts in the case.  They questioned both sides about whether the case is moot, but both sides agreed that the issue is not moot because it will recur in future presidential elections.  The panel gave the impression that they believe the Massachusetts policy on whether or not presidential stand-ins are permitted is too vague to survive.