In 2006, the New Hampshire Supreme Court ruled in Akins v Secretary of State, 904 A.2d 702, that all candidates must have an equal right to appear first on the ballot.  The Court said, “By establishing a system that grants the primacy effect to the party that received that most votes in the prior election, RSA 656:5 denies candidates of minority parties an equal opportunity to enjoy the advantages of the primacy effect, and thus an equal right to be elected.”  The case had been brought by the Democratic Party and by various candidates,some of them Republicans, some of them Democrats, and some of them Libertarians.

In response to the court decision, the legislature passed a law mandating that ballots be rotated, so that each qualified party appears on the ballot first in part of the state.  The new law also said the Independent column should be listed first in part of the state.

This year, there are four candidates on the November ballot for U.S. Senate, Democrat Paul Hodes, Republican Kelly Ayotte, Libertarian Ken Blevins, and independent Chris Booth.  Blevins is the only candidate who is never listed first on the ballot.  On October 25, he filed a formal complaint with the Attorney General, charging that this year’s ballot format violates the intent of the new law and the Akins decision.  The problem is that New Hampshire doesn’t give every party its own party column.  It only gives the qualified parties their own party column, and puts the independent candidates and the nominees of the unqualified parties into a single column.

Furthermore, because there is an independent candidate and the nominee of an unqualified party for U.S. Senate this year, the Secretary of State randomly determined that the independent candidate should be listed above the Libertarian within that combined column, throughout the state.  So Blevins is always second within that combined Independent-Libertarian column.

New Hampshire and New Jersey are the only states in the nation that use party column ballots, and never give each party its own column.  Even New York tries to give each party its own column, whether it is qualified or non-qualified.  This year the Green Party of New York has its own party column, and the Green Party isn’t a ballot-qualified party in New York.  New York doubles up some of the unqualified parties with each other, however, for space reasons.  But New Jersey and New Hampshire are the only states that never give unqualified parties their own party column, whether there is enough space or not.

If the New Hampshire Attorney General rejects the complaint, it is likely that Blevins will sue.  Neither the Complaint to the Attorney General, nor any possible lawsuit, would be in time to affect this year’s ballot.