On January 6, the North Dakota Attorney General filed this 30-page brief in Libertarian Party of North Dakota v Jaeger, 10-3212, in the 8th circuit. The issue is a North Dakota election law that says no one may be placed on the November ballot as the nominee of any party for the legislature, unless that person receives approximately 130 votes in the primary. The exact formula is 1% of the district’s population. North Dakota has open primaries, which means that on primary day, a voter is free to choose any party’s primary, but once having made that choice, the voter is confined to voting in the primary of just one party.

Minor parties invariably have a very small number of voters voting in their primary, in North Dakota and in all states. Even the Minnesota Reform Party, in 1998, the year it elected Jesse Ventura Governor of Minnesota, only attracted 3% of Minnesota voters into its 1998 primary.

North Dakota has provided primaries for these minor parties in the last 30 years: Reform, in 1996, 1998, and 2000; Natural Law, in 1996; Libertarian, in 1988, 1996, 2008, and 2010; and Constitution, in 2000 and 2008. At no time in the last 30 years has any minor party primary in North Dakota attracted as many as 1,000 voters. Therefore, it is not reasonable to expect any legislative candidate in a minor party primary to receive 130 votes. North Dakota has 47 legislative districts and very low turnout in its primaries. Generally, no one runs for the legislature in North Dakota minor party primaries, because candidates know it is hopeless to attract 130 votes in just one tiny district. But in 2010, three Libertarians did run for the legislature in the North Dakota primary. One got 8 votes, one got 6 votes, and one got 4 votes. These are, of course, very small numbers. The state’s brief belittles the candidates because of these small vote totals, and says this proves they have no voter support.

However, the state’s brief overlooks the evidence in this case, that it is very common for minor party candidates to receive a tiny vote in their own primaries (even in open primaries), and yet do very well in the general election. The evidence includes instances of Vermont Progressive Party candidates in the legislature who polled fewer than ten votes in the Progressive Party primary, yet were elected in the general election. The evidence also includes instances of minor party legislative candidates in Minnesota, Ohio, Missouri, and Michigan, who got fewer than 10 votes in the primary but between 2,706 and 5,672 votes in the November election. It is not the candidate’s fault if he or she receives a small number of votes in the primary, if that primary itself attracts very few voters.

One of the North Dakota Libertarian candidates for the legislature, Richard Ames, running for State Senate, 25th district, was required by the law to have received 142 votes, yet in his district, only 933 voters from all parties cast a ballot in the primary. Of course, the overwhelming majority of voters chose to vote in the Democratic primary, or the Republican primary, so having made that choice, they couldn’t vote for Ames.

The U.S. Supreme Court set forth a method for evaluating ballot access hurdles in Storer v Brown in 1974. The Court said a lower court should calculate the number of supporters needed for general election ballot access, as a percentage of the number of eligible signers. If the resulting percentage was more than 5%, the law is too stringent. The Storer decision concerned a petition needed for an independent candidate, equal to 5% of the last vote cast, and primary voters couldn’t sign the petition. In the Storer decision, the U.S. Supreme Court remanded the case back to the lower court, with instructions to calculate how many signatures were needed, divided by the number of registered voters in the district who hadn’t voted in the primary. In this case, if one follows those directions, one finds that Ames would have needed support from over 15% of the voters who actually voted. Because 15% is far greater than 5%, the state’s brief argues that the proper calculation should include the 80% of the voters who didn’t vote in the 2010 primary (the June 2010 primary had a voter turnout of only 20%). But that is not the method set forth by the Supreme Court. The Supreme Court test did not specify that the candidate should have persuaded voters not to vote in the primary, or that he or she should have sought to register more voters. Instead, the Court’s test takes the voter turnout, and the number of registered voters, as givens.

The state’s brief also relies on the 1986 U.S. Supreme Court case Munro v Socialist Workers Party, which upheld a Washington state law that a candidate running in a blanket primary must receive 1% of the vote in the September primary, in order to advance to the general election. Of course, 1% is far less than 15%. Furthermore, in a blanket primary, a voter could vote for a minor party candidate in the primary for legislature, without giving up the ability to vote for a Democrat or a Republican for another office in that same primary. But North Dakota does not have a blanket primary, and a voter who wants to vote for a Libertarian in the primary for legislature must give up the ability to vote for a Democrat or a Republican for any office. The Libertarian Party reply brief will make these points.