On October 17, the 8th circuit upheld North Dakota’s law on how minor parties may place legislative candidates on the November ballot. Here is the 22-page decision in Libertarian Party of North Dakota v Jaeger, 10-3212. North Dakota has not had any minor party candidates for the legislature on the November ballot since 1976. This is because the law requires that minor party legislative candidates must poll a number of votes in their own party’s primary that is equal to 1% of the legislative district’s population (including minors and aliens). In 2010, depending on the legislative district, between 7% and 10% of the entire population were actual voters in the primaries of all three political parties combined.

Although at first reading, a requirement that 1% of the district’s population must choose a minor party’s primary, and vote in that party’s primary might sound easy, even a small amount of analysis shows how difficult it is. The vast majority of voters do not desire to vote in a minor party’s primary, and the Libertarian Party’s evidence showed that no minor party in any state has attracted more than 5% of the voters in the last fifty years. The decision does not mention this evidence. Even the Minnesota Reform Party only attracted 3% of Minnesota’s primary voters in September 1998, when Jesse Ventura was running in that party’s primary for Governor. If Minnesota had had a law similar to the North Dakota legislative candidates law, and Minnesota applied that law to statewide office, Jesse Ventura could not have appeared on the November 1998 Minnesota ballot. Both North Dakota and Minnesota have open primaries, in which any voter is free to vote in any party’s primary ballot.

The decision does not mention the Minnesota Supreme Court’s unanimous 2004 decision, striking down a somewhat similar primary vote requirement which was considerably more lenient. Nor does the decision mention a somewhat similar Washington state court decision in 2004.

The decision makes one very large factual error. On page 14, it says that once a party submits a petition signed by 7,000 voters, then “it will not have to regain those signatures in future years.” In other words, the Court thinks that the Libertarian Party, having collected 7,000 valid signatures in 2010, remains a qualified party now and into the indefinite future. Actually, North Dakota removes a party from the ballot unless it polls 5% of the vote for one of a handful of statewide offices. This is a significant error, because the Court defends the North Dakota primary vote test for candidates for the legislature on the basis that this is the only meaningful ballot access restriction applied to minor parties. The truth is that North Dakota places a double burden on minor parties: (1) it must gather 7,000 valid signatures every two years, assuming it can’t meet the 5% vote test; (2) in addition, it requires the minor party to attract between 10% and 15% of all primary voters into its primary, if it wants to have legislative candidates.

The decision makes other errors. It says that the U.S. Supreme Court upheld a June petition deadline in Jenness v Fortson, the 1971 Georgia case that upheld the 5% petition. Actually, the issue of the June deadline was not an issue in Jenness v Fortson, and in Mandel v Bradley, Justice John Paul Stevens took pains to point out that Jenness did not uphold a June petition deadline.