On April 16, the U.S. Supreme Court declined to hear Libertarian Party of North Dakota v Jaeger, 11-1050. This is a ballot access case, which challenged the North Dakota law on how a minor party candidate for the state legislature gets on the ballot. No party can list a nominee on the November ballot for legislature unless between 10% and 15% of all the voters in the primary choose a minor party primary ballot. Because the overwhelming majority of primary voters are not interested in choosing a minor party’s primary ballot, and instead choose one of the major party primary ballots, the effect is that minor parties can never place nominees on the ballot for state legislature.

North Dakota has not had any minor party nominees on the November ballot for state legislature since 1976. The Libertarian Party’s cert petition had also pointed out that the 8th circuit, which upheld the law, make an important factual error in its decision. The 8th circuit said that the restriction is necessary to keep frivolous candidates off the ballot, because the primary vote test is the only ballot access barrier. The 8th circuit wrote that once a party qualifies (with a petition of 7,000 names) it is then forever afterwards on the ballot automatically. The truth is that minor parties go off the ballot if they don’t poll at least 5% for President, Governor, or Secretary of State. When this factual error had been pointed out to the 8th circuit, the panel refused to rehear the case and refused even to issue an amended opinion.

The Judge who wrote the 8th circuit opinion is Kermit Bye, a Clinton appointee. The two other judges who signed that opinion are Roger Wollman, a Reagan appointee, and Bobby Shepherd, a Bush Jr. appointee.