On June 18, the Massachusetts Supreme Judicial Court issued an opinion in Libertarian Association of Massachusetts v Secretary of the Commonwealth, 2011-348. The unanimous ruling says that Massachusetts law does not permit an unqualified party, or an independent candidate, to engage in substitution. If a candidate for president, or vice-president, or even presidential elector, who was named on the petition, dies or withdraws, the petition is invalid and the proponents must start all over. If the death or withdrawal is after the deadline for the petition to be submitted, there is no remedy.

The decision says that the law “does not impose a significant burden.” It says the ability of a qualified party to make a late decision about who its presidential and vice-presidential nominees are is a “privilege” of being a qualified party. Footnote 28 says unqualified parties who fail to gain ballot access are always free to carry on a write-in campaign in November.

Footnote 9 admits that in the past, the Massachusetts Secretary of State let the U.S. Taxpayers Party substitute a new nominee in 1996, and let the Reform nominee do this in 2000. The footnote does not mention that the Secretary of State also let John B. Anderson substitute a new nominee for vice-president in 1980, and let Ralph Nader do so in 2004. In any event, it appears that what the Secretary of State did that was helpful in those past elections cannot happen again. The decision says the only recourse is for the group or independent candidate to start an entire new petition, if the original petition’s nominee for President or Vice-President changes while the first petition is underway.

If Americans Elect were still involved in running a presidential nominee this year, this decision would be utterly hurtful to Americans Elect.

Now that unqualified parties in Massachusetts have lost this case, it may be possible for unqualified parties to successfully challenge the only method by which unqualified parties can become qualified parties in advance of any particular election. That procedure requires the group to persuade voters equal to 1% of the registration to register into that party, no later than November of the year before the election. By every precedent, a deadline that early is unconstitutional.