On January 31, 2012, the Oklahoma Libertarian Party and the Oklahoma Green Party filed a lawsuit, challenging the state’s ballot access procedure for newly-qualifying parties, which this year required 51,739 valid signatures due March 1 (the state defends the early deadline on the grounds that all parties, even newly-qualifying parties, must choose nominees in the June primary). On June 21, the attorney for the parties asked for permission to amend the Complaint, to specifically allege that it is unconstitutional for a state to require a newly-qualifying party to nominate by primary, in the context that that requires a petition deadline as early as March.

After almost six months, the judge in the case has not ruled on the request to amend the complaint. Therefore, the plaintiffs determined to dismiss the case, and did so on December 17. Any new case will certainly include this point in the original complaint. Of course, the legislature is free to amend the existing law, and bill proposals have been submitted already into the 2013 session of the legislature, although they won’t be available for public viewing, and won’t have bill numbers, until January.

The Constitution of Oklahoma does not require newly-qualifying parties to nominate by primary. The Constitution gives discretion to the legislature to determine if newly-qualifying parties should nominate by primary or convention. Article III, section 3, says that the Legislature “may enact laws providing a mandatory primary system” but does not say that the legislature must do so, and that all parties must be included. Earlier this year, the Tennessee legislature provided that newly-qualifying parties may nominate by convention if they wish. In Tennessee, newly-qualifying parties that choose to nominate by convention are free to submit their petition as late as August 1. The California legislature is likely to pass a somewhat similar plan soon.

The Oklahoma Constitution, Article III, section 5, says, “All elections shall be free and equal. No power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage.” Yet last month, no voter in Oklahoma was permitted to vote for anyone for President except President Obama and Mitt Romney. As this analysis shows, over 20,000 Oklahoma voters would have voted for Gary Johnson if they had been permitted to do so, with an unknown number also desiring to vote for other bona fide candidates who were not on the Oklahoma ballot.