On December 2, the First Circuit upheld the New Hampshire law making it illegal to circulate the petition for party status during an odd year. Libertarian Party of New Hampshire v Gardner, 15-2068. The 30-page opinion says that no U.S. Court of Appeals has ever struck down a state ballot access law for new parties on the grounds that too many signatures were required. This is not true; the judges didn’t seem to know about McLain v Meier, an 8th circuit opinion from 1980 that struck down North Dakota’s 3.3% petition requirement.

The New Hampshire opinion does not discuss any state interests in barring petitioning for a new party during odd years. It just says that the law (requiring 3% of the last gubernatorial vote, with all petitioning to be completed during election years), doesn’t seem too difficult. The judges relied on the fact that the U.S. Supreme Court refused to strike down Georgia’s 5% petition in Jenness vo Fortson in 1971. For 2018, the law requires approximately 22,800 valid signatures, which is very difficult in a small-population state.

The opinion denigrates the New Hampshire Libertarian Party’s vote totals in 2012, when the party last did the party petition. Back in 2012, the law permitted the party to circulate the petition as early as it wished. The judges who wrote the opinion seem to suggest that because the Libertarian Party didn’t get many votes in New Hampshire in 2012, and didn’t run many candidates, it isn’t really important if it’s difficult to get a party on the ballot or not. The opinion says nothing about the fact that the Libertarian Party used the independent petition in 2016 and polled enough votes so that it is now a qualified party for 2016. Of course, all the evidence was submitted well before the 2016 election occurred.