On December 11, the 10th circuit refused to rehear Libertarian Party of New Mexico v Herrera, the ballot access lawsuit filed in 2006. The issue was whether the U.S. District Court should have heard the party’s evidence.

The 10th circuit did re-write its opinion slightly. The November 7, 2007 opinion had said on page 12, “Affidavits from other similarly situated minor parties, such as the Green Party, were not obtained to prove the burden imposed.” The new opinion changes “prove the burden” to “establish the character and magnitude of the injury”. Also, on page 14, the old opinion had said, “Without evidence to prove the burden of New Mexico law is severe as to minor party candidates, there was no genuine issue of material fact”; the new opinion says, “Without any evidence to prove that the New Mexico ballot-access law is unconstitutionally burdensome to minor party candidates, there was no genuine issue of material fact.”

It is Orwellian of the 10th circuit to criticize the Libertarian Party for failing to provide evidence, since the party had planned to introduce the evidence at the trial. However, the U.S. District Court had cancelled the trial, with only one business day’s warning to the witnesses and the attorneys, and thus the party was unable to present the extensive evidence it had planned to present.

The ACLU, which brought this lawsuit, might ask for U.S. Supreme Court review, or it might file an entirely new lawsuit focused on the 2008 election. That lawsuit could perhaps be filed on behalf of both the Libertarian and Green Parties, but could not be filed until these parties hold nominating conventions and nominate candidates (for office other than president). Those two parties are on automatically for president, but not other office.