On August 24, two Ohio voters, Kelly Mills and Cynthia Rees, filed a challenge to the placement of Gary Johnson on the Ohio general election ballot. The Ohio Libertarian Party and the Johnson campaign were not informed of this until August 31.

The basis for the challenge is that Ohio law says candidates cannot get on the general election “by nominating petition” if he or she “seeks a party nomination for an office or position at a primary by declaration of candidacy.” 3513.04. This is a frivolous challenge. Gary Johnson did not get on the general election ballot in Ohio “by nominating petition.” He is on the November ballot because the Ohio Libertarian Party has been ballot-qualified ever since 2008. People who get on the general election “by nominating petition” are independent candidates, and Gary Johnson is not an independent candidate.

To get around this problem, the objectors point out that the Libertarian Party would have got on the ballot by “nominating petition” if a court hadn’t put it on the ballot. But, the petition that would have been used to put the Libertarian Party on the ballot if it had needed one is not called a “nominating petition”; instead it is “a petition in which voters declare their intention to organize a political party.” The petition to put a party on the Ohio ballot does not list any candidates; it just mentions the party, so plainly it is not a “nominating petition.” After a newly-qualifying party in Ohio gets on the ballot, the party nominates its candidates.

Another weakness in the challenge is that Gary Johnson didn’t run in the Ohio Republican presidential primary. The challenge acknowledges this, but says he ran in some other state presidential primaries.

The challenge says the “sore loser” law is supposed to be construed broadly, but the only example relates to another law that doesn’t have anything to with election law. The truth is that Ohio courts have interpreted the “sore loser” law, as applied to presidential candidates, very narrowly. For example, in 1992, Lyndon LaRouche appeared on the Ohio Democratic presidential primary and then petitioned to be on in November as an independent presidential candidate. The Secretary of State refused to list him as an independent, but the Ohio Court of Appeals, in Brown v Taft, 92AP-1267, decision of September 18, 1992, construed the sore loser law for president very narrowly. It said LaRouche should be on the November ballot because, technically, he didn’t file a petition to be on the Democratic presidential primary ballot. Instead, it said his candidates for Delegate to the Democratic convention filed the petitions, and they were the true candidates. Afterward, the Ohio legislature amended the sore loser law to cover people whose names appear on the Ohio presidential primary ballot, but the legislature did not amend the law to cover minor party presidential candidates. The law still just relates to independent presidential candidates.

Still another flaw with the challenge is that the Ohio Secretary of State put Gary Johnson on the ballot on July 12. One wonders about the justification for waiting until August 24 for that decision to be challenged. The Secretary of State will adjudicate this challenge at 10 a.m. on September 5, Wednesday.