Harley McLain, of Valley City, North Dakota, died on February 9 at the age of 62. See this obituary. As the obituary explains, he filed a lawsuit in 1978 that resulted in the Eighth Circuit ruling that North Dakota’s party petition requirement of 15,000 signatures was unconstitutionally difficult. The lawsuit also determined that states must give each candidate and each party an equal opportunity to appear first on the ballot. The decision, rendered in 1980, was McLain v Meier, 637 F 2d 1159.

The basis for the decision was that the party petition, which had been created in 1939, was so difficult that it had only been used once, by the American Party in 1976. As a result of the decision, the number of signatures was lowered to 7,000. McLain v Meier was one of the first federal court decisions to determine that the way to evalulate the constitutionality of ballot access requirements is to examine how often they are used. Back in 1980, 15,000 signatures was 3.3% of the number of eligible signers of North Dakota. The decision showed that a petition hurdle under 5% could still be unconstitutional.

As a result of the 1980 decision, the old South Dakota party petition was also struck down, in 1984. The old party petition was 10% of the last gubernatorial vote, and it had never been used either; it had existed since 1939 as well. The Libertarian Party won the 1984 South Dakota case in U.S. District Court. Another state in the 8th circuit is Minnesota, and Minnesota’s party petition, 5% of the last vote cast, has existed since 1913 and has never been used, and therefore it might be vulnerable to challenge.

McLain was the Reform Party nominee for U.S. Senator in North Dakota in 1998. He polled 1.7% of the vote.