On August 27, U.S. District Court Judge Paul Barbadoro upheld a 2014 New Hampshire law that makes it illegal for a group to circulate a petition to get itself on the ballot in odd years. Libertarian Party of New Hampshire v Gardner, 1:14cv-322. Although the decision is 42 pages long, it completely ignores the prime rule, established twice by the U.S. Supreme Court, on how to evaluate ballot access barriers for independent candidates and minor parties. That rule is that courts are suppose to evaluate how often such candidates or groups get on the ballot. If few succeed, then the law is probably too severe.

The U.S. Supreme Court announced this test in Storer v Brown in 1974 and repeated it in Mandel v Bradley in 1977, but the decision does not even mention this test. The New Hampshire party petition has existed since 1996 and only twice has any group ever managed to use it. It is one of the most difficult petition requirements in the nation, 3% of the last gubernatorial vote. Both times it was used, the party that used it, the Libertarian Party, took approximately a full year to get the job done. Now the circulation period has been cut in half.

The decision says the law is needed to prevent ballot clutter. That is a ridiculous statement. New Hampshire is one of only five states that had only a Republican or a Democrat on the ballot for all statewide races in November 2014 (the others are California, Alabama, New Mexico, and Pennsylvania). New Hampshire is one of only ten states in which the Green Party has not been able to place its presidential nominee on the ballot in any of the last three presidential elections (the others are Georgia, Indiana, Kansas, Missouri, North Carolina, Oklahoma, South Dakota, Vermont, and Wyoming). The decision contains no analysis of how many candidates have actually been on general election ballots in New Hampshire.

The decision takes up considerable space denigrating the New Hampshire Libertarian Party. It says on page 6 that the party has few registered voters, without mentioning that New Hampshire is one of only three states that won’t tally the number of registered Libertarians (the others are Oklahoma and Rhode Island).