For many years, there has been an ambiguity in the New Mexico definition of “major party.” The law seems to clearly indicate that it is a group that polled 5% (of the total presidential or gubernatorial vote cast) for any partisan office, and which has registration of at least one-third of 1%.

But there has been a period of years in which various Secretaries of State have said the vote test only applies to a nominee for President or Governor. But on January 27, New Mexico Secretary of State Maggie Toulouse Oliver said the vote test applies to any office. Therefore, the Libertarian Party is a major party for the 2020 election. This means that it nominates by primary, not convention.

Section 1-7-7 of the Election Law says, “major political party” means any qualified political party, any of whose candidates received as many as 5% of the total number of votes cast at the last preceding general election for the office of governor or president of the United States, as the case may be, and whose membership totals not less than one-third of 1% of the statewide registered voter file.” The Libertarian Party in 2018 got over 5% (of the number of votes cast for Governor) for U.S. Senate and Land Commissioner. The 2018 gubernatorial vote total was 696,459. Calculating 5% of that number equals 34,823. Michael Lucero got 39,791 votes for Land Commissioner; Gary Johnson got 107,201 for U.S. Senate. Thanks to Bob Johnson for this news. See this story, which oddly doesn’t mention the U.S. Senate total.

On December 17, 2019, the Ninth Circuit refused any relief to Paul Merritt, in his lawsuit against the California Secretary of State for censoring his paid candidate statement for the State Voters Guide. Merritt v Padilla, 18-55457. Here is the opinion, which will not be published.

In 2016, when Merritt was on the primary ballot for U.S. Senate, he paid a substantial amount of money to have his candidate statement printed in the Voters Guide, which is postally mailed to all registered voters. He said he is an independent candidate. Without even telling him, the Secretary of State deleted that sentence and said instead that Merritt has “no party preference.” It is true that the federal courts have already upheld the California law saying the ballot label itself for independent candidates (for office other than President) must be “party preference: none”. But the reason they said that was that candidates are free to call themselves independent candidates in their statement in the Voters Guide.

The U.S. District Court ruling in the Merritt case erroneously said that the ballot label and the candidate’s self-description in the Voters Guide must match. At the Ninth Circuit oral argument, the state conceded that if the Secretary of State had understood that Merritt wanted “independent” to be part of his candidate’s statement, and not just the title for his statement, then the Secretary of State would have printed “independent.” Notwitnstanding the state’s own admission of confusion, the Ninth Circuit upheld the lower court decision. The three judges are Margaret McKeown, Jerome Farris, and visiting U.S. District Court Judge Virginia Kendall.

This is the fifth election law case in a row in which Judge McKeown has ruled against a minor party or independent candidate. She also ruled in favor of the California requirement for independent presidential candidates, almost 200,000 signatures to be gathered in 105 days, saying otherwise the ballot would be crowded (the evidence in that case, which was not contradicted, disproved that). She ruled against the Arizona Libertarian and Green Parties, in their lawsuit against the voter registration form which listed only the Democratic and Republican Parties even though the other two parties were also entitled to a primary at the time. She ruled that there wasn’t enough evidence in a Green Party lawsuit against the February petition deadline for new parties. And she upheld the Arizona primary petition requirements for the Libertarian Party, even though in the two elections in which those requirements were in place, no Libertarian managed to comply with them despite making strong efforts.

There is no living judge on the federal bench who has made so many unfavorable rulings in ballot access, while never having made a favorable ruling. Previously, Eleventh Circuit Gerald Tjoflat had a similar record, but then he ruled favorably in the lawsuit that struck down the Georgia minor party petition requirement for President.