On August 29, the U.S. Supreme Court refused to order Ohio to print “Libertarian” on the ballot next to Gary Johnson’s name. The order says that Justice Elena Kagan had referred the matter to all the justices. As a result, if Johnson receives more than 3% of the vote for President in Ohio, the party will not remain on the ballot in 2018 and 2020. If “Libertarian” were on the ballot next to his name, and he received 3% or more, the party would be on the Ohio ballot for the next four years.
On August 27, a Louisiana Republican Party state meeting entertained a motion that the party assert a right to block certain candidates from using the word “Republican” on the ballot. See this story. The proposal was not passed but may be considered at a future meeting. The Republican Party is almost certainly not able to take this step, because in Louisiana, no party has nominees for any office except President and presidential elector. All candidates run in the general election, with the label that matches their voter registration membership. If Louisiana Republicans want control over their name on ballots, they would need to reinstate partisan primaries for office other than president.
On August 29, an official in the Alabama Secretary of State’s office telephoned Rocky De La Fuente and told him that even though he has enough valid signatures to be an independent presidential candidate, he cannot be on the November ballot because he ran in the March 2016 Democratic presidential primary. However, in 1992, Alabama let Lyndon LaRouche run in the general election in 1992 even though LaRouche had run in the Alabama 1992 Democratic presidential primary, and the law has not changed in any relevant way.
Back in 1992, the Alabama sore loser law, which was then 17-7-1(c), said “The probate judge is prohibited from causing to be printed on the ballot the name of any independent candidate who was a candidate in the primary election of that year.” Today, the sore loser law is in 17-9-3(b), and says, “The probate judge may not print on the ballot the name of any independent candidate who was a candidate in the primary election of that year and the name of any nominee of a political party who was a candidate for the nomination of a different political party in the primary election of that year.”
That change, which was made in 2006, makes no difference. The 2006 change only added the sore loser law to minor party candidates, but both LaRouche and De La Fuente are independent candidates, so as to them there is no difference between the old law and the new law. The Secretary of State’s office told De La Fuente that the law was amended in 2014, but the only amendment in 2014 was to move the petition deadline from September to August.
The reason that Alabama let LaRouche run in 1992 is that the office understood that the true candidates in a presidential primary are the candidates for Delegate, and the true candidates in November are the presidential elector candidates. Those groups of people are not the same group, so the sore loser law can’t apply. States that intend sore loser laws to apply to presidential primaries usually write their sore loser laws to make a specific mention of the presidential primary. The Alabama sore loser law existed before Alabama had presidential primaries; Alabama first had a presidential primary in 1980.
Even though Virginia Board of Elections has already determined that the Gary Johnson and Jill Stein petitions are valid, the Board doesn’t expect to have checked the other two presidential petitions until September 1 or September 2. Those other petitions are for Evan McMullin and Rocky De La Fuente.
On August 25, Georgia filed this 16-page appeal brief, in Green Party of Georgia v Kemp. This is the case in which the U.S. District Court had struck down the Georgia law that requires approximately 50,000 signatures on a petition for an independent presidential candidate, or the presidential nominee of an unqualified party. The U.S. District Court had said until the legislature acts, the requirement will be 7,500 signatures.
The plaintiffs are the Green Party and the Constitution Party. The brief attacks both parties and implies they are frivolous. The very first paragraph quotes Anderson v Celebrezze’s sentence, “It is both wasteful and confusing to encumber the ballot with the names of frivolous candidates”. By beginning its brief with that statement, the state implies that the Green Party and the Constitution Party, which filed the lawsuit, are frivolous.
The brief tries to persuade any reader that the U.S. Supreme Court has never struck down a restrictive ballot access law unless the plaintiff was supported by a large number of voters. But in reality, the U.S. Supreme Court has sometimes struck down restrictive ballot access laws when the plaintiffs were minor parties with little voter support. In 1968 the Court struck down the Ohio ballot access law in a case in which the Socialist Labor Party was a plaintiff. The SLP won the case, even though the opinion said the party only had 108 members in Ohio. In 1970 the Court summarily affirmed a 3-judge court decision that had put the Socialist Workers Party and the Socialist Labor Party on the New York ballot. The SWP received 5,766 votes for Governor that year, and the SLP received 3,963. In 1974 the Court struck down an Indiana ballot access law that had kept the Communist Party off the 1972 ballot. In the 1972 presidential election, the Communist Party only received 25,595 votes in the entire nation.
In 1976 the U.S. Supreme Court summarily affirmed a 3-judge court decision that put the U.S. Labor Party nominee on the ballot in a U.S. House race in Philadelphia, Pennsyvania, in 1974. That candidate, Bernard Salera, only received 1,141 votes. In 1979 the U.S. Supreme Court agreed with lower courts in Illinois who had put the Socialist Workers Party candidate for Mayor of Chicago on the 1977 special mayoral ballot. That candidate only received 5,546 votes.
The state’s brief also tries to mislead the Eleventh Circuit by claiming on page five that the Libertarian Party of Georgia frequently places nominees on the ballot for the legislature by petition. Actually, all Libertarian Party petitions for legislative candidates have failed, since 2004. The Libertarian Party is only ballot-qualified in Georgia for statewide office, not U.S. House, legislature, or county office.
