On Saturday, October 11, David Patterson, the Libertarian nominee for U.S. Senate in Kentucky, lost his lawsuit to gain entry into a debate sponsored by Kentucky Educational Television, which is a state agency. U.S. District Court Judge Gregory Van Tatenhove, a George W. Bush appointee, ruled that the government may sponsor candidate debates limited to candidates “with a realistic chance of winning”. The decision is Libertarian National Committee v Holiday, e.d., 3:14cv-63.

The decision is contrary to the U.S. Supreme Court precedent Arkansas Educational Television v Forbes, 523 U.S. 666 (1998), which said that when government sponsors a candidate debate, it may not exclude candidates with a bona fide campaign. The Forbes case involved a candidate who “generated no appreciable public interest…the voters lacked interest in his candidacy…he had little, if any, financial support, failing to report campaign finances to the FEC…there was no campaign headquarters other than his house.” Patterson’s campaign has been far more vigorous than the Forbes campaign, and Patterson has been at 5% in recent polls.

Judge Van Tatenhove said that as long as there is no evidence that the government failed to invite a candidate because of his or her political views, then it is constitutional to exclude that candidate. He said, “Voters may actually benefit by a forum or debate that includes only those candidates that have a realistic chance of winning rather than many voices competing for very limited time.” This sentence is deceptive, because there are only three candidates on the ballot in the U.S. Senate election this year, not “many voices.” The decision also says, “Kentuckians will have the benefit of hearing the views of the two major candidates. And, no doubt, the positions of less-established candidates will also be heard this election season, albeit without the mandate of a government-funded forum. Nothing about this circumstance weakens the First Amendment to the Constitution.”

Early in the year, Kentucky Educational TV said a candidate would be invited if he or she met any one of these four conditions: (1) had made pubilc position statements on political issues; (2) maintained an active website; (3) had raised at least $10,000; (4) received 5% in a poll. Later in the year, the criteria were changed to require that a candidate must have raised at least $100,000 and must be at 10% in a poll.

It may be that it is socially useful for debates to be held that only include the two candidates with a chance to win, but if so, private organizations can host such debates. It is not the function of government to host debates that exclude any candidate with a significant campaign.

Here is the New York city ballot for November 4, 2014. Compared to the upstate ballot (which looks entirely different), the New York city ballot seems not as bad as it could have been. Thanks to Thomas Jones for the link.

Third Way, a think tank in Washington, D.C., recently released voter registration data for all the states in which voters are asked on voter registration forms to choose a political party (or independent status). However, Third Way’s report only includes voters who are registered Republican, Democratic, and independent. There is no mention in the Report that approximately 2.4% of the nation’s voters (in the states that ask for party membership) are members of minor parties.

Some of the “independent” totals for certain states in the Third Way report do include minor party members, but the report does not tell its readers that this is the case. For certain other states, minor party members are completely outside any of the three columns, so that anyone using Third Way’s report to know the number of registered voters in that state will get an incomplete total.

The officers of Third Way have been asked to improve the Report. The initial response has been negative; an officer of Third Way said in an e-mail that their readers are not interested in knowing how many minor party registrants there are. Third Way has a large Board of Trustees, and a communication has been sent to each member of the Board. A majority of the Board members are associated with the banking and hedge fund industry. Here is a link to the Report. Ballot Access News encourages anyone to contact members of the Board of Trustees, or any one of them. Here is a list of the Board of Trustees.