On December 14, Ohio Secretary of State Jon Husted told the press that Donald Trump can’t qualify as an independent presidential candidate in Ohio (should he want to do that), because Ohio, starting in 1981, defined “Independent candidate” to be “any candidate who does not consider himself affiliated with a political party, and who has his name certified on the ballot at a general election through the filing of a statement of candidacy and nominating petition as prescribed by section 3513.257 of the Revised Code.” Sometime between 1996 and 2002 it was slightly amended, so now it says, “who claims not to be affiliated with a political party”.

That law was passed in 1981. Yet in 1984, 1988, and 1992, Ohio let independent presidential candidate Lyndon LaRouche on the ballot as an independent, even though all three elections LaRouche had run in the Ohio Democratic presidential primary and in the Democratic presidential primaries of many other states. Furthermore, ever since 1979, LaRouche has consistently told the world that he is a Democrat. Hundreds of members of his organization have run in Democratic primaries for public office and also party office. Two individuals were even elected as delegates to the Democratic National Convention in 1996, pledged to support LaRouche for the Democratic presidential nomination. However, the Democratic National Committee then passed a resolution to prevent them from being seated. LaRouche sued but the U.S. Court of Appeals in the District of Columbia said the Democratic Party was permitted to do that.

The Ohio law has been upheld, but not in reference to any presidential candidate. The reason LaRouche was permitted to run in Ohio in 1984, 1988, and 1992 is partly because the true candidates in November are the candidates for presidential elector, and there was no revealed evidence that the LaRouche candidates for presidential electors had publicly affiliated themselves with the Democratic Party.

Jon Husted conspicuously did not say anything about whether Trump could be the nominee of a new party. A new party needs 30,560 signatures due July 6, 2016.

On December 11, Arkansas filed its brief in Libertarian Party of Arkansas v Martin, e.d., 4:15cv-635. The issue is a new law that says qualified minor parties (which nominate by convention) must nominate all their candidates for public office, except President and Vice-President, at least one year before the general election. No state has ever before required any type of party to nominate its candidates in the year before a November general election.

Arkansas major parties choose all their non-presidential nominees at their primaries on March 1, 2016, almost four months later. The state only cites one precedent to justify this discriminatory practice. In 1988, the Missouri Libertarian Party was late submitting its candidates for presidential elector, which were supposed to be listed on the party’s ballot access petition but which weren’t. The party handed in its presidential elector candidates several days after the petition deadline. The party then sued, saying it should not be required to submit its presidential elector candidates earlier than the qualified parties were required to submit them. The party lost in U.S. District Court and in the 8th circuit, although the vote in the 8th circuit was 5-5. That case was Manifold v Blunt.

The state’s brief says the party is not harmed by being required to choose all its nominees by November 9, 2015, at noon. The Arkansas Libertarians did hold a nominating convention by that date and did nominate some candidates, but it wants to nominate many more, and plans to hold another nominating convention in February 2016. The party argues that it takes time to find willing and able candidates, and that there is no state interest whatsoever in requiring the nominations to be made so early.

The state mentions the U.S. Supreme Court American Party of Texas v White, from 1974, which said that it is constitutional for the state to provide primaries only to the major parties, and to provide that smaller qualified parties nominate by convention. But the Texas law did not force the qualified minor parties to hold their conventions before the major party primaries, so it doesn’t support Arkansas’ scheme.