On May 1, the Sixth Circuit issued a brief opinion, saying the U.S. District Court in Michigan was correct when it kept Gary Johnson, or any other Libertarian Party presidential candidate, off the ballot in November 2012. The part of the decision on the merits is only one short paragraph long, and does not discuss the factual error in the U.S. District Court’s decision. The U.S. District Court had said in its original opinion that John B. Anderson had not appeared on the 1980 Michigan Republican presidential primary ballot, so the precedent created when Anderson appeared as a minor party presidential nominee in November was not relevant. Later the District Court amended its opinion to acknowledge the error, but did not then re-think the conclusion.
The brevity of the Sixth Circuit opinion, Libertarian Party of Michigan v Johnson, 12-2153, disguises something very important about the case. Gary Johnson in 2012 was the first presidential candidate in U.S. history to be kept off the November ballot as a minor party nominee, on the grounds that his name had appeared on a major party presidential primary ballot. Presidential candidates whose names appeared on the November ballot as a minor party or independent nominee, even though they had run in a major party presidential primary, include Theodore Roosevelt, Robert La Follette, John Anderson, David Duke, Lyndon LaRouche, and Alan Keyes.
The logical reason that “sore loser” laws have not been applied to presidential candidates is that Article II of the U.S. Constitution, and the state election codes of all 50 states, make it clear that presidential electors, not presidential candidates, are the true candidates in November. Candidates for president may be “candidates” for purposes of campaign finance law, but in relation to ballot position, they are not candidates; instead their names appear on November ballots as identifiers for competing slates of presidential elector candidates.
