On September 21, the Sixth Circuit refused to rehear Gelineau v Ruth Johnson, the case to get Gary Johnson of Austin, Texas, on the Michigan ballot as the Libertarian presidential candidate. The state didn’t even explain, in any of its briefs, why James P. Gray, the Libertarian nominee for vice-president, should not be on the November ballot; he isn’t a “sore loser”. The Court seems to base its unwillingness to actually hear the case on the point that the case should have been filed sooner. Here is the two-page order.

The issue will be aired in the two Michigan Libertarian cases after the election is over. The very fact that the “sore loser” law doesn’t explain how to handle vice-presidential candidates, and presidential elector candidates, is further evidence that the law was never intended to apply to presidential primaries. For now, the only solace that Michigan voters who want to vote for Johnson have is that write-ins will be counted.

The largest number of write-ins for a presidential candidate in general election history was 58,412 (the Eugene McCarthy total in California in 1976). Within Michigan, the largest number of write-ins ever received by a presidential candidate in the general election was Ralph Nader in 1996; he received 2,322. Elections officials must perform extra work to handle write-in votes, so Ruth Johnson’s illogical and cruel decision to be the first official in U.S. history to keep a presidential candidate off the ballot on the basis that he or she had run in a presidential primary will cause extra expense and work for local election officials.

Every Gary Johnson voter in Michigan should check after the election to see that at least one Johnson write-in in that voter’s precinct was canvassed, and if a write-in voter finds a “zero” in the official record, that voter should participate in a lawsuit along with other such voters. The Michigan Libertarian Party can probably coordinate such an effort if it wishes.

On September 21, Gary Johnson, his running mate James Gray, and the Johnson-Gray Campaign filed a lawsuit in U.S. District Court in the central district of California against the Commission on Presidential Debates, the Democratic National Committee, and the Republican National Committee. The lawsuit alleges that the Commission on Presidential Debates and the two major parties are restraining competition. To answer the complaint that anti-trust law only relates to business, the complaint points out that the salary of the president is $400,000, and that Johnson is seeking to obtain the job of President, so economics is involved. The case is Johnson v Commission on Presidential Debates, cv-12-01600. Here is the complaint.

The case is assigned to Judge Philip S. Gutierrez, a Bush Jr. appointee. He has only had one previous case involving a minor party. He heard Libertarian Party of Los Angeles County v Bowen, a case against California’s restriction on out-of-district petitioners. In that case, he ruled that because the Secretary of State says she doesn’t enforce the law, therefore the plaintiffs lack standing to sue to overturn it. The Ninth Circuit took a somewhat different view, sending the case to arbirtration and signaling that if the arbitration doesn’t result in significant changes in state policy, the law will be held unconstitutional.

The lawsuit says that any presidential candidate on the ballot in enough states to theoretically win the presidency must be included in the debates. The venue is proper because James Gray lives in the central district of California. The attorney for the case is Paul Jensen. The lawsuit was filed a few hours after the Commission on Presidential Debates formally said only President Obama and Mitt Romney may participate in the first two debates. Here is the Commission’s announcement. Thanks to Independent Political Report for the news.