On September 14, the Michigan Secretary of State asked the U.S. Supreme Court not to act on the Libertarian Party’s ballot access case involving the interpretation of Michigan’s “sore loser” law. Here is the state’s brief, which has a picture of the ballot that Michigan intends to print, omitting any presidential nominee for the Libertarian Party. Here is the party’s rebuttal brief, which was submitted the same day.
At least seven states cannot print ballots yet because of unresolved questions about the ballot. Here is an article explaining that Connecticut must wait until the State Supreme Court decides which party should be listed first on the ballot.
New York can’t print any ballots until the Independence Party chooses a presidential candidate, which it will probably do on September 20, the New York state deadline for that.
At least six Colorado counties can’t print ballots until a federal court decides whether bar codes should be on ballots.
Pennsylvania doesn’t know yet for sure whether the Libertarian statewide candidates will be on the ballot or not. In Pennsylvania, when a challenge process is still pending, it is customary for some ballots to be printed with the challenged candidates listed, and then to mark them off if the challenge goes against them.
New Hampshire won’t print any ballots until the Ballot Law Commission decides whether Virgil Goode should be listed as the Constitution Party nominee for President. That will be decided by the Ballot Law Commission on September 20.
Kansas won’t print any ballots until the challenge to President Obama’s qualifications is resolved.
This list isn’t necessarily complete, and does not try to deal with Michigan. Federal law requires overseas absentee ballots to be mailed no later than September 22.
Here is the short decision of the Oklahoma State Supreme Court in Lawhorn v Ziriax, 2012 OK 78. The decision implies, but not does explicitly say, that qualified parties in Oklahoma cannot nominate presidential electors unless their party holds a national convention. This is based on an incidental part of the election law that says presidential elector candidates must take an oath to support the candidate chosen at that party’s national convention.
The irony of this interpretation is that even if Americans Elect had gone ahead with its original plans, it never planned to nominate a presidential or vice-presidential candidate at a national convention. Instead, the party expected to nominate via an on-line vote of any registered voter in the nation who wished to participate.
The decision also mentions that the national Americans Elect rules do not authorize any state party organizations, which implicitly seems to say that the national rules of the Americans Elect Party take precedence over Oklahoma state election laws, which give state parties the authority to choose presidential elector candidates. Yet in 2000, the last year the Libertarian Party was a qualified party in Oklahoma, the Libertarians passed a bylaw saying all registered voters could vote in the Oklahoma Libertarian primary. The party said it had a First Amendment Freedom of Association right to decide for itself how to run its nomination process. The party actually won that case in the 10th circuit, but Oklahoma appealed the decision to the U.S. Supreme Court, and the U.S. Supreme Court reversed, holding that the Libertarian Party did not have a constitutional right to invite all voters to vote in its primary. Yet now, Oklahoma’s highest state court seems to be saying that national party rules can supersede not only state election law, but the wishes of party members in the state. A majority of registered members of Americans Elect had participated in the nomination of Gary Johnson for president.
The decision mentions that national leaders of Americans Elect have a trademark on the name. The decision therefore implies, but does not say, that trademarks for political parties can overcome state election law. There is no authority for that idea in any other reported decision, and the 9th circuit ruled last year that trademarks for political party names cannot be used to overcome state election laws.
On September 14, Professor Joe Montgomery, who filed an objection to President Obama being on the Kansas ballot based on presidential qualifications, withdrew his objection. However, according to this story, the Secretary of State isn’t sure the matter is settled.
It was earlier reported that Arkansas Green Party candidate Fred Smith would be the only name on the November ballot for State Representative, district 54. However, Hudson Hallum, the Democratic incumbent who resigned, and who is not considered a candidate for re-election, will still be listed on the ballot. See this article, which says it is possible a court will order that votes for Hallum not be counted and that voters be told of this at the polling place.
