On September 18, the Tenth Circuit upheld the Kansas voter registration form, which won’t let voters register into unqualified parties. The Constitution Party had brought the case in 2010. The Tenth Circuit had already ruled in 1984 that Colorado must let voters register into unqualified parties, if those unqualified parties are active enough to have at least qualified their nominees for the November ballot using the independent candidate petition procedure.

The Kansas voter registration form has a checkbox for all the qualified parties, and for “independent”, but no blank line for a voter to write in the name of an unqualified party. Kansas is one of only two states that makes it physically impossible for voters to register into an unqualified party; the other one is Wyoming.

The new decision says that the Constitution Party doesn’t meet the standards set out in the 1984 decision, because the Constitution Party has never qualified any nominees for the November ballot by petition. However, the Tenth Circuit is mistaken. In 2004, the Constitution Party qualified Michael Peroutka for the November ballot as an independent presidential candidate.

The decision does acknowledge that the Constitution Party was a ballot-qualified party in Kansas in the past, but says that doesn’t count because at the time, the decision says, the party had a different name. But the Tenth Circuit got that wrong also; the party was on the ballot in 2000 as the Constitution Party. The party had petitioned as a party in 1998 under the name Taxpayers Party, and got enough votes in 1998 so that it was automatically on the ballot in 2000. But Kansas had let the party change its name in 1999 from “Taxpayers” to “Constitution.” See footnote 8 in the decision. The Constitution Party went off the ballot in 2002 because it failed the vote test.

On September 14, the 6th Circuit voted 2-1 to keep Greg Jolivette off the ballot. He wants to be an independent candidate for the Ohio State House, 51st district. The decision is Jolivette v Husted, 12-3998. On September 17, Jolivette asked for a rehearing en banc.

Ohio statutes ban “sore losers” but Jolivette did not run in any primary this year, nor did he vote in any primary this year. But the Secretary of State still kept him off the ballot, even though his petition had enough valid signatures, because he had associated with the Republican Party last year. Specifically, he had petitioned to be on the 2012 Republican primary ballot, but had then withdrawn and did not appear on the primary ballot.

Jolivette argued that the Ohio law, if it really should be construed to keep him off the ballot, is too vague. The Sixth Circuit majority said he can’t raise that issue now because he didn’t clearly raise it in the U.S. District Court. The opinion is by Judge Karen Nelson Moore, a Clinton appointee, and also signed by Judge David McKeague, a Bush Jr. appointee. The dissenter is Judge Gilbert Merritt, a Carter appointee. The dissent says the Secretary of State has “indentured” Jolivette to the Republican Party, and that the Secretary of State is always free to try to persuade Jolivette to remain a Republican but the Secretary of State should not be allowed to prevent Jolivette from changing his partisan associations.

On September 17, the Libertarian Party of Michigan filed this brief in the 6th circuit, in Libertarian Party of Michigan v Johnson, 10-2175. This is the original case, filed to get former Governor Gary Johnson on the ballot. The 6th circuit already refused to issue an injunction, halting ballot-printing. This brief gets to the merits of the case, and asks that the Sixth Circuit rule that presidential primaries are not the kind of primary that “sore loser” laws apply to, and also asks that former Governor Johnson’s name, along with the party’s vice-presidential nominee and its presidential electors, be put on the ballot or recognized as legitimate candidates for whom votes will be counted. UPDATE: the Sixth Circuit will request a quick response from the Secretary of State.

Also on September 17, a U.S. District Court in the “other” Michigan Libertarian presidential ballot access case canceled the hearing set for September 18, and ruled that the case to get Gary Johnson of Texas on the ballot (assuming the first case doesn’t win) has procedural problems that forego relief. That case is Gelineau v Ruth Johnson.

Also in the meantime, the U.S. Supreme Court still hasn’t made a ruling either way in the original case, which asks the Court to either halt ballot-printing, or simply order Michigan to print Governor Johnson on the ballot.