Last month, the New Hampshire Libertarian Party asked the U.S. Supreme Court to hear its election law lawsuit. The due date for the state’s response, August 29, has now passed. The state filed nothing, not even a notice that it is waiving its right to respond. However, there is never any legal requirement that the other side must respond to a cert petition.

The case concerns the state’s behavior in the presidential election of November 2008, when it printed two Libertarian Party presidential candidates on the ballot, one of whom was the party’s nominee, and one of whom was not. Almost all states, other than New Hampshire, provide legal protection for party names, and will not print a party label on the ballot next to the name of a candidate, in a general election, if the party did not nominate that candidate. The case is called Libertarian Party of New Hampshire v Gardner, 11-119. The U.S. Supreme Court has this case on its conference for September 23.

All briefs have been filed in the new Ohio Libertarian Party ballot access lawsuit. The hearing is set for Tuesday, August 30, at 9 a.m., before Judge Algenon Marbley, in the U.S. District Courthouse in Columbus.

The Libertarian Party argues that it violates due process for the Secretary of State to have terminated the party’s ballot status last month, partly because the party had intended to participate in two partisan city elections this fall. In response to that argument, the Secretary of State’s brief says the Libertarian 2011 nominees may have the party label “Libertarian” placed next to their name on the November 8, 2011 ballot, even though the party (in the Secretary of State’s eyes) is no longer qualified. The Secretary of State’s brief merely asserts that the party label will be permitted, but does not explain by what legal authority the Secretary of State expects the party label to be on the ballot. Ohio law does not permit any party labels on any ballot, unless the party is qualified.

The Secretary of State’s brief appears to contradict itself, because in another part it insists that the Secretary of State cannot leave the party on the ballot, because a 2008 court ruling established that only state legislatures can write ballot access restrictions, and that state administrators cannot constitutionally write their own ballot access laws. Therefore, it seems to follow logically that the Secretary of State has no authority to leave the label “Libertarian” on the 2011 ballots.

The Secretary of State’s brief also argues that the new ballot access law, providing for an early February petition deadline for petitions to qualify a party, is constitutional. However, the Secretary of State’s brief does not cite any authority that allows a petition deadline that early. All of the precedents mentioned in his brief that upheld petition deadlines dealt with May, June, or July petition deadlines. Here is the Libertarian Party’s rebuttal brief.