On September 3, U.S. District Court Judge Ralph Erickson, a Bush Jr. appointee, upheld a North Dakota law that requires candidates in a partisan primary, running for the legislature, to not only place first, but to poll at least 130 to 150 votes. Libertarian Party of North Dakota v Jaeger, 3:10-cv-64. Here is the 13-page decision.
North Dakota has very small legislative districts. One of the plaintiffs, Richard Ames, ran in a district (the 25th) which had only 1,033 votes cast in the June 2010 primary for all three ballot-qualified parties, for State Senate. In order to advance to the November ballot, he would have needed 142 voters to choose to vote in the Libertarian Party primary ballot, which is almost 14% of all the voters who came out to vote in the primaries that day.
The minimum vote test for statewide office is 300 votes, and the statewide Libertarian candidates this year all met that minimum vote test. North Dakota has 47 legislative districts, so whereas a candidate needs an average of 6 votes per legislative district for statewide office, the legislative requirement is approximately 25 times that number. That is why no minor party has been able to run any candidates for the North Dakota legislature since 1976.
The decision says that the North Dakota law is constitutional, because in 1986, the U.S. Supreme Court in Munro v Socialist Workers Party upheld a similar law in Washington state. But the Washington state law only required the candidate to poll 1% of the total vote cast in his or her race, which is wildly different from 14%. Furthermore, in the Washington state case, the state used a blanket primary, and a voter could vote for a minor party or independent candidate in the primary in one race, and vote for various major party candidates in other races. That is not true in North Dakota, where the voter must choose one party’s primary ballot.