On June 1, the New Hampshire Libertarian Party filed this brief in the First Circuit. The case is Libertarian Party of New Hampshire v Gardner, 10-1360. The brief is 58 pages, but that apparent great length is partly due to the attachments. The argument itself is 21 pages.
The first issue in the case is whether the U.S. Constitution requires New Hampshire to let unqualified parties substitute the name of the actual presidential candidate for a stand-in listed on the party’s presidential candidate petition. New Hampshire, Maine, South Dakota, and Alabama are the only states that have been asked to approve presidential substitution and which have refused. The basis for the claim is that all states let the qualified parties make such substitutions. For example, in July 1972, the Democratic national convention chose Thomas Eagleton for vice-president. But in August, Eagleton resigned from the ticket and the Democratic national committee substituted Sargent Shriver. All states printed Shriver’s name on their general election ballots.
The reason unqualified parties use substitution is that they frequently wish to complete their presidential candidate ballot access petition before they have held their national convention. The U.S. Supreme Court decision Anderson v Celebrezze, issued in 1983, said it violates the U.S. Constitution for parties to force independent campaigns, and minor parties, to choose their presidential candidates before the major parties choose theirs.
The second issue is that, given that the New Hampshire Secretary of State refused to let the party use substitution in 2008 (thus forcing the party to complete a second petition, naming Bob Barr), whether it was proper for the Secretary of State to have printed “Libertarian” on the November ballot not only next to Bob Barr’s name, but also next to George Phillies’ name. Both candidates appeared on the November ballot in the “Other candidates” column, as presidential candidates, and each had “Libertarian” next to his name. Bob Barr received 2,217 votes in November in New Hampshire, and George Phillies received 531 votes. The brief does not argue that Phillies should have been kept off the ballot. It does argue that the “Libertarian” label should not have been used for both candidates.
The U.S. District Court decision was written by a federal Magistrate. The Magistrate seems not to have read the party’s briefs in U.S. District Court. The Magistrate’s decision says the party wanted Phillies off the ballot, even though the party’s briefs clearly indicated that is not what the party was seeking. On the substitution issue, the Magistrate simply asserted that there is no constitutional right for an unqualified party to substitute a new name. The Magistrate did not mention any of the precedents that do find a constitutional right for substitution. Such precedents are from Florida (one from 1980 won by John Anderson, and one from 1996 won by Harry Browne), Massachusetts (won by Bob Barr in 2008), and one from Virginia (won in 1989 by an independent candidate for state office). The Massachusetts substitution lawsuit is also pending in the First Circuit, because Massachusetts appealed. The Massachusetts substitution case is peculiar. Massachusetts permits presidential substitution, but only if the group’s national convention is in July, August or September. Massachusetts Secretary of State arbitrarily says it will not approve presidential substitution if the party’s national convention is before the petition deadline.