On January 21, the U.S. Court of Appeals, 5th circuit, ruled that the lawsuit Libertarian Party v Dardenne is moot. Therefore, the court declined to express an opinion about the merits of the case. The issue was whether the Louisiana Secretary of State was right or wrong to keep the Libertarian Party’s presidential candidate off the ballot in 2008, on the basis that its paperwork for presidential elector candidates was late.
The decision is only 6 pages long. It is somewhat surprising, because on December 18, a different panel of judges in the 5th circuit had ruled that Brian Moore’s ballot access case against Mississippi is not moot. That case concerned whether the Socialist Party presidential candidate should have been on the Mississippi ballot in 2008. He was kept off because his paperwork arrived ten minutes too late.
The new Louisiana decision says that the reason the Mississippi case is not moot, and the Louisiana case is moot, is because in Mississippi, the Secretary of State has said he will in the future continue to enforce a 5 p.m. deadline. The new Louisiana decision says that Louisiana is different, because the Louisiana Secretary of State has not said what he will do in the future, should severe weather make it difficult for the paperwork to be filed on time. Oddly, though, the Louisiana situation is far more likely to recur than the Mississippi situation. In Louisiana in 2008, three presidential candidates were kept off the ballot for being late with paperwork (the Libertarian, the Reform, and the Socialist Party presidential candidates).
The new Louisiana decision’s logic also seems faulty because the Constitutional issue of whether only legislatures can pass laws relating to ballot access for presidential elections is an important issue that certainly will recur in some state, if not Louisiana. Article II of the Constitution says “Each state shall appoint, in such manner as the Legislature thereof may direct, a Number of (Presidential) Electors.” The issue of whether state executive officials, such as a Secretary of State, may also issue regulations relating to presidential candidate ballot access is a significant issue. It came up in Bush v Gore in 2000. It came up in Ohio in 2008, and is pending in Pennsylvania. It is an issue in Louisiana because the Secretary of State himself extended the deadline so as to include the Democratic and Republican Parties, but his extension was shorter than the deadline extension issued by the Governor.
It is expected that the Libertarian Party will ask the entire 5th circuit to rehear the conclusion that its lawsuit is moot.