On September 17, the Kentucky Libertarian Party won a lawsuit over the right to nominate someone, even if that person is a registered member of another political party. The Jefferson Circuit Court ruled that Edward Martin should be on the November ballot as the Libertarian nominee for U.S. House, 3rd district, even though he is a registered Republican. Cummings v Martin, 08-CI-08751.

The Kentucky Libertarian Party is not a ballot-qualified party, so it placed Martin on the ballot by petition. Kentucky election law says that an independent candidate must not be a registered member of a qualified party. The Secretary of State placed Martin on the ballot, but a Republican Party official sued to remove Martin, on the grounds that if he were an independent candidate, he would not be permitted to be on the ballot. However, the judge ruled that a Libertarian Party nominee is not an “independent candidate”, even though the procedures for ballot access in Kentucky for independent candidates, and the candidates of unqualified parties, are the same (except that, of course, the nominee of an unqualified party may have his party label put on the ballot next to his or her name).

A key fact was that Kentucky keeps track of registrations of certain unqualified parties, including the Libertarian Party. Another fact, noted by the decision, is that the Libertarian Party is a bona fide political party, even if it isn’t a qualified party in Kentucky. The decision says, “Mr. Martin’s use of the Libertarian Party label cannot be fairly construed as some sort of sham designation to mask his otherwise ‘independent’ status. The party has a platform adopted at a national convention in May; it has a presidential candidate, Bob Barr; and it has been in existence since 1971. It has a coherent political philosophy based on the rights of the individual and limited government. While it does not appear any member of the current Congress is a Libertarian, members of the party have won election as, and discharge the duties of, a number of public offices in a number of states.”

Martin became a registered Republican in order to vote for Ron Paul earlier this year in the presidential primary. He represented himself in court even though he is not an attorney. It is possible there will be an appeal.

The Mississippi Supreme Court holds oral arguments in Berger v Barbour at 11:30 a.m. on September 17 (Wednesday). This is the case on whether the Class I U.S. Senate seat should be at the bottom of the ballot, or whether it should be near the top, next to the Class II U.S. Senate race and just below the presidential part of the ballot.

The Class I U.S. Senate is very close. Democrats charge that the Governor wants that race at the end of the ballot, hoping that many voters will not see it.

On September 16, Bob Barr and Wayne A. Root asked the Supreme Court of Texas to rule that the Texas Secretary of State had no authority to certify the Democratic and Republican presidential and vice-presidential nominees for the ballot. As is fairly well-known, the Texas law requires qualified parties to certify their national nominees by 5 p.m. of the 70th day before the general election, which was August 26. UPDATE: here is the text (preliminary non-text portions are not included).

Of course, the reason the major parties were late was because both of them held their national nominating conventions later than the deadline. The Democratic National Convention was underway when the deadline passed, but the party had not yet nominated Obama and Biden. The Republican National Convention was entirely beyond the deadline.

The petition for a writ of mandamus is quite poetic, quoting the famous passage from “A Man for All Seasons”: “What would you do? Cut a great road through the law to get after the Devil?…And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws all being flat?…This country’s planted thick with laws from coast to coast–Man’s laws, not God’s–and if you cut them down…d’you really think you could stand upright in the winds that would blow then?”

There are Texas Supreme Court decisions that have put candidates on the ballot even though deadlines were not met, but they involved errors by party officials. In this case, party officials made no errors; they were simply unable to comply with the law. Lenora Fulani had filed a similar lawsuit in Indiana in 1988, since both the Democratic and Republican Parties had failed to file timely. In Fulani v Hogsett, the 7th circuit ruled that, since she was also listed on the ballot, she had standing to sue; but that she filed her lawsuit eleven weeks after the deadline had been missed, so was guilty of laches.