It appears that Ralph Nader will qualify for the ballot in 45 states, plus the District of Columbia, without having filed a single ballot access lawsuit. Nader is expected to be on the ballot as an independent candidate, with no partisan label, in 34 states, by his own choice. Also by his own choice, he will have a partisan label in eleven states. Those labels are: Independent Party in Delaware, Hawaii, Maryland, New Mexico; Peace & Freedom Party in California, Iowa, Utah; Populist in New York; Peace in Oregon; Ecology in Florida; Natural Law in Michigan.

Not every state lets an independent candidate use the word “independent” next to his or her name on the ballot. Some states insist on shunning that word and instead requiring an independent candidate to be labeled “by petition” or “nonpartisan” or “unaffiliated”, or “no party candidate” or other such unattactive labels. The State Supreme Courts of Minnesota and Massachusetts, many years ago, both ruled that “Independent” is such an important generic term, that the Constitution requires that independent candidates be allowed to use that word, if they wish it. It is possible that a similar lawsuit will be filed soon by Robert Owens, an independent candidate for Ohio Attorney General. He wants “independent” next to his name on the November ballot, but the state will only print “no-party candidate”.

Assuming Nader is on in 45 states this year, he will have exceeded his previous best showing, that of 2000, when he was on in 43 states plus D.C. The 45-state ballot access will be the best for a candidate who is universally perceived to be clearly of the “left”, since Henry Wallace in 1948 also appeared on 45 state ballots (except that Lenora Fulani was on in all 50 states in 1988). Some people might say that John B. Anderson in 1980 was to the “left” of both major party nominees, but that is not a universally accepted notion; most people would say Anderson had been a centrist (Anderson was on in all 50 states).

On August 23, the Delaware Libertarian Party held its nominating convention. It nominated a registered Libertarian for U.S. House, Mark Anthony Parks. For two seats in the state House, it nominated candidates who are also the Republican nominees. They are Tyler Nixon in the 4th district, and Jesse Priester in the 23rd district. They will each be on the November ballot twice, and voters who want to vote for them can choose either party label.

The Libertarian Party of Delaware tried to use fusion in 1994, when a registered Libertarian, John M. Reda, won the Republican primary for state house, district 13. He was also the Libertarian nominee. But the Attorney General ruled that Delaware did not permit fusion, so Reda kept his Libertarian nomination and the Republicans had no nominee.

Later, the Attorney General changed his mind. But in the years since, the only Delaware minor party that has engaged in fusion with a major party has been the Independent Party. The Working Families Party tried to use it, but all the Democrats who earned the WFP’s support declined the WFP nomination, on orders from the Democratic Party state organization. Thanks to LastFreeVoice for the news about the Delaware Libertarian convention.

As noted earlier, on August 18, a Republican Party official in Pennsylvania filed a challenge to Bob Barr’s appearance on the Pennsylvania ballot. Pennsylvania law provides for stand-ins on petitions, and provides that petitions should include a substitution committee, so that if any candidate named on the petition withdraws, the substitution committee is in charge of naming the replacement candidate. The lawsuit complains that the Libertarian petition, which was circulated between February and August, should not have been circulated with the stand-in, after the late May national convention had determined the actual nominee. The complaint argues that the state should print the stand-in presidential candidate on the November ballot, instead of Bob Barr. The stand-in is Libertarian Party activist Rochelle Etzel.

The lawsuit attached 139 pages of exhibits. They include the national Libertarian Party Bylaws and Convention Rules (14 pages); the Minutes of the National Convention, including appendices that give the roll-call vote for all nominations, both public office and party office (86 pages); the Minutes of the National Committee meeting of May 26 (7 pages); some internal e-mail between the national party and the Pennsylvania party (2 pages); an inventory of each petition sheet, listing the circulators for all 1,430 sheets (28 pages); and copies of Bob Barr’s candidate affidavit and the Substitution Committee Certificate (2 pages).

None of this material is damaging to the Libertarian Party or Bob Barr. The internal e-mail from David Jahn merely says, “We need to continue collecting signatures under Rochelle and Chuck Boust names. Once we get enough to qualify them for the ballot, we’ll submit the nominations papers in their names. Then they will withdraw and we’ll substitute their names with the actual candidates. I know it sounds weird, but that is the way we have to do it in Pennsylvania.”

The logical flaw in the lawsuit is that it assumes the national convention in May changed the presidential nominee of the Pennsylvania Libertarian Party. In law, national conventions have no authority whatsoever. They only have moral authority. Any state party (whether a major party or a minor party) is free to choose its own presidential candidate, since in law, only state parties nominate candidates for presidential elector. The presidential electors are the true candidates in November, and if a state party ignores the choice of the national party, it may do so. Examples are the Alabama Democratic Party in 1968 and 1964, the Democratic Parties of Alabama, Louisiana, Mississippi and South Carolina in 1948, the Arizona Libertarian Party in 2000, and the Republican Parties of California and South Dakota in 1912.

The exhibits seem to be an instance of giving a judge far more information about the Libertarian Party than the judge could possibly want or need to decide the case, but it will be an asset for any historian some day researching the Libertarian Party as it functioned in 2008.