On April 24, the Ohio Secretary of State said that it will not put the Libertarian Party on the ballot this year. In 2006 the 6th circuit had ruled that the old law, requiring a petition of 1% of the last vote cast, due an entire year before the general election, is unconstitutional. The Ohio legislature has not replaced the old, void law, with a new one.
To fill the gap in the law, last year the Ohio Secretary of State said she would accept party petitions if they were submitted in late November 2007, and if they had the signatures of one-half of 1% of the last vote cast (slightly more than 20,000 signatures). No group complied with this task. The only group that even tried to qualify as a party was the Libertarian Party, which submitted 6,500 signatures on the day before the March primary. The party believes that when a ballot access law is unconstitutional, and the legislature doesn’t pass a new requirement, then a state is obliged to put any party or any candidate on the ballot, if that party or candidate demonstrates a modicum of support.
The party rests its opinion on the U.S. Supreme Court opinion McCarthy v Briscoe. In that case, the U.S. Supreme Court said that since Texas did not have any procedure for an independent presidential candidate to get on the ballot, Texas must put McCarthy on the ballot even though he hadn’t submitted any petition at all. The Court noted public opinion polls, and ballot status for McCarthy in other states, to justify putting McCarthy on the ballot.
Ohio is in the 6th circuit. The 6th circuit issued a similar opinion in 1984 called Goldman-Frankie v Austin. It said the lower court had been correct to order the Michigan Secretary of State to put Peggy Goldman-Frankie on the ballot as an independent candidate for State Board of Education, since Michigan did not have a valid law in place.
The Ohio Secretary of State did not say why she is not influenced by McCarthy v Briscoe or Goldman-Frankie v Austin. It is likely that the party will bring a lawsuit. It nominated by convention earlier this year and has certified the names of its candidates for U.S. House and state legislature.
