On January 19, the US Supreme Court heard Clingman v Beaver, the case filed by the Oklahoma Libertarian Party in 2000. The issue is whether a party (which is entitled to nominate by primary) has the right, under the First Amendment freedom of association clause, to invite all registered voters to vote in its primary.

The US District Court had said “No”, but the US Court of Appeals, 10th circuit, had said “Yes”. The state of Oklahoma then appealed to the US Supreme Court.

At the hearing, Justice Antonin Scalia at first was hostile to the position of the Libertarian Party. However, as time went on, he became taciturn and appeared to be listening carefully to the attorney for the Libertarians, Jim Linger. Justices Souter, Kennedy, O’Connor and Stevens seemed sympathetic to the party. Justice Ginsburg and Breyer seemed undecided, and Justice Thomas was silent.

A much more detailed analysis will be printed in the Feb. 1, 2005 Ballot Access News.

The US Supreme Court will consider whether to hear Ralph Nader’s Oregon ballot access case at its conference of February 18. A decision as to whether that Court will accept the case will probably be announced on February 21. The issue is whether it is constitutional for an election official to create new rules for petition validity, after the petition has already been submitted. Kucera v Bradbury, no. 04-872.

On January 18, the new chief of the New Mexico Elections Department, Ernest Ortega, told the New Mexico Libertarian Party that it is still ballot-qualified. However, this decision isn’t in writing yet. The Libertarian Party had thought it was disqualified in November 2004 for failing to poll one-half of 1% of the vote for president. It had only polled .31% for president.

The law is very confusing and has been interpreted in contrary ways in the past. It says a party is disqualified “If two successive general elections are held without at least one of the party’s candidates on the ballot or if the total votes cast for the party’s candidates for governor or president, provided that the party has a candidate seeking election to either of those offices, in a general election do not equal one-half of 1% for governor or president, as applicable.” The party did not have a candidate for governor on the ballot in 2002.