On May 23, the US Supreme Court upheld Oklahoma state law, against a Libertarian Party challenge. Specifically the court upheld a law that does not permit a qualified party to invite members of other parties to vote in its primary. The vote was 6-3. Justice Thomas wrote the opinion.
However, two of the Justices who voted to uphold the law, Justices O’Connor and Breyer, wrote separately to say that state laws that make it difficult for minor parties and independents to get on the ballot may very well be unconstitutional. O’Connor wrote that if all the election laws of Oklahoma that impact on minor parties had been brought into the case at the first stage, the decision might well have been different. This is the first time Justice O’Connor has expressed any sympathy or interest in minor party ballot access problems.
The 3 dissenting justices (Stevens, Souter and Ginsburg) also were critical of state election laws that make it difficult for minor parties and independent candidates to get on the ballot or otherwise carry out successful election campaigns. Therefore, an actual majority of the court (the 2 concurrers, and the 3 dissenters) have now expressed support for attempts to strike down restrictive ballot access laws. This is the first time a majority of the Court has been sympathetic to minor parties since 1992.
Also on May 23, the US Supreme Court refused to hear Ralph Nader’s ballot access case against Oregon, Kucera v Bradbury. Justice Breyer voted to hear it, but it takes 4 justices to agree to hear a case.