Oklahoma Brief Argues that State's Interest in Requiring Newly-Qualifying Parties to Nominate by Primary Trumps Parties' Right to a Reasonable Petition Deadline

On July 2, the Oklahoma State Election Board filed this brief in Libertarian Party of Oklahoma v Ziriax, the pending ballot access case filed in January 2012 by the Libertarian Party and the Green Party. In June the parties requested permission to file an amended complaint which argues that is it is unconstitutional for states to require newly-qualifying parties to nominate by primary, if that means the petition deadline must be early in the year.

The state’s July 2 brief opposes the request to amend the Complaint, and says that if a state wants a newly-qualifying party to nominate by primary, that is more important than the need for newly-qualifying parties to have a petition deadline that is not early in the year. The state’s brief says the U.S. Supreme Court already ruled that states may always require parties to nominate by primary. The state’s brief cites two cases for this proposition, American Party of Texas v White, and Lightfoot v Eu. But neither of those cases say that states have an interest in preventing newly-qualifying parties from nominating by convention instead of by primary.

In American Party of Texas v White, the American Party was demanding that the state provide a primary for it. Texas law, then and now, says that newly-qualifying and small qualified parties nominate by convention, and only large parties may have a primary. American Party of Texas did not deal with the issue of parties that don’t want a primary. Lightfoot v Eu, a 9th circuit case, was about whether a party that has a primary may supplement its primary (with post-primary conventions) after the primary is over, for races in which no one was nominated in that party’s primary.

One can argue that the U.S. Supreme Court has already ruled that states may not require a primary for newly-qualifying parties. In Williams v Rhodes, the U.S. Supreme Court put the American Independent Party on the ballot in 1968 even though Ohio law said all parties, even newly-qualifying parties, must nominate by primary. When the U.S. Supreme Court put the American Independent Party on the ballot, it was already too late for it to nominate by primary, but that didn’t deter the U.S. Supreme Court from putting it on the ballot anyway. The party nominated its candidates that year by convention.

Many other courts have also put newly-qualifying parties on the November ballot, even though the state law required newly-qualifying parties to nominate by primary and it was too late for a primary when the Court acted. Such cases are:

1. Socialist Labor Party v Rhodes, 318 F Supp 1262 (1970), put the Socialist Labor Party on the Ohio ballot on July 29, after the May primary was over.
2. Citizens to Establish the Reform Party v Priest, 970 F Supp 690 (1996), put the Reform Party on the Arkansas ballot on July 31, after the May primary was over.
3. Libertarian Party of Hawaii v Waihee, unreported, cv-86-439, put the Libertarian Party on the ballot on July 17, 1986, too late for that year’s primary.
4. Populist Party v Evans, ureported, 9th circuit, 84-4108, put the Populist Party on the Idaho ballot on September 6, 1984, after the May primary was over.
5. MacBride v Exon, 558 F 2d 443 (8th circuit, 1977) said the U.S. District Court was correct to have put the Libertarian Party on the Nebraska ballot on September 3, 1976, too late for the May primary.
6. Libertarian Party of Nevada v Swackhamer, 638 F Supp 565 (1986) put the Libertarian Party on the ballot on May 27, too late for that year’s primary.
7. Libertarian Party of Ohio v Brunner, put the Libertarian Party on the ballot in July 17, 2008, too late for that year’s primary.
8. Libertarian Party of Oklahoma v Oklahoma State Election Board, 593 F Supp 118 (1984) put the Libertarian Party on the ballot on July 30, too late for that year’s primary.
9. Green Party of Tennessee v Hargett, 2012 WL 379774 (2012) put the Green Party and the Constitution Party on the ballot on February 3, and said that requiring newly-qualifying parties to nominate by primary is unconstitutional.

Oklahoma’s brief says the state’s interest in requiring primaries for newly-qualifying parties is to insure the “party bosses” do not control the party. This argument, as applied to the Oklahoma Libertarian Party, seems detached from reality. In previous briefs in this case, the state has belittled the Libertarian Party for having few dues-paying members, and few registered voters ten years ago when voters were permitted to register as Libertarians, and for having few people attend its state convention. The idea that the Oklahoma Libertarian Party has “party bosses” who are attempting to exclude rank-and-file Libertarians from running for office is not realistic.

Oklahoma’s brief does not mention any of the nine decisions mentioned above, except for the 1984 Oklahoma Libertarian case. The state attempts to defeat that precedent by saying that precedent only came about because in 1984, the state accidentally was late to file a brief and therefore lost the case by default. But judges do not make important decisions in constitutional cases, nor do they take the significant step of ordering a party put on the ballot, just because a state was late to file a brief. Judges always forgive such errors in cases of this magnitude.


  1. Demo Rep · · Reply

    Every election is NEW.

    Separate is NOT equal.

    MUCH too difficult to understand for MORON judges and lawyers in ballot access cases — since 1968 — the MORON SCOTUS *opinion* in Williams v. Rhodes — and ALL later MORON SCOTUS ballot access cases.

    The MORON lawyers play their EVIL MORON game of splitting hairs into atoms to get some sort of new stuff. TOTAL EVIL.
    P.R. and nonpartisan App.V.

  2. Demo Rep · · Reply

    Hmmm. The *party boss* stuff was the reason for the OFFICIAL ballots in the States in 1888-1890 onward – and thus the ballot access laws to get on such official ballots.

    The brain rot in the courts about basic Democracy 00000001 stuff is total EVIL beyond belief

    — due of course to having nonstop robot party hacks on SCOTUS since 1861 — Lincoln stooges onwards to Obama stooges.

  3. Richard Winger · · Reply

    #2, the reason for the introduction of government-printed ballots, starting in 1888, was to make it secret voting possible. Primaries are a 20th century invention not related to what happened in 1888.

  4. Demo Rep · · Reply

    # 3 The secret ballot stuff came about due to the party bosses making threats and bribes regarding how to vote — i.e. such party bosses and their stooges watched and recorded how folks voted before 1888.

    The *modern* primaries were a reaction to the party bosses controlling pre-1888 party hack caucuses and conventions.

    ALL EVIL corrupt stuff.

    P.R. and nonpartisan App.V — to really END the EVIL rule of the EVIL corrupt party hack bosses — now in gerrymander districts.

  5. Demo Rep · · Reply


    Any revisonist history folks out there in internet land ???

  6. Tom Yager · · Reply

    Richard, if memory serves me correctly, the Libertarian Party of Oklahoma wanted to open its primary to voters in other parties, but the state wouldn’t let them. So the state is effectively forcing the party to have fewer people vote in its primary.

    The Supreme Court ruled that the blanket primary, which forced parties to open their primaries, was unconstitutional, but that it was OK for a state to force parties to close their primaries. I don’t see the logic here. Did the Court actually have a realy argument, or was it just “We don’t like third parties” dressed up in some specious rationale?

  7. Demo Rep · · Reply

    SCOTUS is full of math MORONS.

    Public Electors – Public candidates – Public nominations [by ALL Electors or SOME Electors in subgroups – aka FACTIONS] – Public officers — according to PUBLIC LAWS.

    The 1st Amdt has about ZERO to do with PUBLIC nominations.

    See the book – Sources of Our Liberties edited by Richard L. Perry (1959) – before SCOTUS went leftwing NUTS in the 1960s.

  8. Richard Winger · · Reply

    #6, the Clingman v Beaver decision, written by Justice Clarence Thomas, semi-said the Court doesn’t think Tashjian v Republican Party of Ct. is good law anymore. But he said the Court wasn’t overruling it. It was odd. You should read it.

  9. Jim Riley · · Reply

    #8 Could you semi-indicate where Clingman v Beaver semi-said Tashjian v Republican Party is not good law. It distinguished the two.

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