U.S. District Court Issues Decision in Libertarian Party of Michigan v Ruth Johnson, Explaining Why Sore Loser Law Applies to Gary Johnson

On the afternoon of September 7, U.S. District Court Judge Paul D. Borman issued this 25-page opinion in Libertarian Party of Michigan v Ruth Johnson, eastern district, 12-cv-12782. He had ruled the day before that the Libertarian Party has lost this case, but only on September 7 did his opinion explain why.

The decision implies on page 17 that the precedent set in 1980 by John B. Anderson, who ran in Michigan’s presidential primary and also ran as a minor party nominee, doesn’t apply because Anderson’s name wasn’t on the Republican primary ballot in Michigan. But, that implication is mistaken. Anderson’s name did appear on the Republican presidential primary ballot in 1980 and his votes were counted. The decision says that the Michigan Supreme Court had removed Anderson’s name from the 1980 presidential primary ballot. Because this writer is on vacation, and has no access to his home files or a law library, this assertion must remain a mystery for a few days, unless someone else has more information. UPDATE: thanks to all the helpful information from the commenters, it is now known that the Michigan Supreme Court refused to remove John Anderson from the May 20 Republican presidential primary ballot in 1980. Therefore, the U.S. District Court decision of September 7 has a severe flaw. The party has filed a notice of appeal to the Sixth Circuit. John Anderson appeared on the primary ballot and polled 48,947 votes, 8% of the total. And he also appeared on the November ballot that year in Michigan as a minor party nominee. Furthermore, there was a procedure for independent presidential candidates to appear on the Michigan ballot in November. Eugene McCarthy qualified as an independent in 1976 in Michigan and Gus Hall qualified as an independent in Michigan in 1980. McCarthy made up his own independent petition and the U.S. District Court said that was a valid method for independent candidates to get on the ballot. Thus, the U.S. District Court is also wrong on that point.

The decision denies that the presidential elector candidates are the true candidates. This is simply contrary to the law of Michigan and of every state, and also ignores the clear language of federal law, that states elect presidential electors on the first Tuesday followed by the first Monday of November in years divisible by four. The decision ignores the language in Anderson v Celebrezze that says states have a diminished interest in enforcing “sore loser” laws in presidential elections than in other elections. It also ignores the 6th circuit decision in LaRouche v Austin, an unreported 1984 decision that says the same thing more explicitly.

The decision does say on page 22, “Nor is defendant Libertarian Party of Michigan prevented from nominating the candidate of its choice, but only prevented from nominating one of the handful of candidates who choose to run for a different political party in the primary race.” This implies that Michigan must honor the Libertarian Party’s request to print the name of Gary E. Johnson of Austin, Texas, on the November ballot, if indeed Gary Johnson of New Mexico is not permitted to run.


  1. Robert McHugh · · Reply

    According to Wikipedia, John Anderson received 8% of the vote in the 1980 Michigan Republican Primary.

  2. Based off of your synopsis Richard I believe the Libertarians have a case in appealing the decision. And the whole thing seems sketchy based on the fact that it took the Republican party itself stepping in on behalf of the defendants. That’s a lot of political weight that can’t be ignored and likely influenced the decision.

  3. MarkBrown · · Reply

    Both Article II and the 12th Amendment require a measure of interstate cooperation in selecting the President. After all, Article II states that the local electors shall vote for two candidates “of whom one at least shall not lie an Inhabitant of the same state with themselves.” The 12th Amendment, which endorsed the ticket system for President, states that electors shall vote for a ticket including candidates “one of who, at least, shall not be an inhabitant of the same state with themselves.” Thus, the Framers well knew that states ought not be allowed to ban candidates who lost locally but won in other states.

  4. “Nor is defendant Libertarian Party of Michigan prevented from nominating the candidate of its choice, but only prevented from nominating one of the handful of candidates who choose to run for a different political party in the primary race.”

    In other words, the Libertarian Party of Michigan is not prevented from nominating the candidate of its choice, except it is prevented from nominating the candidate of its choice.

  5. […] Clever! This entry was posted in ballot access, third parties. Bookmark the permalink. ← “Michael Kang Responds to Foley on Obama for America Non-Retrogression Principle” […]

  6. AP, 5/12/1980: “Anderson’s Name to Stay on Ballot” / the primary was 8 days later.

    The same decision switched the Anderson candidates for delegate to uncommitted candidates. So Anderson appeared on the ballot but his supporters didn’t.

  7. On May 14, 1980 — six days before the state’s May 20 Republican presidential primary — the Michigan Court of Appeals refused a request by the state GOP to remove John B. Anderson’s name from the presidential primary ballot.

    In dismissing the lawsuit, the court stated that granting the Republican Party’s request at such a late date would “seriously strain the election machinery and endanger the election process.”

    Anderson’s own lawyers intervened in the case, agreeing that Anderson’s name should be removed from the Republican primary ballot, but took strong exception to the GOP’s contention that failure to do so would later jeopardize Anderson’s ability to appear as an independent or third-party candidate on the November ballot.

    Anderson himself had sent two letters to Secretary of State Richard H. Austin, a Democrat, asking for his name to be removed from the Republican primary ballot, but both letters were sent long after the state’s March 21 withdrawal deadline.

    Anderson’s name remained on the May 20 GOP primary ballot, where he polled 48,947 votes.

    In the meantime, Anderson’s supporters in Michigan created the “Anderson Coalition Party” and held a statewide convention attended by 300 supporters in East Lansing on Saturday, May 31 — eleven days after the Republican presidential primary — where they paired the white-haired Illinois congressman with stand-in vice-presidential candidate Lorraine Beebe, a former State Senator from Dearborn. Beebe, a real profile in political courage, had chaired Anderson’s effort in Michigan from the outset.

    The Anderson-Beebe ticket easily surpassed the required three-tenths of one percent of the vote in the state’s August 5th primary then required of minor parties to advance to the general election.

    Michigan’s so-called “sore loser law” was never really an issue in 1980. Anderson’s name appeared on both the Republican primary ballot and the general election ballot.

  8. Libertarians need to appeal this, pronto.

  9. A real strategic question emerges here – should the LP file an expensive appeal, knowing that it will have a good chance of winning, if that means grabbing the headlines for 50 state ballot access at a later date? If PA and OK hold, then that headline may come sooner, but with the asterisk and Deadspin-type media attention of another Gary E Johnson completing the 50 state requirement. I wonder if this quirky situation will cause more sympathy and positive news for the LP and derision of partisan ballot access laws, or if it will be mistaken to mean that the LP is a joke and can’t get it’s act together anymore. Better get a good media consultant…

  10. Contrary to Judge Borman’s assertion that the Michigan Supreme Court had removed Anderson’s name from the 1980 Republican primary ballot, the state’s highest court refused, in a 4-3 vote, to consider the Republican Party’s lawsuit on Friday, May 16th — four days before the primary.

    Incidentally, that legal action had been initiated by Republican state chairman Melvin Larsen and was supported by Gov. William Milliken and other prominent supporters of George H. W. Bush who feared that Anderson’s presence in the May 20th primary would draw votes from their candidate in his struggle against former California Gov. Ronald Reagan.

  11. Jim Riley · · Reply

    I read Page 17 differently. Michigan law, as quoted on page 5 says that a sore loser may not be the candidate of another party (unlike in some States, it does not say a sore loser may not run in the general election).

    Page 17 asserts that John Anderson’s name appeared on the general election ballot as the candidate of a special-purpose party because Michigan law at that time did not permit Anderson to run as an independent candidate. So while he was technically the candidate of an “other party” he wasn’t actually. I don’t think anyone is claiming that Gary Johnson of Santa Fe is not seeking to be placed on the general election ballot as the candidate of an other party.

  12. The Michigan court decision is wrongheaded and egregious to ballot access. Thanks for your work in drawing attention and offering a forum for knowledgeable commenters, Mr. Winger. I sincerely hope this decision can be overturned.

  13. Jim Riley · · Reply

    Anderson v Celebrezze was wrongly decided and is contrary to the language of Article II.

    The Founders made a distinction between the election of Congress and the election of the President and Vice President. Congress has the authority to dictate the manner by which Representatives are elected, and the Constitution explicitly requires that they be elected, and goes so far as to define the electorate.

    The Constitution does not require that the presidential electors be popularly elected. The timing regulation is more a practical consideration. Congress counts the electoral votes, and in case no candidate receives a majority of the electoral votes, chooses the President. It was originally anticipated that the House of Representatives would be choosing from among five persons.

    With the counting of the electoral votes occurring at one time, it made sense to have the electoral votes being cast at the same time, even though the meeting of the electoral college was by State. It made some sense to regulate when the electors were appointed.

    Article II requires that if Congress specifies when the electoral votes are cast, it must be a single date; while when setting the time of appointment they are permitted to set, the more general time.

    After the 1789 presidential election, when George Washington did not become President until June three months after the start of Congress, it was recognized that a better schedule be devised.

    The schedule was created in an inverse order:

    The President should be chosen before the beginning of his term on March 4, and there should be sufficient time for the House of Representatives to choose the President if necessary (in 1801 and 1825, multiple ballots were required). It should be when the Congress was likely to be in session, so some time after December, the nominal starting date for the annual session.

    Time was allowed for the transmission of the votes to where Congress was meeting, which resulted in Congress setting the meeting date for the presidential electors in their respective States in early December.

    States were then permitted to use the preceding month of November to appoint their electors. It wasn’t until 1845, when Congress was concerned about voters crossing State lines to vote that they reduced the time for appointment to a single day.

    There is no reason to consider the elector appointment process a collective act.

  14. Jim Riley · · Reply

    #3 The provisions in Article II and the Amendment were to prevent a single State from dominating the electoral process. The founders weren’t concerned about Cesar Rodney and um, Cesar Rodney, being elected from Delaware, since it would be the other States doing the electing.

    They were concerned about the President and Vice President being from the same State and that decision being dictated in large part by the electors from that State (eg Virginia, Pennsylvania, and Massachusetts).

    Were it not for that provision, Thomas Jefferson might have been the first Vice President. Vice Presidential election did not require a majority.

    The NPV scheme provides a way to circumvent that intent by letting the voters of a State to coerce the other States to vote for two candidates from their State.

  15. […] Article: Ballot Access News » Blog Archive » U.S. District Court Issues Decision in Libertarian Party of Mi…. See Also:Libertarian Party Files Lawsuit, Arguing Republican Party No Longer Meets the […]

  16. MarkBrown · · Reply

    #14. You are correct; this was their underlying motive. But by putting it in place, they required a measure of interstate cooperation in selecting the president and vice-president.

  17. Elizabeth · · Reply

    It sounds like the judge has made an incompetent and inconsistent ruling and therefore his ability to make sane, consistent rulings that impose rule of law, not rule of men, has come into question.

    1) His ruling should be appealed.

    2) This judge should be removed from the bench.

  18. Elizabeth · · Reply


    Practice Guidelines for Judge Paul D. Borman

    United States District Court
    for the Eastern District of Michigan
    Theodore Levin U.S. Courthouse
    231 W. Lafayette Blvd., Room 740
    Detroit, MI 48226

    Chambers Telephone Number (313) 234-5120
    Case Manager – Denise Goodine (313) 234-5122
    Court Reporter – Leann Lizza (313) 965-7510
    Courtroom Room 737

  19. The EVIL Electoral College is 1 of the 3 ANTI-Democracy gerrymander systems in the nearly dead U.S.A. Const.

    Each Prez has been de facto elected by about 30 (repeat 30) percent of the voters since 1832.

    Abolish the timebomb E.C.

    Uniform definition of Elector in ALL of the U.S.A.
    P.R. and nonpartisan App.V.

  20. The should appeal but also but the Gary Johnson on the ballot so that they do not end getting a decision that is too late for them to do anything about it.

  21. kayla lopo · · Reply

    is it just me or did my comment get erased ?

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