U.S. District Court in Michigan Amends his Decision to Correct One Error, But Adds Another Error

On September 10, U.S. District Court Judge Paul D. Borman amended his opinion of September 7 in Libertarian Party of Michigan v Johnson, eastern district, 2:12-12782. He deleted two sentences, which had said, “To avoid this unconstitutional predicament, the Supreme Court of Michigan ordered that Mr. Anderson’s name be removed from the primary ballot so that he could appear on the general election ballot as the candidate of a different party. Michigan Republican State Central Committee v Secretary of State, 408 Mich. 931 (1980).” Those two sentences had been on page 17.

Judge Borman added footnote one on page one, which says, “The only amendment to the Court’s September 7, 2012 Opinion and Order is the striking of one sentence and a citation appearing on page 17 of the Court’s Opinion: ‘To avoid…(1980).’ The Court did not in any way rely on this language or citation in reaching its decision on the merits. Indeed the Court noted, also at page 17 of its Opinion, that Mr. Anderson’s name did appear on the primary ballot as a candidate for the Republican Party but, as explained in the Bureau of Elections Director’s May 3, 2012 letter to Plaintiff Gary Johnson, also cited by the Court at page 17 of its Opinion, Anderson’s efforts to also appear as a candidate on the general election ballot as the Anderson Coalition’s candidate were not challenged at that time by the Bureau of Elections because Michigan did not then have in place a statutory procedure for qualifying an independent candidate. That procedure is in place today and Plaintiff Gary Johnson could have availed himself of this procedure, thus distinguishing the instant case from the situation faced by John Anderson in 1980.”

The error in the footnote is that the footnote purports to quote, or at least paraphrase, the May 3 ruling of the Secretary of State. But the May 3 Secretary of State ruling said, “Thus, in 1980, there was no mechanism for an independent candidate to obtain access to the ballot.” See page two. Michigan did have procedures for an independent presidential candidate to get on the ballot in both 1976 and in 1980, and independent presidential candidates used those procedures, which were court-authored procedures, not statutory procedures. Judge Borman knows this, but he is trying to disguise the fact that the Secretary of State either did not know this, or did not tell the truth, in her May 3 ruling.


  1. All sorts of court cases in 1976-1986 in Michigan for ballot access for independents — against the then Mich SOS.

    The UNEQUAL statutory stuff for independents in Michigan did NOT happen until 1988.
    P.R. and nonpartisan App.V.

  2. The authority of a legislature to direct the manner by which its State’s presidential electors are appointed is supreme and plenary.

    The authority of a court, particular a federal court, to impose its diktat upon a State in this matter is at best temporary and remedial.

    If Michigan actually had a procedure for an independent presidential candidate, there would have been no need for judicial intervention.

  3. Richard Winger · · Reply

    #2, that “diktat” in Michigan lasted 12 long years. In 1976, 1980, 1982, 1984, and 1988, federal courts in Michigan ordered the Secretary of State to put various independent candidates on the ballot even though there were no statutory procedures. And in 1986, the Secretary of State announced anyone could get on the ballot as an independent by just filling out a declaration of candidacy; he was tired of losing court cases. The legislature finally added a statutory procedure in 1988 but then the courts still put candidates on, without any petition, on the grounds that the 1988 statutory procedure didn’t exist until April 1988 and it wasn’t fair to expect independent candidates to follow a new procedure that hadn’t existed until only 3 months before the petition deadline.

  4. #3 You acknowledge it was a diktat and that it was temporary.

  5. Richard Winger · · Reply

    #3, I don’t actually know the definition of “diktat” and I certainly don’t concede court rulings are temporary. The Pennsylvania petition deadline for independent candidates was held unconstitutional in 1984 and the Pennsylvania legislature has never altered the statutory deadline, so the court order has been in place for 28 years now.

    The US Supreme Court struck down bans on interracial marriage in 1967, but my impression is that some states didn’t repeal those bans until recently.

  6. Robert McHugh · · Reply

    So Richard, where do you think we go from here?

  7. Richard Winger · · Reply

    #6, the Sixth Circuit.

  8. I wish this was all done and settled and Gary on the ballot. This is only going to suck away more money from Gary Johnson’s campaign that should be spent on ads, but if we need to fight the idiots in Michigan who are either being disingenuous and/or perguring themselves, then bring it on!

    Let’s hope that this just bring more bad PR to Romney’s name in Michigan and wons more voters in that state when all is done. Let’s hope that for every dollar spent in legal fees from the Libertarian Party, we get two voters for Gary.

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