Michigan Libertarian Party Asks Sixth Circuit to Put Gary Johnson on the Ballot

Here is the brief of the Michigan Libertarian Party, asking the Sixth Circuit to put Gary Johnson on the ballot. It is an interesting brief and readers of this blog will probably enjoy reading it. The case is Michigan Libertarian Party v Ruth Johnson, 12-2153. The issues are: (1) whether Michigan’s “sore loser” law has already been interpreted not to apply to presidential primaries; (2) if it does apply to presidential primaries, it is constitutional?


  1. Robert McHugh · · Reply

    Man…this is tiring.

  2. Casual Bystander · · Reply

    Richard- what is the status of absentee ballots while this Gary Johnson or Gary Johnson or Nobody is being sorted out? Any idea as to how quickly this will be adjudicated?

  3. Richard Winger · · Reply

    Probably it will be adjudicated this week.

  4. It is a very well written argument. Hopefully it will find more realistic minds than the original court.

  5. Robert McHugh · · Reply

    Hopefully. Richard, any updates on Oklahoma and Pennsylvania (or rumors)?

  6. I pee (on) R · · Reply

    Chuck Moulton wrote the following at IPR…see especially the next to last paragraph…

    “I’ve been helping in PA at the Philadelphia board of elections all week. I wasn’t there the first week. We finished checking all the Philadelphia signatures, which was the bulk of them (the paid petitioners were in Philadelphia). We’ll be doing one more day of checking signatures on Wednesday — this time in Harrisburg to cover all the non-Philadelphia signatures.

    The LP submitted 49,000 signatures in PA. Republicans challenged somewhere between 42,000 and 44,000 of them. We have been going through the challenged signatures line by line. Each day we work 8:30 am – 5:00 pm (with a few Philly government union mandated breaks) at 20 computer stations each with an operator (bureau of elections worker, who types things in), Libertarian, and Republican looking up lines and either stipulating they are invalid, stipulating they are valid, or disagreeing. In the last case a challenge is recorded listing the specific reasons the Republicans believe the signatures are invalid, but the Libertarians don’t stipulate because there is a legal dispute over an issue (like NRA or date) or a factual dispute over whether two signatures are alike. Republican and Libertarian lawyers walk around answering questions and arguing with each other.

    The NRA (not registered at address) legal dispute is when a voter name and signature match up between the petition and the voter record, but the addresses don’t match. Many voters move between the time they sign a petition and the time the records are looked up.

    The date legal dispute is over lines where the signer lists a date with a month and day, but no year. Even though the entire petitioning period was in 2012 and the form wasn’t printed until January of 2012, the Republicans claim failing to list 2012 is a fatal flaw.

    Challenged signatures will basically be put in a bunch of figurative buckets sorted by the reason for the challenge. Any signature that is challenged only for NRA will probably become either valid or invalid without a further look when the judge rules on the NRA issue. The date only challenge will probably be treated similarly. Challenges about whether a signature matches between voter registration and petition will need to be re-checked individually.

    The Libertarians are unlikely to have enough stipulated valid signatures at the end of this line by line review process to make the ballot outright. We’ll pretty much have to win the legal case over the NRA signatures or the bad date signatures. It’s theoretically possible to make the ballot without winning either challenge by getting a reasonable percentage of signatures back during the court’s challenged signature review with handwriting experts, but based on past experience I find it very unlikely that review will even happen. Courts usually find some way to not review the actual evidence (as happened for Ralph Nader in 2004 and Carl Romanelli in 2006, who were fined $80,000 and $90,000 respectively for defending themselves yet were never given an opportunity to present their side of the case).

    My best guess is if the Libertarians win the NRA challenge Johnson is on the ballot and if the Libertarians lose the NRA challenge Johnson is not on the ballot. (The NRA challenge is more likely to prevail than the date challenge.) Because the Libertarians have complied so extensively with the judge (provided 20 volunteers per day for 2 weeks, had responsive lawyers, etc.), I highly doubt court costs and attorney fees (of ~$110,000) will be assessed even if the Libertarians lose. I believe there is a 30% chance Johnson will make the ballot (a 70% chance Johnson will be kicked off the PA ballot). I put it so low not because the Libertarians have a poor case, but rather because PA courts have been so horrible for ballot access in the past. Many of my colleagues are much more optimistic — I think unreasonably so.

    The bright side is even if Gary Johnson doesn’t make the ballot, Bill Redpath has finally learned that Darryl Bonner’s validity rate is horrible — just really, really abysmal — (Bill helped defend the challenge at the board of elections all last week) and many local volunteers defending the challenge have learned how important it is to have easy to read printed names with all the information filled in (signature, printed name, address, city, date w/ year) which will make them better volunteer petitioners in the future.

    It all comes down to the NRA hearing, which I believe will occur on September 12 (someone fact check that and correct me if I’m wrong). If the Johnson campaign cares about PA ballot access, it will fly Gary Johnson to Philadelphia to sit him in the front row of the court room that day. In fact, all the PA statewide candidates ought to be there. We need to fill that court room with other Libertarians too. Additionally the Johnson campaign attorney, LNC attorney, and Richard Winger ought to look at the NRA brief to make damn well sure it’s the most persuasive, thorough, well researched brief they’ve ever seen. Half-assing it means throwing $150,000 down the drain. I am very worried that only the LPPA’s lead attorney will look at the brief before it is filed and he will miss important arguments.

    This is not legal advice. It’s my lay opinion as someone who has been in the trenches and has a long history with the LPPA.”

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