Michigan Secretary of State Claims She Won’t Allow Gary Johnson On Ballot As Libertarian

Over at Ballot Access News, Richard Winger is reporting that the Secretary of State in Michigan intends to enforce a “sore-loser law” that has been on the books for years, but is largely considered ineffectual in Presidential races.

On May 3, Michigan Secretary of State Ruth Johnson, a Republican, sent a letter to the Michigan Libertarian Party, saying she would not print Gary Johnson’s name on the November 2012 ballot as the Libertarian nominee for President, should the party nominate him. This was in response to the Michigan Libertarian Party’s request for a ruling, which had been sent on March 27.

Here is the Secretary of State’s letter. The basis for the refusal is Michigan statute 168.695, which says, “No person whose name was printed or placed on the primary ballots or voting machines as a candidate for nomination on the primary ballots of one political party shall be eligible as a candidate of any other political party at the election following the primary.” This law was passed in 1955, at a time when Michigan did not have a presidential primary. In 1980, John B. Anderson formed the “Anderson Coalition Party” within Michigan, and his name was printed as that party’s presidential nominee in November 1980, even though Anderson had run in the Michigan Republican presidential primary on May 20. Thus, a precedent was set that this law does not apply to presidential primary candidates.

The Secretary of State tries to differentiate the Anderson precedent by saying, “In 1980 there was no mechanism for an independent candidate for President to obtain access to the ballot.” This statement is not true. The Secretary of State is making reference to the fact that Michigan had no statutory procedures for independent candidates for any office to get on the ballot in 1980. But, in 1980, the state did have a procedure for independent candidates to get on the ballot. That method had been created in 1976, in a ruling called McCarthy v Austin. Under the McCarthy procedure, an independent candidate would make up his or her own petition form, and collect the same number of signatures that were required by a new party.

The Secretary of State’s letter does not even try to rebut one of the Michigan Libertarian Party’s strongest arguments, which is that under the U.S. Constitution and federal law, the November election is for the purpose of electing presidential electors. Presidential candidates’ names appear on the ballot, not in their role as candidates, but as markers or labels for competing slates of presidential elector candidates. Michigan has a strong policy that the presidential electors themselves are the true candidates. This is demonstrated by the fact that in 1972, 1980, and 1988, Michigan printed the names of presidential candidates on general election ballots even though in each case, that presidential candidate was under age 35, and this fact was well-known in all three cases. The three such under-age candidates were Linda Jenness in 1972, Andrew Pulley in 1980, and Larry Holmes in 1988. If Michigan considered the presidential candidates themselves to be the true candidates, Michigan would not have printed their names on the ballot.

The Libertarian Party will sue, if the Secretary of State does not change her mind. The potential lawsuit will be bolstered by a Sixth Circuit order in LaRouche v Austin, issued on August 31, 1984. That order required the Secretary of State to print Lyndon LaRouche’s name on the November 1984 ballot as an independent presidential candidate, even though he had run in the Michigan Democratic presidential primary that year. The order says, “See Anderson v Celebrezze (state’s interest in regulating a nationwide Presidential election is not as strong as interest in regulating intra-state elections; ‘no state could single-handedly assure political stability in the Presidential context’).” At the time, Michigan still didn’t have statutory procedures for independent presidential candidates, and LaRouche had filed documents showing he had a modicum of voter support and asked the Secretary of State to print his name on the ballot as an independent in November. Secretary of State Richard Austin had declined, on the basis that he was a “sore loser” (even though there was no statutory procedure so there was no sore loser law for independents). Here is a copy of the Libertarian Party’s March 27 request for a ruling.

Because the Secretary of State does say Gary Johnson is free to petition onto the ballot as an independent, the state will have no defense if it tries to argue that its interest in “stability” justifies keeping Johnson off the November ballot as a Libertarian. The state has already conceded there is no “stability” interest in keeping Johnson off the November ballot via the independent petition method, so it can hardly argue that “stability” means he can’t be on as a Libertarian.

It remains to be seen whether a lawsuit will be necessary.

42 thoughts on “Michigan Secretary of State Claims She Won’t Allow Gary Johnson On Ballot As Libertarian

  1. Trent Hill Post author

    Smarmy response: Put Gary E. Johnson of Texas (who was at the convention this weekend) on the ballot instead.

  2. Nick Kruse

    Or put Judge Gray for President and Gov. Johnson as Vice-President in just the state of Michigan to comply with the “sore loser” law.

  3. Losty

    OK, No Michigan, No Oregon, Root Did get back on), Possibly No Oklahoma..

  4. Great use of funds

    This is a great use of funds. I wonder how much (if any at all) money the Johnson campaign will fork over for the legal costs.

    Didn’t the delegates think about this before nominating him, or were they too caught up in defending the fair tax

  5. Great use of funds

    I for one will not be donating money to LP national this year, simply because I know the money is going towards this.


    Great Use,

    The MI SoS threatens unconstitutional ballot restriction because in 2012 we have a ticket that could legitimately threaten them and you are angry at the Party?

    By your logic we should just concede the point and respect the desires of the Dems and Republucans everytime they threaten underhanded, unconstitutional actions to protect themselves from a third party candidate.

    You are either a moron, sore loser (because your choice didn’t win) or a malcontent that likes to bitch and complain but never actually “do” anything to help because then you would have less to bitch about.

  7. Great use of funds

    If the delegates had nominated someone else, we wouldn’t be having this discussion.

    I just think it’s a great use of funds . Rather than doing radio/tv/direct mail/outreach events we can pay a lawyer. Since a lawsuit about ballot access is really going to want to make people jump on the LP ship.

    Again I wonder how much of LP vs GJ money is going to pay for this.

    The name calling and your support of the floor fees make you sound very rational

  8. NewFederalist

    I see nothing wrong with the answers from #1 or #2. Hit the “Easy Button” and move on!

  9. Jed Siple

    Trent Hill // May 7, 2012 at 6:00 am

    Smarmy response: Put Gary E. Johnson of Texas (who was at the convention this weekend) on the ballot instead.

    –That really is the best way to go, IMHO. The voters won’t be confused, they’ll still see Gary Johnson and Jim Gray on the ballot.

  10. Richard Winger

    When states lose ballot access lawsuits, they must pay attorneys’ fees. Many attorneys understand this and they do ballot access cases pro bono, hoping to win the case and be paid by the state.

  11. Ayn R. Key

    Great Use –

    Can’t agree. Yes, I supported Wrights, but I’m not going to say “if we had nominated Wrights …” because what the Michigan Secretary of State is doing is just plain wrong.

    And the Party of Principle (or what is left of principle after Root got put back on the LNC) should stand against things that are just plain wrong.

  12. Steven Wilson

    The only winner in law is the lawyers.

    The state gets revenue from taxes. Taxes come from the citizen. The citizen pays for ballot access. The citizen pays to vote.

    Ballot access is a tax on voting.

  13. Carol Moore

    Make sure you get your lawyers fees worth in publicity out of this. LP MI has to do some fun demonstrations that make the news.


    It’s Monday. Did you negative DIMWITS miss the memo ? This infighting helps NO ONE but the Ds and Rs ! Is that what you are all about and what you want ? We need to be pulling (rowing) in the same direction.

    The new LNC should be encouraging to anyone who was afraid the Party was in trouble. (A Chairman endorced by F.Lee, who is the new VC; Starchild,LNC; etc.; even John Jay M., LNC) Let’s move forward this year (STOP the infighting and start) building at the local and state levels. Educate ’em after you get’em in the fold, but by all means let’s try to get new blood in the FOLD in 2012 !!!!!!!

    FACT: The Ds and Rs FEAR the 2012 LP Ticket can you believe it ???

    This woman needs to feel the wrath for this NAZI/COMMIE tactic in a state devastated by UNEMPLOYMENT. Highly successful Two Term Gov. Gary Johnson knows how to (and what) creates jobs as a Chief Executive Gov’ Officer. Compared to Obama and Romney there is NO contest. This woman wants to deny her fellow citizens (some suffering in poverty) a right to vote for a PROVEN successful Gov. Gary Johnson. Leaving them proven economic FAILURES in Obama and Romney on the ballot. She needs to LOSE her job. She is a NAZI. Please, PLEASE write letters to the editors all over MI calling for this womans RECALL for incompetent behavior in office and promoting an act to DENY MI citizens MORE options for POTUS in serious economic times. If you have never written a letter to the Editor there are many articles that can help you. Knapp has a good one and here’s one to look at : Take Over your local weekly “socialist rag” – http://www.facebook.com/note.php?note_id=10150186098157699

    FIRE the MI SOS TODAY!!!

    {Why do} “300 million Americans have {only} 2 choices for president? Can you imagine having 2 colors to pick for your car? Red or Blue. No silver, or black w/ chrome rims. No racing yellow or hunter green. Nope – 2 colors, red or blue. The 2 party system has failed us. Our corrupt corporate propaganda media has failed us. You cannot give 300 million people 2 choices & expect change. They feign fighting on TV while they sleep together at night. We need a 3rd, 4th, 5th choice to fairly represent us” -shwantz2 on youtube

    When I announced my decision to seek the Libertarian nomination for president, I stated my belief that there is a majority of Americans who are looking for a real home in American politics — a home they are not finding with either the big “R” or big “D” parties….There is a freedom agenda America is ready to endorse: freedom from crushing debt and freedom from crushing government. It is that agenda that has prompted me to unapologetically call myself a libertarian, and which WILL find its rightful place in the 2012 election.
    -Gary Johnson, Libertarian Party Presidential Candidate

    Got Jobs? Johnson, Romney, Obama – http://garyjohnsongrassrootsblog.blogspot.com/2012/01/charles-lupton-created-nice-job-growth.html

    Gary Johnson on jobs:

    * “The fact is, I can unequivocally say that I did not create a single job while I was governor,”

    * “We are proud of this distinction. We had a 11.6 percent job growth that occurred during our two terms in office. But the headlines that accompanied that report – referring to governors, including me, as ‘job creators’ – were just wrong.”

    * “we kept government in check, the budget balanced, and the path to growth clear of unnecessary regulatory obstacles.”

    * “My priority was to get government out of the way, keep it out of the way, and allow hard-working New Mexicans, entrepreneurs and businesses to fulfill their potential,”

    “Summarizing: Gary doesn’t accept the fallacy that job creation is something that the government can do.” -Rui Nobre Pinheiro

    Gary Johnson on Obama’s Shovel-Ready Jobs 9/22/11: http://www.youtube.com/watch?v=sZY-MZROgc4&feature=related

    GARY JOHNSON is absolutely the BEST choice between Obama-JOHNSON-Romney. Johnson is a PROVEN successful CEO as Gov. of NM. Romney was a failure and almost 2 out of 3 MA citizens DISAPPROVED of his job performance as their Gov. And to think the Banksters on Wall Street using their LACKEYS within the Ds, Rs (MI SOS but one of the Rs ) and MSMedia want to LIMIT your choice to a “2” way race between the tired old failed parties is disgusting to say the least.

    *Look closely! Early Money Makes the Nominee in the Ds and Rs. These People gave you Obama and Romney. The Records don’t lie!

    Federal Records Show Romney Campaign Bought And Paid For By Big Banks – http://www.conservativeactionalerts.com/2011/10/federal-records-show-romney-campaign-bought-and-paid-for-by-big-banks/

    Kay says-
    Romney is NOT the one to bring us out of the economic crisis. Under his governorship, MA was in the bottom three of the nation for job creation, only above post-Katrina Louisiana and Michigan.

    His MA Govt. Mandated Healthcare program has almost bankrupted the state. He will say and act in any way that will get him elected but he is totally inept behind his facade.

    If America doesn’t wise up about Romney, we are lost as a nation. Everyone needs to read this book (CAN MITT ROMNEY SERVE TWO MASTERS?) to see just what kind of further MESS we will be under a Romney Presidency. ”

    “”Under Romney, Massachusetts was in the bottom three of the nation for job creation, only above post-Katrina Louisiana and Michigan””

    Please write a LTE to protest this commie/nazi action! A R hasn’t won POTUS in MI in over 20 years, yet this R SOS thinks she is some kind of Goddess. Put some HEAT on this woman this week.

  15. Q2Q

    I don’t know what the deal is with people complaining about Johnson’s exclusion. MI now has a procedure for an independent presidential candidate to get on the ballot, making the Anderson decision mute. So, Johnson, the much touted anointed candidate, can’t get on the ballot b/c he ran for the GOP nom. This is just an example of how mismanaged the LP was prior to this year’s convention. If the LP leadership had a clue, then we’d probably a=have a candidate on the ballot in MI.

  16. Thomas L. Knapp


    It wasn’t “the party’s leadership” who nominated Johnson — it was the party’s representative membership delegates.

    Those delegates either knew, or should have known, about “sore loser” laws. So presumably they factored the possibility of situations like Michigan into their decision — and still nominated Gary Johnson with more than 70% of the vote.

    Furthermore, it’s far from all “down side.”

    Even assuming that the LNC can’t successfully litigate Johnson’s inclusion on the Michigan ballot in time for the November election, it will likely win the case at some point, setting a good ballot access precedent … and that in turn will likely have a larger and more enduring real-world impact than anything else that is done by, or happens to, the Johnson/Gray campaign.

  17. Wes Wagner

    We have a sore loser law in Oregon too, but I did look it up and Gary Johnson did not register to appear on the ballot as a republican. I suspect that the Oregon Secretary of State would not attempt something like this.

  18. zapper

    Yes, If the Michigan LP or NatCom can substitute in MI then they should nominate and file our other “Gary Johnson” and have him actually, personally campaign in MI as well. Set up the FEC reporting, raise funds etc.

  19. zapper

    Dear Wes Wagner,

    The Oregon LP has been wrongly attacked by many in the LP leadership culminating recently with your delegation’s exclusion from being seated at the Libertarian National Convention in Las Vegas. This was a disgraceful act.

    Now I’m asking you to make a really sincere effort to help your fellow members nationwide, despite the insult and injury you have suffered, and please accept my apology as a member that these leaders of a party that I long to be able to support fully have acted so atrociously, and to please consider putting Gary Johnson and Jim Gray on the ballot in Oregon as the LP candidates for POTUS and VP this fall.

    This is an opportunity for you to show that you are made of greater stuff than your enemies who have attacked you.

  20. Carol Moore

    Right on Zapper. And if you don’t like the official Gary Johnson literature or ads, you can make your own and publicize as “LIBERTARIAN SUPPORTERS OF GARY JOHNSON” I already got him to admit he would use military force vs. nonviolent secessionists so I can send out all the SECESSIONIST SUPPORTERS OF GARY JOHNSON literature I want 🙂

  21. Wes Wagner

    zapper @19

    I can’t comment publicly on what the LPO will or will not do because the board has not had a chance to consider things and make a decision.

    I will state that the delegation showing that they want to move the party forward without the destructive influence of certain people (and expressed it by tossing them out of office) has pleased them.

    The elections have gone a long way towards mending wounds.

  22. Carol Moore

    CORRECTION Me @ 20 –

    I already got him to admit he would NOT use military force vs. nonviolent secessionists.

    Wes @ 22 – good to hear!!

  23. Stuart Simms

    Wes, I don’t have enough information to form an opinion on the situation in Oregon. And being that the conflict is being litigated I don’t think it wise for you to comment much on this situation. I do have one question for you. Would Mr. Reeves be more aligned with people like Mr. Root or more like Mr. Wrights?

  24. Wes Wagner


    Reeve’s is part of the coalition that was put together by Mr. Richard Burke, who was a former paid employee on the Root 2008 campaign and a current state coordinator for the Johnson campaign here in Oregon, and has hosted events featuring Mr. Root in the past.

  25. Bill Wood

    Is this person serving in an elected position or was she appointed?

  26. bruuno

    I believe Buddy Roemer actually intentionally stayed off of a few state ballots to avoid this possibility (though I think this case is not going to hold up in court). Am I wrong?

  27. Bill Wood

    Thanks Richard!

    My take, one of the caveats the R and D’s put on our Candidate getting in the debates is he has to be on enough State ballots to win the race. To me every State is important. If Gary is on as an Independent would his vote totals go to his overall vote count?

    A law suit could gain media, and maybe the ACLU would handle the case or other group of lawyers. If we don’t challenge this, would other States try to pull the same thing?

    Now would be a great time for someone to enter the race for this Office, to point out how the incumbent is trying to limit the voters choice.

  28. Richard Winger

    Yes, if Gary Johnson is on in Michigan as an independent, the organizations that calculate the national popular vote for each candidate for president would include his vote from Michigan into his national total.

    No one since 1892 who has been on the ballot of all states for president, running outside the two major parties, has ever had his or her party label on the ballot in all states. If Americans Elect continues its petition successes, though, it might have its pary label on the ballot next to its candidate’s name in every state.

  29. Bill Wood

    Great that the votes would count. Looks like the LP of MI and Gary Johnson’s people need to start gathering sigs asap, I think they need over 30,000 .

  30. Stuart Simms

    Obviously there is an immediate benefit to the D’s and R’s to keeping Gov. Johnson off as many ballots as possible. I wouldn’t be surprised if we see an effort in several states to keep him off the ballot, this is just one methodology.

    There is a longer term benefit to the institutional parties of keeping Gov. Johnson off of the general election ballot or making him get on as an independent. There are states that base party status on clearing a vote hurdle. Gov. Johnson gives the LP a very real possibility to do so in these states.

  31. Jim Fulner

    iirc the LPM has a fund set aside for legal expenses. Hopefully digging into won’t be necessary, and if a lawsuit is necessary the GJ campaign will foot the bill (God knows they probably ahve more money than any single state affiliate of the LP). I personally will not be giving time or money to get GJ on as an independent candidate. IMHO the whole reason for a non-major party candidate to run is to support and build a so-called minor party

  32. Chuck Moulton

    Trent Hill wrote (@1):

    Smarmy response: Put Gary E. Johnson of Texas (who was at the convention this weekend) on the ballot instead.

    Good plan!! 🙂

  33. George Phillies

    There seem to be a considerable number of other states in which the same issue arises.

    @19 Please do not blame only the leadership. The NatCon delegates had a chance to vote on this in LasVegas, and they voted to seat the Reeves delegation, not the Wagner delegation. They also voted down Mr. Wagner when there was a request from someone that Wagner be admitted as a delegate form some other state.

  34. paulie

    I think Richard Winger is correct, and legally this should not be an issue due to the fact that electors, not president per se, are picked in November.

    Also, Johnson was not on very many state Republican ballots for president IIRC.

  35. paulie

    GP @37 see WW @22:

    “I will state that the delegation showing that they want to move the party forward without the destructive influence of certain people (and expressed it by tossing them out of office) has pleased them.

    The elections have gone a long way towards mending wounds.”

  36. NewFederalist

    @34… no it wasn’t James B. Weaver the Populist nominee. It was John Bidwell the Prohibition nominee. Weaver was not on the ballot in several (mainly eastern) states.

  37. Pingback: SCOTUS will not hear Gary Johnson Sore Loser appeal | Independent Political Report

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