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.