Gary Johnson and Jill Stein Lose Anti-Trust Debates Lawsuit

Ballot Access News:

On August 29, the U.S. Court of Appeals rejected the lawsuit filed by Gary Johnson and Jill Stein against the Commission on Presidential Debates. Johnson v Commission on Presidential Debates, 16-7107. The 11-page decision is written by Judge Janice Rogers Brown, who has been hostile to minor parties and independents throughout her whole career, which began on the California Supreme Court and then extended to the U.S. Court of Appeals, D.C. Circuit. She wrote that the plaintiffs lack standing

Judge Cornelia Pillard, an Obama appointee, wrote separately to say that the plaintiffs do have standing, but that they still cannot win the case for other procedural reasons.

Judge Brown, while on the California Supreme Court, wrote the 2002 opinion in Edelstein v Nishioka. It said that nothing in the California Constitution, nor the U.S. Constitution, protects the right of voters to cast a write-in vote. It reversed a 1986 decision of the California Supreme Court, Canaan v Abdelnour, which had said both constitutions do protect the right of voters to vote for anyone they wish. In 2012, Brown, while on the D.C. Circuit, upheld the postal regulation that bans petitioning on interior postal sidewalks.

The other debates lawsuit, Level the Playing Field v FEC, is still pending in U.S. District Court, and has a much more sympathetic judge. Thanks to Rick Hasen for the news.

6 thoughts on “Gary Johnson and Jill Stein Lose Anti-Trust Debates Lawsuit

  1. Just Some Random Guy

    Huh? I thought that after an appeal, Stein and Johnson won, and it was stated that the other side wasn’t planning to appeal, essentially giving them the win? Was that wrong, did that change, or was that another lawsuit altogether?

  2. Richard Winger

    There have been two entirely different lawsuits. The one that did not have anything happen today is Level the Playing Field v FEC. The judge in that case is much more favorable. Although that case hasn’t won yet, things are looking good in that case, which is still in US District Court.

  3. paulie

    Doherty at

    Johnson lawyer Bruce Fein said in an email today that “We will be filling a motion for rehearing or rehearing en banc” from the D.C. Circuit Court of Appeals on Brown’s decision.

    Among the problems with the decision, Fein wrote, was the judge “decreed rather than explained why campaigning for the presidency could not be a trade or business within the meaning of the antitrust laws by presuming a counterfactual Chinese Wall between politics and business. Could two candidates for the presidency fix the prices of merchandise they sell to raise campaign money outside the antitrust laws under her ‘reasoning?'”

    Fein also notes Brown ignored their argument in the case that “the Super Bowl of Politics—presidential debates—was so central to our political dispensation that it justified application of the First Amendment notwithstanding the absence of state action—as the U.S. Supreme Court did in the company town case of Marsh v Alabama and the white primary case of Terry v. Adams.”

    Instead, Fein wrote, she “mindlessly asserted that our First Amendment claim automatically failed because we did not allege state action as if Marsh and Terry had never been decided.”

  4. Andy

    I’m not a fan of Johnson, but this is a terrible court ruling. It should be blatantly obvious that the Commission on Presidential Debates is acting in violation of the law.

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