News Release
Federal Court Upholds Placement of Libertarian Candidates on 2008 Massachusetts Ballot
ACLU hails win for third-party ballot access.
FOR IMMEDIATE RELEASE
September 18, 2009
CONTACT:
Christopher Ott, Communications Director, 617-482-3170 x322, cott@aclum.org
BOSTON -- U.S District Judge Nathaniel M. Gorton has entered a final judgment in former Congressman Bob Barr's challenge to the refusal by the Secretary of the Commonwealth to list him as the Libertarian Party's nominee in the 2008 presidential election. The final judgment affirmed the injunction entered prior to the election requiring Secretary Galvin to list Bob Barr and Wayne A. Root as the party's candidates for President and Vice-President on the November 2008 ballot.
As a result of a suit brought by the American Civil Liberties Union of Massachusetts, Barr and Root, who were selected at the Libertarian party's 2008 nominating convention, were allowed to be substituted for the names of the candidates whose names appeared on the nominating petitions circulated by the party prior to the convention. The Secretary's Election Division had asked the Libertarian Party to re-gather thousands of signatures in order to make the substitution.
"Judge Gorton's ruling is a win for smaller political parties, but also for all the voters of the Commonwealth," said Carol Rose, executive director of the ACLU of Massachusetts. "This case was a challenge to requirements that place a significant and burdensome expense on smaller parties, and thus serve as a barrier to their full participation in the electoral process. The Commonwealth should do everything it can to encourage greater electoral participation, not block access to the ballot or allow voters to be misled or confused about who they are actually voting for."
The Libertarian Party does not currently qualify as a "political party" under Massachusetts law because it did not have a candidate who received three percent of the vote in the last statewide election. As a result, a candidate seeking to run as a Libertarian must collect valid signatures from at least 10,000 voters to secure a place on the ballot.
When the party began to collect signatures in early 2008, Phillies and Bennett were listed as the party's candidates. In late May 2008, however, the party nominated Barr and Root. At that point the party had collected over 7,000 signatures, but when party officials sought to have Barr and Root listed as the candidates, they were informed that the Secretary would not allow substitution and that they would have to start from scratch -- even though state law and prior practice allowed for substitution and the Secretary's Election Division had indicated that substitution would not be a problem.
The ACLU of Massachusetts, a nonpartisan civil liberties organization, filed suit in August 2008 on behalf of the candidates and the party, asserting that the procedures followed by the office of the Secretary were so vague as to violate their right to due process of law and that the selective allowance of substitution deprived them of equal protection of the law.
In an order entered on September 22, 2008, Judge Gorton held that absence of any clear guidance in state law governing the process of substitution effectively required minor political parties, such as the Libertarian Party, to guess at their peril how to comply with the law. Finding that this placed a substantial burden on the party's access to the ballot which could not be justified by any discernible interest on the part of the state, and recognizing the harm that would result from deprivation of such access, the court granted the preliminary injunction sought by the plaintiffs.
"The central issue in this case was the restriction of ballot access for third parties, which has been and continues to be a problem in Massachusetts," said John Reinstein, legal director for the ACLU of Massachusetts. "The right of political parties or candidates to a place on the ballot bears directly on the right of citizens to vote. If parties or candidates are kept off the ballot, their adherents are compelled to vote for representatives other than those of their choice," said Reinstein. "The denial of a place on the ballot thus constitutes a deprivation of the franchise."
In July 2007, George Phillies, whose name had originally been listed on the Libertarian Party nominating petitions, wrote to the Massachusetts Elections Division to explain that he foresaw a potential problem: required signature gathering for placement on the Massachusetts ballot needed to begin before the national Libertarian Party's nominating convention on May 25, 2008. Phillies asked about the possibility of substituting the name of the final Libertarian Party candidate on the ballot if the nominee selected at the party's convention differed from the one submitted at the time of the signature-gathering deadline.
The Massachusetts Election Division responded:
"If the Libertarian Party seeks to substitute a candidate for President who they already got signatures for on nominating papers, our Office can prepare a form that allows members of the party to request the substitution of the candidate."
At the national Libertarian Party's nominating convention on May 25, 2008, the party selected Barr as its nominee for president, and Root for vice president. When the party then sought substitution of Barr and Root, the Secretary's office denied the request, stating that the party would have to start from scratch, a process which would have effectively prevented Barr from appearing on the Massachusetts ballot.
The plaintiffs in the suit were represented by ACLU of Massachusetts cooperating attorneys Matthew Baltay, Amrish Wadhera and Jennifer Behr at the firm of Foley Hoag LLP, and by John Reinstein, legal director of the ACLU of Massachusetts.
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