On July 6, the New Hampshire Attorney General filed his brief in Libertarian Party of New Hampshire v Gardner, 10-1360.  The case is pending in the First Circuit.  The Libertarian Party challenges two actions taken by the Secretary of State in 2008:  (1) he refused to let the party use a stand-in presidential candidate on its initial candidate petition: (2) he also refused to give the party any protection for its party label, and printed both George Phillies’ name on the general election ballot with the label “Libertarian” and Bob Barr’s name on the general election with the label “Libertarian.”  There was no way for a voter, looking at the ballot, to know that the party’s actual presidential nominee was Bob Barr, not George Phillies.

New Hampshire has two procedures by which an unqualified party may place nominees on the November ballot.  It can complete candidate petitions, which require 3,000 signatures for statewide candidates, and which permit a party label.  Or the group can submit a petition signed by 3% of the last gubernatorial vote, which would have required 12,524 valid signatures in 2008.  The 3% petition procedure is so difficult, it has only been used once since it was created in 1996.  The one instance at which it was used was in 2000, when the Libertarians used it.  The only advantage of doing the 3% petition is that the petition can be circulated before the unqualified party has chosen its nominees, and that does solve the stand-in problem.

But, doing the 3% petition does not solve the name protection problem.  The law says that when a group submits the 3% petition, it still can’t have its own party column.  Therefore, even if the Libertarian Party had done the very difficult 3% petition in 2008, the Secretary of State would still have printed Bob Barr’s name in the “Independent” column, with the label “Libertarian” in small letters next to Barr’s name.  And, the Secretary of State would still have printed George Phillies’ name in the “Independent” column, also with the label “Libertarian”, next to Phillies’ name.  There still would have been no means for a voter, looking at the ballot, to know who the Libertarian Party nominee was.

This is clear, not only looking at the New Hampshire law, but looking at a 2000 New Hampshire ballot.  In 2000, the only time when any group did the 3% petition, the Libertarians still didn’t get their own party column and their own party logo.  Harry Browne, the 2000 Libertarian Party presidential nominee, was still put in the “Independent” column.

But the Attorney General’s brief repeatedly says that if the Libertarians had done the 3% petition in 2008, they would have had their own party column, and then it would have been obvious to a voter that Barr was the Libertarian nominee, not Phillies, even though Phillies would have had “Libertarian” next to his name in the independent column.  The brief asserts this on pages 3, 4, 6, 7, 9, 10, 14, 19, and 20.

New Hampshire election law section 652:11 defines “party” to be a group that polled 4% for U.S. Senate or Governor at the preceding election.  That definition does not show that a group that does the 3% petition also meets the definition of “party”.  And section  656:5 says that only a “party” can have its own party column.