On May 15, the Michigan Libertarian Party and Gary Johnson asked the 6th circuit to rehear the ballot access case from last year, Libertarian Party of Michigan v Ruth Johnson. The issue is whether Michigan’s “sore loser” can be applied to presidential primaries, and also whether the Michigan law in fact does pertain to presidential primaries. Here is the brief.

Until 2012, no minor party presidential candidate had ever been kept off a November ballot on the basis that he or she had run in a major party presidential primary. Presidential primaries have existed in the U.S. starting in 1912. In the 26 presidential elections starting in 1912, there have been eleven presidential elections in which someone who had run in a major party presidential primary had also appeared as a minor party or independent presidential candidate in November. Those elections, and the candidates involved, were 1912 Theodore Roosevelt, 1924 Robert La Follette, 1932 Jacob S. Coxey, 1952 Douglas MacArthur, 1968 Eugene Mc Carthy, 1980 John B. Anderson, 1984 Lyndon LaRouche, 1988 David Duke, 1992 Lenora Fulani and Lyndon LaRouche, 2008 Ron Paul and Alan Keyes, 2012 Gary Johnson. Gary Johnson himself ran in eight Republican presidential primaries in 2012. Only Michigan in 2012 decided to interpret its “sore loser” law to apply to presidential primaries. And even Michigan itself admits that its sore loser law doesn’t apply to independent presidential candidates, thus implicitly acknowledging that it has no strong interest in the restriction it imposed on Johnson. Also, in 1980, Michigan interpreted the same law to not apply to presidential primaries, and let John Anderson on the November ballot as a minor party candidate even though he had run in the 1980 Michigan Republican primary. The courts, so far in this case, have not grappled with these points.