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LIBERTARIAN PARTY of MICHIGAN; GARY JOHNSON; DENEE ROCKMAN-MOON, Petitioners

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LIBERTARIAN PARTY of MICHIGAN; GARY JOHNSON; DENEE ROCKMAN-MOON, Petitioners NO. In the Supreme Court of the United States LIBERTARIAN PARTY OF MICHIGAN; GARY JOHNSON; DENEE ROCKMAN-MOON, Petitioners, v. RUTH JOHNSON, Secretary of State of Michigan, in her official capacity; REPUBLICAN PARTY OF MICHIGAN, Respondents. On Petition for Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit PETITION FOR WRIT OF CERTIORARI Mark R. Brown Gary Sinawski 303 East Broad Street Counsel of Record Columbus, OH 43215 180 Montague Street (614) 236-6590 25th Floor [email protected] Brooklyn, NY 11201 (516) 971-7783 [email protected] Counsel for Petitioners Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001 i QUESTION PRESENTED Whether a state’s “sore loser” law barring a candidate who ran in one party’s primary from running under another party’s banner in the general election may constitutionally be applied to presidential elections. ii PARTIES TO THE PROCEEDING The parties to this proceeding are those named in the caption. iii TABLE OF CONTENTS QUESTION PRESENTED.................... i PARTIES TO THE PROCEEDING ............. ii TABLE OF CONTENTS..................... iii TABLE OF AUTHORITIES................... v OPINIONS BELOW ......................... 1 JURISDICTION ............................ 1 STATUTORY PROVISION INVOLVED......... 1 STATEMENT OF THE CASE ................. 2 REASONS FOR GRANTING THE PETITION .... 4 CONCLUSION ............................ 18 APPENDIX Appendix A: Opinion and Judgment in the United States Court of Appeals for the Sixth Circuit (May 1, 2013) ............ App. 1 iv Appendix B: Amended Opinion and Order in the United States District Court Eastern District of Michigan Southern Division (September 10, 2012) ..... App. 10 Appendix C: Order Denying Petition for Rehearing in the United States Court of Appeals for the Sixth Circuit (July 1, 2013) ........... App. 44 v TABLE OF AUTHORITIES CASES Anderson v. Babb, 632 F.2d 300 (4th Cir. 1980) ............. 7, 18 Anderson v. Celebrezze, 460 U.S. 780 (1983) .................. 6, 9, 12 Anderson v. Mills, 664 F.2d 600 (6th Cir. 1981) ........ 7, 8, 12, 18 Anderson v. Morris, 636 F.2d 55 (4th Cir. 1980) ............ 6, 7, 18 Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511 (1935) .................... 9, 10 Goodyear Dunlop Tires Operations v. Brown, 131 S. Ct. 2846 (2011) .................... 10 Healy v. Beer Institute, 491 U.S. 324 (1989) ................ 10, 12, 13 Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006) ............... 16 McCarthy v. Austin, 423 F. Supp. 990 (W.D. Mich. 1976) ......... 17 In re Nader, 858 A.2d 1167 (Pa. 2008) ............. 5, 12, 13 vi Nat. Comm. of U.S. Taxpayers v. Garza, 924 F. Supp. 71 (W.D. Texas 1996) ........ 2, 18 Quill Corp. v. North Dakota, 504 U.S. 298 (1992) ...................... 10 State Farm Mutual Auto. Ins. Co. v. Campbell, 538 U.S. 408 (2003) ...................... 11 Storer v. Brown, 415 U.S. 724 (1974) ...................... 15 CONSTITUTION U.S. Const., Amend. I..................... 3, 13 U.S. Const., Amend. XII..................... 11 U.S. Const., Amend. XIV .................... 10 Dormant Commerce Clause ................... 9 U.S. Const. Art. II, § 1....................... 11 U.S. Const., Art. II, § 1, cl. 3.................. 11 STATUTES 28 U.S.C. § 1254(1) .......................... 1 28 U.S.C. § 1331 ............................ 3 28 U.S.C. § 1343 ............................ 3 Mich. Comp. Laws § 168.45 .................. 11 vii Mich. Comp. Laws § 168.544f ................. 15 Mich. Comp. Laws §§ 168.590-168.590h ..... 15, 16 Mich. Comp. Laws § 168.685 .................. 2 Mich. Comp. Laws § 168.695 .................. 1 OTHER AUTHORITIES 1975 Congressional Quarterly’s Guide to U.S. Elections................................ 1 Federal Elections 2012: Election Results for the U.S. President, the U.S. Senate, and the U.S. House of Representatives, available at http:// www.fec.gov/pubrec/fe2012/federalelections201 2.shtml................................. 2 Michael S. Kang, Sore Loser Laws and Democratic Contestation, 99 Geo. L.J. 1013, 1043-44 (2011) ........................ 4, 14 Fred H. Perkins, Note, Better Late Than Never: The John Anderson Cases and the Constitutionality of Filing Deadlines, 11 Hofstra L. Rev. 691 (1983) ............................... 4, 13 Richard Winger, Sixth Circuit Rules that Sore Loser Laws Apply to Presidential Primaries, 29 Ballot Access News, No. 1 (June 1, 2013) ........... 4 1 OPINIONS BELOW The decision of the court of appeals is reported at 714 F.3d 929 and is reproduced in the Appendix at 1-9. The decision of the district court is reported at 905 F. Supp.2d 751 and is reproduced in the Appendix at 10- 43. The order of the court of appeals denying rehearing is reproduced in the Appendix at 44-45. JURISDICTION The opinion and judgment of the court of appeals were entered on May 1, 2013. An order denying petitioners’ petition for rehearing was entered on July 1, 2013. This Court has jurisdiction under 28 U.S.C. § 1254(1). STATUTORY PROVISION INVOLVED Mich. Comp. Laws § 168.695 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 1 political party shall be eligible as a candidate of any other political party in the election following that primary.1 1 Michigan’s sore loser law was enacted in 1955. The state did not hold presidential primaries during the period 1932 through 1968. See 1975 Congressional Quarterly’s Guide to U.S. Elections at 313 et seq. 2 STATEMENT OF THE CASE Petitioner Gary Johnson, the Libertarian Party2 candidate for president in 2012, was barred from Michigan’s general election ballot by application of the state’s “sore loser” law because he had run in Michigan’s Republican presidential primary.3 The sore loser law, reproduced above, prohibits a candidate who ran in one party’s primary election from running as another party’s candidate in the general election. Most states have sore loser laws, but with one exception no court had ever before used such a law to bar a presidential candidate from the general election ballot.4 In fact, as discussed below, the courts had 2 Petitioner Libertarian Party of Michigan was founded in 1972 and is the Michigan affiliate of the national Libertarian Party. Record Entry No. 1, ¶ 6 (Complaint) and No. 6-4, ¶ 3 (Rockman- Moon Decl.). It has remained ballot-qualified in Michigan continuously since 2002 by meeting the vote threshold specified in Mich. Comp. Laws § 168.685 in each general election. 3 Johnson, a former two-term governor of New Mexico, appeared on the 2012 general election ballot in 48 states and the District of Columbia. He ran in the Republican primaries in eight states (Florida, Georgia, Michigan, Missouri, Mississippi, New Hampshire, South Carolina and Tennessee). He was excluded from the general election ballot only in Michigan, because of the state’s sore loser law, and in Oklahoma. See the FEC publication Federal Elections 2012: Election Results for the U.S. President, the U.S. Senate, and the U.S. House of Representatives, available at http://www.fec.gov/pubrec/fe2012/federalelections2012.shtml. 4 The exception is Nat. Comm. of U.S. Taxpayers v. Garza, 924 F. Supp. 71 (W.D. Texas 1996), in which the court ruled that Pat Buchanan could not appear on the Texas general election ballot as 3 previously refused to apply state sore loser laws to presidential candidates. Nor had any state ever before succeeded in barring a minor party presidential candidate from its general election ballot on the grounds that the candidate had previously run in a major party presidential primary. Record Entry No. 6- 2, ¶¶ 3, 4, 7 (Winger Decl.). Petitioners sought declaratory, preliminary and permanent injunctive relief, claiming Michigan’s sore loser law violated their rights to speak and associate under the First Amendment. The district court upheld the constitutionality of the law on its face and as applied to Johnson, ruling that the burdens imposed on petitioners’ rights by denying Johnson access to the ballot were not severe and were justified by the state’s interests in maintaining political stability. On May 1, 2013 the court of appeals affirmed “for the reasons stated in [the district court’s] September 10, 2012 opinion,” having explained that the controversy was not moot because it was “capable of repetition, yet evading review.” 714 F.3d at 930, 932; App. 2, 7. On July 1, 2013 the court of appeals denied the petitioners’ application for rehearing. App. 45. The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1343. the presidential candidate of the U.S. Taxpayers Party because he had run in the state’s Republican primary. The controversy was moot, and the ruling was not appealed, because Buchanan never sought the U.S. Taxpayers Party nomination. 4 REASONS FOR GRANTING THE PETITION Whether a minor party candidate for president can be excluded from the general election ballot because he or she ran in a major party primary is a question of exceptional importance. A “yes” answer would have scuttled the candidacies of John Anderson (1980), Theodore Roosevelt (1912), Robert M. La Follette (1924), and many other less prominent yet significant presidential candidates who ran in major party primaries in one or more states and subsequently appeared on those states’ general election ballots as minor party or independent candidates.5 In 1980 Anderson was challenged by Democrats in at least four states on the basis of sore loser laws. See Fred H. Perkins, Note, Better Late Than Never: The John Anderson Cases and the Constitutionality of Filing Deadlines, 11 Hofstra L. Rev. 691, 720 n.197 (1983).6 5 In 11 of the 26 presidential elections held since the advent of presidential primaries in 1912, at least one candidate has appeared on the general election ballot after running in a major party presidential primary (1912, 1924, 1932, 1952, 1968, 1980, 1984, 1988, 1992, 2008, 2012).
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