Steve G.

LPNH lawsuit

In Chris Bennett, Courts and Justice System, George Phillies, Law, Libertarian, Libertarian Convention, Libertarian Party-US, Libertarian Politics, Libertarian Politics 2008, Local Politics, People in the news, Politics, Presidential Candidates, Wayne Allen Root on September 15, 2008 at 2:55 pm

Click here to read the lawsuit filed Friday by LPNH, Bob Barr, Wayne Allyn Root, Brendan Kelly, and Hardy Macia:  lpnh-lawsuit1

According to George Phillies, the candidate they wish to remove from the ballot, the lawsuit lacks authority because the LPNH Executive Committee voted to merely join a suit by the LNC, yet the LNC is not listed as a plaintiff.

  1. Right now the Last Free Voice link doesn’t seem to be working, although I realize it could be fixed at any time. But there is a working link at It’s the top blog item just now.

    There is no memorandum of points and authorities filed yet, and no request for an injunction. This case was filed very late in the election season, which minimizes that anything will happen before the election. The purpose of the lawsuit is to force the Secretary of State to let unqualified parties substitute in the future. The lawsuit is worded as it is because federal courts won’t entertain theoretical disputes. People with an open mind, and with a sense of subtlety, will notice what I am saying.

  2. Richard, there certainly IS a request for an injunction in the suit itself, and despite your claims, it is very unlikely for the suit to force the SOS to do anything in the future. For someone who continues to claim he’s not a lawyer when called on the facts, you certainly are willing to continue to make claims the rest of the time.

  3. Seth,

    Are you a lawyer?

  4. No. I’m more of a political scientist. I have been accepted as an expert on ballot access laws, and also on minor parties and independent candidates, in 10 states. Generally the opposition accepts me as an expert. New York state fought me, but both the US District Court and the US Court of Appeals ruled that I was an expert in those fields. That was in the winning case that forced New York to let people register into unqualified parties. New Hampshire is one of the few states left that won’t let people register into unqualified parties and accept that they are thus registered. I realize anyone in NH can fill out a form and write “Libertarian” in the blank line, but NH won’t recognize them. I would like to work with you to improve NH on that point. We have won in court on that (registration) in NY, NJ, Okla, Colo and Iowa.

  5. Richard Winger, you continue to make claims that have nothing to do with the lawsuit in question. NOTHING in the lawsuit filed will “let people register into unqualified parties and accept that they are thus registered. I realize anyone in NH can fill out a form and write “Libertarian” in the blank line, but NH won’t recognize them.” And having been to NH and testified in front of our legislature, you know that. Frankly, I no longer want your “help” here in NH.

    Richard Shepherd, I can read legal documents and see that Relief section C is exactly what Winger claims doesn’t exist: “no request for an injunction.” I’m not a lawyer, nor did I claim to be one. I claimed to to know the truth of the facts, which the lawsuit doesn’t list correctly.

  6. Seth, are you opposed in principle to the Libertarian Party filing lawsuits against unfair election laws?

  7. Richard,

    It’s one thing to sue against unfair election laws. It’s another thing to mischaracterize such a suit.

    “Substitution” is when Candidate X, who is on the ballot, is removed so that he or she can be replaced by Candidate Y, who is not on the ballot, pursuant to a previously understood procedure.

    Barr is already on the ballot. Thus the suit is not for “substitution” but for “removal of an opponent.”

    The LPNH nominated that opponent with no reasonable expectation of being able to later substitute a different candidate. That opponent invested considerable resources of his own in achieving ballot access.

    While this suit might establish “substitution” as a future guideline, that is not its immediate effect — its immediate effect, if successful is to remove a candidate from the ballot who met the existing criteria for inclusion on the ballot, because one of his opponents doesn’t want him there … so pray stop the whinging about “unfairness.”

  8. Is there anything in NH law as currently being applied by the state government to keep non-libertarians – say, David Duke, or some communist – from being on the ballot as LP candidates?

    Phillies and Barr, whatever their faults, are both active LP members. Both have held party office (Barr on the LNC, Phillies as state chair etc.), and both have donated substantial amounts of money to the LP. I believe both are life members of the party.

    What about those who have never joined the LP?

  9. The link to the lawsuit has been repaired, and should work on LFV now. Sorry for the inconvenience.

  10. While this suit might establish “substitution” as a future guideline, that is not its immediate effect — its immediate effect, if successful is to remove a candidate from the ballot who met the existing criteria for inclusion on the ballot, because one of his opponents doesn’t want him there … so pray stop the whinging about “unfairness.”

    Actually, it seems to me that the immediate effect will be to establish that political parties – at the state level! – have control of who represents their party on the ballot.

    NH’s LP wants to be represented on the ballot only by the Party’s national nominee – that is demonstrated by its status as plaintiff on this suit.

    The state should not get to determine who represents a political party on the ballot. The state party should. (If the state party chooses someone other than the national nominee, I think we both agree that’s de facto disaffiliation, but that’s another can of worms).

    I’d like to see political parties have MORE, not LESS, control of their ballot lines. It irks me to no end that I can petition for years, only to have some (…temper…) non-libertarian who registers Libertarian with the state be treated as a Libertarian candidate. Talk about brand dilution!

    This is the sort of madness that Libs should resist – and it seems to me that this suit attempts just that – to put control of the ballot line back with the state party, and not the *state*.

  11. … met the existing criteria for inclusion on the ballot…

    The *state’s* criteria for inclusion. Screw the *state’s* idea of who is a proper Libertarian Party candidate.

  12. Susan,

    I could agree with you — IF the relief the suit requested was that the designator “Libertarian Party” be removed from the ballot next to George’s name.

    However, that is not the relief the suit asks for. It simply asks that George be removed from the ballot.

    George is not only on the ballot because the LPNH nominated him. He is on the ballot because thousands of New Hampshire voters signed petitions requesting that he be placed on the ballot. Why should those voters’ desires be trumped by LPNH’s fickleness, the Barr campaign’s preference, and the willingness of both to sue the state to make it give them something they want but are not under any reasonable construction entitled to?

  13. I could agree with you — IF the relief the suit requested was that the designator “Libertarian Party” be removed from the ballot next to George’s name.

    So you do agree that Phillies should not be on the ballot as a candidate of the LP, then?

    If so, I am content with that. I am not comfortable in the rare instances when we disagree politically. It makes me have to think, and that’s too much like work for my taste.

  14. Susan,

    Correct. The LPNH is the Libertarian Party in New Hampshire, and should dispose of its ballot line. If they want Barr, rather than George, to be their nominee, then that’s their business.

    That doesn’t mean that George should be off the ballot, though. It just means he should be listed as an independent, or, if he wants to run on a party slate, asked to provide a party name to describe the bloc of voters he represents (i.e. those who signed his petitions).

    Before LPNH signed on as plaintiff, I didn’t believe that the suit had any merit at all, since neither LNC nor Barr 2008 (the alleged plaintiffs early on) are a political party, let alone the Libertarian Party, in New Hampshire — they lacked standing. LNC’s sole reasonable remedy, had LPNH not signed on to the suit, would have been disaffiliation of LPNH for non-compliance with the bylaws.

    Tom Knapp

  15. Lost in the shuffle is the obvious, non-lawsuit solution: move the LP convention back so nominations are completed before petitioning.

    Can’t have that, though–it would save money and time and make sense.

  16. Tom is right on the money.

    Barr undermined his effort by doing his own petitioning. If he wanted to have substitution grounds, then he should not have petitioned. Then the NH SoS refusing to substitute becomes a real suit with a legitimate problem.

    That’s assuming that the judge simply wouldn’t ask why he didn’t petition himself.

    But that didn’t happen.

    Suing to claim that he is the nominee and not George is a different matter.

  17. Under current New Hampshire law, David Duke could petition himself onto the ballot as a Libertarian candidate for president or anything else. There is lots of case law that says this type of election system is unconstitutional. New Hampshire is loaded with election laws that are unwise and very likely unconstitutional. (1) No name protection for unqualified parties; (2) No substitution for unqualified parties even though qualified parties do enjoy that right; (3) people can’t register into unqualified parties; (4) a law that says the presidential nominees of unqualified parties must file a declaration of candidacy in June even though there is no such requirement for the presidential nominees of qualified parties.

    In addition, a case can be made that the almost-unique one-signature per petition practice serves no important state interest, and is an extreme impediment to successful petitioning. The historical record bears this out. In 2006 New Hampshire was one of only 4 states with a Dem-Rep monopoly for all statewide office. In 2004 no state except Oklahoma had fewer choices on the November ballot for president. New Hampshire is the only New England state with no ballot-qualified parties other than Dem & Rep.

    For 40 years, we have made good headway against repressive ballot access laws by the technique of filing lawsuits. Lawsuits in federal courts are far, far more successful than lawsuits in state courts. The current NH lawsuit is the first time any minor party, or any independent candidate, has ever attacked any aspect of NH’s ballot access laws. But instead of cheering the lawsuit on, people are against it. If you are against it, what is your solution for fixing NH ballot access? Just asking the NH legislature has failed. The only thing the NH legislature has done is triple the number of signatures in 1981, add a distribution requirement in 1981, impose a June candidacy declaration on petitioning candidates in 1985, and increase the number of votes needed.

    Ayn Rand’s novels portrayed the people who actually go out and do something as heroic, and the people who do nothing constructive, and try to trip up the activism, as villains. I think Brendan Kelly and Gary Sinawski are heroic. By the way, all the plaintiffs in the lawsuit were aware before the case was filed that they would be the only co-plaintiffs.

  18. I should have said this lawsuit is the first time anyone has attacked any NH ballot access laws in Federal court.

  19. Also I should have said New Hampshire is the only New England state that hasn’t had any ballot-qualified parties (other than Dem and Rep) in the last ten years. Rhode Island doesn’t have one now either, but it did until 2004.

  20. How did Ayn Rand’s novels portray bullies?

  21. Susan, LPNH had the option to decide who would be on the ballot line: it required “the names of registered voters equaling 3 percent of the total votes cast at the previous state general election to nominate by nomination papers a political organization.” 3% of 2006’s vote is ~ 12000 names. The total needed to put the Governor, Senator or Presidential candidate (or all 3 at once, same sheet) is a mere 3000 (1500 in each of 2 districts). Given the choice of A=12000, with a free choice of names after the national LP convention, and any/all of a full slate ticket for all 500+ races in the state, OR B=3000, done in a timely manner, starting early, the LPNH convention chose, consciously and with multiple votes to pursue B.

    The lawsuit is a whine, lying with a claim that LPNH wasn’t responsible, it was all George’s doing (see #15).

    The courts will rightly recognize that the party had option A, chose not to pursue it, and so made its’ bed. Collecting 6000 signatures is STILL less than 12K.

    Richard is confusing the forest for the trees. I don’t argue the petitions are a painful wrongness, but lying in a lawsuit is not how you make change happen. He ignored what I have made clear more than once to him: the history with lawsuits and this SOS is that he will make it harder, not easier, and the legislature will back him up. But Richard doesn’t understand that… he came and testified in person and still doesn’t understand that, because he didn’t listen.

  22. When the Libertarian Party of Florida sued in Florida to get Harry Browne’s name on the ballot instead of the stand-in (Ed Clark), Florida Secretary of State defended herself by saying that the Libertarian Party should have done the full party petition. By coincidence, Florida’s full party petition was also 3%, just like New Hampshire.

    Florida Secretary of State’s argument did not work for her. The LP still won the case. We pointed out that the Florida 3% petition was so hard, it had only been used two times in history. In the case of the New Hampshire full party petition, it has only been used once. Numerous Libertarians in New Hampshire have told me it is considered impossible to do the full party petition.

    Seth says I came to New Hampshire and “didn’t listen.” A group of us, including Seth, had dinner the night before the testimony. We hung around the State House the next day, waiting for the committee meeting to start, and we talked then. Afterwards Seth and I had a good conversation in a parking lot. It was full communication, both sides, as far as I could tell.

    Seth asserts that a lawsuit won’t work, but he doesn’t say why. This is the first federal case against NH ballot access laws ever. What is the basis for saying it won’t work, when it’s never been tried before? We have tried lobbying repeatedly, for 15 years.

    Seth doesn’t seem to answer my question about what his ideas are for improving NH ballot access.

  23. Richard,

    The best way to get the lawsuit on track with that which is good and right is to change the relief requested — instead of seeking to kick a qualified candidate off the ballot, seek to remove a party designator which the party in question wants withdrawn.

  24. Perhaps this lawsuit really is about substitution, as Mr. Winger asserts. It could even apply this year if the federal judge decides to remove George Phillies from the ballot and allow Bob Barr’s name to be substituted in his place on a second LP line. That way, Barr’s name could appear twice on the NH ballot — once as an ex-Republican who hasn’t completely regurgitated his former party’s toxic menu, and again as a right-wing GOP conservative masquerading as a Libertarian.

  25. Today I talked to Gary Sinawski, the attorney who wrote the NH complaint and filed it. He says that it is legally necessary that we ask for injunctive relief. Federal courts won’t entertain a case if there isn’t an actual case or controversy. It’s no big deal if we fail to get injunctive relief, but we must ask for it.

    It is certainly true that this case is different from a normal substitution case. This is the only substitution case ever filed in which the candidate who is complaining is on the ballot anyway, regardless of the outcome of the case. But the evidence will show that NH’s ban on substitutions caused the Barr campaign to spend a great deal of money and resources on a 2nd petition, which would not have been needed if NH had allowed substitution. Diverting petitioners and resources to the NH petition arguably did serious injury to the party in Maine and Connecticut.

    In 1984 the Libertarian Party won a lawsuit against Colorado, which gave no “name protection” to unqualified parties. Anyone in Colorado could have done a petition with the “Libertarian” label, whether that person had any connection with the LP or not. We won in both US District Court and the 10th circuit. When our brief is filed, it will be clearer that this case is both about substitution, and about NH’s failure to give name protection to unqualified parties. People who are interested in this subject should feel free to offer suggestions to Gary Sinawski. E-mail me at, or call me at 415-922-9779, if you are interested. I am encouraging Gary to talk things over with George Phillies. Gary has already phoned George once, and Gary has given his contact info to George.

  26. […] Obama from the Texas ballot, alleging that they did not file their paperwork on time. Barr is also suing to remove George Phillies from the ballot in NH (Barr is already on the ballot separately in that […]

  27. Richard, the more you post, the clearer it is to me that you just don’t get it. You didn’t listen to the State Reps, in their concerns, you just spoke at them. You didn’t listen to people like me who told you that the SOS needs to be on our side, not in opposition, to make effective change happen here in NH. NH’s SOS is not like other states’ SOS, and like it or not, we have to live with that reality until he isn’t there.

    You’ve made claims that repeatedly have been false ones regarding this suit, and you continue to make them, despite knowing full well what lies they are. There were available petitioners for Maine and Connecticut: Sean Haugh refused to hire them, as has been well documented elsewhere on this site.

  28. “This is the only substitution case ever filed in which the candidate who is complaining is on the ballot anyway, regardless of the outcome of the case.”

    Let me fix that for you:

    This is the only “substitution” case ever filed in which the candidate who is complaining is on the ballot anyway, regardless of the outcome of the case, so it’s not really “substitution”, it’s “removal” of a legal opponent on the ballot.

    I think a countersuit filed by George seeking removal of Barr is possible and as likely to give some useful legal precedence, given that there has been no legally convened LPNH convention who decided to perform a substitution of the official candidate decided at a previous legally convened convention, given that that convention explicitly voted to lock in the candidates and remove the power of the Exec Comm from deciding these matters unilaterally in the future. And why do you think that was done? Perhaps it’s because it was to prevent this action by the Exec Comm in the future. Why has there been no vote by the Exec Comm for substitution? Because Brendan knows FULL WELL he cannot do so, yet, of course, he’s claiming such in the lawsuit, as if it was the will of the LPNH.

    I cannot wait to be deposed for this suit… And everything I testify to will be backed up by plenty of other folks.

  29. Three questions for Seth, which I asked earlier, that he has ignored:

    1. If the key to getting ballot access improvement is getting along with Secretary of State Bill Gardner and not filing any lawsuits, why has ballot access got worse and worse since he has been Secretary of State?

    2. How do you propose to get ballot access improved in New Hampshire? Since you are running for state chair, it seems you ought to have a plan.

    3. Are you opposed in general to filing lawsuits alleging that election laws are unconstitutional?

    You say that I only talked to the state representatives at the subcommittee hearing, and didn’t listen to them. How, then, do you explain that the subcommittee seemed ready to kill the bill at the beginning of the hearing, before I had spoken? And how do you explain the fact that at the conclusion of the hearing, the subcommittee seemed far more favorable to our bill and showed that by scheduling two more work sessions on it?

    Furthermore, if you had thought my testimony hadn’t been effective, why didn’t you express that afterwards? You seemed very optimistic yourself when we talked after the hearing out in that parking lot.

  30. 1) There have been lawsuits, as you well know. State levels ones, with mixed results (ballot access no, but other issues yes)

    2) First I’m campaign managing Sue Newell. 4% is reachable this year. Second, we’ll have many more friendly reps (re)elected this year, and avoid the mess of having anyone try and do multiple things at once (which hurt the bill this last time.. they were quite willing but they offered to do too much at once, causing a reversal when it was clear that it would cause problems, and killed the whole things. Too much to chew on.) Third, if need be, is in the planning and depends on things yet to be determined so I can’t discuss it without giving too much away right now.

    3) I’m opposed to lying in lawsuits, by attempting to rewrite history. If there is a good firm clean basis for a lawsuit, where it’s clear it’s winnable without negative consequences as a result, hypothetically I’d support it. The Barr suit is not such a case.

    As for your claims about the bill, I see things differently. You weren’t seeing (while you were talking) the reps who were frustrated with you going on and on, for example, and who wanted to hear from NH folks actually affected. Rich Tomasso, Ken Blevens, myself and others there were as important for the future hearings… your testimony had value, but as a piece of the picture. We continued to work with the Reps in future meetings. You need to get a grip, Richard, the bill didn’t live or die on your testimony, or the myriad info you provided. You are a walking encyclopedia of ballot access info, no argument, but that isn’t all it takes to make a change happen.

  31. Mr. Winger, I agree with almost everything you’ve said in your comments, and I appreciate all the work you’ve done to help the LPNH gain ballot access and official party status, but I must take issue with this statement:
    “By the way, all the plaintiffs in the lawsuit were aware before the case was filed that they would be the only co-plaintiffs.”

    This is incorrect. The Executive Committee of the LPNH was repeatedly led to believe that the LNC and/or the national LP was the primary force behind the proposed lawsuit. The motion which we voted on read as follows:
    “I’d like to make a motion that the LPNH join the LP substitution law suit to be filed as plaintiff’s.”

    Neither the LP nor the LNC are listed as plaintiffs on the lawsuit, in direct contradiction to what we, the members of the LNPH ExComm, were led to believe. If I had been aware that the only plaintiffs on the lawsuit would be Barr, Root, Kelly, Macia, and potentially the LPNH, I would have voted differently.

    And yes, mea culpa for voting to join a lawsuit the exact text of which I had not read beforehand.

  32. Thomas, in response to your dismay that the lawsuit’s wording appears to be an attempt to remove George Phillies from the New Hampshire ballot, please understand that there is zero possibility of that happening. New Hampshire ballots were scheduled to be sent to the printer mere days after this lawsuit was filed; this was openly discussed at multiple LPNH meetings.

    This is not about attempting to remove Phillies from the ballot, or attempting to disenfranchise the thousands of New Hampshire voters, myself included, who signed petitions to *put* Phillies’ name on the ballot. It is about attempting to defend the LP’s right to determine who is its standard-bearer on the ballot, and, more importantly in my mind, may help pave the way for future lowering of hurdles to ballot access and party status for New Hampshire Libertarians.

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