New Hampshire Group Seeks State Monopoly on the Word “Libertarian”

From Skip Oliva:

New Hampshire Group Seeks State Monopoly on the Word “Libertarian”

The Libertarian Party of New Hampshire has petitioned the US Supreme Court to reverse the New Hampshire secretary of state and two lower courts that previously rejected the party’s claim to have exclusive right to use the word “Libertarian” in connection with political candidates appearing on the state’s presidential ballot. The LPNH, joined by 2008 national Libertarian Party nominees Bob Barr and Wayne Allen Root, objected to the inclusion of a rival Libertarian ticket on the last presidential election ballot. The LPNH said that decision violated its constitutional rights under the First and Fourteenth Amendments.

George Phillies and Christopher Bennett unsuccessfully sought the national LP’s presidential and vice-presidential nominations. Nonetheless, they successfully petitioned to appear on New Hampshire’s general election ballot. The LPNH is not a recognized political party under state law, so the Barr-Root ticket had to qualify using the same petition process as the Phillies-Bennett ticket. The secretary of state produced a ballot listing both tickets under their preferred description of “Libertarian.” Both tickets were listed under “Other Candidates” along with the ticket of Ralph Nader and Matt Gonzalez, who were described as “Independent.”

The Democratic and Republican parties, which are recognized under state law, have the right to exclusive use of their names on the general election ballot. The LPNH does not, according to the First Circuit Court of Appeals, which rejected the group’s lawsuit this past July. Notably, the LPNH did not challenge the discriminatory state laws that confer special privileges upon the “recognized” parties; rather, the LPNH said it was entitled to the same privilege to exclude any other independent candidate from using the label “Libertarian” on the state ballot. In its petition to the Supreme Court, the LPNH said New Hampshire had no legitimate state interest in allowing the Phillies-Bennett ticket to use the “Libertarian” label, which had the effect of “confusing” voters and “diluting” the LPNH’s overall vote:

[P]ermitting rival sets of candidates for president and vice president to be listed with the “Libertarian” appellation in the “Other Candidates” column on the New Hampshire ballot operates to encourage factionalism, to foster vote dilution, to diminish order in the electoral process, and to promote frivolous candidacies. (emphasis in original)

The dilution argument is comical. In the 2008 general election, the Barr-Root ticket received 2,217 votes versus 531 votes for the Phillies-Bennet ticket. Even combined, the Libertarian tickets would have still finished in fourth place behind the Nader-Gonzalez ticket and well behind the Obama-Biden and McCain-Palin tickets. Furthermore, the dilution had no effect on the LPNH’s ability to attain “recognized” party status. Under state law, a party must receive at least 3% of the votes cast for governor to obtain official status. There was only one “Libertarian” candidate on the 2008 gubernatorial ballot, who received about 2.1% of the vote.

The larger constitutional issue, according to the LPNH, is that the presence of the other “Libertarian” ticket somehow violates the First Amendment’s prohibition on state interference with free speech and free association:

[P]lacing the Libertarian nominees and their unsuccessful rivals for the nomination on the same footing by identifying them only as “Libertarian” subverts the political and associational message inherent in listing a candidate on the ballot as a representative of his or her party.

The First Circuit previously considered and rejected this argument:

What the [LPNH] appears to be arguing is that it had a free speech right to use the ballot to advertise who its nominees were. But the Supreme Court in Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997), expressly rejected the argument that a party “has a right to use the ballot itself to send a particularized message, to its candidate and to the voters, about the nature of its support for the candidate.”

[…]

Even if we assume arguendo that the Libertarian Party has some interest in preventing voter confusion of its nominated candidates with other candidates who also espouse Libertarian ideals, the question of whether it may enlist state officials to prevent such confusion is one we need not reach on the facts before us. Here, the Libertarian Party has made no claim that Phillies and Bennett were not in fact Libertarians or that the ballot was otherwise inaccurate. And it has provided no evidence that the ballot misled voters in any way. On its face, the ballot did not itself indicate that Phillies and Bennett were the nominees of the Libertarian Party. It identified them, as well as Barr and Root, merely as Libertarian.

It’s hard to find fault with the First Circuit’s logic. While it may be unfair that the LPNH doesn’t have the same ballot access as the Democratic and Republican parties, there is no constitutional “right” to demand what amounts to an intellectual-property monopoly over the use of the word “Libertarian” on a ballot where two tickets qualified using an identical process. Phillies and Bennett had just as much right to use the word as the Barr and Root.

And it’s especially disturbing that any group calling itself “Libertarian” would resort to litigation based on such a distorted reading of the Constitution. There’s nothing principled about using the state to censor competing speakers. The LPNH should be working to eliminate, not extend, state privileges. The last thing any group of libertarians should be known for is demanding a state monopoly over words.