By Patrick B. McGuigan | CapitolBeatOK
OKLAHOMA CITY — State activists with the Americans Elect party will make their case Wednesday to retrieve the presidential ballot line they lost.
At a hearing before a Supreme Court referee, Tulsa attorney James Linger will represent a group of Oklahomans led by Rex Lawhorn who had, a month ago, listed a slate of seven presidential electors in support of Gary Johnson, the Libertarian Party presidential candidate.
Last week, however, state Election Board Secretary Paul Ziriax yanked the ballot line in response to counsel from Assistant Attorney General Neal Leader.
Leader wrote that the state activists, which he called “Mr. Lawhorn’s local group,” was “(at) best (a) group acting in good faith, but a group acting without authority to act for the Americans Elect Party. At worst, Mr. Lawhorn’s local group is a group acting to highjack the Americans Elect Party for the benefit of the Libertarian Party’s candidates for president and vice president – candidates who have not succeeded in other attempts to appear on the ballot in Oklahoma.”
Leader concluded “there is no factual or legal basis” for putting candidates and electors of the Americans Elect party on the ballot. Building his case, Leader argued Lawhorn’s group is not the Americans Elect party because the national group filed the original notice of intent early this year, successfully petitioned for ballot status, became recognized as a party in March, and then disbanded a few weeks ago.
Leader concluded Lawhorn’s group “was not authorized by the Party’s Board of Directors, as required by the Party’s Bylaws.”
Even if the local group had standing to select electors, Leader reasoned, “the entity … found to be a recognized political party in March of this year, has … chosen not to field candidates for President and Vice-President in the 2012 election.”
Richard Winger, editor of Ballot Access News, a national publication, last week criticized Leader for relying in part on trademark law in his analysis, observing, “On January 19, 2012, the 9th circuit ruled that trademark law has no relevance to political party names.”
Further, Winger wrote, “there are Americans Elect Party nominees in Arizona this year for Congress and county office.”
In the affidavit that will be filed Wednesday, Winger reasons that throughout American history, “ballot access in presidential elections have always been controlled by state political parties, not national political parties.”
In the affidavit provided to CapitolBeatOK, Winger pointed to precedents ranging from 1832 to 2012 to support his contention that the state Americans Elect party’s actions in choosing electors this summer should be sustained.
He argues, “If a state unit of a national party wishes to (nominate) someone for president or vice-president other than the choice of the national convention, the state party’s choice prevails.” Under the U.S. Constitution, “presidential electors choose the President; and in all states, the state party, or a state official, choose that state party’s candidates for presidential elector.”
Winger also rebutted time concerns driving legal consideration in Oklahoma, saying that federal law does not require ballots to be mailed to overseas military personnel until Sept.22. Oklahoma is one of several states where petitions for ballot status are still being checked, or where litigation is pending for a ballot line, but state officials say they must begin processing ballot materials on Sept. 7.
The case is Rex Lawhorn, et al. v. Paul Ziriax, Secretary of the Oklahoma State Election Board, et al., in the Supreme Court of the State of Oklahoma Case No. 111026.
Contact Patrick B. McGuigan at Patrick@capitolbeatok.com and follow us on Twitter: @capitolbeatok.