Gary Johnson

Ohio Might Try to Stall Its Way to Keeping Gary Johnson Off the Ballot

Complicated ballot access shenanigans, based in seeing ambiguities in the law that might not exist, make Gary Johnson's presence as an independent on Ohio's ballot in November still in flux.


Because of various past shenanigans with the state, the Libertarian Party does not have a ballot line in Ohio. Supporters of the L.P. ticket of Gary Johnson and William Weld were trying to get them on the ballot there as independents, which involved collecting 5,000 signatures which were legally due in on Wednesday August 10. They were turned in.

LP of Ohio

Since the process to collect the signatures began months before anyone knew who the L.P's actual candidate would be, a couple of Libertarians, Charles Earl and Kenneth Moellman Jr., allowed their names to be placed on the petitions as the presidential and vice presidential candidates.

They always had the intention, as Ohio election code clearly allows, of stepping down from the ballot in favor of Johnson and Weld. (Anthony Fisher reported on this whole brouhaha earlier this week.)

Here's the relevant section of the code, 3513.31(F):

If a person nominated by petition as an independent or nonpartisan candidate for election at the next general election withdraws as that candidate or is disqualified as that candidate under section 3513.052 of the Revised Code, the vacancy so created may be filled by a majority of the committee of five, as designated on the candidate's nominating petition, if a member of that committee certifies in writing and under oath to the election officials with whom the candidate filed the candidate's nominating petition, not later than the eighty-sixth day before the day of the general election, the name of the person selected to fill the vacancy. The certification shall be accompanied by the written acceptance of the nomination by the person whose name is certified and shall be made in the manner provided for a major political party.

That "eighty-sixth day" would be Monday, August 15. Scott Pettigrew, a member of that five-man nominating committee, says this afternoon that they will make the proper substitution filing on that deadline for Johnson and Weld.

If local media reports are to be believed, the secretary of state's office has one last shenanigan in hand to try to rob the L.P of getting their men on the ballot, even without the L.P. label.

Here's how it seems to be going, according to the Columbus Dispatch:

County boards of elections will be unable to certify petition signatures submitted for a "placeholder" candidate, would-be 2014 gubernatorial candidate Charlie Earl, by a key deadline on Monday, according to the office of Ohio Secretary of State Jon Husted.

Monday is the deadline for the withdrawal and replacement of independent candidates and the needed 5,000 signatures among the 12,000-plus submitted with Earl's name will not be certified in time to meet that deadline, Husted spokesman Joshua Eck said today….

Eck said in an interview this afternoon that the secretary of state's office is, as of now, not quite sure that the part of the election code quoted above "can be used in a presidential election" (I don't see what ambiguity might exist to make them wonder that).

They also are not sure "whether a candidate can withdraw his candidacy before it has been certified." Eck says they are "waiting on legal counsel" to advise them on those issues.

Eck also points out in an emailed message that given that the official substitution request has not been filed, he can't authoritatively judge that hypothetical. (Again, Pettigrew insists it will be properly filed by the deadline of Monday.)

Eck spelled out in our interview the potential wrinkle in the fact that state law does not require the Board of Elections to certify an independent candidate until eight days after the Monday deadline for the substitution filing.

Pettigrew points out, and he says that many lawyers on their team agree, that nothing in the language of the code states that the placeholder must have been certified before the substitution happens, despite Eck's concern. Indeed, that timing wrinkle would lend weight to the contention that certification can't be necessary for substitution.

Pettigrew says he's fully confident "we are well within the black letter of the law" and that they are "not paying attention" to these distracting statements from the secretary of state's office to the media.

Ken Moellman, the initial vice presidential candidate who has resigned in favor of the Johnson/Weld substitution, also said this afternoon that "I was intimately involved" in the petition drive and he's sure they have independently validated 6,500 or so signatures of the 5,000 legally required. "We know we are good," Moellman says. "The real question is whether the secretary of state, or the spokesperson speaking for him, have a full understanding of the process."

He points out that, as Anthony Fisher reported here earlier, Eck apparently didn't know that such substitutions had been done successfully in the recent past for non-major candidates.

Moellman related in our interview how he and Earl already formally withdrew, and that the nominating committee met to choose Johnson and Weld as their replacements.