by Grant McLoughlin

The new national party Americans Elect was able to achieve ballot access in Oklahoma for the 2012 presidential election even though its bid to put a national third party presidential candidate on the ballot in all fifty states fizzled. Oklahoma has one of the strictest ballot access laws in the nation. Title 26 § 1-108 requires new parties seeking ballot access to submit petitions of registered voters equal to 5 percent of the total votes cast in the most recent general election. This creates a significant barrier for new parties wishing to stand for election in Oklahoma. In 2008 Oklahoma only had two choices, Democratic and Republican candidates. By having more choices voters are able to vote for candidates that best reflect their views.

This year the party Americans Elect was able to qualify in all states due in large part to well financed organization. The problem in Oklahoma, as in other states, is that Americans Elect failed to nominate a candidate for its hard-won slot as a third party on the ballot. As 2012 progressed and no candidate emerged, states began to wonder who would appear on the Americans Elect line on the ballot.

On August 6, 2012 Americans Elect sent a letter to all states where it had qualified for ballot access to officially dissolve their party and that they were terminating their status as a qualified party. Yet in Oklahoma due to the great cost of obtaining ballot access, the Americans Elect ballot line was worth far more than any other state. Libertarians in Oklahoma were unable to qualify for a ballot line as only 41,070 of their 56,000 signatures were determined to be registered voters.  By contrast, Americans Elect collected around 90,000 signatures of which 68,000 were found to be registered voters.

With the failure of Americans Elect to name a candidate, Libertarians saw an opportunity to gain ballot access for the 2012 election.  In an effort to gain nationwide ballot access, Libertarian presidential candidate Gary Johnson sought to use the Americans Elect line in Oklahoma as a vehicle to gain access. Slate referred to the actions of libertarian activists as using the “Zombified Corpse” of Americans Elect to vault Johnson on to the ballot.  To complicate matters, while the national board of directors dissolved the party, the state activists nominated a panel of electors pledging to vote for Johnson.

The central question at was who controlled the wishes of Americans Elect, registered voters in Oklahoma or the national party. An Attorney General’s opinion advised that the party should be left off the ballot as the national party had to authorize a state chapter before they could speak for the party. This was clear from the party’s bylaws when the party was recognized as an official party.  Of particular interest is that the goal of the Americans Elect was to engage more people through an online nomination process. The Americans Elect Party of Oklahoma tried to hold its state nomination convention online, though as shown in the Attorney General’s opinion, the turnout was rather sparse as only 5 people participated. The Oklahoma Supreme Court on September 13, 2012 ruled that the presidential candidates for American’s Elect would not appear on the ballot. Members of the Americans Elect Party of Oklahoma brought Lawhorn v. Ziriax to compel Secretary of the Oklahoma Election Board, Paul Ziriax, to place the names of seven electors on the general election ballot for 2012, alongside the names of Gary Johnson and James Gray. The state election board was concerned about meeting the deadline to send ballots to members of the military serving overseas by September 21, 2012. The ruling denying Americans Elect a place on the Oklahoma ballot referred to Article 7 of the Bylaws that required the formation of a state chapter needed the approval of the national Board of Directors of the party. Since an Oklahoma State chapter was not authorized, only the Board of Directors could speak on behalf of Americans Elect. The court cited an August 6, 2012 letter from the board in which they indicated the party’s desire not to have any candidates on the ballot.

The court recognized that the officials to speak for the party were directors in Washington and legal counsel in Boston. In the end, the outcome of Americans Elect ballot access attempt in Oklahoma is deeply ironic. The sentiment behind the movement of Americans Elect was the notion that power should be placed back in the hands of ordinary people. But the Oklahoma Supreme court held that people in Washington, D.C., not Oklahoma, controlled the face of the Oklahoma ballot. In the broader battle of ballot access, it will be interesting to see if this spurs reform in the area of easier ballot access for Oklahomans.

Grant McLoughlin is a second-year student at William & Mary Law School.


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