CHARLESTON – Libertarians can't blame anyone but themselves for failing to qualify their presidential candidate for West Virginia's statewide ballots, a federal judge said.
Running at the top of the Libertarian ticket is former Republican Rep. Bob Barr of Georgia and his vice presidential running mate, businessman and author Wayne Allyn Root.
On Sept. 5, U.S. District Judge John Copenhaver dismissed a Libertarian lawsuit seeking ballot access, finding that "it was their lack of reasonable diligence that ultimately thwarted their effort."
He ruled that West Virginia's requirements to gather signatures from two percent of voters and certify the signatures by Aug. 1 did not violate the U.S. Constitution.
"It seems clear enough the Barr/Root campaign would have satisfied the two requirements had they commenced their efforts just two to three weeks earlier," Copenhaver wrote.
He noted that the Constitution Party and Ralph Nader met the requirements this year and the Libertarians met them in 2004.
Barr, Root and West Virginians Richard Kerr and Simon McClure sued Secretary of State Betty Ireland in federal court on Aug. 13.
Their lawyer, Bob Bastress of Morgantown, argued that West Virginia couldn't enforce an earlier deadline for minor parties than for Democrats and Republicans.
He argued that no state but Oklahoma required signatures above two percent.
At an Aug. 27 hearing Jason Williams, Ireland's election manager, testified that nine employees count ballot signatures individually.
Williams said they divide signatures by counties and transmit them to county clerks for comparison to voter registration rolls.
He told Copenhaver the response rate varies considerably from county to county.
Kanawaha County election clerk Vera McCormick testified that nine employees stay constantly busy in election season.
She said she planned her schedule under an assumption that candidates would stick to their statutory deadlines.
Ballot preparation contractor John Denbigh, of Casto and Harris Inc., testified that his schedule depended on the same assumption.
Denbigh told Copenhaver that in counties with paper ballots, addition of a party would increase the width of the ballot and might require a different paper stock.
In counties with electronic ballots, he said, it would delay proofreading.
"Election production is an extremely stressful and critical process and we can only drive our people so hard," Denbigh said. "It's a very deep concern."
William Redpath, chairman of the Libertarian party in West Virginia, testified that the party qualified in all 50 states in 1992 and 1996, all but Arizona in 2000, and all but Oklahoma and New Hampshire in 2004.
In West Virginia, he said, the candidate in 1996 received enough votes to earn automatic ballot status in 2000 but the candidate in 2000 didn't earn an automatic spot for 2004.
Redpath said Libertarians achieved ballot status in 2004 by gathering enough signatures to satisfy the two percent requirement ahead of the Aug. 1 deadline.
This year, he said, the party nominated Barr and Root on May 25.
Libertarians did not immediately start gathering signatures in West Virginia or Oklahoma due to their stricter requirements, he said.
Libertarians started gathering signatures on July 13 or 15, he said, after fund raising prospects improved.
In Copenhaver's view, the intentional delay wrecked the party's position. "They were free to commence their signature-seeking efforts at any time," he wrote.
He wrote that West Virginia does not restrict signature gatherers in their quest to meet the two percent requirement.
"Registered voters who reside in any part of the state may sign their names for as many putative candidates as they wish," he wrote.
"Those same signers may then vote in a party primary," he wrote. "If they voted in a previously held party primary, they may
"In either case, the signers need not pledge allegiance to the ballot seeker," he wrote.
Signature gatherers need not be West Virginia residents, he added.
"Perhaps most importantly, signatures can be sought at any time," he wrote.
He rejected an argument from Redpath that West Virginia's rural nature makes it difficult to gather signatures.
"One answer is to set up the petition drive in some of the 11 most populous counties which together hold half of the state's 1.8 million inhabitants," Copenhaver wrote.
He declared an Aug. 1 deadline "nearly as generous as the state can afford to be while yet reserving enough time to discharge its election related duties and account for unexpected disruptions.
"The sovereign need not pick a perfect deadline, just one that is essentially reasonable in light of the burdens imposed."
He declined to compare the deadline to dates of Democrat and Republican conventions.