After sitting on the case for months, Judge Rosemary Collyer of the U.S. District Court for Washington, D.C. this morning shut down a legal challenge by Libertarian Party presidential nominee Gary Johnson and presumptive Green Party presidential nominee Jill Stein to be included in this fall’s presidential debates. In denying the plaintiffs’ appeal to the Commission on Presidential Debates’ motion to dismiss, Collyer ruled that Johnson and Stein have no standing to make antitrust and First Amendment challenges to the CPD’s rules (which require a third-party candidate to average 15 percent support in five national polls in the run-up to debates), because the “Defendants here are private parties.”
Johnson and Stein had sought to change the qualifying standard for debate inclusion to be getting on enough state ballots to have a mathematical possibility of winning the election—an arduous task on its own, as anyone who has worked in third-party ballot access can tell you. Since getting into the presidential debates has been the linchpin of Johnson’s campaign strategy, today’s news certainly comes as a kick in the teeth. “It’s the most important political litigation in the last 50 years,” Judge Jim Gray, the 2012 L.P. vice presidential nominee and 2016 honorary chairman of the Gary Johnson-affiliated Our America Initiative (which is driving the lawsuit), told me three weeks ago.
Judge Collyer clearly did not see it that way, writing with a barely concealed sneer:
Plaintiffs in this case have not alleged a non-speculative injury traceable to the Commission….Plaintiffs’ alleged injuries are wholly speculative and are dependent entirely on media coverage decisions. The alleged injuries––failure to receive media coverage and to garner votes, federal matching funds, and campaign contributions—were caused by the lack of popular support of the candidates and their parties sufficient to attract media attention. It is obvious that Defendants did not cause Plaintiffs’ alleged harms[.]
The lawsuit, which was based on events from 2012 (when Johnson wound up with 0.99 percent of the popular vote, Stein with 0.36 percent), is arguably much more germane in 2016, when Johnson is currently polling at around 9 percent and Stein at 4 percent, and the two major-party nominees are historically disliked. When a Libertarian Party ticket allows CNN to win the evening’s demo ratings on cable news, something different is in the water. But the question now moves mainly (though not yet totally!) to the realm of public pressure, not legal action.
Reason will have more reaction and analysis in this space later.