Libertarians Sue to Have Romney Kicked Off Washington Ballot

As I first reported some weeks back, the Washington State Republican Party's failure to nominate a candidate for US Senate in 2010 appears to have cost them "major party" status under the letter of RCW 29A.04.086. This failure should in turn have required Mitt Romney to qualify for Washington's presidential ballot under rules and deadlines applied to "minor parties," a deadline that has long since passed.

Today the Libertarian Party of Washington State filed suit (PDF) to have Romney's name removed from the November ballot:

The suit seeks an order declaring that the Washington State Republican Party is “minor party” for purposes of the 2012 general election and directing the Secretary of State to issue ballots for the November election that do not contain the printed name of any Republican Party nominee.

Secretary of State Sam Reed's office responds that the Republicans retain major party status under WAC 434-208-130:

(1) For purposes of RCW 29A.04.086, "major political party" means a political party whose nominees for president and vice-president received at least five percent of the total votes cast for that office at the last preceding presidential election. A political party that qualifies as a major political party retains such status until the next presidential election at which the presidential and vice-presidential nominees of that party do not receive at least five percent of the votes cast.

Okay. Clear enough. But that's not what RCW 29A.04.086 actually says:

"Major political party" means a political party of which at least one nominee for president, vice president, United States senator, or a statewide office received at least five percent of the total vote cast at the last preceding state general election in an even-numbered year. A political party qualifying as a major political party under this section retains such status until the next even-year election at which a candidate of that party does not achieve at least five percent of the vote for one of the previously specified offices.

US Senate was the only applicable race in 2010, the preceding even-numbered year election, and for internal political reasons (both Dino Rossi and Clint Didier were afraid they would lose the state convention vote) the Republicans declined to officially nominate a candidate. In their suit, the Libertarian's accuse Reed of attempting to give the Republicans a "free pass," arguing that under established precedent "a WAC regulation cannot modify or alter a statute by interpretation." The Secretary of State's office requested legislation in the previous session to amend the RCW to match the WAC's redefinition of party status, but that bill failed. Thus concludes the Libertarian suit:

The subject WAC regulation purporting to redefine “major” and “minor” parties is therefor unlawful. A WAC regulation cannot change the definitions for “major” and “minor” political parties set out in the statute. The Republican Party is a “minor” political party for the 2012 election cycle, and has failed to qualify any presidential nominee for the 2012 general election ballot.

I'm not a lawyer, but the letter of the law is clear. Under the definition of "major" and "minor" parties in the RCW, Romney has not qualified for the ballot. Not that I expect a court to have the balls to kick him off, but technically, the law is on the Libertarian's side.