CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 4/3/2023 1

Sore Loser on Ballot 

Libertarian Party of Michigan v. Johnson 

(Paul D. Borman, E.D. Mich. 2:12-cv-12782) 

On June 25, 2012, the Libertarian candidate for President filed a 

federal complaint challenging application of Michigan’s sore-loser 

statute to disqualify him from the general-election ballot because he 

withdrew from the Republican primary election three minutes late. 

After Michigan responded to the complaint with a motion to dismiss it, the candidate filed a motion for summary judgment. He 

filed a motion to expedite judgment on August 19. Observing that 

the candidate had known since May that he would be excluded 

from the ballot, the district court also concluded that the complaint 

should be dismissed on the merits. In 2013, the court of appeals 

agreed. 

Subject: Getting on the ballot. Topics: Getting on the ballot; 

intervention; laches. 

On June 25, 2012, the Libertarian candidate for President filed a federal 

complaint in the Eastern District of Michigan seeking an injunction placing 

him on the general-election ballot.1 He alleged that his missing by three 

minutes the deadline to withdraw his name from the Republican primaryelection ballot and improper enforcement of Michigan’s sore-loser statute by 

Michigan’s secretary of state would deprive him of his place on the ballot.2

The party and its chair also were plaintiffs.3

The secretary filed a motion to dismiss the complaint on July 31.4

 Two 

days later, the plaintiffs filed a motion for summary judgment.5 On August 

19, the plaintiffs filed a motion to expedite summary judgment.6 Ten days 

later, Judge Paul D. Borman set a telephone conference for the following 

day.7 Judge Borman then decided to hear the pending motions on September 

6.8

1. Complaint, Libertarian Party of Mich. v. Johnson, No. 2:12-cv-12782 (E.D. Mich. June 

25, 2012), D.E. 1. 

2. Id. at 3–7; see Mich. Comp. Laws § 168.695 (“No person whose name was printed or 

placed on the primary ballots or voting machines as a candidate for nomination on the primary ballots of 1 political party shall be eligible as a candidate of any other political party at 

the election following that primary.”); see also Libertarian Party of Mich. v. Johnson, 714 

F.3d 929, 930 (6th Cir. 2013); Libertarian Party of Mich. v. Johnson, 905 F. Supp. 2d 751, 755 

(E.D. Mich. 2012) (“Gary Johnson never challenged, or took any legal action to reverse the 

Secretary of State’s decision refusing his untimely request to remove his name from the 

Michigan primary ballot as a Republican party presidential candidate.”). 

3. Complaint, supra note 1, at 1–3. 

4. Motion to Dismiss, Libertarian Party of Mich., No. 2:12-cv-12782 (E.D. Mich. July 31, 

2012), D.E. 4. 

5. Summary Judgment Motion, id. (Aug. 2, 2012), D.E. 6. 

6. Motion to Expedite, id. (Aug. 19, 2012), D.E. 9. 

7. Transcript, id. (Aug. 30, 2012, filed Sept. 4, 2012), D.E. 18; Docket Sheet, id. (June 25, 

2012). 
Sore Loser on Ballot 

2 Federal Judicial Center 4/3/2023 

On September 4, the Republican Party moved to intervene in opposition 

to the complaint.9

 Judge Borman granted intervention on September 5.10 In a 

twenty-five-page opinion issued on September 7, he granted motions to dismiss the complaint, concluding that although the statute’s burden on associational rights was not trivial, neither was it severe.11

Plaintiffs’ dilatory conduct in this action has put the Court and the Defendant Secretary of State in an unnecessarily haste-driven position. The Court 

put on the record at the September 6, 2012 hearing on this matter its findings regarding Defendant Ruth Johnson’s claim that Plaintiffs’ motion for 

an expedited hearing on the merits of this matter should have been denied 

on the basis of laches. Although the Court has decided, given the importance of the issue to reach the merits, Plaintiffs’ failure to act with any 

sense of urgency in this matter until August 19, 2012 is reprehensible. Plaintiffs were well aware, as early as May 3, 2012, that [the candidate] would be 

denied general election ballot access in Michigan, but waited until June 25, 

2012 to file their Complaint, further waited until July 18, 2012 to serve the 

Defendant, further waited until August 2, 2012 to file their non-emergency 

motion for summary judgment, and vexatiously waited until August 19, 

2012 to apprise the Court that their motion was of an urgent nature.12

On September 12, the court of appeals denied the plaintiffs an emergency 

injunction.13 On September 19, the Supreme Court also denied the plaintiffs 

an injunction.14 The court of appeals affirmed Judge Borman’s ruling on May 

1, 2013.15

Tim Reagan interviewed Judge Borman for this report by telephone on November 9, 

2012. 

8. Notice, Libertarian Party of Mich., No. 2:12-cv-12782 (E.D. Mich. Aug. 30, 2012), 

D.E. 15. 

9. Intervention Motion, id. (Sept. 4, 2012), D.E. 20; Motion to Dismiss, id. (Sept. 4, 2012), 

D.E. 21. 

10. Order, id. (Sept. 5, 2012), D.E. 23. 

11. Id. at 12, 23–24; Libertarian Party of Mich. v. Johnson, 714 F.3d 929, 931 (6th Cir. 

2013). 

12. Libertarian Party of Mich. v. Johnson, 905 F. Supp. 2d 751, 754 n.2 (E.D. Mich. 2012). 

Research on other states’ sore-loser statutes was an important factor in the demands on 

the court’s time. Interview with Hon. Paul D. Borman, Nov. 9, 2012. 

13. Order, Libertarian Party of Mich. v. Johnson, No. 12-2153 (6th Cir. Sept. 12, 2012); 

Libertarian Party of Mich., 714 F.3d at 931. 

14. Libertarian Party of Mich. v. Johnson, 567 U.S. 966 (2012). 

15. Libertarian Party of Mich., 714 F.3d 929, cert. denied, 571 U.S. 1110 (2013). 

The district court thoroughly and correctly evaluated the arguments of the parties 

on the merits. After reviewing the record, the parties’ briefs, and the applicable law, we 

determine that no jurisprudential purpose would be served by a panel opinion on the 

merits. Therefore, we affirm the district court’s judgment for the reasons stated in its 

September 10, 2012 opinion and order. 

Id. at 932.