At one point in this year's Libertarian National Convention, delegates were offered the choice of only one presidential candidate to vote for, versus effectively shutting down the party. That should never happen again.
by George J. Dance
Last weekend I watched some of the Libertarian National Convention on C-SPAN. Political junkie that I am, I was mostly interested in the race for presidential nominee, and was able to tune in during the sixth round of voting, between the last two candidates still on the ballot, Michael Rectenwald (the candidate endorsed by the Mises Caucus [LPMC]) and Chase Oliver (a candidate who had campaigned against the LPMC). During the voting, I got to witness the concession speech of Mike ter Maat, who had been eliminated on the previous ballot, and his attention-grabbing announcement that he was endorsing Oliver and had agreed to be his running mate.
High drama indeed, but what followed was more dramatic still: when the votes were counted, Oliver had pulled into first place, winning over 49%% of the vote; Rectenwald, who had led on every previous ballot, had fallen to second place with 44%; and None of the Above (NOTA) trailed with 44 votes. Thanks to those 44 votes, no candidate had received a majority, and another ballot would be necessary. As Chair Angela McCarcle said, it was a situation seemingly without precedent.
The events reminded me of my last convention as Ontario Libertarian Party chairman, in 2008. At that convention Sam Apelbaum, who had served as Party Leader for more than a decade, was being challenged by long-time party activist and officer Jean-Serge Brisson. Both had high profiles in the provincial party. Both were also long-time friends of mine, so I scrupulously tried to stay neutral. To make a long story short, the penultimate ballot had a similar result: Brisson was ahead, but short of a majority; Apelbaum was slightly behind; and NOTA made up the rear. Following the customary procedure, I ruled that Apelbaum would be dropped, and there would be one more ballot between Brisson and NOTA.
The convention exploded; I had most of the room yelling at me to reverse my decision, and to drop the lowest vote-getter (NOTA) instead. The overwhelming consensus was to not to have a ballot with just one candidate, but a final NOTA-less showdown between the leading candidates. Even Brisson agreed with that: he wanted to win, but not that way; he preferred to fight a head-to-head two-man race, and risk losing, rather than win by having his rival removed from the ballot.
I agreed, too, but I refused to reverse my ruling. Instead, I asked the delegates to overrule it by a two-thirds vote. A two-thirds vote would make it clear that this departure from precedent was the will of the convention (and therefore the will of the party), not simply my own; and would be a decision that would not likely be questioned later (as supporters of both candidates would have voted for it). I even wrote the motion: "To overrule the decision of the chair, suspend the rules, and remove None of the Above from the next ballot."
That motion was so moved and seconded, and passed overwhelmingly. So the final ballot was a showdown between the two candidates, which Apelbaum narrowly won. That's right: the candidate who would have been eliminated, had we kept NOTA, actually won the vote in a fair contest. So the ruling made a difference to who became leader. More importantly, though, it led to a result that everyone in the room accepted, and no one ever disputed then or later.
The situation I was watching was uncannily familiar. Once again, Chair McArdle made the same ruling as I did: to drop the candidate running second (Rectenwald). and have a final ballot between the leading candidate (Oliver) and NOTA. Once again, there were copious objections. Some were concerned that, if NOTA won, the party would be unable to run a candidate for POTUS at all. Others demanded that, to save time, Oliver be acclaimed without a vote. But no one suggested the solution we had used in 2008, to drop the lowest vote-getter (NOTA) and have a final runoff ballot between Oliver and Rectenwald. It never even came up.
Why not? At the time, I assumed it was because of a party bylaw dictating that NOTA would always be on the ballot. I even tweeted to that effect. However, I have learned not to assume things; so I decided to look up the relevant text in the LP's 2020 Bylaws and Convention Rules (as amended in 2022). What I found surprised me. There were only three mentions of NOTA, one in the Bylaws and two in the Convention Rules. The one in Article 10, Section 7, of the Bylaws said:
7. Votes cast for "None of the Above" in voting on the Party's nominees for President and Vice President, the Party officers, and at-large members of the National Committee, shall be considered valid. Should a majority of the votes be cast for "None of the Above" in the Presidential or Vice-Presidential balloting, no candidate shall be nominated for that office. Should "None of the Above" be selected for any Party office, that position shall be declared vacant and none of the losing candidates for that position may be selected to fill the vacancy for that term of office.
The above section explains what happens should NOTA win a majority. It also declares that votes for NOTA shall always "be considered valid". Which does not mean that NOTA must appear on the ballot; it means that if NOTA receives votes, even as a write-in, those must be counted. Since the party counts all votes cast, including write-ins, that should not be an issue.
The Convention Rules contain two mentions of NOTA. The first is irrelevant, but it is best to quote it for completeness.
RULE 7: NOMINATION OF PRESIDENTIAL AND VICE-PRESIDENTIAL CANDIDATES
A delegate who collects the required number of nominating tokens so designated may speak up to 5 minutes in favor of voting for None Of The Above.
The second mention of NOTA in the rules, on the other hand, is directly relevant.
RULE 8: ELECTION OF OFFICERS AND NATIONAL COMMITTEE
2a. Each delegate may cast a ballot with a vote for either none-of-the-above or one vote per candidate for any number of candidates. Every ballot with a vote for none-of-the-above or one or more candidates is counted as one ballot cast. A vote for none-of-the-above shall be ignored if the ballot also includes a vote for any other candidate.
Here at last is a requirement that NOTA appear on every ballot. Notice, though, that it applies only to the election of Officers and National Committee members. The nominees are neither Officers nor members of the National Committee (which is why they are treated separately in the Bylaws). The distinction is not merely semantic. If NOTA wins a majority vote for an Officer or National Committee position, that results in a vacancy; and the National Committee has the power to fill such vacancies later. In contrast, if NOTA wins a vote for either POTUS or VPOTUS, then "no candidate shall be nominated for that office," period.
Imagine, then, if NOTA had won on the seventh ballot. It would mean the national party could not run a POTUS candidate in 2024. State parties could nominate slates of electors pledged to a candidate, in effect making an endorsement; but the national LP would have to sit this year out. They would not be able to pay for any more ballot access petitioning, for example. In some states where the POTUS candidate did not appear on the ballot, lower-level candidates would also lose their ballot access. As well, the LP would lose almost all of its present ballot access for 2028 and have to start again at zero. In effect, a majority vote for NOTA on that ballot could well have shut down the LP. Delegates were being offered the choice of only one candidate they could vote for, versus effectively shutting down the party.
So why did more than a third of the convention delegates vote for NOTA on that ballot? Some may have been simply voting against Oliver; after all, by making the deal with ter Maat, he broke his word to his own promised running mate. (Mike ter Maat, too, has been accused of breaking his word, though I have no details on that.) Others might have done so to protest the idea of a one-candidate election. I would speculate, though, that by far the majority of NOTA voters were LPMC members who would have voted for Rectenwald had they not been denied that option. They probably would still have lost (Oliver was only a few votes from a majority), but at least they would have lost in a fair fight rather than by their candidate being yanked off the ballot.
So, again, why was NOTA left on the ballot and Rectenwald removed? The answer appears to be simply that the option we used in 2008 – eliminating NOTA and leaving the two candidates to fight it out – never occurred to McCardle. Nor did anyone else communicate the idea. Given the context, with McArdle being continually bombarded with parliamentary points of order and privilege and the like, I can see how both could have happened. With the balloting already running hours late, everyone was tired, and not interested in dragging it out further.
In any case, it is water under the bridge; that should never have happened, but it did. Oliver is now the nominated candidate, and the bad blood from the circumstances of his nomination has already been spilled. However, if the LP survives this campaign year intact, it will by definition be as polarized as ever, meaning that the same situation may well occur in 2028 and beyond. It happened once, but it should never happen again. I wanted to get the solution on record; while I doubt many people will read this, if I did not write it no one would ever read it.
In elections for POTUS or VPOTUS nominee, convention delegates can remove NOTA from the ballot by a supermajority. And, to prevent one-candidate ballots and the risk of a nominee not being selected, that power should be acknowledged and exercised.
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