Updated 1:34 p.m.
Libertarian presidential candidate Gary Johnson has filed a federal lawsuit in California against the organizers of the upcoming series of presidential debates, arguing that the political parties violated the Sherman Act by conspiring to prevent him from participating.
Johnson, the former Republican governor of New Mexico who will appear on ballots in all 50 states, does not meet the Commission on Presidential Debates requirement to have the support of at least 15 percent of the national electorate in assessments by five polling organizations selected by the commission.
Johnson's lawsuit argues the selection and timing of those polls are secretive, and that the Republican and Democratic parties conspired earlier this year to agree to rules that would restrain Johnson from participating in the electoral process.
Under those rules, only President Barack Obama and Republican nominee Mitt Romney are allowed to participate in the three debates, the first of which starts Oct. 3. Johnson is asking for a restraining order to restore a "level and honest playing field amongst those seeking the presidency."
The current arrangement violates the Sherman Act because it acts as a "restraint of trade" preventing him from the "commerce" of rendering services in exchange for the president's $400,000 salary, according to the lawsuit filed by his attorney, Paul Jensen, whose main practice in California focuses on personal injury cases.
The lawsuit is unlikely to succeed. The commission was organized as a not-for-profit corporation in the District of Columbia in 1987 that relies on private donations, and has sponsored televised debates in every presidential election since 1988, according to a response from the commission.
California attorney Erik Pritchard, on behalf of the commission, said the U.S. Court of Appeals for the Ninth Circuit rejected this argument in Sheppard v. Lee in 1991, holding that "neither the business of conducting the government nor the holding of a political office constitutes 'trade or commerce' within the meaning of the Sherman Act."
"The premise from the complaint is flatly wrong," Pritchard wrote.
Even if the injunction is granted and the commission tried to proceed with debates that included Johnson, "neither the injunction nor any law would require the major party nominees to agree to debate plaintiffs," Pritchard wrote.
"Plaintiffs make no showing that the major party nominees would agree to share the debate stage with candidates who enjoy only very modest public support," Pritchard wrote.
Jim Gray, Johnson's vice-presidential running mate and a retired superior court judge in California, will be arguing the case if the campaign is granted a hearing.
“It’s different,” Gray said, adding that the campaign believes there must be some legitimate avenue of questioning the way third-party candidates are excluded from the debates.
"It’s crucial for our campaign, as well as the American voters to be able to listen to alternatives," Gray said. "We are qualified and able and we need this lawsuit to be successful in order to show that to the American people."