An analysis of the 2004 Nader ballot access federal court cases.

• Author: Winger, Richard

"In America, it is vital that every vote count and that every vote be counted." John Kerry, concession speech of November 3, 2004. (1)

"Be it further resolved that: The Democratic Party of the United States recognizes the right to vote as the most fundamental of all rights in our democracy. And no duty of the Party is more important than protecting the sanctity of this right." Resolution passed by the 1984 Democratic National Convention.

"It is to be expected that a voter hopes to find on the ballot a candidate who comes near to reflecting his policy preferences on contemporary issues." (2)

INTRODUCTION

Beginning in 1968, federal courts have generally protected the ability of voters to cast votes for minor party and presidential candidates if those candidates were significant enough to obtain regular coverage by major daily newspapers and national television networks. George Wallace, Eugene McCarthy, John B. Anderson, Ross Perot, and Ralph Nader (in 2000) were all placed on the ballot of various states by federal court injunctions, as this Article will show. (3) However, in 2004, Ralph Nader failed to get injunctive relief from any federal court in his eight federal ballot access or vote-counting cases, which were filed against certain election officials in Arizona, Hawaii, Illinois, North Carolina (two cases), Ohio (two cases), and Texas. This Article discusses each of Nader's 2004 federal ballot access cases. (4) These cases are grouped by issue: a) whether a state petition deadline is unconstitutionally early; b) whether a state requirement concerning the number of signatures is discriminatory; c) whether a state restriction on who can circulate a petition is unconstitutionally restrictive; and d) miscellaneous other issues. This Article concludes that Nader's 2004 federal ballot access cases had merit, and that the federal courts which heard these cases defied precedent, and made errors of both fact and law when they denied relief to voters who wished to vote for Nader. This Article's conclusion also shows that denial of injunctive relief completely disenfranchised tens of thousands of voters in the presidential election.

1. NADER'S INABILITY TO WIN INJUNCTIVE RELIEF FROM FEDERAL COURTS

   Ever since 1968, when the Supreme Court ordered Ohio to place George Wallace's name on its presidential ballot, (5) the federal courts have protected ballot access for whichever minor party or independent presidential candidate was running third, if the candidate was prominently mentioned in the news media and needed help from courts to get on ballots. (6) In 1976, federal courts, including the Supreme Court itself, issued injunctions requiring ten states (Delaware, (7) Florida, (8) Illinois, (9) Kansas, (10) Louisiana, (11) Michigan, (12) Missouri, (13) Nebraska, (14) Texas, (15) and Vermont) (16) to list Eugene McCarthy on November ballots. In 1980, federal courts issued injunctions requiring eight states (Florida, (17) Georgia, (18) Kentucky, (19) Maine, (20) Maryland, (21) New Mexico, (22) North Carolina, (23) and Ohio (24)) to list John B. Anderson and his running mate on their ballots. In 1992, independent candidate Ross Perot attained ballot status in all fifty states without needing to sue any state elections officials. In 1996, federal courts ruled in favor of ballot access (in time for the election) for Ross Perot's Reform Party and its national ticket in Arkansas, (25) Florida, (26) and Maine. (27) In 2000, Nader won injunctions in federal court putting him on the ballot in Illinois (28) and West Virginia. (29) Also in 2000, he won declaratory, but not injunctive relief, in South Dakota. (30)

   In stark contrast, in 2004 Nader sought but failed to get injunctive relief from lower federal courts in six states: Arizona, (31) Hawaii, (32) Illinois, (33) North Carolina, (34) Ohio, (35) and Texas. (36) He also failed to obtain injunctive relief from the Supreme Court in Ohio, (37) Oregon, (38) and Pennsylvania, (39) in appeals from adverse decisions of federal and state courts. Justice Stephen Breyer was the only federal judge who gave Nader's ballot access any support whatsoever, and cast the sole vote on that Court to grant injunctive relief to Nader in Oregon. (40) Nader's ballot access cases were in front of the entire Seventh Circuit, (41) three judges in the Ninth Circuit, (42) three judges in the Sixth Circuit, (43) three judges in the Fifth Circuit, (44) and eight district court judges. (45)

   At this point, the reader may wonder if perhaps the Nader ballot access cases of 2004 lacked merit. Despite suggestions to the contrary, Nader's 2004 federal ballot access cases enjoyed considerable merit. This Article will attempt to show that the decisions of federal courts in 2004 to deny Nader injunctive relief violated legal precedent, committed serious factual errors, and were of poor quality. In sharp contrast to the behavior of federal courts in the 2004 Nader cases, state courts ruled in favor of ballot access for Nader in eleven states: Arkansas, Colorado, Florida, Maine, Maryland, Michigan, Nevada, New Mexico, Washington, West Virginia, and Wisconsin. (46) Nader failed to obtain injunctive relief in state court in only five states: Hawaii, (47) Illinois, (48) Ohio, (49) Oregon, (50) and Pennsylvania. (51)

2. NADER'S CASES AGAINST Too-EARLY PETITION DEADLINES

   In 1983, the Supreme Court ruled in Anderson v. Celebrezze (52) that early petition deadlines for non-major party presidential candidates are unconstitutional. Part II of that decision discusses the injury to voting rights imposed by such deadlines; Part III discusses the state interests in an early deadline. Applying a balancing test, the decision concludes that the harm done to voting rights by early petition deadlines is substantial, whereas the harm done to state interests by a later deadline is not substantial. (53)

   The Court depended on American history for its conclusion that voting rights are substantially infringed by early deadlines, and quoted extensively from historian Alexander Bickel. (54) Throughout America's history, voters dissatisfied with the major party national nominees and platforms have transferred their interest and support to new parties and independent candidates. The Republican Party was formed on July 6, 1854, (55) in response to the Kansas-Nebraska Act having been signed into law in May 1854. (56) The Progressive Party of 1912 was not organized until August, (57) after Theodore Roosevelt had been denied the Republican Party nomination in June. (58) Independent Progressive candidate Robert La Follette did not decide to run for president until July 4, 1924, after it became apparent that the Democratic Party national convention was not going to nominate William G. McAdoo, the favorite candidate of the progressive movement that year. (59) Strom Thurmond did not decide to run for president until mid-July 1948, after the Democratic national convention passed a Civil Rights plank. (60)

   Starting in 1972, most states provided the Democratic and Republican Parties with their own presidential primaries, and it became common for the identity of major party presidential nominees to be predictable by April (as of 1980), (61) and even by March (by 1988). (62) It continued to be true, however, that major party vice-presidential nominees, and party platforms, were often not known until the July and August, national party conventions. Even in 2004, the Democratic vice-presidential candidate was not known until July 6, when John Kerry announced that his choice would be John Edwards. (63) Also, the Democratic Party's position on the Iraq war was unclear until its national convention, held July 26-29. Therefore, the logic employed in Anderson v. Celebrezze continued to be valid, even into 2004.

   By 1988, all states except Texas had moved their petition deadlines for non-major party presidential candidates to the months of July, August or September. (64) Texas's petition deadlines for new parties and independents had been in July, or even later, since that state had first created government-printed ballots in 1903. (65) In 1986, however, the state had moved its first primary from May to March. (66) This had the indirect effect of moving the new party petition deadline to late May, and the independent petition to early May. This is because the Texas deadline law was worded in terms of a specified number of days after the primary. By contrast, most states wrote their laws in terms of a specified number of days prior to the November election. With all other states having their deadlines in July, August, or September, it seemed obvious that Texas's newly created May deadline was not only sharply deviant from the remainder of the nation, but probably unconstitutional as well. If Texas had had such an early deadline in 1948, for example, Strom Thurmond could not have gained a place on the ballot, and the 9.1% of Texas voters who voted for him (67) would have had to resort to casting a write-in vote.

   In the period 1988-2000, however, no independent presidential candidate sued Texas over its May petition deadline. No independent presidential candidate attempted to qualify in Texas in 1988. Ross Perot qualified as an independent in Texas in 1992 and 1996, and Pat Buchanan qualified in 2000. Ross Perot had launched his first presidential bid on February 20, 1992, (68) and had such huge popularity that spring that he was able to comply with the May deadline. Pat Buchanan had launched his Reform/independent bid on October, 25, 1999, (69) and since he received $4,022,171 in primary season matching funds during the period January through August 2000, (70) he was able to hire paid circulators to complete his Texas petition by the early May deadline.

   In 1993, Arizona moved its independent petition deadline from September to June. (71) The Arizona primary continued to be in mid-September, (72) so it was obvious that the June deadline was not needed for...