I acted as co-counsel for the Nader campaign in Ohio during the 2004 election controversy described below. See infra notes 102-83 and accompanying text. I thank Capital University for providing a summer research grant that helped fund this article and for hosting a workshop on the article's merits. I also thank the law faculty at the University of Oklahoma for patiently hearing and questioning my thesis. Special thanks go to Theresa Amato, Michael Cassidy, Richard Winger, and the law review staff at Capital Univeristy. All errors remain my own.
Running on, running on empty Running on, running blind Running on, running into the sun,
But I'm running behind.
Ralph Nader was this country's "third" presidential candidate in 2000.2He won more than six times the number of votes polled by any other minor contender.3 Nader's anticipated electoral draw-he won approximately 3% nationally4-was coveted by Democrats and Republicans alike. In the end, Nader's draw ostensibly redounded to the benefit of George W. Bush, who prevailed in Florida by a paltry 537 votes.5 Had Nader not run, Democrats argued, Gore would have won Florida and the White House.6
Nader's 2000 campaign was a qualified success. He did not win- indeed, he did not even run a close third7-but his campaign played a Page 164 critical part in the presidential election. If the Democratic Party is believed, Nader altered the outcome.8 Even if he did not change the result, Nader's campaign injected enough political dialogue and electoral uncertainty to make the election interesting. Short of winning, a non-major presidential candidate could not ask for much more.
Nader attempted to build on his political capital in 2004 by running for President again.9 Because his early poll numbers-ranging from 2%10 to 5%11-mirrored his 2000 tallies,12 it was clear that Nader would again be the third candidate in a two-party race. How many states he would run in and how many votes he could win were two lingering questions. Sufficient numbers in either category could again threaten the presidential outcome. Ignoring Nader would be at the major parties' peril.
Measured against his 2000 showing, Nader's 2004 campaign was not successful. Although Nader again finished first among the "minor" presidential candidates,13 he collected far fewer votes in 2004-less than 1% of the total number cast14-than he did in the previous election.15 His presence did not even pretend to threaten the outcome in any state.16 Page 165
Unlike his run in 2000, the major parties confidently ignored Nader's 2004 campaign by the time of the election.17 Everyone knew that Nader would not play a part in picking the next President on Election Day.18
Where did Nader's 2004 campaign go wrong? His initial poll numbers did not differ markedly from the percentages he won in 2000.19 His grass roots campaign machinery was basically the same,20 as was his campaign rhetoric.21 He clearly remained the country's most popular non-major candidate.22 Page 166
The answer to this question is no secret. Nader's 2000 campaign encountered no organized resistance on behalf of the major parties.23Nader appeared on ballots in forty-three states and the District of Columbia.24 As an official candidate, Nader's meager tallies became quite meaningful, especially in swing states like Florida.25 In contrast, Nader encountered massive Democratic resistance in 2004, but not in the voting booth; rather, Democrats took Nader to court.26 Democrats engaged in a coordinated campaign to remove Nader's name from state ballots through what can best be described as "kitchen sink" legal arguments.27 In three of the closest and most important battleground states28-Ohio, Oregon, and Pennsylvania29-the Democratic Party succeeded in ousting Nader from Page 167 the presidential election ballot.30 Just as effectively, the Democratic strategy drained the Nader campaign of time, energy, and resources.31 In the end, Nader was excluded from ballots in sixteen states.32
Organized efforts to deny candidates ballot space are not new. In 1980, Democrats pursued a similar path in their attempt to purge John Anderson's name from the presidential ballot.33 What was unique about Nader's 2004 experience was the Democrats' success: they not only tried to keep Nader off the ballot, they succeeded.34 Contrary to Anderson's experience in 1980, Nader lost every one of the federal ballot access challenges he filed in 2004.35 In addition, he lost most of his state court challenges, including those filed in Hawaii, Illinois, Ohio, Oregon, and Pennsylvania.36
Nader's 2004 experience is thus unique among modern presidential contests. Since George Wallace's run for the White House in 1968,37 Page 168"serious" minor candidates-those running third in national popularity polls and pulling significant media coverage-have regularly gained access to America's presidential ballots.38 Richard Winger, editor of Ballot Access News, reported that (in addition to Wallace) Eugene McCarthy in 1976,39 John Anderson in 1980,40 and Ross Perot in 199241 and 1996,42were all able-albeit with judicial assistance-to qualify for America's presidential ballot.43 Even the 2000 Nader campaign won relief in federal court.44
This Article attempts to sort through the legal ramifications of Nader's 2004 presidential campaign. Armed with the assumption that a government-mandated political duopoly is both bad republicanism and unconstitutional, I argue that ballot qualification processes must be insulated (as best as possible) from gerrymandering by the two major parties. Putting aside the deadlines and signature requirements constructed by the major parties-demands that Nader routinely met in 200445-my thesis here is procedural: deny the two major parties any formal role in the candidate qualification process.
Conventional wisdom in Democratic and Republican circles claims that America's political duopoly adequately markets diverse ideologies.46Competition between the two major parties,47 dynamic discussion within Page 169 the parties' ranks,48 political primaries,49 party adaptability,50 and federalism51 join to insure that most worthy ideas are aired.52 Additional parties are thus redundant, unnecessary, and irksome.
The assumptions supporting this position may be conventional, but they are grossly overstated. Far from facilitating a robust marketplace of ideas, America's two-party system often suppresses meaningful discussion.53 Party majorities (either in terms of numbers or power) often silence dissident voices with promises and penalties; sacred beliefs are preserved and taboo topics are squelched in the name of party loyalty.54Professor Steven Pinker describes the dynamics:
In maintaining our most precious relationships, it is not enough to say and do the right thing. We have to show that our heart is in the right place and that we don't weigh the costs and benefits of selling out those who trust us. . . .
Sacred and tabooed beliefs also work as membership badges in coalitions. To believe something with a perfect Page 170 faith, to be incapable of apostasy, is a sign of fidelity to the group and loyalty to the cause.55
Even though party fidelity undoubtedly has value,56 it comes with a price: "[T]he psychology of taboo is incompatible with the ideal of scholarship, which is that any idea is worth thinking about, if only to determine whether it is wrong."57
With multiple parties bartering in the political marketplace, trading curiosity for fidelity would not be nearly as debilitating. Assuming one can find a party (or candidate) sympathetic to her views, she can switch her allegiance.58 Fewer organizational choices means a reduction in the odds of debating taboo ideas. A one-party system presents the worst possible scenario for free thought; a two-party system runs a close second. I am not asserting that bartering over ideas does not occur within the major parties: some measure of free and pluralistic thinking certainly occurs.59 Still, competition between ideas will be less fierce in a two-party system than a three-party system, just as competition in a one-party system will lag behind that in a two-party system. Should the two major parties agree on taboos,60 moreover, dissidents will have nowhere to go,61 which must further limit meaningful debate.62 Page 171
The 2004 election cycle offers several illustrations, ranging from the military invasion of Iraq63 to political invocations of the deity.64 Two examples that caught my eye in 2004 (because I teach Constitutional Law) were same-sex marriage and the criminalization of marijuana possession.
Same-sex marriage emerged in the nation's headlines (and the President's 2004 State of the Union Address)65 following the Page 172Massachusetts Supreme Judicial Court's 2003 decision in Goodridge v. Department of Public Health.
The federal government's regulation of marijuana...