An Analysis of the 2004 Nader Ballot Access Federal Court Cases
Winger, Richard, Fordham Urban Law Journal
"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)
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.
I. 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. …