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Policing Ballot Access: Lessons From Nader's 2004 Run for President

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.

-Jackson Browne1

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 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

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

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 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 Penn...

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