This topic is monitored by Moritz Law Professor Edward B. Foley
Nader in Court: A preliminary analysis of the ballot access litigation in Pennsylvania and Michigan
The Nader/Camejo campaign is eager to get on the ballot in two states with significant union populations this November: Michigan and Pennsylvania. But the campaign is in court in both states fighting to be a presence in the upcoming presidential election.
In Michigan, the Nader campaign has filed suit in the United States District Court for the Eastern District of Michigan asking for injuctive relief directing state officials to put him on the ballot as the Reform Party candidate. In June of 2004 the chair of the Michigan Reform Party certified to the Michigan Secretary of State that Ralph Nader was the Reform Party candidate for that state. In early July, someone else claiming to be the elected chairman of the Michigan Reform Party wrote to the Secretary of State claiming that he was the head of the Michigan Reform Party and that Nader was not their candidate. The Secretary of State on July 9th communicated with all concerned by saying that since the matter is in dispute, the certification of Nader as the Reform candidate could not be accepted at that time.
In the 2000 election there had been a similar problem in Michigan with two separate branches of the Michigan Reform party – both claiming to be the legitimate representatives – differing over who was to be their candidate. This time, Nader’s claim in the Eastern District is that there is no split in the Michigan Reform Party. The national convention of the Reform Party USA in October, 2003 – in order to avoid this very eventuality and not have a repeat of the 2000 fiasco – endorsed one Michigan group as the Reform Party USA Michigan affiliate. That group is the one that endorsed Ralph Nader. Shawn O’Hara, the national chair of the Reform Party USA, has certified a letter to the Michigan Secretary of State acknowledging such.
The Secretary of State, in answer to the Nader campaign’s complaint in federal court, continues to insist that denial of certification was appropriate because it is unclear who the authorized representatives of the Reform Party of Michigan are for purposes of communicating the certification of nomination. The Nader campaign considers this a violation of their Fifth Amendment due process and liberty interests pursuant to 42 U.S.C. § 1983, as well as their First Amendment right of free association under which a nominated candidate is entitled to appear on his party’s ballot position. Beyond this, the Nader campaign claims that for another person to fraudulently use the name of the Reform Party is a violation of federal copyright laws and that person should be enjoined from doing so.
On September 30th, the Nader campaign and representatives from the Michigan Secretary of State will meet in judge’s chambers in Detroit to discuss the possibility of settlement or, alternately, the timeline of a trial.
In Pennsylvania, the Nader campaign needs 25,697 signatures to be on the ballot in November as an independent candidate; he is not seeking to be the nominee of the Reform Party in that state. The campaign claimed to have submitted more than 45,000 signatures by the deadline. But Democrat-backed attorneys from across the state have filed suit in an attempt to get the signatures thrown out. In order for a signature to count towards the total it must be made according to Pennsylvania election law, which has several very specific requirements of the signer.
On August 9th Pittsburgh attorney Efrem Grail filed a stack of petition challenges in Harrisburg in hopes that the state’s Commonwealth Court will throw many of the signatures out. These “Western Pennsylvania Petitioners” are joined in the complaint by some “Philadelphia Petitioners,” all of who claim standing as registered voters who have a direct and substantial interest in the election. Though state Democratic Party officials are not paying attorneys’ fees for the efforts of Grail, they have pitched in $3,600 for copying fees and provided some volunteers to help sift through signatures. This has allowed them to create a database containing every name the Nader campaign has filed and check them against registered voters.
Among the claims in the filing is that many of the signatures were obtained by the Nader circulators through deceit and false statements; for instance, circulators seeking signatures would tell potential signers that they were simply “confirming their voter registration.” Or the circulators would tell potential signers that signing the petition would allow them to receive their voter registration card. The complaint also alleges fraud in the form of forgery. Whole pages are alleged to contain forged signatures and, in at least two cases, the information and signatures of people who are known to be deceased. Not only does state law require very specific and accurate information from any person signing a nominating petition but the complaint cites several Pennsylvania cases that require that all information on a signed petition must have been written by the signer.
The Nader campaign recognized that many of the signatures gathered were fraudulent and claims to have discarded 7,000 of them. Answers to the complaint by the Nader campaign are expected by August 23rd with evidentiary hearings scheduled in at least four and perhaps five places around the state on September 3rd.