While I think the two-party system is a bane in our current polity, I also
think this argument is merely an artful dodge of the central (and
wrongheaded) premise of Timmons, i.e., you can't play football with three
teams (in this case three coaches) on the field.  I think the Supreme Court
will see it that way as well, and could well compound the injury it fomented
on third parties in Timmons if it is presented with this argument.

I am frankly afraid Timmons cannot be nibbled away at the edges.  It must be
met, and ultimately overcome, head-on, as Brown ultimately overturned
Plessy.  There are some retirements coming up.  Better to wait and see, I
think.

Richard Shepard, Attorney at Law
Shepard Law Office, Inc.
818 S. Yakima Ave., #200
Tacoma, WA 98405
253-383-2235

-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu]On Behalf Of Rick Hasen
Sent: Saturday, May 08, 2004 11:40 AM
To: election-law
Cc: bruce.ackerman@yale.edu
Subject: message from Bruce Ackerman re: 2-for-1 voting

Bruce Acerkman writes:

Dear List-servers:

Here is the sketch of the constitutional argument that was behind my NYT
op-ed on Nader. Unfortunately, I'm going away on a trip, but I will try
to get on the list-serve as soon as I can [Bruce has since been added to
the list---Rick], since i'm sure that I'd profit greatly from your
reactions. I hope the sketch isn't too cryptic - it's in the form of a
three step argument:

Step one.
It is unconstitutional to deny Nader a place on the ballot simply
because he refuses to commit his slate to vote for himself.
 This is the flip of the problem posed in the Supreme Court's decision
in Ray, and for reasons in Jackson's dissent, it poses a very easy case.

Step two.
It is unconstitutional to deny Nader the right to name the Democratic
Party electors. In contrast to Timmons, this does not weaken the two
party system. Nader is not seeking to promote a third party, but is an
independent candidate. He is strengthening the role of the Dem Party,
not weakening it.

Step three.
Given steps one and two, a state's refusal to cumulate the votes for
Nader-Kerry electors fails the rational basis test under the Fourteenth
Amendment. The only plausible interests for such a state decision have
been eliminated by steps one and two. Indeed, something more substantial
than a rational basis test should be required, given the Nader
Campaign's First Amendment rights to define their political objectives.
(This First Amendment  interest was recognized in Timmons, but was
outweighed by the state's interest in a two party system, which is not
relevant in this case. See step 2.)