<x-flowed>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.)


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