<x-flowed>I would amend Rick's discription of the Anderson-Burdick test here:

 Bruce is right that the state would not need to come forward with a strong interest, because under the Timmons/Anderson/Munro "no litmus paper" test, there would not be a significant interference with Nader's (or his supporter's) First Amendment associational rights (see Timmons), triggering deferential review.

The test is whether there is a "severe" not a "significant" infringement on associational rights.

If the state's refusal to count Nader's votes for the same electors as the Kerry electors does not impose a server burden on associational rights, then the court would decline to impose strict scrutiny, and instead use a balancing test (I haven't seen it described as a 'no litmus paper' test).

So the state would need to come up with an interest (probably preventing voter confusion or ballot clutter), and could argue that because the infringement is not severe (assessing the "character and magnitude" of the injury and the "precise interests" put forward by the state), the state's refusal to count Nader's votes for Kerry's electors is a justified infringement of the associational rights at issue.

Under this

deferential review, the state need not come forward with actual evidence to support its claim that de facto fusion undermines the two party system (see Timmons, Munro).  Therefore, the state should win.  (And how does the plenary legislative power over the rules for choosing presidential electors (see Bush v. Gore concurrence) play into this?  Does the 14th Amendment really trump Article II following Bush v. Gore?)

Wouldn't an amendment usually carry more weight than the original text? That's one puzzle about constitutional interpretation regarding democracy-related issues -- why Scalia and other Justices sometimes grant far more weight to the original political philosophy of the Founders than the political philosophy behind the democracy-related amendments.

Rick



Rick Hasen wrote:

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.)

--
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
919 South Albany Street
Los Angeles, CA  90015-1211
(213)736-1466
(213)380-3769 - fax
rick.hasen@lls.edu
http://www.lls.edu/academics/faculty/hasen.html
http://electionlawblog.org

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