<x-flowed>I think Bruce's argument fails in Steps 2 and 3.
As far as step 2 is concerned, Frank Askin is right (see the post here:
http://majordomo.lls.edu/cgi-bin/lwgate/ELECTION-LAW_GL/archives/election-law_gl.archive.0405/date/article-12.html)
that Bruce's plan is de facto fusion.  Nader's intention certainly would not be to strengthen the two party system---it would be to promote Nader's ideas and to push Kerry to the left.  Moreover, the proposed Nader strategy would demonstrate that independent candidates may get serious support for president.  This demonstration could  undermine the two party system---at least given the Supreme Court's willingness to take such points on faith rather than require real evidence of what election laws could weaken the two party system.  (I've elaborate on this point in 1997 Supreme Court Review 331).

Given the plausible claim that this de facto fusion could weaken the two-party system, could state legislatures prevent two candidates from naming the same electors?  In step 3, Bruce suggests that such legislation would fail the rational basis test.  I think he's wrong.  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.  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?)

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.)