We all like to win. It feels good and in the case of politics, it can feel so deeply right; on the other hand, losing can hurl one into a catatonic depression. Is an election worth winning at any cost? As citizens, we would rather not have to worry about this question; but, certain conditions over the last eight years have forced us to, whether it is because of missing ballots, disenfranchised voters, faulty touch screens, questionable backend voting software, or in the case of this story, obstructive lawsuits.
Many forces gathered to select George W. Bush as President in 2000; the nonchalant attitude about taking Florida even before the first vote count was in should be enough cause for serious scrutiny of all subsequent elections. This article does not address the less than virtuous strategies that Republican champions and their foot soldiers use throughout the course of a campaign or election. That will endure its own article.
Instead, it is about the right of an individual to run for office and the power held by the two-party system to stop that potential candidate.
In 2001, when power broker Terry McAuliffe took the reigns as Chairman of the DNC, the party had hit bottom, he told Washington Post reporter Thomas Edsall. “This party was demoralized in 2001." said McAullife. "People were madder than heck at the party. 'Why did we allow this to happen?' and 'Why didn't we fight harder?' . . . We went through a very tough time in 2002 after the midterm election."
He said “It was one of the darkest times in our party."
McAuliffe, or the Dem's "Comeback Kid", was returning to a high-ranking position in the center of the Democratic Party after a period of scandal over financial deals with political consequences. As the biggest fundraiser in the party, he intended to fully reclaim his power broker position with the Clintons at hand. He would devise a strategy to take back the White House and fiscally position the Democratic Party for the next 25 years. Desperate times call for desperate measures. DNC leaders committed to secure a win of the White House for the Democrats and specifically John Kerry. This effort included targeting several campaigns, including Al Gore's, as well as the other thorn in McAuliffe's side, Ralph Nader.
At the time, Nader was continuing to rankle the feathers of the Democratic Party by referring to the Democrats and the Republicans as “Tweedle-Dee” and “Tweedle-Dumb”, a sharp critique that stung the former more than the latter. Democrats resented Nader’s homogenization of the two-major parties; they recognized enormous differences between its policies and platform and that of the Republicans.
However, from Nader’s perspective, the Democrats nursed on corporate funds for its campaigns and had become too cautious and unimaginative to form a critical campaign against Bush. Nader had assured the Democratic candidate John Kerry that he would resist running if Kerry would take up at least three of his core issues. However, as the 2004 campaign continued, Kerry pursued a pro-war platform that failed to carry any of Nader's issues to the table or people. Nader felt compelled to run.
Private appeals from McAuliffe failed to dissuade Nader from running and a pre-planned attack on the Nader campaign ensued. His petitioners were harrassed by private investigators and intimidating letters were sent to discourage Nader volunteers, claiming that they would be held on felony charges if their signatures were proven false. After turning in the ballot petitions, the DNC, through operatives, besieged the Nader campaign with a suite of 24 lawsuits in 18 states and 5 FEC complaints, initiated within a 12 week period.
While many of the cases and all the FEC complaints were dismissed, the unfounded suits did succeed in bankrupting and exhausting the resources of the campaign and forced Nader and running mate, Peter Camejo off five state ballots. Assisted by the corporate media, the continuing tar and feathering of Nader as “spoiler” has done immense harm to his public reputation , though Nader himself seems to bare the dent in his armour well.
Pennsylvania is home to the most egregious lawsuit, where, aside from getting kicked off the ballot, the court, without legal precedent, charged a heavy personal legal fee of $82,000 for administration costs of counting signatures to Nader and Camejo. No court has ever allowed the legal fees of the plaintiff to be passed along to a candidate before; it set a dangerous precedent for third party candidates who are generally campaigning on little to no dollars. Additionally, the Pennsylvania legislature has increased the number of signatures required for a third party or Independent candidate up from 27,000 to 67,000 while the Democrats and Republicans are still only required to collect 2000. As each signature costs about a dollar to collect by an independent contractor, this puts the third party and independent candidates at a significant disadvantage.
The fundamental unfairness of such extreme differences in ballot access should shock us, yet it gets little media attention. Even in Naomi Wolf’s recent book “10 Steps Towards Fascism”, ballot access does not emerge as a step towards shutting down our democracy because it happens so invisibly, before dissenting voices can enter the electoral system for public consideration.
Petitions to appear on the ballot have been attacked before, but nothing like what happened to Nader in 2004, according to Richard Winger, editor of Ballot Access News. Winger, a political scientist, has been closely observing ballot access issues for over 40 years.
“The Democratic Party tried to keep various minor party and independent presidential candidates off at least a few ballots in 1936, 1948, 1976, 1980...but in 4 cases, the targeted candidate never ran for president again.,” Winger said. “Nader's treatment in 2004 was uniquely bad.”
Nader has spent the better part of the last two years recruiting a pro-bono lawyer staff in preparation for his 2008 run. His bold parry? A surprise countersuit against the DNC, the Kerry/Edwards campaign and Kerry personally, in which Nader claims that leaders within the DNC used malicious and frivolous law suits to obstruct his 2004 campaign.
Hall remembers hearing about the DNC led ballot access lawsuits as they began. He felt shocked that a major party used legal maneuvers to attack an individual candidate. He said that the media failed to cover the details of the story. "It’s been a disappointment to me. I work for Ralph Nader. I obviously have a perspective. But look, the facts are out there, if you can’t report that, then there’s a problem." He continued, "It’s really remarkable that every major newspaper covered the story but almost none of them broached the subject."
The point of the counter suit is not so much about extracting money from the DNC leaders, though Nader would put rewards toward fighting for a reasonable nationalized federal ballot access law for third parties and independent candidates. Nader would also return to Peter Camejo, his 2004 running mate the $20,000 portion of the legal fees levied against the campaign. The point of this lawsuit is to bring this issue of ballot access up at a time when his Presidential run provides some spotlight in the mainstream media and helps shield the 2008 campaign from refreshed attacks and there is still time for the Democrats to implement electoral solutions to the "spoiler" effect, like Instant Runoff Voting, an electoral system that allows the voter to rank their votes and thereby reduce the effects of the winner-take-all, less of two-evils system currently in place.
This case is currently being considered by a judge in the Washington DC District Court. “But there's no telling how long that will take,” said Hall. “The status is, we filed the complaint, the defendants filed motions to dismiss (mainly arguing that we failed to state a claim upon which relief can be granted), we have opposed those motions, and now the judge has to rule.”
“It’s too late, and too little,” said McAuliffe’s lawyer, John H. Young, who asked the judge to dismiss the case on the grounds that, as the election was over, the case was moot. He argued that the case had gone beyond the statute of limitations and should be dismissed.
Nader’s lawyer, Hall said the statute of limitations should not apply because the defendants conspired beyond the 2004 election to conceal their role in keeping Nader off the ballot. It was not until after the elections, Hall said, that Nader learned about the loose relationship between the Democratic Party and lawyers working with the Ballot Project Inc., an organization directed by Raikin that was formed to keep Nader off state ballots in 2004.
Young said that in the heated atmosphere of the general election it was ridiculous to think that the efforts to neutralize Nader were concealed; the frivolous lawsuits were merely a tactical means to a practical end.
Winger said, “The fact that Peter Camejo did pay over $20,000 to the people who challenged the Nader-Camejo petition in 2004 keeps the Democrats from saying Nader and people associated with his 2004 campaign haven't suffered any concrete harm. I think it will go to trial.”
On April 5, 2008, Hall filed a federal civil rights claims supported by newly discovered evidence that employees of the state of Pennsylvania participated in the DNC leadership effort to keep Nader-Camejo off the ballot in that state. “If so,” said Hall, “that would be illegal, and it would also considerably support the "state action" element of our civil rights claims.” Hall expects there will be a new round of motions to dismiss based on that complaint.
“Nader has upped his tactics. The DNC will do the same,” speculated Cat Woods, a Nader supporter and former Green Party Co-Chair of the National Candidates and Campaign Committee.
Nader seems to be prepared to meet them in this upcoming election, warning the DNC leaders, "Don't try to get into the briar patch of frivolous lawsuits to try to get us to lay off (running), because you're going to get thorns. It's going to backfire."
Should the Democrats try to obstruct Nader's ballot access this time, more trained eyes are watching. And running mate, Matt Gonzalez, who is a civil rights attorney, will be at hand to fight alongside the aged but tireless knight. Gonzalaz oversaw the implementation of Instant Runoff Voting (IRV) in San Francisco, which has received favorable response from voters. While not in itself perfect, IRV does take away the manipulative power of a winner-take-all system. Though IRV and other ranked voting systems are in place in municipalities and even other countries, Democratic and Republican legislators currently in power in the U.S. are reluctant to approve measures which might increase competition for themselves.
(There are currently 10 pending ballot access lawsuits across the nation, with a few more in the works, according to Winger. Some of these lawsuits represent coalitions between presumed odd bedfellows like Libertarians and Greens, who nonetheless share a value for the Constitution, decentralization, and getting out of Iraq; others are led by individual candidates. )
Pennsylvania Ballot Access Coalition
McAuliffe is Dem’s Comeback Kid
CNN - Wolf Blitzer interview with Ralph Nader, 11/2/07
Phillyblog.com DNC and Nader
Nader vs. DNC
ACLU Takes On Montana Ballot Access Bill
Lawyers ask federal judge to approve Nader lawsuit against former DNC chairman
MSNBC - 2004
John Murphy Account
Democracy Now Interview of Nader lawyer, Carl Mayer