JURIST Guest Columnist Mark Brown, holder of the Newton D. Baker/Baker and Hostetler Chair at Capital University School of Law, says that forcing unsuccessful 2004 presidential candidate Ralph Nader to pay after-the-fact for a ballot contest instigated against him in Pennsylvania when his campaign was found to have committed no wrongdoing is constitutionally dubious…

The Pennsylvania Supreme Court yesterday affirmed a Commonwealth Court order directing Ralph Nader to pay more than $80,000 to Democratic challengers who successfully removed his name from the ballot during the 2004 presidential election. The court’s rationale was that “massive” fraud infected Nader’s submission of 52,000 voters’ signatures—more than twice the number needed to access the ballot. Nader could thus equitably be required to pay for the transcripts and writing experts needed to prove the Democrats’ case.

This was not the first Commonwealth Court order rebuking Nader’s run for the White House, nor was fraud the only justification for keeping him off the ballot. The Commonwealth Court’s initial rationale for removing Nader from the ballot was his endorsement by the Reform Party of Florida. Given this endorsement, the court reasoned, Nader could not credibly claim to be an independent in Pennsylvania. The court next ruled that Nader’s running mate, Peter Miguel Camejo, who was registered with the Green Party of California, knowingly filed a false affidavit claiming to be an independent in Pennsylvania.

The three-judge Commonwealth Court’s reasons were rejected by the Pennsylvania Supreme Court. Only after its first failed attempt at removing Nader did the Commonwealth Court find “massive fraud.” And in drawing this conclusion, the Commonwealth Court engaged in a breakneck review of Nader’s 52,000 signatures. Eleven judges were employed simultaneously across the state, forcing Nader’s team to foreclose participation in some locations. The ultimate finding by President Judge Colins was that “there were thousands of names that were created at random and then randomly assigned either existent or non-existent addresses by the circulators.”

President Judge Colin’s claim that “thousands” of signatures were forged appears to be a gross exaggeration. Justice Saylor, the only member of Pennsylvania’s high court to address the merits, found that the Nader campaign, contrary to the harsh language employed by President Judge Colins, had not engaged in “massive” fraud: “[a] review of the tables and exhibits attached to the order … suggest[s] that the problem was of a more limited scale (for example, 687 signatures out of 51,273 reviewed–or approximately 1.3% of the signatures–were rejected on the basis of having been forged).”

Moreover, 588 of these forged signatures (85% of the total) were uncovered by President Judge Colins. The other ten judges found fewer than 100 forged signatures. Granted, there were an additional 1,087 “duplicate” signatures reported, but even including these as “forged” or “fraudulent” raises the total to fewer than 2,000, about 4% of Nader’s total submission.

President Judge Colin’s conclusion notwithstanding, a thorough review of the record reveals that simple technicalities were responsible for the rejection of most signatures. Including information (like dates and addresses) “written in [the] hand of another,” was a common reason for striking signatures. Almost 8,000 signatures were cancelled for this reason. Almost 9,000 signatures were thrown out because otherwise qualified electors—who could vote—were not registered on the day they signed Nader’s petition. More than 6,000 signatures were invalidated because the addresses provided did not precisely match those on the voting roles. Nearly 2,000 signatures were ruled invalid because information was missing. This is hardly the stuff of massive fraud, as alleged by President Judge Colins.

The eleven Commonwealth Court judges responsible for removing Nader, moreover, invalidated signatures at significantly different rates. Judge Mirarchi invalidated almost 93% of the 3,708 signatures he reviewed. President Judge Colins invalidated close to 70% of the 10,794 signatures he reviewed. Judge Smith-Ribner struck 73% of the 12,818 signatures she reviewed. Outside these three judges—who were all on the original panel that removed Nader—the highest invalidation rate of any judge was just over 50%. One of these eight judges even found that 79% of the signatures Nader submitted were valid. In the end, Judges Colins, Mirarchi and Smith-Ribner found more “forgery” than the other eight judges combined. Even though they reviewed only half the signatures, they invalidated significantly more (over 20,000) signatures than the other eight judges put together (just over 12,000).

Even assuming fraud among some supporters, it must be remembered that the Nader campaign itself was found guilty of no wrongdoing. Political sabotage likely played a large part in Nader’s unfolding drama. (Who do you think signed names like “Fred Flintstone” and “Mickey Mouse”?) But even if it did not, I am aware of no precedent or practice holding major-party candidates strictly responsible for the wrongs of voters. In Ohio, for example, Sherrod Brown unconstitutionally signed on to John Kerry’s slate of electors. Kerry was not removed from the ballot or forced to pay a fine. Do you really think George Bush could hold office if he was held strictly accountable for the wrongs of Republican voters in Florida? Let’s face it, election fraud is a constant. Some people vote outside their districts, some vote more than once, some cast votes for other voters. But no major-party candidate to my knowledge has been forced off the ballot or out of office for this reason.

Should states be allowed to use incentives and deterrents to manage their ballots? Sure. But within the bounds of constitutional reason. The U.S. Supreme Court has ruled on several occasions that states cannot assess non-trivial ballot fees. Forcing a candidate to pay for signature validation clearly runs afoul of this precedent. Forcing an unsuccessful candidate to pay after-the-fact is no-more constitutional.

Mark R. Brown is the Newton D. Baker/Baker and Hostetler Chair at Capital University Law School. He represented the Nader campaign in its unsuccessful suits to get on the 2004 presidential ballot in Ohio.
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