Partisanship Suppressed: Judicial Decision-Making in Ralph Nader's 2004 Ballot Access Litigation

Abstract

IN 1993, JEFFREY Segal and Harold Spaeth published The Supreme Court and the Attitudinal Model. Within this text the authors made the following prediction: “if a case on the outcome of a presidential election should reach the Supreme Court . . . the Court’s decision might well turn on the personal preferences of the justices” (Segal and Spaeth 1993, 70; 2002, 1). Seven years later, such a scenario presented itself in Bush v. Gore, 531 U.S. 98 (2000). The Supreme Court’s 5–4 decision to halt Florida recounts was controversial for a number of reasons. Most notably, this decision was the equivalent of declaring George W. Bush presidentelect, and the majority consisted of the Court’s most conservative members—all of whom were appointed by Republican presidents. The two justices appointed by a Democratic president, Ruth Bader Ginsburg and Stephen Breyer, did not favor this remedy and would have allowed more time for recounts.1 As one federal judge noted, the outcome in Bush “just seemed so politically partisan” (Greenhouse 2000, A32). Some legal scholars, too, recognized the partisan nature of the Court’s decision and chastised the majority for indulging in the “low” politics of partisan favoritism (Balkin 2001, 1408; Balkin and Levinson 2001, 1061; Gillman 2001a, 7; Levinson 2001, 8). And one political scientist claims that three forces motivated the majority’s decision—“partisanship, partisanship, and partisanship . . . ” (Geer 2002, 85). Strangely, issues relating to election law and partisanship receive relatively little attention in the judicial behavior literature. As Bush v. Gore clearly demonstrated, courts have the ability to influence the outcome of a presidential election. If the courts can influence a presidential election then, to use the cliche, nothing is sacred. Courts throughout the country regularly decide a plethora of election-related legal issues. The issues judges confront vary in complexity. Some election law issues are rather simple, such as determining whether a polling location should be open past the mandated closing time. Other issues are more complex, such as determining which candidates appear on the ballot for a given election. This study considers the latter. When a potential candidate wishes to run for elected office, he must file candidate petitions with the state (or county) election authority (e.g., secretary of state or the board of elections).2 The election authority then determines