JURIST Guest Columnist Mark Brown, holder of the Newton D. Baker/Baker and Hostetler Chair at Capital University School of Law, says today's Democrats should take note of the fact that in electoral contests as elsewhere, two wrongs don't make a right.
Dirty tricks. That's what Democrats called Nixon's campaign tactics in 1972, when he unleashed his Committee to Re-elect the President (CREEP) on George McGovern. CREEP's crusade, which included lies, forgeries, disruptions and at least one burglary, was designed to insure McGovern's defeat. Nixon, after all, was America’s savior. McGovern was dangerous. CREEP's means were thus justified by its end.
Ironically, today's Democrats are playing their own dirty tricks in an effort to win back a stolen Presidency. And just as ironically, their many justifications mimic Republican excuses for CREEP.
The New York Times reported on August 19 that the Democratic Party has gone to great lengths to prevent Ralph Nader from appearing on the 2004 Presidential ballot. Tactics range from formally challenging thousands of signatures collected by Nader to threatening Nader supporters with jail-time for collecting "fraudulent"” signatures. Local Democratic operatives – with the National Party's knowledge and blessing – unabashedly boast that they are “doing everything we can" to stop Nader. Democrats in Ohio, the Columbus Dispatch reported on August 30, are filing a legal challenge to Nader's candidacy.
Of course, these tricks are not as dirty as those unmasked by Watergate. But they are dirty nonetheless.
Accessing the American Presidential ballot is a daunting task. States routinely employ tedious rules and demand thousands of signatures. So long as these rules are engineered to screen out "frivolous" candidates – those who have no or little support – and are evenly applied, the Supreme Court has found they pass constitutional muster. Rules designed to exclude parties that have too much support – and disenfranchise their supporters – are clearly illegal.
Given the fact that election officials, who are generally members of the two major parties, zealously scrutinize third-parties' compliance with election laws, one wonders what Democrats are up to. Third-party Presidential candidates rarely access more than a handful of states' ballots. (Nader made it onto only 43 ballots in 2000.) Shenanigans are hardly necessary to "manage" the Presidential ballot. More importantly, third parties have often added a great deal to the national debates. Sometimes they have gone so far as to alter Presidential outcomes, either by forcing changes in party platforms — as was true in 1912 when Roosevelt’s "Bull Moose" candidacy forced Wilson to move to the left – or by earning enough votes to shift outcomes – Lincoln's success in 1860 is probably best known, though Nixon's victory in 1968 and Clinton's in 1992 likely owe much to third-party candidacies.
The Democratic answer seems to be twofold: First, Democrats believe Nader was complicit in stealing their Presidency in 2000; second, they suspect he will do it again in 2004. In sum, Democrats believe they were entitled to Nader's votes in 2000 and are entitled to them now. Nader, like Bush, is a thief. Democratic self-help to recover the Presidency is thus necessary and justified, even if it is a bit dirty.
The argument, of course, proves too much. Ends do not justify means. Dirty tricks were wrong in 1972 and are wrong in 2004. In the eyes of Democrats and Republicans, third parties always "steal" votes. Must Lincoln and Clinton give back their Presidential victories?
The Democrats' frenzy to beat Bush has caused it to let loose its historical grounding. First and foremost, the Democratic Party is not entitled to anyone's vote. Second, it is not entitled to singularly battle the President. Third, Nader was not responsible for Gore’s defeat. (If a scapegoat is needed for the 2000 debacle, the Constitution’s Electoral College, winner-take-all elections, the Supreme Court, the Republican Party, and George W. Bush offer more promising targets.)
Democrats claim that their tactics are technically legal. Signatures must be perfect. Names, addresses, counties of residence have to each be perfectly legible. T's must be crossed and I's dotted. And canvassers can be sent to prison. Legality, however, does not imply cleanliness. Even if technically legal (which may not be completely true) Democrats’ efforts to keep Nader off the ballot are dirty. They are dirty because they are designed to disenfranchise voters. Nader is being challenged not because he is frivolous, but because he matters. The Democratic Party wants his votes. Having conceded Nader's support (and relevance), the Democrats have confessed their sins.
Some may call this argument naÃ¯ve. Parties manipulate ballots (and votes) all the time. The Republicans are helping Nader gain access right now. Democratic interference merely levels what has become an uneven playing field.
Two wrongs, however, do not make a right. One would hope that at least one of the two major parties that control American government would exhibit scruples. The American ideal is democracy, which assumes that people have a right to vote for candidates of their choosing.
There is a huge difference, moreover, between helping and hindering candidates (and voters). The former is noble, the latter is dirty.
Consider, for example, two robbers who bind and throw their victim into a lake. One of the robbers recants and jumps in to rescue the drowning man. All would agree that the unrepentant bandit has no moral (or legal) authority to complain about his conspirator's change of heart.
Similarly, Republicans and Democrats jointly shoulder responsibility for the draconian restrictions presently placed on third-parties throughout the United States. Unrepentant Democrats have no quarter to complain, let alone veto, a Republican change of heart.
Election laws distinguish between assisting and interfering with voting rights. One can legally drive a friend to the polling place. One cannot, however, imprison a neighbor to stop him from voting. Assistance is lawful (and noble), while interference is illegal (and dirty). This same logic distinguishes Republican assistance from Democratic interference. Democratic efforts may be technically legal, but the resulting disenfranchisement of millions of Americans is nothing but a dirty trick.
Mark R. Brown was recently named the Newton D. Baker/Baker and Hostetler Chair at Capital University Law School. He is one of the nation’s leading scholars in the area of civil rights litigation.