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Political Profiling in Pennsylvania
Keeping Nader Off the Ballot
by JOHN A. MURPHY


There are two ways to defeat democracy, one way is by preventing citizens from voting, and the other is by preventing worthy candidates from appearing on the ballot. When the law can be used as a subterranean tool in a process which can only be labeled "political profiling" the meaning and the intent of the law is subverted as is the democracy from which those laws were supposed to have sprung.

In Pennsylvania the Democratic Party sued the Nader campaign in twelve separate courts simultaneously in their efforts to prevent Pennsylvania citizens from voting for the candidate of their choice. This indicates the magnitude of the effort to thwart the democratic process in Pennsylvania. Not just one lawsuit in one court but twelve suits in twelve separate courts simultaneously! The greater the level of the challenge, the more havoc that can be created!

This sets a very dangerous precedent. It means that either of the two major parties can eliminate an independent candidate or a "third" party candidate by simply having enough money to engage innumerable law firms to take advantage of the minutia embedded in the archaic and anti-democratic ballot access laws of Pennsylvania. The major party does not have to win these battles but a third party candidate or an independent candidate would have their meager financial resources exhausted in simply responding to these suits, thereby making it impossible for them to communicate their message to the voters.

Consider what actually happened in Philadelphia. Pennsylvania law required that Ralph Nader obtain nearly 27,000 signatures but unlike the 2000 election Mr. Nader had no organization in place like the Green Party to help in this undertaking. The Nader campaign hired a contractor who would be able to organize the signature gathering process. This contractor then placed an ad in the newspaper announcing that people were needed to gather signatures for Mr. Nader’s petition and that a fee of one dollar per signature would be paid for this effort.

When the people who were engaged to perform this function began to turn in the petitions, the Nader workers noticed that the signatures were obviously forged. (It could be seen that maybe three or four people simply passed these petitions back-and-forth to one another copying names directly from the phone book.) While many of these petitions were pulled, nevertheless many still went undetected because of insufficient time for examination. When these petitions were brought to the attention of Mr. Nader’s attorney in open court they were voluntarily removed.

As the law suits were unfolding one of the Nader campaign workers parked his car in the street outside of Nader headquarters. His car was clearly identifiable as belonging to a Nader supporter by displaying a number of Nader bumper stickers. A person who is now unidentified pulled up next to the Nader worker and asked if indeed he was with the Nader campaign. When he responded in the affirmative this unidentified driver then said to him, "you know what happened to you here in Philadelphia don’t you". The Nader worker said "no, what". He was then told that "you people were paying a dollar per valid signature but the mayor’s office is paying two dollars to forge each name". "Now we got you" he continued, "now you’re going to have to go into court, present these signatures and you’ll have to claim that they are valid and since you didn’t pay us for them, now we’re going to sue you because they’re invalid".

These quotations are not precise but capture the essence of the conversation that took place between these two people. Of course a legal case cannot be made here because the Democratic operative would never admit to this conversation having taken place. This is the very nature of political thuggery and chicanery. The petition drive in Philadelphia was sabotaged by a coordinated effort of the Democratic Party. Political chicanery of this nature will always slip through the legal system because it is almost impossible to prosecute.

In the final analysis however only 1.4% of the signatures were rejected as forgeries! The other signatures were all rejected as being from people who were either not registered to vote or not registered to vote at the time of signing the petition. To make matters worse, ballot access laws were then used in a way that can only be described as "political profiling".

Here is a tabular presentation of how Nader’s signatures were removed:

 

Not registered
7506

Registered after date of signature
1470

Not registered at address
6411

Omitted information
1869

Information written in hand of another
7851

Printed signature
8

Illegible signature
166

Forged signature
687

Nicknames or initials
32

Duplicate signatures
1087

Affidavit problems
1855

Other
3513

Total stricken
32455

Valid signatures
18818

Total reviewed
51273

Percent stricken
63.30%

 

Not registered or registered after the date of signing

Pennsylvania law requires signers to be "qualified electors. It does not absolutely state that people signing nominating petitions must be registered to vote. In fact, the Election Code defines a "qualified elector as:

"qualified elector shall mean any person who shall possess all of the qualifications for voting now or hereafter prescribed by the constitution of this commonwealth, or who, being otherwise qualified by continued residence in his election district, shall obtain such qualifications before the next ensuing election.

In 2004, the rights of Pennsylvania residents to register to vote in the General Election were preserved through October 4th. That was the registration deadline.

This definition implies a person is a "qualified elector as long as they meet the residency requirement and obtain such qualifications before the next ensuing election. But, in this case, the courts have expanded the definition of "qualified elector declaring they are not truly "qualified electors for the purpose of signing nominating papers until after they register to vote. This is a clear case of "statutory construction" whereby the courts determined what was meant by "qualified elector."

As a result, Pennsylvania residents could take their time deciding whether they wanted to participate in the election, but they are denied a voice in deciding who our candidates should be until after they take steps to actually register.

Total electors disqualified and silenced for not registering prior to signing: 8,976.

 

Not registered at address

Pennsylvania election laws require qualified electors that have moved to notify the registration commission of their new address by filing a removal notice generally no later than 30 days preceding an election. But, under the doctrine adopted by the courts in yet another example of "statutory construction", these qualified electors cannot sign nomination papers until they notify the registration commission that they have moved. Once again, voters are asked to ignore what the law actually says if they want to sign a candidate’s nominating papers.

Total electors disqualified and silenced for not notifying the state of their change of address before signing: 6,411

 

Omitted information

Pennsylvania election laws require signers to "add to his signature his legibly printed name and residence, giving city, borough, or township, with street and number, if any, and shall also add the date of signing, expressed in words or numbers

Signers can have their signatures stricken for something as simple as neglecting to note the date even when the dates of those signing directly above and below them on the nominating paper are clearly noted.

Likewise, if they neglect to print their name their signature will be stricken, even when the identity of the signer is readily apparent.

Total electors disqualified and silenced for omitting information such as dates: 1,869

 

Information written in hand of another

As stated above, Pennsylvania election laws require signers to "add to his signature his legibly printed name and residence, giving city, borough, or township, with street and number, if any, and shall also add the date of signing, expressed in words or numbers

The courts have ruled that only the signer can write their information. Therefore, if a wife permits her husband to fill in the address information for her, her signature will be disqualified. A blind or otherwise handicapped individual will have their signature disqualified if a signature gatherer or anyone else assists them in completing their residency information. Likewise, anyone who neglects to note the date of their signature will be disqualified even when the dates of those signing directly above and below them on the nominating paper are clearly noted. The signature gatherer is prohibited from correcting this simple deficiency.

Total electors disqualified and silenced for allowing others to complete their cursory information such as address or date: 7,851

 

Printed Signature

Apparently, the court has imposed yet one more restriction to the definition of "qualified elector ruling in this case that only those who sign their name using a cursive signature are qualified to have a voice in what candidates get on the ballot in Pennsylvania. Anyone who prints their signature risks having their signature disqualified.

Total electors disqualified and for using a printed signature: 8

 

Illegible signature

As stated above, Pennsylvania election laws require signers to "add to his signature his legibly printed name and residence

Your signature can be voided if you have poor handwriting. It doesn,t matter that a simple comparison of the poorly printed name against the voter registration database might provide clarity and validate the signature.

Total electors disqualified and silenced for poor handwriting: 166

 

Nicknames or initials

All of the electors with common nicknames get tripped up with this requirement. Anyone signing or printing "Bob instead of "Robert or "Chuck instead of "Charles is sure to have their signature voided, even when no ambiguity exists as to their identity at their place of residence.

Using or failing to include an initial is another fatal flaw. William Smith" is disqualified for simply printing "W. Smith"

Total electors disqualified and silenced for using an initial or nickname: 32

 

The nebulous "Other category

This category could include the City, Borough, or Township trap. People are inclined to provide their mailing or postal address. Often, the City, Borough or Township name is different from the name of the local postal location. Anyone who fails to correctly list their City, Borough, or Township risks being disqualified.

Total electors disqualified and silenced for nebulous reasons: 3,513

 

Affidavit problems

Most often, this defect is simply that the affiant noted the wrong county on the first line of the affidavit. Line one ask for the "County of Nomination Paper Signers Residence. There is a tendency for notaries and affiants to complete the line using the county of residence for the affiant.

Totals signatures possibly lost to this type of clerical error: 1,855

In a very curious decision by the Pennsylvania Supreme Court, the elimination of these signatures was upheld without a written decision! They just simply did not want to say anything!

Furthermore, Pennsylvania law does not absolutely state that people who sign nominating petitions must be registered to vote, only "eligible" to vote. The Pennsylvania judges however defined "eligible" as "registered". This is a clear case of "statutory construction" whereby the courts determined what was meant by an "elector". The law does not specifically say that an elector must be registered to vote!

Mr. Terry McAuliffe, chairman of the Democratic National Committee tried to cut a deal with Ralph Nader. McAuliffe told Nader that he would support Nader as long as he did not campaign in any of the so-called "swing states" or "battleground states" — those states where the election was expected to be a close match between the Democratic and Republican presidential candidates. McAuliffe told Nader that if he went into those battleground states, the Democratic Party would do everything in its power to keep him off the ballot everywhere in the United States! Nader of course refused to be a party to any such deal. In Pennsylvania the Democrats engaged the law firm of Reed Smith which then employed a tremendous amount of money and resources in the process of ensuring that Mr. Nader did not appear on the ballot in Pennsylvania. The law firm of Reed Smith says they did all of this work for the Democratic Party pro bono. The estimate is that they spent in excess of $4 million to prevent Pennsylvania citizens from voting for the candidate of their choice.

The law firm engaged a computer scientist to compose a proprietary piece of software just in order to examine Mr. Nader’s petitions. They then went about the process of challenging 35,000 of Nader’s signatures. When you challenge 35,000 signatures you overwhelm the system. It is unheard of for anyone to engage a computer scientist to develop a piece of proprietary software to specifically to keep someone off the ballot.

When one of the major political parties commits those kinds of resources specifically for the purpose of removing an independent candidate it is incontestably an effort to destroy the democratic election process. This is precisely what Mr. Terry McAuliffe promised and precisely what he delivered. The Democratic Party successfully ended free elections not only in Pennsylvania but across the nation by fulfilling their promise to dry up Mr. Nader’s funds through a series of legal maneuvers that would prevent the candidate from ever getting his message to the people of Pennsylvania and any other state.

When eleven lawyers show up in a courtroom in order to keep a candidate off the ballot, that is proof positive that you have matched the statutory requirements to be a nonfrivolous candidate with community support which is what ballot access laws were really intended to ensure!

Many Democrats actually blamed Ralph Nader for their loss to George Bush in 2000. In Florida Mr. Nader received 97,000 votes. Mr. Bush received 250,000 votes from registered Democrats. The Democratic National Committee decided that it was much easier to crush Ralph Nader than to change their party platform and offer a candidate significantly different than George Bush. Rather than participate meaningfully in the democratic process, the Democrats decided to abort it. This was something they knew they could do whereas regaining lost Democratic voters by offering a more palatable candidate was seen to be impossible. The decision was made to simply throw as much money and as many resources at the Nader campaign as was necessary to silence it.

This further explains why there was no serious challenge to Mr. Nader from the Democratic leadership on the basis of his platform or ideas. No serious ideological challenge was made to the Nader campaign by the Democratic Party. In Tammany Hall in the 19th century the bosses in New York knew very well that "the person who counts the ballots determines the winner". Now in the 21st century the Democratic Party has shown us that "he who controls the ballot can control the election". As burdensome and archaic as the ballot access laws are, the Democratic Party magnified this onerous weight by abusing them in order to control the outcome of the presidential election in Pennsylvania.

There is a serious question about the aftermath of the 2004 presidential election and how it unfolded in Pennsylvania. We have learned a horrible lesson: a major American political party can eliminate a challenge from an independent or third-party candidate not by simply defeating them in the polling place but by abusing a set of ballot access laws which are in themselves destructive of the democratic process. While this time these egregious laws were abused by the Democratic Party in order to eliminate a competitor they could just as easily be used by the Republican Party. For example, if Senator McCain wanted to challenge the Republican Party’s candidate in 2008 and run as an independent candidate he would be subject to the same tactics to which Ralph Nader had been subject. No issues need be addressed, they simply have to launch a well-funded effort using the over burdensome and archaic ballot access laws to prevent people from voting for him.

Had the law pertaining to the number of signatures not been created in such a way as to make the candidacies of Independents and "third parties" overly burdensome and now virtually impossible this kind of subversion of the democratic process could not have taken place.

Prior to the twentieth century ballot access laws, where they existed at all, encouraged the creation of both Independent candidates and "third-party" candidates. We had a healthy, flourishing two-party system where several "major parties" came into and went out of existence. In 1854 for example the newly founded Republican Party won more governor’s seats and sent more Representatives to the House than did any other party. It was able to do so because there were no ballot access laws until 1888. During the 19th-century voter turnout, as a result of high interest and virtually no voter apathy, averaged around 80%. Voter turnout in Pennsylvania in the 2004 election was only 51.9%! It is time to end the discriminatory ballot access laws in Pennsylvania and open our Commonwealth to a truly democratic electoral process.

The very basis by which we aspire as a democratic nation to put people on the election ballot has now been turned into the very basis by which we have kept someone off the ballot! When the kind and magnitude of resources which the Democratic Party marshaled in Pennsylvania are designed to keep someone off the ballot, the very magnitude of that effort itself indicates that, under any conception of a democratic system, it is that very person who should be on the ballot.

As a result of the 2004 election we now have a model. All we have to do is engage the archaic and burdensome ballot access laws and challenge the legitimacy of every signature on any conceivable basis with potentially dozens of lawsuits. It is not even necessary to win the suits. We can successfully destroy any challenge from any "third party" or Independent candidate by completely draining their resources and make it impossible for them to deliver their message to the people. The burdensome and archaic ballot access laws in Pennsylvania which encourage this kind of discrimination and political chicanery against "third party" and independent candidates must come to an end.

John Murphy is a member of the Pennsylvanian Ballot Access Coalition, working to change ballot access laws in Pennsylvania. Mr. Murphy will be the Green Party candidate for House of Representatives from the 16th Congressional District. He can be reached at: johnamurphy@comcast.net