Nonsense About Nader

Yale law professor Bruce Ackerman plays an important role: He is an intellectual provocateur, putting forward big ideas that have the power to change the way we think about basic issues of social justice, constitutional interpretation, or democracy, but that have dozens of practical obstacles. His proposal for "Patriot Dollars," vouchers given to every citizen to make political contributions, is one such example -- full of problems, but nonetheless, a great contribution to our thinking about fairness. In an op-ed in the New York Times this week an entirely theoretical Ackerman proposal is unfortunately presented as if it were a serious proposal to deal with the outside possibility that Ralph Nader would again throw the election to George W. Bush.

What Ackerman proposes is that in states where Nader's name appears on the ballot, instead of offering a slate of electors committed to vote for him in the electoral college, he should choose the same names as the Kerry slate of electors. By this mechanism, he claims, a voter could cast a vote for Nader and yet have it count on behalf of Kerry. The merits of this, Ackerman says, would be that "in effect, he would be enabling his supporters to rank their choices: Mr. Nader first, Mr. Kerry second."

If Ackerman's proposal worked, it would create something that looks a little like Instant Runoff Voting, which is the preferred reform of some Nader supporters. Under IRV, voters can choose a first and second choice and, if their first choice is not among the top two, the second vote will be counted.

I oppose Instant Runoff Voting because it is of no value to achieving the goals its proponents claim. It would not create meaningful third parties, but instead encourages purely symbolic candidacies and symbolic votes. The vote for Nader is merely a gesture before voters turn, on the second ballot, to the real choice, that between Kerry and Bush. I believe that such symbolism discourages voters from developing political maturity and recognizing that, in a democracy, they don't always have their own perfect choice. To the extent that Ackerman's proposal creates something similar to IRV -- and it's not quite the same, because it assumes that Nader's votes should go to Kerry, rather than giving the voter the choice -- it is similiarly flawed. Voters need to understand, without any distraction, that if you want John Kerry and not George W. Bush to be president, you vote for John Kerry. Period.

But the real problem with Ackerman's proposal is an embarassing practical and legal flaw. He deals with only one hypothetical objection to his proposal: That electors are now generally pledged to vote in the Electoral College for the candidate on whose ballot they appeared. This is not mandated by the Constitution, was not the practice before 1800, and on a few occasions electors have defected to support a different candidate. But that's only relevant to Nader if he actually wins a state. Yes, it's possible that if Nader won a state, his electors from that state could argue that they have a right to vote for Kerry if they want to. This would have been a good solution for candidates like George Wallace in 1968, who won five Southern states. But Ralph Nader isn't going to win any states, so why are we talking about this?

The problem that Ackerman just glides over is that votes for Nader and votes for Kerry in a single state are not going to be aggregated, even if their slates have the same people on them. A vote for the Kerry slate is a vote for the Kerry slate; a vote for Nader is a vote for Nader. If Bush wins the plurality of votes in a state, even if Nader and Kerry together win a majority, it is the Bush slate that will represent the state in the Electoral College. Here's how the Federal Election Commission's long document on the Electoral College describes the process: "Whichever party slate wins the most popular votes in the State becomes that State's Electors -- so that, in effect, whichever presidential ticket gets the most popular votes in a State wins all the Electors of that State." There is no precedent for adding the votes of several candidates in order to choose a single slate of electors. It might arguably be constitutionally permissible if a state wanted to operate that way (just as Maine and Nebraska choose not to award their electors on a winner-take-all basis), but it would be a true innovation, and nothing that Nader has any choice about.

And in forty states, two political parties are not permitted to put forward the same candidates, so that Kerry's electors could not appear on the ballot of another party or individual candidate even if the candidate was willing. However, in the statesthat do not ban "fusion," a party is allowed to cross-endorse the candidates of another party, which would allow the same slate of electors to appear twice on the ballot. In New York, the only state where fusion is both legal and commonplace, Kerry and Kerry's slate will appear on both the Democratic Party line and the line of the Working Families Party, a party formed with union and community organization support that is considerably more liberal and creative than the Democratic establishment. Likewise, Bush and his slate will appear on the line of the state's long-standing Conservative Party, and votes for the two Kerry and the two Bush slates will be aggregated. Often, as in the case of Senator Clinton's election in 2000, the votes on the Working Families Party line exceed the margin of victory, giving the party considerable and constructive influence over elected officials. Every so often, when a Democrat is objectionable or to provide an alternative to a corrupt process such as the selection of judicial candidates in Brookly, the WFP will run its own candidates or even endorse a Republican, an option which strengthens its influence.

So, in theory, I suppose that a party in a fusion state could put up its own candidate's name as the presidential candidate, and then cross-endorse the actual electors of another party's slate, in the same way that it might put up its own candidate for governor but endorse Democrats for lower offices. It would be bizarre and would surely seem misleading, but would have the effect Ackerman is seeking. It would require an actual party with a standing presence on the ballot, something Nader's never been interested in, and it would require the candidate and party to actually want to not spoil the election, which seems to be the opposite of Nader's intentions.

But the fact is that fusion alone achieves much of what Nader and Ackerman say they want to do, and much more as well. By voting for Kerry on the WFP line, I simultaneously vote against Bush and also send a signal to the Democratic establishment that I prefer a more progressive voice. And, in addition, I help to build a participatory civic institution that I hope will have a long life in this state. That's why fusion, rather than IRV or Ackerman's proposal, is a valuable political reform. However, it's also a reminder that fixing democracy isn't just a matter of changing the rules. In most of the states that allow fusion, it is rarely practiced and its full potential goes unrealized.

Ackerman says that "the choice is Ralph Nader's" if he wishes to run without spoiling the election for Kerry. In fact, the only choice Nader has, if he does not want to help Bush, is to not run. The choice is with voters, who should simply not sign his petitions or vote for him, and with the press, which should stop taking him any more seriously than they would any other self-aggrandizing crackpot.