Ballot Censorship

In 2004, I represented Ralph Nader and Peter Camejo at trial and on appeal in their battle to enforce their right to appear (and our right to have them appear) on the presidential ballot in Pennsylvania. For my work defending this most basic and fundament democratic right, I have endured endless criticism and anger (often of a vitriolic and rapid sort not unlike Eric Alterman's "Thank you Ralph Nader" rant in An Unreasonable Man).

I was not surprised by these attacks from so-called liberals who I call "accidental Democrats"-i.e., those party loyalists who seek power for its own sake (as opposed to power as a means to create a more open and just society) and who, but for some historical accident such as being raised in Boston or San Francisco, would have turned out to be Republicans or worse. These folks are a distinct minority and if you continue reading this, my guess is that you are not one of them.

I was, however, surprised and often stunned by such criticism and anger from those who consider themselves (and indeed actually are) genuine advocates of voting rights, free speech, and other democratic ideals, whether they be Democrats or otherwise. This has perplexed and troubled me because preventing a candidate, whether Nader or anyone else, from appearing on the ballot (or participating in a debate) is as antithetical to voting rights and democratic principals as censorship is to freedom of speech.

Preventing a candidate from appearing on the ballot is entirely different than disagreeing with the candidate. Genuine supporters of free speech do not have to agree with what it being said to support someone's right to say it. How has such patent and dangerous contradiction by so many progressives and liberals persisted for so long?

I think this contradiction is due, in part, to a commonly held conception of the right to vote. The right to vote is usually thought of as the unimpeded ability of an individual to cast a ballot and have it accurately counted-i.e., if everyone can vote and every vote is counted, then we feel that voting rights are secure. Viewing voting rights in this manner allows one who supports the right to vote to celebrate the exclusion of Nader from the Pennsylvania ballot and simultaneously, without apparent contradiction or sense of hypocrisy, feel genuine outrage at efforts to keep minorities from voting in Florida or to manipulate ballot counting in Ohio.

This notion of voting rights is fundamentally deficient. True voting rights, as the foundation of legitimate elections, require both the ability to freely cast a ballot that is accurately counted and the ability to cast that ballot for the candidate of one's choice. The ability to effectively vote for the candidate of one's choice necessarily depends, of course, on the right of that candidate to appear on the ballot.

No liberal or progressive doubts the necessity of the first element-hence, the universal outrage over what happened in Florida and Ohio. The necessity of the second element-ballot access-apparently is not so commonly valued. It is, however, essential, and if lacking, the right to vote and the legitimacy of the election is a sham.

Consider, for example, an election in which 100% of the people have the right to vote, 100% of the people vote, and 100% of the ballots are accurately counted, but only one candidate appears on the ballot. Under the commonly held notion of voting rights (everyone can vote and all ballots are counted), the right to vote appears perfectly in tact. But we know this is not a legitimate election. Indeed, dictators, like Saddam Hussein, have repeatedly exploited this (deficient) conception of voting rights. Do we really think that the election is any more legitimate where the field of choices is purposefully and effectively limited to the same two parties or candidates again and again-especially when those very parties and candidates are the ones responsible for limiting the field to themselves?

If individuals or parties in power tried to limit the speech of those not in power we would call it censorship. Indeed, the current definition of censorship in that great democratic encyclopedia, Wikipedia, is "the removal and withholding of information from the public by a controlling group or body."

That we continue to put up with this limitation of choice at the ballot is baffling. Would we repeatedly (if at all) eat at a restaurant that offered the "choice" between one of the same two tasteless and stale dishes again and again? Would we tolerate cable television that offered the "choice" between one of the same two boring shows over and over again? We would rebellion in the streets. It occurred to me while at the store the other day that we have more variety in the type of deodorant and toilet paper we buy than we have for the type of candidate running for President of the United States.

When voting rights are viewed it this more complete context, it makes explicit the inherent contradiction in preventing candidates from appearing on the ballot and any genuine support for voting rights and freedom of speech. It is time to call actions designed to exclude candidates from the ballot what it really are-ballot censorship.

No genuine liberal or progressive supports censorship. A defender of free speech need not agree with another's point of view to defend the other's right to express it. So to you Democrats, liberals, and progressives who criticize me and others who fight against ballot censorship, you need not agree with or vote for Nader or any other candidate more interesting than the current Democrat/Republic frontrunner, but if you truly believe in the right to vote, free speech, and other democratic principals, you cannot interfere with Nader or any other candidate's right to appear on the ballot. To do otherwise means you should have stopped reading this article at the second paragraph.

Ross Dreyer is an attorney who represented Ralph Nader and Peter Camejo in presidential ballot access litigation at trial and on appeal in Pennsylvania during the 2004 election. He can be reached at ross.dreyer@comcast.net.