The Secretary of State had put his name on the ballot, as an independent candidate. The Democrats argued that Nader wasn’t an independent candidate since he was the candidate of the Reform Party in other states. (Do we notice an inconsistency in the Democrat argument in New Mexico relative to their argument in Colorado and Florida, concerning the Reform Party?) The judge (a Democrat) said, sure, take Nader’s name off. The Secretary of State (another Democrat) said, no reason to wait for an appeal, let’s go ahead a print the ballots right now.
The New Mexico decision is likely to be overturned (perhaps after the election), as it is well-established that candidates of parties recognized in some states can gain ballot status through petitioning as an independent candidate in other states, and in particular in the state of New Mexico.
Nader, for example, in on the Michigan ballot, among other ballots, as an independent (since the Secretary of State could not determine which claimant represents the Reform Party in that state). Yet, he is on the ballot in Alaska as the Populist Party candidate. He sought, but was not endorsed by the Peace & Freedom Party and the Natural Law Party. I should point out the Libertarian Party candidate is on the Ohio ballot and perhaps others as an independent.
Nader himself is a life-long registered independent (i.e., his jurisdiction records party affiliation or independent status in conjunction with registering people to vote), although he was, four years ago, the candidate of the Green Party.
The prior New Mexico law barred independents from the ballot altogether. It was declared unconstitutional in 1976, when Eugene McCarthy ran for president as “an independent.” He had been formerly affiliated with the Democratic Party, and in that year was endorsed by, and appeared on the ballot in some other states as the candidate of a minor party.
Subsequently, New Mexico changed its law so as to make it possible, although relatively difficult for an independent candidate to appear on its ballot. Under this law, John Anderson in 1980 and Ross Perot in 1992 appeared on this state’s ballot as an independent. Each of these two persons appeared, in those years, on the ballots of other states as candidates of small parties.
Thus, by prior practice, there was no "gray area" in the law in New Mexico concerning candidates who were independent under the meaning of the law in that state, while on the ballot as candidates of small parties elsewhere in the country.
The judge erred, and her ruling should be vacated, and the Secretary of State should be ordered to put Nader's name on the ballot.
Lawrence Tribe is the Harvard University professor of constitutional law who is carrying water for the Democrats this year to keep Ralph Nader off the ballot. I used to think of him as a liberal, not as a party hack.
He formerly held to the theory that the right to vote was so fundamental that unless everyone had an equal right to vote, that any deadline for counting votes was “arbitrary.” Certainly you remember the case in which he made this argument, Bush v. Gore.
(I should point out that, contrary to Professor Tribe's argument, it is well-established that there is a compelling state interest in definitiveness in our elections. Therefore, deadlines are not arbitrary. It is subject to the compelling state interest in definitiveness that every reasonable effort must be made to assure an equal right to right.)
I thought Lawrence Tribe meant what he said in Bush v. Gore because he, at least, actually believed “every vote should count.” But, no, not when comes to counting the votes of non-Democratic Party candidates.
Professor (and - hopefully - never to be Supreme Court justice) Lawrence Tribe has revealed himself to be nothing more than a tool in the hands of Terry McAuliffe, who will argue whatever might he might, even to the point of contradicting himself in different venues (that the Reform Party is not a real political party, in Colorado and Florida, and that it is, in New Mexico).