 This is C-SPAN's America and the courts. On Friday morning, the Florida Supreme Court heard oral argument in Tallahassee on whether Reform Party presidential candidate Ralph Nader's name may be included on the Florida presidential ballot this year. The Florida Democratic Party sued to keep Mr. Nader's name off the ballot, claiming the Reform Party is not a legitimate political party. Florida Secretary of State Glenda Hood ordered that Mr. Nader's name appear on the ballot. A lower Florida court ruled that his name be removed. The state Supreme Court heard expedited arguments because absentee ballots for Florida voters overseas are to be mailed out Saturday, September 18. Later on Friday, the court determined that Mr. Nader's name will appear on Florida's presidential ballot. Here's Friday's oral argument. Please rise, calls to plea, attention, and you shall be heard. God save these United States, the great state of Florida and this honorable court. Ladies and gentlemen, the Florida Supreme Court. Please be seated. Good morning, ladies and gentlemen, and welcome to the Florida Supreme Court. The first case, and only case on today's docket is the Reform Party of Florida versus Harriet Black and Glenda Hood versus the Reform Party. Before beginning, I just wanted to mention a few preliminary matters. As you'll see, Justice Contaro is not with us today. However, through the wonders of modern technology, he is watching this oral argument. He is in Miami. He was called there on Wednesday. His father is in critical condition in the hospital, and so our thoughts are with you, Justice Contaro, but he will be participating in the deliberations in this case. Also, I know there was an outstanding motion from the Reform Party for an amended brief to be filed. The court denies that, so any matters that any case law that might be cited in the amended portion should not be referred to in oral argument. Third, the court recognizes that the time parameters in this case, both for the briefing and for the court's deliberative function is very compressed, and we are mindful of the fact that the September 18th deadline is looming tomorrow. So we appreciate counsel having complied as best as they could with these extraordinary deadlines. In the time today, I know the Justices will have many questions, but we ask that all parties focus on the definition of national party within the statute. So with that, the party's ready, and I'd call the Reform Party, Ken Sakaya. Thank you. May it please the court, Madam Chief Justice and members of the court. I am Ken Sakaya, and I represent Ralph Nader and Peter Cameo in this case. As I looked at the circumstances, the facts, and also the law that was confronting us, I believe that the court's decision must be governed in any review in this case by certain key principles. And one of those is that which both the Supreme Court of the United States and this court has recognized, and that is that the rights at stake here, that is the right of assembly, free assembly, free expression, and to vote are not just fundamental rights, but they are the most precious of all fundamental rights, because as the Supreme Court said in Rhodes and again in Celebris, because they are preservative of all other rights. But you agree that the state unquestionably has the right to impose reasonable restrictions on the right of access, and that's been reiterated in numerous cases. So we have that as a beginning, and yet what we have is a term, National Party, that's been in the statute since 1970, but was freed from the percentage requirement in 1999. So again, with that in mind, do you take a position on how the court should construe National Party? Yes. Your Honor, as this court said when it comes to construing a statute of this nature, nearly four years ago in Harris v. Palm Beach, that when the court said that the right of suffrage is the preeminent right recognized in Florida's Declaration of Rights, and therefore election laws, and this is in answer to your question, election laws as the court put it, must receive a liberal construction in favor of the voters whose rights they tend to restrict. Basically, let's go back to the very basic is, what is a National Party? Is that a question of law, or is that a question of fact? I believe it must be a question of law. It must be a question of law because persons like my clients must have some certainty so that they may know before they go into making assessments as to whether they shall proceed under Section 4A. How could it be an exclusive question of law if there must be some factual determination as to whether a party, for instance, is a local or state party, with only a local or state focus, for instance, or whether or not it is truly a National Party? Or doesn't there have to be some factual determination as to the expanse or the interest of the particular entity? Your Honor, I believe that when you're looking at what the legislature did when they set this statute out, that they were not intending that there be a factual analysis which goes behind the certification which is presented to the Secretary. While you're on legislative intent, and I think that is critical to what is before us this morning, would you have focused on and studied this issue probably much more thoroughly than we have here on the bench? And could you give us your view of what you believe it was the intent of the legislature really to offer this sort of alternative means for candidates to get on the state ballot? And that is alternative to the petition process that required a certain percentage of registered voters to be certified. What would you take it to be the intent of the legislature now in offering this alternative means? Yes, sir. Well, I believe you have to go back to the Article 11 of the Constitution which was enacted or which was put into effect in 1998. And when that provision came into effect, it was acknowledged that Florida was the most restrictive state in the country. So wasn't that provision already in the statute at the time that that amendment was passed? I mean, although it was coupled with, wasn't it at that prior to that, wasn't it coupled with the petition? You had to have both the petition and the association with the national party that has a national convention. So you already had that in the statute. So why was that a part of the statute? What was the legislature's intent? Let me go to the second part of my response then. And that is if you look at the subsection, if you look at that same subsection A, and you look at the last sentence in the subsection, it doesn't leave any real, it's not merely a discretionary. It's in fact mandatory. It says that once the certification is made, which is a certification made under penalty of perjury and is a criminal offense, if false, once it is certified by the minor party that they are affiliated with the national party which nominated at their national convention their candidate, the secretary shall order. I understand that that's the secretary's duty, but does it then follow that no one can look behind whether or not those particular certifications are in fact true? We believe it does. We believe that's what it means. If that's the case, then it would appear to me that any number of local or individuals could simply file a certificate, not concerned with these penalties of perjury but to pervert the process. And are you suggesting that no one can look behind a certification if it is a patently false? Well, if that were the problem that has been suggested by the plaintiffs, i.e. that this could create or result in an unmanageable ballot, which under the strict scrutiny test is one of the limited bases on which the court may even look to any kind of restrictions. If that were the case, why then, I believe the court may ask, hasn't that happened already? Because there has been no ruling whatsoever during all the years that this provision has been in place as to what that means. There hasn't been that situation. Well, you're suggesting that because before someone, theoretically, has not violated the election laws, that therefore it follows that no one can ever challenge if one believes a violation has occurred? I'm not saying... I'm not following that logic. Well, I thought you were suggesting or indicating that someone who gets involved in the process of seeking to place candidates on the ballot could treat if they knew that there would be no examination of their assertions subsequently, they could treat this as an opportunity to simply falsify their certification. Let's suppose, for instance, that the Secretary of State reads in the headlines of the newspapers one day that reform party of USA disbands. And it's the headlines in the New York Times, and there's a detailed story, and then with quotes of documents filed with the Federal Elections Commission, and just indicating that there no longer is a reform party. And then two weeks later, the Secretary of State receives these filings like this, and she calls up to the Federal Elections Commission and says, you know, I read this story in the New York Times. Is it true? And whoever's the head of that says, absolutely. You want me to fax you copies? And they fax her copies. And as a result of that, she denies placing this on the ballot. And now you're put in the posture, you bring a law action against the Secretary of State. Are you saying the Secretary of State could not then defend that action and say, well, you know, we received a proof that this party had disbanded. We believe the legislature intended that only legitimate functioning national parties were covered by this provision. What would be the outcome? Well, I believe at that point that the Secretary would have a degree of discretion because that's the Secretary's job to determine. What's the difference between that situation and the factual situation faced by the trial court in this year? Well, let me suggest, let me assume that getting past that question and assume that there is that discretion or that there is some discretion to go beyond. I'm just simply presenting that as our initial point, which we presented in our brief, which we don't believe it's appropriate for the courts to go beyond this because the circumstances of this case indicate why that's a problem. You're calling it discretion, okay? What I'm suggesting is that as in the petition process, there has to be some validation, of course, of the number of signatures. We're more comfortable with that because that's sort of a mathematical thing. What's the difference between that and checking that and checking the authenticity, indeed, of whether or not a party is still a legitimate party? That's what I'm suggesting is the Secretary's legitimate function and responsibility if they wanted to check the authentication of this. And of course, if that was all in the papers, then the authentication would come into some question. I just want to remind you, I know you're dividing your time. I know. I would like to get to some assume for the sake of argument that you can get past this. What are the facts in this case and why would it make any difference in this case? And I believe it wouldn't make any difference because if ever there was a national party, there is a national party in this case. So just to, because you were now, I don't know if Mr. Marrow's minds that you're taking his time because you're in it now with the red light on. He seems to be indicating because that is important for you to address that for us and that is where did the trial court go wrong here in terms of considering the evidence then as to whether or not this is a viable national party? Well, I believe in August and September of 2004. That's right. He assessed it. He went wrong because he relied upon an unrecognized, non-workable standard that was presented by one expert when two other experts said this is not the widely accepted standard. What standard would you have us apply? I guess that's going to get back to the question. I hope what we're going to get out of it. I believe you must apply the broadest standard. What standard is that? And that is the standard that is, well, first let me say it's the broadest standard that this court can impose consistent with the process and it would be in my estimation. Tell us what the standard is. It would be that you must look to what the definition of the statute under 97 to 02114 is. How does that define national party? It defines political party. It defines political party and I believe you have to start with that, which is a group of persons associated for the purpose of electing candidates. And then in order to take it into the national realm, I believe if this court were required to set forth a limitation on that, that it should be the broadest and that would be that it would be in two different states or two or more states and not in the same region. Where would you look for a definition of national if we look to Black's law dictionary, for example? I'm sure you've looked at that. Have you not? I have not, not in this case because I... If I would suggest to you that some of the definitions would indicate nationwide. Not indicate two states, would not indicate one state, would not indicate regional, would indicate nationwide pertaining to the entire country. Okay, well then... Has that helped me understand... For several reasons that cannot be the test because there is no party. There is no minor party in the country that is consistently active in elections in every state. In fact, we are only one of five minor parties in the country that is operating up with candidates on more than five ballots in the nation. Seriously, there has to be a difference between what is a major political party, which might be the Republican and the Democrat and a national party, but your definition then is really still for somebody looking for next time if we take what comes out of this case, really, anybody could say that they've got an organization in two states and they can get on the ballot in Florida by certifying. That would be... That's what would come out of this. Is that correct? I just want to understand the rule of law that we would be announcing. If they did not have such an organization in two different states in which they were seeking to elect candidates, then they would be lying when they made that oath. Is there a problem in this case? You represent both Nader and the Reform Party. No, I do not. You don't. No, I represent... That's exactly right. You represent the Reform Party. No, I represent Nader and Mr. Kameo. Okay, all right. May I step down and thank you. Is this... You're going to be arguing for the Secretary of State? May I please accord your honors? George Merrill is on behalf of the Secretary of State of Florida. Mr. Mayor, let me ask you this. What does the record reflect as to how the Secretary has administered the statute? The record reflects that the Secretary has assumed and interpreted the statute as a ministerial role to determine whether under 103.021 there is a certification to the Secretary of State, and when that occurs... Has the Secretary denied access to the ballot to any person that claimed to be a minor political party under Section A? There's nothing in the record about that, Your Honor, and I don't know the answer to that otherwise. Am I correct that this statute was amended, again, in 1999? Before that, it had the same terms, but it had this additional requirement that you had to have a percentage of votes. Is that correct? It did not have the alternative of a national convention. Didn't have the alternative. It needed... Well, it had... Let me make sure I've got exactly what it says here. Before that, it said that minority political parties, which are affiliated with the national party holding a national convention, but they had to get a certain percentage of the vote. So they had that whole term there. Now they severed that term from the percentage. Now minor political parties have two ways to get on. They can get on either. No, is that not true? No, let me clarify that, but, Your Honors, if I can, let me tell you, from the perspective of Secretary of State, what a workable standard might be. Of what a national... Of what a national party is, if I may. And that is to first start with Section 97, the definition of local party in Chapter 97. Minor party. With regard to minor party. And then a common sense, but broad definition of national party. And that would be... And let me just... Let me tell you the... What is the definition of minor party? Is someone less than 5%... Right, it's the 5% number. A national... Well, it goes beyond that, but a national party would be any group of citizens organized for the general purposes of electing persons and determining public issues under democratic processes. And then, going on, that is from 97, with membership or organizations in two or more states and extending beyond a single region of the country. Now, what I just read, the last part is not in Chapter 97, but it takes minor party and then attributes a national perspective to it. Is it minor or political? Is there two different definitions, one for minor party and one for political party? There is a definition. It's 97.021 per in 15 is minor political party. And is that defined with reference to whether they have a platform? No. What this says, first of all, it's minor if it's less than 5% of the population. And then it's a political party if it is any group of persons organized for the general purposes of electing to office qualified persons and determining public issues under the democratic processes of the United States. Has the Secretary of State been using that standard? Secretary of State has not been making factual determinations as to whether the submissions fit this standard. When you're saying it would be appropriate for the Secretary of State to do that now to the definition that you're offering, to reject those that don't meet the definition that you're offering. If the court creates a definition of national party, someone, some entity, whether it's Secretary of State or the Attorney General or others would have some ability to kill someone in court. Would you come back to my question about legislative intent because it seems to me, obviously, that this is what we need to focus on here. And of course, we have many questions and you all have been very helpful in responding, but it's difficult to sort of get an answer to that question. It seems to me that the case law all the way from the U.S. Supreme Court to the federal circuits and some of the state case law has said that the purpose of these restrictions is to be sure that we're not talking about a frivolous entity that really doesn't have any support and is really just a distraction or a dilution of the process as opposed to a legitimate part of the process, hence the traditional requirement of the petition where you show that you've been active enough that you can already get a certain percentage of registered voters. And that this alternative provision then has the same focus or requirement. However, it substitutes the fact that if a national party has sponsored you, then we will accept that as an alternative way, you know, to show legitimacy. Would you agree with that? To some extent. Well, help me. Would you pick up on that then and tell me because I think that's part of the concern that we have here as far as whether or not, as opposed to the petition process, that there has been this showing that yes, I have legitimacy or we have legitimacy because a national party with a national convention and a national platform has put me on the ballot and I'm carrying their banner and therefore you can be sure that I have that legitimacy. I said I disagree, Your Honor, because there's been a discussion of alternative means and I will later explain why there are not alternative means in the context that the court said. I just wanted to remind you about the later. This is tough. You're now in their rebuttal. If you want me to wait for rebuttal, Your Honor, I will. I want you to, if you want to finish, but it's not going to be a lot later. The question of intent, let me walk you through the intent. In 1997, this court and the law and the policy of the state of Florida was that there is a legitimate state interest in promoting the national parties and minimizing some extent smaller parties so as not to fractionalize the vote. In 1998, the people of Florida passed Article 6, Section 1, which was new and said that elections and political parties and candidates are subject to regulation, but, and I quote, the requirements for a candidate with no party affiliation or for a candidate of a minor party for placement of the candidate's name on the ballot shall be no greater than the requirements for a candidate of the party having the largest number of registered voters. In response to that, approximately six months later, in 1999, the legislature passed this provision, which provided for no percentage requirement. Mr. Miros, I think the question here really comes down to, would you agree that in the section of the statute that requires you to get out and get the certain percentage of signatures in order to get on the ballot, that it's reasonable but substantial. It's a substantial requirement to go out and get these signatures. And so the question becomes, doesn't that invent a legislative intent that even in the other way you can do that, that it's a substantial requirement and it requires something beyond just merely certification that this happened, that you really need to be, to fit this criteria of being a minor party affiliated with a national party that has a national convention. There are substantial requirements that should be, and we should consider them, equal to the substantial requirement of going out and getting signatures. The court has the ability to determine and ascertain compliance with these provisions. No question. But these are not alternatives and that's very important to understand. You say they're not alternatives? You mean a minor party cannot do one or the other? No, ma'am. Let me explain. Parin A says a minor party that is affiliated with a national party may do it by holding a convention. Parin B says a minor party that is not affiliated with a national party may do it by the percentage. These are not alternatives and what you have, So a minor party that is affiliated with a national party may do it by national convention. Could not do it by a petition. Correct. So going back to that, so wouldn't there have to be then some meaning to the part that is the national party holding a national convention? And you've asked us, you said we could create a definition. The problem is the court can't create a definition. We've also have the U.S. Constitution to be concerned with what the state legislature determined to be the requirements for the election in electors. There is nothing is there that you uncovered in the legislative history beyond the fact that this constitutional amendment passed that tells us what the legislature intended the definition of national party holding a national convention to be. That's correct, Your Honor. So therefore is it vague? To the extent that the lower court order would be the law of this court, it would be vague. And it would, in my opinion, violate the constitution. It has to be a standard that is sufficiently broad that people can apply these standard ex-antees. But how do we know, you're saying we should apply something that says in one other state? I mean, Hawaii has that, Iowa has, it has to be in 25 states. I mean, so how do we know what the, how do we know what the legislature intended in this regard? If you, if you look at the constitutional provision and the new constitutional provision in 1998 and what they did in 1999, I believe this court can say that the legislature intentionally left this without specific standards. And in fact, what they did was, they did not provide rulemaking authority to the Department of State. If we are talking about, this statute really is talking about for national elections, correct? And so why wouldn't it be reasonable for us to then look to any national legislation or regulations such as the FEC regulations to determine this issue? Two fundamentally different inquiries. Here, the inquiry is, when can one be deprived of place on the ballot? And what are the interests of the state in depriving one to be on the ballot? And in particular, with regard to the principles that this court has already said, and that is you err on the side of inclusion. Mr. Morris, I want to, and we have been definitely taking your time, but with our help, you now only have, there's five minutes for rebuttals. If you have a question and sit down, I apologize. The second with regard to the FEC, the policies and interests there are to prevent fraud or corruption with regard to campaign contributions and to make sure that the public monies are properly spent and only efficiently spent. Those are the fundamentally different analysis. And as Justice Periente said, here on the other side of the definition, any definition this court deems under this statute comes up against the rights of association and the rights of speech of political parties and candidates. And the reason why this not being an alternative is so critical, your honors, is that a person or a party absent any standard greater or with a standard any more specific and narrow than this cannot tell what to do. If the reform party believes it's affiliated, and remember, this is application of law ex-ante, you have to do it first and then be adjudicated. If you look at this and have Judge Davies standard or anything more specific than this, what do you say? Am I affiliated or am I not? Is this a national party or is it not? Wait, wait, wait. Let me, I know we're going to give you, and Justice Lewis has a question. I want, rather than save it for rebuttal, we'll give you a few more minutes. If you have suggested a vagueness problem. I've not seen the parties provide us with authority, case authority that we can put our hands on, that this statute is vague. It's an invalid statute. You cannot qualify under this statute because this is an invalid statute. Where does that leave us? Where do we go? Do you have a case that you can direct us to, the authority for that? The either one of the reformer or the Nader Party's brief has case citations about void for vagueness. What's the result? 34. What's the result? Well, the result would only be, with regard to Secretary of State, is it would only be void for vagueness in application, if in fact, this Court were to say, Judge Davies method and manner is what's the result? The result would be that the act would remain, but the Judge Davies order would be reversed. Because it is not void for vagueness, if in fact, the duty of the Secretary of State is, if there's a certification, and if it is provided to the Department of State, the person is placed on the ballot. Now that is very broad. No question about it. It is very vague at that point. It is broad. And if there's a problem with that, and if that is too broad, the legislature can act. It is the sort of ad hoc determination method that Judge Davies uses that is impossible of predictable, rational application in the future. And the Secretary of State has an abiding interest in not having a situation where parties can't tell if you have a common sense provision about national being in more than one region. And if you have a common sense notion that it's people who believe that they are affiliated, believe that they are organizing and that they are there for political purposes, then you have a reasonable ability to implement that in a way so that people don't make a pick on these three provisions and the pick be wrong. But in the end, if the constitutional provision was to allow minor parties affiliated with a national party to be on equal par with a major political party in this interpretation, which is you just have to certify they are more than equal because the requirements for the primary that you have for the major parties are more onerous than just the certificate way. Correct. Your Honor, I think you have to say that the legislature's passage of this act after the constitutional amendment passage is a pretty clear indication that they left these vague for reasons. And in other portions of the statute relating to national political parties, there's rulemaking authority for good reason because they're saying agency create rules. Here, there is a there's a very loud silence with regard to rulemaking authority because of the constitutional parameters and because of the difficulty of making it specific. But you would agree that if there was some clear violation, such as that they were not affiliated, that that would be something that the violation of that part of the statute could be brought in a court of law and remedied through the process that Judge Davey did through the injunctive process. At some point and in some way certainly not in the manner in which he determined affiliation. Affiliation we would suggest as a standard if in fact the court is going to do that is to connect or associate one self with a party. And the one self is reflective and very important. He decided the affiliation issue in your favor. Correct. I say in your favor. Right. I'm just, I'm trying to tell what I'm telling the court is the Secretary of State is needs a standard that is predictable that doesn't that doesn't disturb settled expectations that have occurred over the years. And that can protect constitutional association. But you're telling us that the policy of the Secretary of State to this point has been not to apply the definition that you've suggested for us but has been merely to accept the certification regardless of the name of the group or whatever. Is that correct? That's right. We have implemented the statute which tells us that we shall place on the ballot upon certification. I think we better apologize for the not expired. Okay. We're going to give you a little additional time for rebuttal but your 30 minutes has expired. Thank you. With our help. Okay. All right. Mr. Tribe. Chief Justice Peretti and may it please the court. I'm Lawrence Tribe and I'm counsel for the Wilson appellees and with me at counsel table is Steven Rosenfeld and also virtually at counsel table back benching is Joel Perwin. I think I would like to begin with the problem that you're struggling with. Let's steer you to this last point that Mr. Maros made and that is that from what I read in this record that during this election cycle since the September 1st deadline that the Secretary has certified but five or six five others five other minor parties so six total and so the application of this statute during this election cycle has been as the Secretary says and that is to if someone certifies they're in a minor party then the state is going to allow them on the ballot. Is that correct? Certainly the testimony has been that it is ministerial and automatic but the fact that these five have been approved would not in itself prove that might be and I think it is the case that with each of them there is a very solid record showing that they meet the requirements of the statute. It is a strange interpretation seems to me of the statute but it is the Secretary's interpretation but she doesn't ask the question is there any truth at all to the claims? Justice Ann said this example if a party disappears. I didn't see in the record any indication that in the 2000 election cycle that the Secretary had administered this statute any difference. No indication either way Your Honor, no indication but I think I understand. So there was nothing in the in the method and the policy that the state had had out there up through September 1st that would indicate other than filing a certificate and if you were a minor party that you wouldn't get on the ballot. Is that not? Well that's right accept your Honor if I were to form suddenly I suppose I were to form a group like the American Heritage Foundation but much smaller it would advocate positions it would advocate sometimes the election of people it would meet the definition that they would have a political party but I think those groups would not think to apply because it would be their assumption that words mean something it is not it seems to me the case that we have so degenerated as a society that we have to assume that there isn't some degree of self-imposed enforcement but hasn't the legislature really left us out on a limb here that is that they've used words like national party national convention and they really have provided no explicit guidance with reference to this and then when we go and we see for instance in this record that even the federal agency in charge with regulating elections and conduct during elections has really a very broad base of definitions here of legitimacy to national parties aren't we left in sort of a political maze that perhaps the courts should not tread into in this situation where the legislature has not given us more guidance and we have a constitutional background where we want really to give a deference to participation in elections candidates and voters so help me with a legislature that has used this language and not specifically how can we now impose on the election official in the state an obligation more narrow after the fact that is that and this is part of the difficulty you know with the case law traditionally on issues like this is you can't come to answer your question afterwards with with with answers you know that right first first of all justice and said I think we should remember when you say after the fact that it's in a sense before the fact that is this kind of issue will come up hopefully if people do not wait quite as long as Mr. Nader and the reform party did to trigger it will come up before the election it's not a criminal prosecution for someone not having guessed right what national party would mean and the law is very clear that the standards of vagueness are very much more generous to the legislature as I would urge you to be when the legislature is not throwing people in jail for violating something written in invisible ink before we get any further does do you offer for us that we were to write our opinion and we said the legislature used the term national party holding a national convention we construed that term to mean what what would be the what would you fill in the blank I think there are two approaches that you might take one of them looks more legislative and you might be a little nervous about it understandably and that is codifying it saying by national party national means not local not statewide not regional but having a significant presence throughout the nation significant means more than twelve and a half percent you know if you were to do that and I don't have a number to suggest we couldn't do that could it seems to me it would be very difficult not only you to make it explicit in those terms you couldn't do it because again as you point out not only do we have the constitutional rights at stake of the candidate but we have the article two that requires and puts plenary power in the legislature so in this area we would be to go and make up a definition would be with all respect with all respect I think article two has become quite a boogeyman well I don't think it's going to be the last election but in this one it seems to go directly to the fact that the legislature couldn't the legislature come up with no restrictions could they say in this state we're not going to put any restrictions on who can go on our ballot could they do that it could but it would produce chaotic and maybe it's worse than butterfly centipede ballots could get chaotic and then maybe a state that now my right to vote effectively has been diluted it's possible the right to vote would become close to meaningless if you had a Manhattan telephone director but in this case the democratic party and the individual plaintiffs are not asserting any violation of any of their constitutional rights if the statute is construed in the broadest sense to allow access by the reform party and its candidates to anyone no we're simply saying that we have standing because we know you have a title to have a legal election but you are not if we construed the statute in the broadest sense with because there has been no direction by the legislature we have not violated the plaintiff's constitutional rights correct I'm not sure the reason I say that is that it's really an open question whether article two section one clause three which says that you're to take the legislature's word seriously they're the ones who decided that there should be a limit as you've pointed out they decided that it should be a limit that looks at the seriousness and non frivolity of the group and in parity with the percentage but miss that could I just I just want to finish one thought if the legislature has said that and if this court says notwithstanding legislature's desire to have a limit notwithstanding article six section one we're going to treat this as completely open-ended and unlimited even if there are clear cases on one side of the line it's not quite often the case that you don't know quite where the line is but something is clear which is what this trial judge said if that happened then anyone who was forced to take part in a presidential election in which the legislature's directive about the ballot had been completely disregarded by a court that said we won't honor it could say that their rights derivatively under article two were violated but here is what concerns me is that we are in this case in the somewhat unusual posture of the fact that this is a limitation of ballot access imposed by the state the state has said we're going to apply this in the broadest way that we can and that we're going to allow you minor parties on the ballot now if the state had taken a position no you don't belong on the ballot because you're not a national party then you'd have a rejoinder that would say you don't define a national party what makes you say we're not a national party and in that term it wasn't clear when the deadline passed that we couldn't apply under this provision of the statute but the legislature hasn't done that what it has done is to provide contrary to what has been suggested to provide an alternative look at it from the point of view of the candidate the deadline passed that's the problem well tomorrow the deadline for mailing the advance absentee ballots arrives it's not till September 28 but the gathering of signatures the alternative that's not possible he certainly could have done it before that is it is simply not true for example that Mr. Nader was stuck and had to go this path he could easily have said he had a right to go this path well this legislature gave him this as a kind of a bonus look at it this way the legislature had said previously before 1999 that you have to have 3% signatures and you have to be affiliated with a national party whose nominee you must be and that was very restrictive it didn't just bifurcate it what it did was it changed the 3% to 1% and it told someone Mr. Nader you can if you want go it alone and try to do what others have done put in labor not the capital of a party put in labor and collect 90,000 signatures Mr. Tribe but in this case he did not take that petition route but in this case he did section A where he says this is a minor party and he's the nominee of its national convention and he actually turns on that saying that he was not this was not a national party okay now the trial judge in making that determination used various factors to say they were not a party they were not party building they were not doing fundraising they didn't have a platform and that they only were on the ballot in four or five states and that they were all about just this guy it was basically a vehicle for Ralph Nader not a national what I'd like you to address and the problem I'm having with that is where do we draw the line here several years ago we know that the reform party was on the ballot they had candidates in 13 states and a number of states and that was fine they were a national party now we get down to 2004 they're only on four states or five states they only have six or seven candidates where do we draw the line between 13 candidates and seven candidates I mean that's what we're being asked to do if we affirm what the trial judge did you're asked to say that there is a common law element here that is it is very common even in election regulation so the legislature to use words in general circulation without defining every one of them this legislature has said you look at the there's a provision saying in that event I believe it's a provision of legislation certainly this court has said the legislature expects us to do things like look at black's law dictionary alright so now we go when I asked you before what the definition was you started to say well you could define it with 12.5% and all this now if we go and say we have to define it does national party then have a commonly understood definition throughout this country well not necessarily that everyone would use the same words but everyone would say national means throughout the nation but that's and so therefore the united states of america so they would have to be in 50 states well see I don't know whether it has to be 50 probably it does potentially have to be 50 if a party says in principle we are not going to look at california we think california should float out to sea we are a 49 party state I would say that is not a national party well now we're saying that the legislature intended the most restrictive definition no no no it may have meant that the party must be nationwide but it did not necessarily mean that the party's coffers have to be full that it has to be unfractured that it has to be besides the petition always available but I think that it appears that with different states having different definitions with this state having no definition with the fec having another definition with experts having other concepts that we still are left with a situation where the term is ambiguous it's not clear it's ambiguous enough that criminal prosecution for violating something that used that term would probably violate due process but as a prospective term that is if you try to get on the ballot and do not persuade or try or fact it's a mixed question of law and fact so what you're saying then is we're going to be going through this every two to four years I hope not. Who's going to try or fact? It seems to me that you have to remember that it's not so novel, not so unique that is all the way back to 1928 in the case involving the rather complicated scenario terms at least as vague at least as ambiguous, convention the term convention, what really is a convention were regarded as workable terms of the law and when supreme court in American party of Texas versus white said that it is of course constitutional not even worth debating. Well let's move it to 2004, let's say we had a thousand people, two thousand people get in a chat room on the internet and have their convention over the internet under your interpretation that would not be a convention. That's right, not unless we had gotten further into virtual reality so that the back slapping and going off in little caucuses were part of it. So if we do that, how does the Secretary of State apply this statute without it resulting in every four years a big party with the deeper coffers suing the minor party and really limiting access to the ballot and the development of big parties? It seems to me that if the concern is a real one, a legitimate one is not to have enormous amounts of litigation it really would take an extraordinarily gifted draft person to figure out how to avoid that because anything you can imagine doing by way of limiting access to the ballot and you don't really want a ballot with a thousand names anything you can imagine doing could in principle spawn litigation even if the terms seem somewhat precise. Wouldn't it be better though if the legislature was doing it then they would have give some standards and they could have a pre-certification administrative procedure. Going back, I promise Justice Contaro I would ask a couple of questions on his behalf and you suggest that the term national party has to mean something throughout the nation but if the terms minor party and national party don't they have to be construed so as not to impose such burdens that only a major party can be considered one? I think that's certainly true and there's no indication that Judge Davey was even moving in the direction of a construction that would allow only minor parties in. He also did something else that's very important. He stressed that the reason he thought there was no constitutional issue here was that on every one of the separate elements including whether they nominated him at a convention he loses. The definition of national party could be thrown out. You could say we don't know what that term means but it would in this case lead to the result that Mr. Nader still could not be on the ballot. Where did Judge Davey's get this criteria that he decided to use? He listened to experts there was testimony and he said an element of common sense. A definition of the use of experts the proper way to get a definition for a term? It's not optimal. The other side didn't object and the judge said he didn't give what he called I think he said excessive weight to what the experts said. He looked at dictionaries. He used common sense. The main thing he said was a lot like what courts have said often with respect to obscenity. Justice Stewart used to say you know I have a hard time defining it out at the margins but I know a hard core case when I see it and what the judge said was that we've got one here and he remembered something that I hope the court will remember and that is that if Mr. Nader from the get go had said I'm confused about what's meant here by national party by minor party I'm just going to go out as I did in other states and get signatures. He would be on the ballot if he got enough. That means that the definition of national party need not be confronted in this case that he has never offered any justification for the conclusion that he belongs on the ballot because there are problems with one path he might have taken and did take not withstanding the other perfectly clear path. Of course he has been ordered to be on the ballot by the Secretary of State and so that's where we find right now but in fact you keep saying that that the term national party or national convention would be hard to define but they have been defined by legislatures. I mean Hawaii defined national party one way one or more states if I remember correctly or two or more states Hawaii has defined another way and so it is and to have a national convention certainly a legislature could tell us what it meant by those terms. It could and I suppose if you imagine yourself in dialogue with them you might say we really are sufficiently uncertain what those terms mean that we do not want to use this case as a vehicle for trying to define them especially in light of article two but because there was no allegation that the entire situation confronting Mr. Nader here was problematic in any way no allegation that he couldn't easily have taken the path that was burdensome but doesn't that really go to another issue though that back to that if Mr. Nader or the reform party looking at the way this statute had been applied in 2000 which was hey Florida now went from the most restrictive to this is a slam dunk you just have to file one of these certificates and have something. But these five groups I'm sorry to interrupt you but these five groups were not just Joe and Jim and Sam they were real legitimate groups. The Socialist Party they would meet the criteria. The Socialist Party they collected petitions I believe they collected petition signatures but I can't tell you for sure because the record is I think if we went on the website of all those other parties I don't think we would find that they would that they would all meet this more stringent definition but can he look and say in 2000 whoever wanted to get on they made this certification and I've been able to you know I can in good conscience say it because you know maybe on the decline but this was a party that was actually certified to at least be a national committee in 1998 2000 I guess so we've got a declining and maybe almost dead party now they see an opportunity they can use Nader to revitalize their party why isn't that legitimate? Well it seems to me as an aim that is legitimate it's also legitimate for the state to say that because it takes some work to get the petitions and because we want this alternative to be roughly as onerous not more at a minimum you have to have a convention that nominates you when he was nominated over the phone in that conversation on May 11th well let's let's go back and accepted the nomination I'd like to go back to this whole national party issue and would you agree then in this record there is a conflicting evidence of whether or not the reform party is a national party I don't think there was any evidence put on by the other side that well wasn't there a Mrs. Janice Miller who talked about the reform party and actually I recall a couple of witnesses who testified that this was a legitimate convention that this was a party with a certain number of members etc etc but the judge did resolve the evidence in a way that this court under its normal rules would be deferential that is but shouldn't that resolving of the conflict if you can agree that there was conflict there was a scintilla of the conflict be in favor of access to the ballot well I think he made it very clear he said that he was putting a very heavy thumb on the scale that's why he applied at the preliminary injunction stage a standard of beyond a reasonable doubt and in this case he said the evidence is preponderant and more than that it's clear and convincing so it shows that he put a thumb on the scale I also have to be time keeper you're over your time but the other side with our help went three minutes over and we're going to give a couple of minutes as long as I'm not eating into the time of the other play if I well oh I see okay so you're only how much time were you I was given 24 minutes and well it sucks you're into the because they went three minutes over we will allow another few minutes if we don't finish up so if you want to answer the questions as though the longer we do this the more we throw out the window common sense approaches to so many things certainly talented lawyers find ambiguity anywhere right have the capacity to deal with the English language as such certainly here we're having a dispute over what those phrases mean giving everyone the benefit of the doubt that these do have some room for a discussion or analysis of the parameters or analysis of the concept of a national party if it if it is so open for that discussion and it has that level of vagueness that's built in what does case law tell us should happen in this case is it has been suggested is it has been suggested that well then it becomes an unreasonable restriction and this must go on or on the alternative is it do you provide a definition or do you hold it invalid and say the statute doesn't exist could you help us with that well the case law in general I think says that if it is a retrospective application criminal prosecution then if it is vague as applied you that is if you're in the core where you have no idea whether someone is in or out of the definition you have to reverse the conviction only if it is facially unconstitutional do you strike the entire law down and in prospective context the law is much more generous to the legislature but one thing that the case law does seem to suggest in the for example the LaRouche case in the district of Connecticut I believe is that even if part of one of these laws is vague in that case they thought that defining access to the ballot in terms of national recognition and name recognition was vague but there was also a provision that said you could get on through the petition route what they said was that part is severable and valid and we're certainly not going to say that simply because someone was kept off the ballot with one arm that was vague that the person now can get on the ballot because they could have taken the other path and the case law I think also suggests that before something is struck down as vague it has to be as far as I can tell a lot more ambiguous than this one of the cases they cite the definition was you got to be a real contender so I almost imagine Marlon Brando speaking to his brother I could have been a contender that's vague but this is not like that we will only let Marlon Brando on it's not like that okay thank you with that I think Mr. Turner you've got Mr. Tribe used about three of your minutes but you'll have a couple more thank you your honors representing the side of the issue people who are interested in ballot integrity we I think first we have to talk about the genuineness standard that's clearly implied just as a signature must be genuine it can't be of an insane person or something like that we have to deal with what is genuinely a national party you say your interest is in ballot integrity yes ma'am and of course that's the state interest in why they are able to limit the population as applied at least we know in this year that the ballot is not unmanageable there's not going to be anyone else qualifying and so why not accept the secretary of states view of how she felt she had to apply this statute and say there weren't a hundred people that sought to qualify we might have a problem then I don't know if they all qualified through this route or they had to get petitions why is that interest in ballot integrity furthered by cherry picking nader and the reform party off because the law was not followed clearly and what we have is a sham why didn't you look at all the other parties that were on to see if they this is an insurgent party this is a typical little experts below insurgent party where you have a one little person that causes the thing to erupt and get substantial and then rapidly decline because you don't have abiding principles but don't we have the first amendment in the state for those issues to be clearly showed that this is a hijacked party that's what we showed but isn't that something for the voters in other words you're talking about voter integrity isn't that why we have free speech to argue about that in the public domain you are correctly identified that the rules are there that the state hasn't interest and when the state speaks we have to follow the rules are there to be followed we have to assume there's minimal requirements here that these standards are not without meaning it would be meaningless to say a national party is a group of friends in New York and a group of friends in California to talk that's meaningless and that's their position let me ask you this you obviously assert that you have standing to contest what the statute how the statute should be applied what it means we have standing to enforce the statute just as we would on a voter just as we would to show signatures are not genuine for initially as a declaratory judgment correct an injunctive relief but a declaratory judgment and the declaratory judgment statute has been available since 1999 to come in and have a declaratory judgment as to what this statute means correct I presume it's ever since it's been enacted that could have been a controversy or a case pending quite honestly what is bothersome here is the fact that we find ourselves trying to come up with a construction of this statute which and to strike somebody from the ballot after a deadline rather than doing it prospectively who chose intentionally who is an independent candidate, no question at all the states he's appearing but who as his campaign manager said in the testimony he simply where this root is where he's where it is easier to appear on the line as a party as opposed to collecting signatures this is the way he went that's why we have a controversy you have standing to attack it but it's still the state's compelling interest you said your interest is in ensuring ballot integrity as evidence through the statute passed by the legislature but how could we have a system that would require that for each time that there is a question as to whether a national convention was held that there would be a trial court fact finding of whether there were enough balloons or enough of these hats whatever we watch that seems to be come to think of as a national convention where is the interest of the state how the convention gets I think there's an interest in that there be a genuine national party but this was again now we're talking about the fact this was you would agree in 1998 this was a genuine national party and this is typical of insurgent parties now we're going to get into government 101 and decide when on a continuum they were at their heyday till when they die out we're going to knock them off the ballot well we would certainly your honor would agree that in 1995 at the beginning of this party it was not a national party I mean party there is a there is a problem here because at the beginning and at the end they're not functioning but isn't it true as a natural course if you read the history of all these insurgent parties as you call them that they die a slow natural death without the courts intervening in whatever well the bull moose party was one that was described George Wallace's party was one described usually the decline is very rapid and there's disintegration and fractalization just has occurred here and that's weighing the harms and the benefit what's the harm if this court were not to intervene and allow the ballot to go forward as the secretary certified as I see it you have a situation where one of these parties can be captured exactly as it is here and by country club is the one of the witnesses described and really take somebody and use this vehicle to evade the one percent signature requirement of minor parties which is not fair that's what we're talking about are we going to take into consideration the fact that this is Ralph Nader and that he is running on an as an independent in all the other states and that he is not going to be running as a normed party candidate is that supposed to be something that we take in our calculus of deciding this issue well it's the party under section one oh three oh nine one parenthesis to it's the party and not the individual candidate that's entitled under the law to place the candidate on the ballot my concern I mean I'm concerned with the subtext here what's going to you know the newspaper story is going to be very different from one what the legal story is and what I'm concerned about is although we know we have a legal question to evaluate that if we get ourselves too far into the politics isn't the court then running a foul of the I'm never good at this of the just disability issue as far as getting into a quintessential political controversy judge your honor the statutes there the statute has meaning it's about access limitation and it must be applied in a meaningful way and I think the evidence in this case is clear by experts on both sides are you then suggesting let me go back to the question you have a chance to answer is what is if we were writing this opinion we're not just dealing with this competent substantial evidence to support a finding what is the definition that the court says when the legislature did not define this term we go to and what do we then do with the term national party we define it to mean what to have a genuine national party the expert for both our clients and the expert for the reform party testified you have to have four criteria so you suggesting that this court take a statute that was passed in 1999 without any legislative history that with a term that was on the books since 1970 and apply criteria that took place in a trial after September 1st of 2004 I'm suggesting that we do what we do every day in interpreting statutes we apply what is read what is meaningful what people know in common sense and what everyone agrees on there are four essential you needed an expert you see that's the whole problem with this is that if this is just like the question of you know the 2000 election I mean I'm sure none of us really gave much thought to what minor political parties mentioned what this these terms may not you're telling me that we all know what a national party meant by these four criteria I'm saying that people who know what I'm not a party person I'm not a party expert but people who understand what parties are and clearly it must be national in scope of some kind but the expert has clearly laid out four minimum criteria that everyone in the area recognized we don't rely on experts for giving for the court to give a legally respectfully disagree judge Wells done all the time at the role of the court it's done all the time in litigation we amplify statutes and explain what does it mean and this is done all the time that we're not asking you to do your honors to be perfectly honest you're just sensitive about this and I understand that but the fact is the legislature prescribed this standard and it must have meaning so why wouldn't Hawaii the Iowa the Puerto Rico or the Guam definition of political national political party or convention control over historical experts presented before one trial judge let's ask it to reverse if Florida wanted to adopt that standard why didn't they adopt this but what I'm saying they did I don't want to get argumentative but what you're saying is it's common sense it's reasonable everybody understand to accept that argument Iowa Hawaii Puerto Rico and Guam don't get it no sir they don't understand that if you want in the reality of it is is there is a spectrum from broad to more narrow and what you are asking for from your expert on that spectrum leans towards the more narrow definition I think if you want to adopt a definition that is not normally followed if you want to adopt something that is different from what is normally in the in the by political scientist by everyone concerned with this recognize then you should do so the state certainly free to do so here it certainly is not reasonable that they would adopt such a broad standard in light of the 1% requirement so that a minor party candidate if it's nationally affiliated doesn't have to follow 1% it must mean something what then what aren't they have to be a genuine national party something that is viable and real and not this moribund decadent nonexistent and captured simply for purposes of injecting itself into political realms when it not the legislature has not said that there has to be a genuineness here there has to be a viability and the trial court found it wasn't there and and I think you're bound by that finding and I think it's a fair finding the trial court said it's not a close question the ebb has flowed out for this party this is not a viable real national party and it's and it has two or three states and it's running candidates in most of whom relate to Mr. Sean O'Hara who's a fringe issue a fringe candidate or person yes sir I'm sorry I know I'm over so well we are over but you're you're only you're over by five minutes so you're you're you're fine okay thank you then judge was I'm sorry I didn't mean to cut you off no may I just have one quick point it does anyone I think it's just one question it's very important to recognize that in this case the constitution of the national reform party itself defines convention makes it very clear that they were going off the convention route when they went on the phone to nominate him he accepted that nomination then he said oops maybe I should have a meeting and so there was a meeting in Dallas if you focus on the facts of this case I think you can say that we hope the legislature will clarify whether it means to go the Iowa route or the Hawaii route we don't have to reach that here because by the party's own definition he was not nominated at a convention of a national party thank you very much we'll give you three minutes for rebuttal which is very generous yes ma'am my name is Andrew and I represent the reform parties and I'd like to address Justice Anstead's question about the intent of the legislature the legislature must have been considering that it wanted to be more expansive than it had been after all it could have left in place a 3% or a 1% petition requirement and so in giving this alternative method it must have been considering that we want the participation of minor political parties and we're going to give them every benefit and every effort when they first did that when they first actually added that requirement to the statute it really wasn't to be more inclusive it really they added it to the percentage requirement didn't they and it was only after the passage of the constitutional amendment that says you can't make the requirements for minor parties more onerous than the party that has the most votes in the state that we actually severed that so can we really say that when this was passed it was really to give clear access well the whole movement to amend the constitution and to change the election law was to give access to minor parties and that was done by dividing it and instead of having two requirements you divided it into two separate requirements they certainly did and well the overall what I've been asking you and I appreciate very much you coming back and addressing this very core issue as far as the intent of the legislature but I'd like you to address it from the broader standpoint of this being a restriction that is that clearly the legislature has imposed some standards one of the standards whether we call it an alternative or just a different way of doing it is of course going the petition route but the purpose behind having standards or restrictions is to assure some legitimacy here that is that it's not frivolous or whatever and that's really where I would like you to address how we come out on this of whether or not we have faithfully obeyed the legislature in terms of that being their purpose we can see it clearly when it's a petition situation because they've just set out whether it's 1% or 3% or whatever but now what they've said is that also as an alternative way to have this legitimacy and non-frivolousness if you are the legitimate party that has a national convention and so on then we're going to let that substitute and say well that also demonstrates that you're not frivolous so here is where I am concerned with the arguments that this may be a sham that is that this is just a way to get on the ballot of somebody that has no interest whatsoever in this national party in its platform or whatever it stands for and so would you help me get over that hump if the legislature clearly had this purpose of having some legitimacy by carrying the banner of a national party does that really exist under the facts of this case Your Honor it does because if the legislature intended a restriction and I'm certain that they did that restriction before we had the line drawing by the lower court was good enough to eliminate most of the we don't have a phone book six out of 22 minor parties on the ballot so the restriction before this case was good enough to achieve the limits that I'm hearing that everyone is concerned about and before you sit down would you give us your best case scenario from the proof that was submitted because we've had sort of this idea of drawing on a spectrum here or whatever whether or not this might be a party dying on the vine but that it's still on the vine that it hasn't died yet what was the most substantial proof offered below to show that there was still life in this party such as when it was on the ballot in 2000 for instance I believe what was the strongest proof to show that the party was still a viable party The fact that it is the fourth largest minor party in America today and wherever this court draws the line if it draws the line where the lower court did it will effectively exclude every minor party because if you are the fourth largest party in America and you can't make it on a ballot what was the evidence that as of 2004 that it's the fourth largest party in terms of voter registration if you take the number of people in America that have signed up to be part of this party we are the fourth largest in America was there any testimony as to what the platform is of the reform party there was testimony from Ms. Amato who represents Mr. Nader that she got a copy of our platform and that she looked at it to make sure that it was consistent with Mr. Nader's views before he agreed to join this party it was adopted at the 2004 convention and placed on the website so if anyone can go to the website and see the platform I don't know if that's exactly in the record that way but there was no question that Ms. Amato was able to get it off the website she testified to that to make sure that Mr. Nader and the party were consistent with their beliefs but the fact that Mr. Nader is running as an independent in all the other states does that affect the calculus in this case I don't see how it does your honor because what Mr. Nader again it's the interest of the reform party to be on the ballot but by nominating Mr. Nader they're only getting on the ballot for the president, vice president in Florida I believe there are other states where the reform party is either on the ballot or attempting to and of course it's being challenged logically if he's going to carry the banner in Florida of the reform party wouldn't he be carrying the banner of the reform party in all the other states well he's carrying the banner of the reform party any place that we can get him on the ballot we would certainly, our party wants him on every states ballot for the reform party and we're excited that this is an opportunity for the reform party to rise back up where it was out of Ross Perot and other national candidates and Pat Buchanan and you think it was a great face someone thinks the reform party could go from 2000 Pat Buchanan to Nader in 2004 well the beauty of any political party is that any group of people that's part of that party can make their ideas heard I suspect that there are candidates that are members of the national party that not all of the members of that party would endorse their views but after all that's the essence of democracy in our party and the rest of the parties so the fourth largest party by registration is what was testified to in the record is there any impact yes ma'am 2004 registration is there any impact that Miss Amado also testified she looked at those and said they were not inconsistent with the views of Mr. Nader on several things I think that's the way the testimony was presented but she also testified he's not a member of this party no he apparently is not and that he apparently is that of any moment or is that just a nothingness that we should just not consider I don't know any law in Florida that requires a candidate to be a member of a party in order to be that party's candidate and so then we could have a party national party in Florida with an individual slate that in some other state they would be running against the nominees of that national party is what you're saying is that what that would lead to I don't think it would lead to that at all I think that if we have a candidate that is carrying our banner then I wouldn't suspect it would be running against our banner anywhere else well it would have to be if you had a reform party candidate in another state that would slay the candidates than here then they would certainly if they're running for the same office for the same party be running against one another from a national standpoint would they not I don't think that would happen in a presidential election when the reform party nominates one candidate for president wherever you're going to get on the ballot you have to have Nader as your candidate absolutely Mr. Nader is the reform party candidate thank you very much and I think that we're was there okay this is from the secretary of state it's actually I did have one question to anyone I will be very brief but a couple of things John McCain as vice president as potential vice president of the Democratic Party is the perfect example of why there does not have to be that constitutionally there does not have to be that sort of limitation also the court cannot inquire into whether a party complies with its own constitution or its own rules that's why this nomination the foundation of the nomination thing cannot work because you intrude on the inner workings of the party you violate association can you not look though to determine if you have a national party that has a national structure determine whether that has been followed or is it just some fringe operation that's doing whatever they want if it does not follow the structure if it does not follow the plan it does not follow the constitution can one not look at that to determine whether whatever the senate is it is not what it purports to be not only if it is narrowly tailored to affect a legitimate state interest and the question is is the lack of strict compliance with the constitution probative of a sham and if you narrowly construe that perhaps but here what you found and what the evidence was is by virtue of non-compliance with the constitution that alone is enough to say you can't get on because you were not properly nominated I'm sorry that's unconstitutional but that not be probative however of whether it is truly the national the national organization which it purports to be depending on the definition and the problem there of course is if you have the definition that says you have to abide by the rules what does that mean and the other thing I need to say is there's been a lot of talk about you can always run as an independent don't forget your honors in the secretary state cannot implement a statute that says you can only be an independent because to be an independent you give up your associational rights the question I had was the September 18th deadline which is for the mailing tomorrow do the supervisors of elections do they mail today or they actually physically can mail tomorrow I believe they can mail tomorrow and is there any with the storm that occurred in Pensacola is there any just from the court's point of view since we're in obviously our own little emergency is there any indication that that deadline is going to be extended by the secretary of state we have no indication of that with regard to that remedy you honor I have to advise you of one thing to consider if the remedy is to affirm the judgment one way or the other the court has to consider whether that remedy whether that decision would have to be pre-cleared under section 5 of the Voting Rights Act and have to be submitted to the Department of Justice is that something raised in your brief it is not raised in my brief we're going to have that one I understand that will be next year thank you very much for everybody's responses to our questions the court is in recess Mr. Nader took his case to court in Florida and six other states his name currently appears on the ballot in 34 states six of which may still remove his name you may watch this program as well as others related to courts and the law on our website cspan.org click on America and the Courts join us each week for programming on the federal judiciary America and the Courts airs Saturday evenings at 7 Eastern 4 p.m. Pacific tonight on American Perspectives the past, present and future of television news a discussion with Walter Cron