Law Professor James Gardner has written “Deliberation or Tabulation? The Self-Undermining Constitutional Architecture of Election Campaigns.” It will be in the Buffalo Law Review, volume 54, and likely be in print in the spring of 2007.

The article points out that there is substantial agreement, in philosophical discussions about election campaigns, that the purpose of election campaigns is partly to persuade voters to a particular point of view. On the other hand, much ballot access jurisprudence adopts the view that candidates who start out with a low level of popular support should be kept off the ballot. These two concepts are antithetical to each other. The article highlights the contradiction.

Rogers v Cortes, the Pennsylvania ballot access decision issued by the 3rd circuit in September 2006, said that states have an interest in keeping “non-viable” candidates off the ballot. The 3rd circuit didn’t explore the philosophical implications of its conclusion, nor did it cite any authority for that view. The rehearing request for Rogers v Cortes is still pending. If the rehearing request is granted, attorneys for the political party-plaintiffs in that case can make good use of Professor Gardner’s excellent article.