Ralph Nader’s fight to overturn the law that kept him off Hawaii’s presidential ballot in 2004 could yield a huge victory for voter choice and free speech rights, according to Nader’s lawyer.

The U.S. Supreme Court recently requested a response from the Hawaii Office of Elections.

Attorney Robert Barnes, part of the team representing the longtime consumer advocate and four-time presidential hopeful in Nader v. Cronin, told Civil Beat that’s an extremely rare step that shows the court is serious about taking the case.

Barnes said he thinks it’s now a 50-50 shot that the Supreme Court will take the case, and he believes the justices have been looking for the right opportunity to “rewrite the doctrine on election laws.”

“It would be the biggest victory for small parties and independent candidates in Supreme Court and judicial history,” he siad.

He said he believes the justices want a case that allows them to frame the controversial Bush v. Gore decision in a different light — as not politically motivated but legally principled.

“This is opportunity for the Supreme Court to rewrite what is permissible,” Barnes told Civil Beat in a phone interview Wednesday from California. “The nature of the ruling could be that it … would rewrite First Amendment election law throughout the entire country.”

The Ninth Circuit Court of Appeals rejected Nader’s case last year, saying the Hawaii law requiring independent presidential candidates to submit a petition with enough signatures to represent 1 percent of the votes cast in the previous presidential election is justified. It said the Supreme Court has consistently held that states have “a legitimate interest in regulating the number of candidates on the ballot to … prevent the clogging of its election machinery, avoid voter confusion, and assure that the winner is the choice of a majority, or at least a strong plurality, of those voting, without the expense and burden of runoff elections.” (Bullock v. Carter)

Essentially, government has decided that “frivolous” candidates shouldn’t be allowed on the ballot because their presence might disrupt elections, Barnes said. But that mentality is dangerous because it allows the two main parties — Democrats and Republicans — to set the rules governing their erstwhile competition.

“It’s not the government’s prerogative to determine which kind of parties and which kinds of candidates should or should not be on the ballot,” he said. “Being on the ballot is critically involved in speech because it gives you the platform from which to engage with the public.”

Barnes said the rights of small party and independent candidates — he’s worked with Nader, and the Libertarian, Green, Taxpayer and Independent parties, among others, in the last decade — “go to the core of what I believe personally and politically about the First Amendment.”

An attorney for the Hawaii Office of Elections declined to comment about pending litigation.

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