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Abstract

Most states have established an intricate network of rules and procedures that independent candidates need to follow in order to get on the state’s ballot for the presidential election. If a candidate manages to make it onto a state’s ballot, most states also have a mechanism that allows almost anyone to challenge the process the candidate went through to get on the ballot. Citizens can challenge the candidate’s nomination petition, and then appeal the decision on the challenge at several different levels. An independent candidate running for national office can become embroiled in simultaneous petition challenges, and appeals, throughout the country. The process consumes a candidate’s precious resources during a critical time in the campaign. Nominees of the major parties do not face this potential labyrinth of litigation. A SLAPP (Strategic Lawsuit Against Public Participation) is a lawsuit that typically has no merit, but is filed to prevent the defendant from participating in a political process. The nuance and variance of nomination petition requirements, combined with the availability of private challenges to the petitions, lay fertile ground for Election SLAPPs. In the mid-1990’s, many states enacted anti-SLAPP statutes, which are intended to curb the effects of SLAPPS. Anti-SLAPP statutes provide a vehicle for early dismissal of frivolous suits that appear to have been filed for collateral political purposes. This Article begins by outlining the hurdles an independent candidate needs to clear in order to appear on a state’s ballot. Then, using Ralph Nader’s 2004 campaign experience as an example, it demonstrates how the availability of private challenges to nomination petitions exponentially compounds the burden of initial compliance, without any accompanying benefit to the political process or advancement of any state interest. Next, this Article argues the futility of seeking legal redress for Election SLAPPs, using Nader’s attempts to do so as an illustration. The procedural history of Nader’s case in Maine also provides an example of how some litigants have used Maine’s anti-SLAPP statute to dismiss the suits that followed in the wake of their own frivolous lawsuits. The Article concludes by arguing that 1) Maine’s anti-SLAPP statute should not be interpreted to allow a singular nonfrivolous petition challenge to protect frivolous petition challenges in the same filing from sanction; 2) Maine’s anti-SLAPP statute should be applied without either of the burden-shifting mechanisms imposed by the courts construing it; and 3) states should eliminate the availability of private challenges to nomination petitions.

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