Voting simultaneously for Nader and Kerry?

There is an interesting article in the New York Times (May 5, 2004) by Bruce Ackerman, a professor of law and political science at Yale, titled 2-for-1 Voting that proposes cross-endorsement of Presidential Electors between Nader and Gore.

As quoted from the Article:

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“electors will be named by each state’s political parties. But Ralph Nader is running as an independent. When he petitions to get on the ballot in each state, he must name his own slate of electors. While he is free to nominate a distinctive slate of names, he can also propose the very same names that appear on the Kerry slate.

    If he does, he will provide voters with a new degree of freedom. On Election Day, they will see a line on the ballot designating Ralph Nader’s electors. But if voters choose the Nader line, they won’t be wasting their ballot on a candidate with little chance of winning. Since Mr. Nader’s slate would be the same as Mr. Kerry’s, his voters would be providing additional support for the electors selected by the Democrats. If the Nader-Kerry total is a majority in any state, the victorious electors would be free to vote for Mr. Kerry.”

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Given the lack of Instant-runoff voting (IRV) for Presidential Electors, this is a possible alternative to the “wasted vote” problem. Currently, the process of fusion is practiced regularly in New York as well as occasionally in several other states. Fusion is the process of combining votes from several party lines into a single total. In New York, for example, 2000 featured Bush on the Republican and Conservative ballot lines while Gore was on the Democratic, Liberal, and Working Families ballot lines (Buchanan was also listed under two parties – Right to Life and Buchanan Reform). The choosing of Presidential Electors is based on the fusion (or combining) of the votes for each ballot line of the candidates. However, this is generally practiced for only the same candidate. The legal possibility of different candidates cross-endorsing the same set of electors and allowing fusion is likely an issue to be determined by individual state laws.

As an historical note, cross-endorsement was actually somewhat common in the late 19th century. For example, in 1892, a set of electors in North Dakota were cross-endorsed by both the Populist and Democratic parties. In a very interesting result, two of these fusion electors and one Republican Elector received the highest number of total votes, creating the only occasion of a state casting electoral votes for three different parties (one Democratic, one Republican, and one Populist).

I’m interested in hearing any legal analysis of this possibility – especially in “battleground” states.