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This fall, Ralph Nader, the independent candidate for president, wanted access to state election ballots Nov. 2. To do so in Pennsylvania, he had to beat a pinstripe-clad team. No, it wasn’t the New York Yankees, but a group of determined lawyers. They were mostly Democrats and mostly from Reed Smith. Those involved on both sides of the case said that without the attorneys and technology the law firm invested in challenging Nader’s nominating petitions, the independent — widely credited, or blamed, for throwing the 2000 election to President Bush — would today be able to threaten a repeat performance in the contest between the president and Sen. John Kerry, D-Mass. The Reed Smith lawyers were the workhorses behind a massive statewide challenge to 35,000 of 51,200 signatures filed by the Nader campaign in Pennsylvania. The lawyers’ victory was clinched Oct. 23 when the U.S. Supreme Court refused to stay the court order striking Nader’s name from the general election ballot in Pennsylvania. “We had the resources to do a statewide review” [of the signatures], said Daniel I. Booker, a Democrat and former managing partner of the firm who headed the Reed Smith effort from Pittsburgh. Election law specialists said Reed Smith’s intense involvement on such a scale might have changed the rules of the game for future ballot fights in Pennsylvania — a state where the technical requirements for ballot access are very precise and well-settled inelection case law. “The lesson here is that there are mechanisms available to people and to the courts to enforce the law,” said Booker, who is active in the Democratic Party politics in western Pennsylvania. “The firms in the business of collecting these signatures thought it was too hard for anyone to enforce the requirements, so they would get twice as many [signatures as required], figuring they’d sailthrough.” Gregory Harvey, one of the most recognized Democratic election lawyers in Pennsylvania, was one of the non-Reed Smith attorneys representing the “objectors.” The most important legacy of the case, said Harvey, is that Nader and minor party candidates “will think twice” about whether they can get away with petition cheating. The court said, “In reviewing signatures, it became apparent that inaddition to signing names such as ‘Mickey Mouse,’ ‘Fred Flintstone,’ ‘John Kerry’ and the ubiquitous ‘Ralph Nader,’ there were thousands of names that were created at random and then randomly assigned either existent or nonexistent addresses by the circulators.” ‘NADER FACTOR’ This season, the Democratic Party waged a war in the courts — especially in battleground states like Illinois and Ohio — seeking to minimize the so-called “Nader factor.” Many Democrats blamed Nader’s presence on the Florida and New Hampshire ballots for spoiling the election for Al Gore in 2000. Inthose two states, Nader’s vote exceeded Bush’s margin of victory. Were Nader not an option there, many pollsters speculated, many Nader supporters would have chosen the Democrat over Bush. The battle over the Pennsylvania ballot this year was particularly intense, said Nathaniel Persily, an election law professor at the University of Pennsylvania who helped Sen. John McCain, R-Ariz., stay on the New York ballot during the 2000 Republican primary campaign. “The litigation is not usually this vociferous,” he said. “The Pennsylvania proceedings were unlike anything I had ever seen.” This year, in what’s predicted to be a similarly close election, Nader had been polling at 3 percent support among likely Pennsylvania voters, according to the Keystone Poll conducted at Franklin & Marshall College in Lancaster, Pa. Pennsylvania officials have said writing in Nader’s name — as his campaign is urging — will count as a vote for him. Nader representatives said the case’s outcome proves how the system disfavors independent or third party candidates and how Democrats will spend anything to keep Nader off the ballot. Reed Smith threw the most weight behind the anti-Nader effort out of all the firms the campaign encountered countrywide in its ballot access war, said Kevin Zeese, Nader’s spokesman. The so-called “objectors” — registered voters named in the case caption — received logistical support from the state House Democratic committee in organizing volunteers. Booker said his friend, state Rep. H. William DeWeese, D-Greene, Democratic leader in the state House of Representatives, knew of the project and thought it a valuable one. But Reed Smith and other “objector” attorneys said neither the Democratic Party nor anyone else paid them. While they didn’t take leaves of absence from their firms, the lawyers didn’t bill any client for the thousands of hours they spent together working on the case. OUTNUMBERED Throughout the Pennsylvania lawsuit, Nader’s campaign decried the state’s ballot access laws as unconstitutionally onerous and the court’s method of trying the case as lacking due process of law. The court took the unusual step of distributing hearing responsibilities among a dozen judges in courtrooms across the state, at times asking attorneys and campaign representatives to be on call for 12 hour-plus days and weekends. The campaign insisted they needed more time to prepare and find lawyers to staff the courtrooms. Campaign finance laws limited itfrom accepting no more than $2,000 in in-kind contributions, or free legal help, per firm, Zeese noted. “It’s like fighting with one hand behind your back,” he said. The campaign eventually gathered a small team — some attorneys with ties to the Republican Party, several from out of state, and many of whom could afford to help for only days at a time before returning to work. J. Matthew Wolfe staffed one of the Philadelphia courtrooms for the campaign. An attorney and Republican ward leader, Wolfe said he lent his time to Nader “because I think it helps the president.” Asked about being outnumbered, he said, “I hope this is upsetting some of their Republican clients.” Reed Smith, historically viewed as a Republican-leaning firm, hasn’t received complaints from clients about the case. NO ‘FIRM POSITION’ Gregory Jordan, Reed Smith’s managing partner and a registered Democrat, said the firm has not taken a “firm position” on thepresidential election, noting that some partners and clients support Kerry while others support Bush. Representing the objectors was an autonomous decision made by the pro bono committee, Jordan explained. “Once we looked at it, we were satisfied it was a worthwhile thing for our people to do,” he said. “I don’t think it was a political process at all.” Fifteen to 25 Reed Smith attorneys were involved over the course of the litigation. Booker said, “When things aren’t adverse to our clients’ interests, and our people feel strongly about it, the firm is supportive of letting people pursue it.” Ira Lefton, the Reed Smith partner in charge of pro bono, said the case was a “good government” project the firm took on “regardless of its partisan impact.” Even knowing how many resources went into the case, Lefton said the firm might accept a similar project again under the rightcircumstances. “If we saw the same degree of fraud, forgery and impropriety, we might do it — irrespective of the ways it might affect the ultimate race itself,” he said. The firm has proved it can do it. After 2 1/2 weeks of hearings, the Commonwealth Court concluded Nader was 6,879 voter signatures short of the number required for ballot access. The case came down to individual fact determinations made by judges during the hearings, in which election officials and handwriting experts testified, and lawyers for both sides examined each challenged signature. The objectors tracked the individual signature challenges with a computer database program designed by a young Reed Smith summer associate and his friends. They convinced judges to invalidate — line by line — duplicate signatures, as well as those of unregistered voters, voters without addresses matching their voter-registered address, and those who didn’t complete the entire line of information on the petition (date, city, state, etc.) in one hand. More than 100 volunteers helped the Reed Smith attorneys and paralegals in Pittsburgh, as well as attorneys Harvey and Brian A. Gordon in Philadelphia, compiled the legal “objection” in one week. “It’s very seldom that a lawyer has a chance to make a difference in national events,” Booker said. The document, accompanied by a six-volume exhibit book listing the signature challenges, was simultaneously driven and flown from Pittsburgh to Harrisburg and filed with the Commonwealth Court Aug. 9. “It really was overwhelming,” said Samuel C. Stretton, a sole practitioner and experienced election law attorney in West Chester, Pa. Stretton represented Nader until Sept. 23 when he and the campaign had a disagreement over strategy and pay. “This case is a symptom of something that was totally unexpected in election law,” said Stretton, former solicitor for the Chester County Democrats. “If this is a forerunner, from now on we’re going to see big firm spending this kind of money to set up this challenge.” That doesn’t bode well for the often cash-strapped campaigns of minor-party and independent candidates for office, he said. Theydon’t have weeks and weeks at a time to spend court, and they don’t have the funds to pay for one attorney, Stretton said. “It’s kind of worrisome,” said Stretton, who estimated he spent up to $50,000 of time on the case before withdrawing. “It’s becoming too lawyer-oriented, and it’s becoming too hard to get on the ballot.” Part of the problem, Stretton said, was the system set up by the court — holding simultaneous hearings in different counties instead of one courtroom. Stretton said, “For the little guys like me, who know a lot about election law, it’s going to preclude us from getting involved.” If the little guys do participate, it might help to team with a firm, as did Harvey and Gordon. A litigator at Montgomery McCracken Walker & Rhoads, Harvey is hardly a “little guy,” but he worked on the case independent of his firm’s pro bono program, paying himself for more than $3,400 in expenses incurred. Gordon, a sole practitioner, could barely afford to stay involved as long as he did. “I lost a lot of time,” he said. Booker didn’t seem to feel sympathy for Nader’s team being outnumbered: “If you’re running for president, you need to be ready.” As for today’s election, it remains to be seen if what the Pennsylvania objectors did make a difference. G. Terry Madonna, director of the public policy center at Franklin & Marshall, speculated that the net gain for Kerry might be 1 percentage point with Nader off the ballot. “In the end, half of [Nader's] voters wouldn’t vote for Kerry,” Madonna said, noting that nobody really knows for sure how people vote. “These were not people who were happy with either candidate.” Nader and his vice presidential running mate, Peter Miguel Camejo, are on the ballot in 34 states and the District of Columbia.

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