U.S. Court of Appeals Says Government Never Needs to Count Write-in Votes

On June 8, the U.S. Court of Appeals, D.C. Circuit, issued a short, thoughtless opinion in Libertarian Party v District of Columbia Board of Elections. It says that because the U.S. Supreme Court in 1992 said that the U.S. Constitution does not require states to print write-in space on ballots, therefore it follows logically that if governments do allow write-in space, the same government can refuse to count them.

The decision also misrepresents the facts in the 1992 U.S. Supreme Court decision that said write-in space can be banned. In that case, Burdick v Takushi, the plaintiff was a Democratic voter who lived in a district in which no Democrat had run for the legislature. The voter, Alan Burdick, said he wanted to cast a write-in vote for a Democrat for that office. But the June 5, 2012 decision of the U.S. Court of Appeals falsely alleges that Burdick filed the claim because he wanted to write-in Donald Duck. This mistake is symptomatic of the carelessness of the panel’s decision.

The decision does not mention various precedents, including U.S. Supreme Court precedents, that say the Constitution requires that all valid votes be counted. The write-in votes in this particular case involve the presidential election. The D.C. Board of Elections has a procedure for presidential candidates who are not on the ballot to file a declaration of write-in candidacy. The declaration also requires that three presidential electors be listed. Therefore, the write-ins are valid votes. If the Constitution does not require that all valid votes be counted, then there is likewise no barrier to a government deciding not to count the votes for certain candidates who are listed on the ballot.

The decision contradicts rulings from the 4th circuit and the 8th circuit. In 1989 the 4th Circuit had ruled in Dixon v Maryland State Administrative Board of Election Laws, 878 F.2d 776, that Maryland must count write-ins for declared write-in candidates who did not pay the filing fee. In 1988 the 8th Circuit had ruled in McLain v Meier, 851 F.2d 1045 that “the State has an obligation to count all votes properly cast”, including valid write-ins. However, the 8th Circuit had also said that is a matter for state courts. In the current District of Columbia case, the Libertarian Party had originally filed in the District of Columbia’s court system (not the federal system), but the Board of Elections had then had the Libertarian case removed to federal court.

The decision also contradicts various U.S. Supreme Court opinions, including Gray v Sanders, 372 U.S. 368, which said, “The Court has consistently recognized that all qualified voters have a constitutionally protected right ‘to cast their ballots and have them counted at congressional elections.’ Every voter’s vote is entitled to be counted once. It must be correctly counted and reported. As stated in United States v Mosley, 238 U.S. 383, 386, ‘the right to have one’s vote counted’ has the same dignity as the ‘right to put a ballot in a box.'”.

As long ago as 1915, a U.S. Court of Appeals said, “If a man has a right to vote, he has a right to have his vote received and counted by the proper election officers; otherwise the right to vote is but an empty right.” United States v Aczel, 219 F.917, at 932.

10 comments

  1. […] Richard Winger blogs about what he terms a “a short, thoughtless opinion in Libertarian Party v District of Columbia Board of Elections” from Judge Tatel for a unanimous D.C. Circuit panel. This entry was posted in ballot access, third parties. Bookmark the permalink. ← “California’s New Electoral Reforms: How Did They Work?” […]

  2. Demo Rep · · Reply

    Is 14th Amdt, Sec. 2 still part of the nearly dead U.S.A. Const — at least in the States ???

    How many write-in votes in 1860-1868 ???

  3. Richard Winger · · Reply

    Prior to 1888, all votes in the U.S. were write-in votes, if one defines “write-in vote” to mean votes cast for candidates whose names were not on a government-printed ballot.

  4. Baronscarpia · · Reply

    Does the decision cover write-in votes made only by flesh-bearing persons or corporate “persons” as well?

    I think this is an important distinction and precedent to establish now. At some point in the future I’m confident corporate persons will be granted the franchise. From freedom of speech certainly, logically, follows the right to vote. And since the USSC has established that more money buys more free speech, it also follows that corporate “persons” will be allotted votes proportional to their total capitalization. At that point, a corporate “person” could write in all of its votes for one entity that has not been nominated by one of the major parties.

    Heck, Dow Chemical could be the next senator from Delaware!

  5. […] does not require states to print write-in space on ballots, therefore it follows logically that if governments do allow write-in space, the same government can refuse to count them.” Romney speaks for his campaign; Obama uses more surrogates. Statistics, chart. […]

  6. Demo Rep · · Reply

    # 3 Presumably the MORONS in SCOTUS will be informed of such pre-1888 history in any future count-the-votes appeal ???

    How much high tech stuff is now needed to decipher hand written New Age votes – due to worse and worse *handwriting* by LOTS of folks — who perhaps ONLY have handwriting for ballot applications (polls or absentee) and/or on petitions ???

    i.e. even fewer and fewer written checks due to internet payments.

  7. Demo Rep · · Reply

    # 3 more —

    Did the voter have to vote separately for each party hack candidate on the party hack ballot that he/she got — from a party hack ???

    — or just put *the* single ballot in a ballot box (NO ballot box stuffing allowed even before 1888) ???

    ANY nonpartisan officer elections before 1888 ???

  8. Jim Riley · · Reply

    The petitioner in Burdick v Takushi certainly claimed a right to vote for ‘Donald Duck’, and in oral arguments his lawyer was arguing with Justice O’Connor within a couple of minutes that he had a right to cast a protest vote and to have that vote registered.

    The Supreme Court ruled that Hawaii’s electoral scheme provided adequate opportunity to vote for legitimate candidates, which reduced Burdick’s claim to being able to have a protest vote publicly recorded.

  9. Demo Rep · · Reply

    # 8 What happens if there is a real human *Donald Duck* candidate – who is a protestor in a regime ???

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