On May 26, news reports revealed that President Barack Obama will choose Sonia Sotomayor for the David Souter seat on the U.S. Supreme Court.
Judge Sotomayor was the first federal judge to rule favorably in a constitutional case involving write-in voting, after the 1992 U.S. Supreme Court decision that ruled against write-ins. Irving Gelb, a candidate for Bronx Borough President in 1995, was removed from the Democratic primary ballot, and thus became a write-in candidate. However, he discovered that New York city was not printing write-in space on absentee ballots, nor on sample ballots, nor was it obeying a state law that required pencils to be in the voting booth. He was a taxi driver, not an attorney, but he filed a pro se lawsuit in U.S. District Court, and drew Sotomayor.
Sotomayor’s decision in Gelb v Board of Elections in the City of New York is reported at 888 F.Supp. 509 (March 24, 1995). She refused to dismiss Gelb’s case. She noted on page 517 that the U.S. Supreme Court decision in Burdick v Takushi (which said that Hawaii was not required to provide write-in space) did not foreclose victory for Gelb. She wrote, “Burdick v Takushi reaffirmed the principle that states cannot structure elections in a manner that favors candidates of established parties.”
Although Gelb did not ultimately get any relief in this particular case, since the ultimate decision in this case was that the Board of Elections in the 1995 primary was not likely to continue to injure write-in candidates, in several later cases, Gelb prevailed. His lawsuits forced the city to begin printing write-in space on all primary ballots in which there are at least two candidates printed on the ballot in the same race, and he forced the city to put write-in directions on ballots, and to put write-in space on absentee ballots.
Sotomayor also ruled in favor of ballot access, in Lopez Torres v New York State Board of Elections, a case that involved difficult procedures for getting on a primary ballot for Delegates to Judicial Nominating Conventions. And she ruled favorably for voting rights in general in her dissent in Hayden v Pataki, 449 F 3d 305. The issue was whether the federal Voting Rights Act protects racial minorities in the area of the law concerning felon and ex-felon disenfranchisement.