On June 30, the U.S. Justice Department said that the Department has decided not to take a position in the pending lawsuit Libertarian Party v District of Columbia Board of Elections, now pending in U.S. District Court in Washington, D.C. The case challenges the practice of the Board of Elections to not count votes for presidential candidates who are not on the ballot in November, but who do file a declaration of write-in candidacy.
Bob Barr had filed a declaration of write-in candidacy in 2008, along with the names of proposed candidates for Presidential Elector. The Board says it takes too much cost and bother to count such votes. The U.S. District Court Judge handling the case had invited the Department of Justice to express its opinion, but the Department’s letter of July 30 says, “After due consideration of the issues, the Department and the United States Attorney’s Office have decided not to take a position with respect to the pending litigation.”
The largest number of write-in votes ever cast in November for a presidential candidate was in California in 1976, when independent presidential candidate Eugene McCarthy polled 58,412 write-ins.
The District of Columbia was ordered to print write-in space on the ballot for President in 1975, in a case called Kamins v D.C. Board of Elections, in the District’s highest court (not a federal court). That case had been filed in 1972 by supporters of Dr. Benjamin Spock. Spock was the presidential nominee of the People’s Party in 1972, but he wasn’t on the ballot and his supporters sued so they could cast a write-in vote for him. They won the case, three years after they had filed it. Ever since 1975, the Board of Elections has printed write-in space on the ballot for President, but it has never counted the write-ins, not even for presidential candidates who filed a write-in declaration of candidacy.