On March 8, U.S. District Court Judge Beryl Howell, an Obama appointee, ruled against the Libertarian Party, which was seeking a court order to require the Election Board to count write-in votes for Bob Barr in the November 2008 election. Barr was the only presidential candidate who had filed a declaration of write-in candidacy. Judge Howell upheld the constitutionality of refusing to count the write-ins for a declared write-in presidential candidate, unless the vote-counting computer believes that a write-in candidate might have won the election. Here is the 23-page opinion.

In 1972, supporters of Benjamin Spock, presidential candidate of the Peoples Party, had filed a lawsuit to obtain write-in space for president on general election ballots in the District of Columbia. That case was called Kamins v Board of Elections, and was in the D.C. Court system, not the federal court system. The D.C. Court of Appeals said, “The Board was in error when it failed to count appellant’s vote…The fundamental nature of the right involved persuades us that construction of the statute in favor of the franchise is the course which we must follow.” On remand to the D.C. Superior Court, that lower court wrote, “Ordered, that the Defendant Board of Elections count the names of write-in candidates for President and Vice-President, provided said write-in candidate has a qualified slate of electors whose names and affidavits have been filed with the Defendant Board of Elections.”

Notwithstanding that court order, the D.C. Board of Elections has never tallied the write-in votes for any write-in presidential candidate in the general election. After the Kamins decision, the Board passed a regulation saying only the total number of all presidential write-ins must be counted, and that no count need be made of how many write-ins any individual candidate received, unless the total number of write-ins showed a write-in candidate might have won.

Judge Howell ruled that the court order in Kamins was made obsolete by a 2004 decision of the D.C. Court of Appeals, Best v D.C. Board of Elections, 852 A.2d 915 (2004). That decision said the Board must count write-ins in the Green Party’s presidential primary, because the number of write-ins might have elected a delegate to the Green Party’s national convention. That decision did not involve the constitutionality of the ban on counting write-in votes for candidates who clearly didn’t win; it merely construed it, to say that the Green Party presidential primary write-ins must be counted because someone might actually have won on write-in votes. Yet Judge Howell said, “If the court (in the Best case) viewed the regulation as inconsistent with Kamins, it presumably would have said so.” That conclusion does not follow logically.

Judge Howell also said the regulation is constitutional, because the burden on the voters is “slight”, which is, of course, a value judgment. She did not mention Bush v Gore, which said, “Having once granted the right to vote on equal terms, the state may not, by later arbitrary and disparate treatment, value one person’s vote over that of another.”