Ballot Access News

On June 8, Jerry McConnell withdrew from the U.S. Senate race in Montana. McConnell and Dan Cox had both filed to run in the Libertarian Party primary for U.S. Senate earlier this year. Montana Secretary of State Linda McCulloch had then ruled that both men would be listed on the November ballot as candidates for U.S. Senate. But now that McConnell has withdrawn, the only Libertarian on the November ballot for U.S. Senate will be Dan Cox.

The Montana election law is internally contradictory, on whether the state should have provided a primary for the Libertarian Party. Section 13-10-601 says, “Each political party that had a candidate for statewide office who received a total vote that was 5% or more of the total votes cast for the successful candidate for governor in either of the last two general elections shall nominate its candidates for public office, except for presidential electors, by a primary election as provided in this chapter.”

The Libertarian Party polled 5.74% of the vote in November 2010 for U.S. House, which was well above the vote requirement. But another part of the Montana election code says parties may not have a primary unless they have nominees for at least half the partisan offices, and although there are quite a few Libertarian candidates in 2012, the number of Libertarian candidates does not equal at least half the partisan offices up for election this year.

The Secretary of State’s earlier decision, saying she would not hold a Libertarian primary, was somewhat irrational. She should have ruled since the party couldn’t have a primary, she would let it nominate by convention. Instead she said she would put both Libertarians on in November, thus depriving the party of its chance to nominate. But, in the end, thanks to McConnell’s withdrawal, it turned out satisfactorily. Thanks to Tim Brace for this news.

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.

Kathleen Curry is an independent candidate for the Colorado legislature this year. She had been a Democratic member of the Colorado House, and in 2009 had switched to become an independent. At the time Colorado refused to let any independent candidate on the ballot if he or she had been a member of a qualified party at any time during the preceding year, so she was not permitted to be on the November 2010 ballot. She had run as a write-in in November, and had come very close to winning. She is running as an independent again this year, and she should have no trouble getting on the ballot.

Ironically, the legislature passed her bill in 2009 to ease the independent candidate restriction, but the bill did not take effect in time to help her. Instead it went into effect in 2011.