On February 10, U.S. District Court Judge Jed Rakoff denied the state’s motion to dismiss the lawsuit Conservative Party of New York et al v New York State Board of Elections, southern district, 10-cv-6923. This is the case that challenges New York’s policy on counting votes, when a voter fills in two circles on the paper ballot, in essence voting twice for the same candidate, once under one of the candidate’s party labels, and another vote for the same candidate on another party label. The state’s policy is to credit such votes for the party label that is highest on the ballot, which invariably means for the Democratic or Republican Parties.

Until 2010, the state used mechanical voting machines, and it was physically impossible for any voter to vote twice for the same candidate. If the voter pulled one lever, that recorded the vote for one particular party label. The machine did not let the voter pull two levers in the same race. But starting in 2010, the state uses paper ballots, so there is no physical barrier preventing a voter from filling in two circles in the same race.

Connecticut handles this problem differently. In Connecticut, the vote is counted for the minor party, not the major party. The major parties in Connecticut don’t seem to mind this policy.

Judge Rakoff said he would issue an explanation for his order later, and set up the case for further briefing, and perhaps a trial. See this story.