On July 21, three judges of the U.S. Court of Appeals, D.C. Circuit, rejected the motion of the Board of Elections to summarily rule against the Libertarian Party, in Libertarian Party v D.C. Board of Elections, 11-7029. The Court will now set a briefing schedule. The issue is whether the U.S. Constitution protects the right of voters to have their write-ins counted, in presidential elections. The D.C. election law provides that write-in presidential candidates may file a declaration of write-in candidacy, but then the Board won’t count the votes for such presidential candidates. In 2008, Bob Barr, the Libertarian Party presidential candidate, was the only write-in candidate for President who filed to have his write-ins counted. The lower court had said the Board’s interest in saving money is more important than the right to have votes counted.

The one-page order says, “The merits of the parties’ positions are not so clear as to warrant summary action. Because the court has determined that summary disposition is not in order, the Clerk is instructed to calendar this case for presentation to a merits panel.”