On February 9, the Massachusetts State Supreme Court heard oral arguments in Libertarian Political Association v Galvin, sj 2011-0348. The issue is whether Massachusetts law lets unqualified parties use a stand-in presidential candidate on its ballot access petition, and then, if the stand-in withdraws, whether the state party can replace him or her with the actual presidential nominee of that party.

The state takes the position that unqualified parties can never replace the person listed on the petition with anyone else. Near the end of the hearing, when the attorney for the Secretary of State was speaking, Justice Ralph Gants asked what would happen if the person listed on the petition for either President or Vice-President were to die. Justice Gants wanted to use a concrete example, so he asked what would have happened if the person listed for vice-president on Ross Perot’s 1992 petition were to die after the petition had been submitted, and there was little or no time remaining for a new petition to be submitted by the deadline. The attorney for the Secretary of State said the Perot campaign would have been “out of luck”. That answer was the only logical response that could have been given, but it illustrated the problems with the state’s position. A decision will probably come fairly quickly.

On February 10, the U.S. Court of Appeals, D.C. Circuit, heard arguments in Libertarian Party v D.C. Board of Elections, over whether the U.S. Constitution requires the Board to count valid write-in votes for president at the general election. Judge David S. Tatel’s comments and questions seemed to indicate that he believes that the Board of Elections’ interest in saving money is more important than the right of voters to have their valid votes counted, but Judge Brett M. Kavanaugh seemed to have the opposite opinion. The D.C. Board already counts other kinds of write-ins. For example, in 2004, the D.C. courts ruled that the Board must count write-in votes in the Green Party’s primary, in a case called Best v D.C. Board of Elections, 852 A.2d 915. The third judge on the panel was Merrick Garland, and it was not easy to ascertain which way he leans.