On June 27, U.S. Supreme Court Justice Anthony Kennedy said he will retire next month.

Justice Kennedy has not been a friend of minor party or independent candidate ballot access. The last time the U.S. Supreme Court mentioned minor party ballot access was in 2005, when five of the nine justices said helpful things about the issue. Justice Sandra Day O’Connor wrote a concurrence in Clingman v Beaver, saying “The State is itself controlled by the political party or parties in power, which presumably have the incentive to shape the rules of the electoral game to their own benefit…As such restrictions become more severe, and particularly where they have discriminatory effects, there is increasing cause for concern that those in power may be using electoral rules to erect barriers to electoral competition.” Justice Kennedy did not join this concurrence, although four justices either joined this concurrence, or joined the dissent which said very similar things.

Justice Kennedy also wrote the opinion in Arkansas Educational TV v Forbes, which said the Constitution permits public radio and television to sponsor debates that include only the Democratic and Republican nominees. And he joined the opinion in Timmons v Twin Cities Area New Party, which upheld the ability of states to ban letting two parties jointly nominate the same candidate.

Kennedy did dissent, however, in the 1992 case that said Hawaii could ban write-in voting, Burdick v Takushi.

On June 25, a U.S. District Court in the U.S. Virgin Islands said it would not now rule on whether independent candidate Positive Nelson should be on the November 2018 ballot. Instead, Nelson must seek relief from the territorial court. The Virgin Islands elects its governor and lieutenant governor as a team. The ticket had been rejected because the Lieutenant Governor candidate, Gary Udhwani, may not have been a registered voter when the petition was submitted. Udhwani had been a registered voter in the past, and his name was apparently purged without telling him. Also he collected some of the signatures, and the Virgin Islands law does not allow unregistered individuals to circulate a petition (although that policy violates the U.S. Supreme Court decision American Constitutional Law Foundation v Buckley).

If the territorial court gives no relief, the U.S. District Court will then take action. Nelson v Fawkes, 1:18cv-17.

Like most states that allow write-in primaries, New Mexico sets a minimum number of votes that a write-in candidate must receive, in order to be nominated and appear on the November ballot. This year, New Mexico Libertarians running for statewide office need 230 write-in votes. It isn’t enough to just get the most votes in the primary; the minimum must be met.

The New Mexico Secretary of State’s official tally says the party’s candidate for Governor only got 175 write-in votes. See this story. Voters who cast a write-in vote are supposed to fill in the bubble on the paper ballot next to the write-in line. Otherwise the vote-counting scanner won’t count the write-in. The Libertarian Party is asking for a hand recount, which should not be very expensive because there were only about 850 voters who cast a ballot in the Libertarian primary. The party believes that if they can get a hand count, that will find more write-in votes from voters who didn’t fill in the bubble.

Courts in other states have been split over whether such write-ins can be counted. Washington and Colorado state courts ruled that they should count, but California courts ruled that they should not, although later the California law was changed to validate such write-ins if they make a difference. Thanks to Rick Lass for the link.