University of Texas Law School Professor Joseph R. Fishkin has written this eleven-page article. It argues that if states permit write-in voting, then those states have an obligation not to throw roadblocks in the path of voters who wish to count a write-in vote. The article seems to have been triggered by last year’s litigation in Alaska, around the write-in candidacy of Lisa Murkowski in the general election. The Alaska Republican Party, seeking to block the write-in campaign, had argued in court that election officials should not be permitted to help any voters (even those who asked) know how to spell “Murkowski.”
Forty-five of the fifty states permit write-in votes in the general election. However, some states include counties that routinely discard all write-in votes without counting them (especially Pennsylvania). The District of Columbia refuses to tally votes even for declared write-in presidential candidates. And only a minority of states post at the polls a list of the declared write-in candidates. Finally, California, under the new top-two law, allows write-in space in November for Congress and partisan state office, but says such write-ins may never be counted.
The Fishkin article was recently published in Alaska Law Review, vol. 28, no. 29.
