The U.S. Court of Appeals, D.C. Circuit, will hold oral arguments in Libertarian Party v District of Columbia Board of Elections, on February 10, 2012, Friday, at 9:30 a.m. The case is over whether the U.S. Constitution protects the right of voters to have their valid write-in votes counted. The U.S. District Court had ruled that there is no such right. The case arose after Bob Barr, the Libertarian Party nominee for president in 2008, filed with the D.C. Board of Elections to have his write-ins tallied. A 1974 decision of the District’s highest “state” court had ruled that D.C. general election ballots must include write-in space for president. The D.C. Board had then set forth regulations, governing which presidential candidates should have the ability to have their write-ins counted. The regulations require the presidential candidate to submit the names three presidential elector candidates, who would go to the electoral college if the write-in candidate won the election. These elector candidates must have lived in the District for at least three years. No other write-in presidential candidate in 2008 complied with these regulations.
Although Barr followed these procedures, the Board still refused to count his write-in votes, because it would cost too much money and bother. The three judges will be David S. Tatel and Merrick B. Garland, Clinton appointees, and Brett M. Kavanaugh, a Bush Jr. appointee. Garland is one of the three judges who, in 2005, ruled that the postal service must allow petitioning on its exterior sidewalks (those parallel to streets).
