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.

Scotusblog is the best-known and most prestigious blog for neutral, objective information about activities of the U.S. Supreme Court. The authors of the blog regularly examine all the cert petitions and report on those which seem to have some reasonable chance of getting the attention of the Court. The August 19 “petition of the day” is the New Hampshire Libertarian Party case, 11-119. The issue is whether the Constitution protects a party’s name, when party names are printed on a ballot.

In 2008 the New Hampshire Secretary of State listed two presidential candidates on the November ballot with the label “Libertarian”, one of whom was the party’s nominee and one of whom was not. The party sued, but the lower courts ruled that the U.S. Constitution’s freedom of association clause contains no protection for party names on the ballot. By contrast, the 10th circuit had ruled in 1984 that parties do have an ability to protect their names from being printed on the ballot next to the names of candidates who were not nominated by that party. Thanks to Thomas Jones for this news.

Earlier this year, the Ohio legislature passed a huge omnibus election law bill which contained provisions that Democrats and Democratic allies strongly oppose. The bill, HB 194, will be suspended until after 2012 if Democrats and their allies successfully collect 231,147 valid signatures on a referendum petition by September 29, 2011. See this story. The second-to-last paragraph says the referendum petition would repeal the contents of the entire bill.

Originally the Democratic referendum petition only proposed to repeal parts of HB 194. However, the referendum organizers have started over because their original proposal was flawed. For simplicity, the revised referendum petition repeals the entire bill. That means the parts of the bill that are responsible for eliminating the Constitution, Green, Libertarian and Socialist Parties would also be suspended if the petition succeeds.