U.S. District Court Judge Jed Rakoff will hold a hearing in Conservative Party of New York and Working Families Party of New York v New York State Board of Elections on Monday, December 6, at 4 p.m.  This is the case that contests the state’s policy on counting votes.  When two parties jointly nominate the same candidate, and a voter casts two votes for that one candidate (one vote on each party’s line), the state deems that to be one vote for the party closest to the top of the ballot.  This means, generally, that a voter who votes twice for a candidate who has been nominated by the Conservative Party and the Republican Party, the Republican Party gets that vote and the Conservative Party doesn’t.

The state will try to persuade the judge to dismiss the case.  If the state fails to do that, there will be a trial in June 2011.

This problem mostly didn’t exist before 2010 in New York state, because before 2010, voters at the polls generally used mechanical voting machines, with levers.  The machine physically prevented anyone from voting for two candidates for the same office.  But starting in 2010, New York state uses paper ballots.

On November 23, Virginia filed this response brief in Lux v Rodrigues, 10-1997.  This is the case over residency requirements for petition circulators.  Virginia’s brief tries to argue that the case is moot.  However, Virginia’s brief does not even mention the U.S. Supreme Court precedent that first established that ballot access cases are not moot just because the election is over.

That old U.S. Supreme Court precedent, Moore v Ogilvie, from 1969, said, “While the 1968 election is over, the burden allowed to be placed on the nomination of candidates for statewide office remains and controls future elections, as long as Illinois maintains her present system as she has done since 1935.”  Moore v Ogilvie did not say that the plaintiff-candidate needs to assert that he or she plans to run in future elections.  In Richardson v Ramirez, 418 US 24, at page 35, the U.S. Supreme Court commented that in Moore v Ogilvie, the plaintiff-candidate “was not apt to be revived in a future election.”  Yet Virginia’s new brief argues mightily that because Herb Lux, the candidate-plaintiff from the 2010 election, did not say he would run again in 2012, therefore the case is moot.

According to this story, 13 state legislators have changed parties since the November 2, 2010 election.  All changes were made by Democrats switching to the Republican Party.  The 13 include one in South Dakota, one in Maine, six in Georgia, one in Louisiana, and four in Alabama.  In Louisiana, that one switch gave Republicans a majority in the House for the first time since the 19th century.