Emory University Law Professor Michael Kang has a guest blog post at ElectionLawBlog, suggesting that it would be good policy to ease ballot access laws for the general election, and also to repeal “sore loser” laws.

Kang says that if it is true that party polarization is a problem in the United States, that problem can be eased if moderates are free to get on the general election ballot directly, even if they lose a party primary.  His examples from 2010 are Lisa Murkowski and Charlie Crist.  Even though Crist did not get elected as an independent, Kang says his presence in the U.S. Senate race caused the Republican nominee to moderate some of his stands.  And Murkowski probably has won, even though she had to do it the hard way, via a write-in campaign.

Kang does not mention the legal argument against “sore loser” laws, for Congressional elections, but that argument is powerful.  “Sore loser” laws, for Congress, are utterly inconsistent with the U.S. Supreme Court’s opinion U.S. Term Limits v Thornton, the decision that struck down state term limits laws for congressional elections.  The term limits decision said that states cannot keep candidates off the ballot, for Congress, just because they have some personal characteristic other than age, citizenship and residency on election day.  Yet state “sore loser” laws do keep such candidates off the November ballot.  Back when the U.S. Supreme Court upheld “sore loser” laws, in 1974, the Court had not yet decided whether states are free to add to the qualifications to get on the ballot for Congress.  The term limits decision was released in 1995.  The logic of the 1995 decision overrides the 1974 decision, but the Court did not acknowledge that and has not wrestled with the contradiction since then.

In early 2011, Professor Kang’s scholarly article about “sore loser” laws will appear in Georgetown Law Journal.

At the November 2, 2010 election, Garrett County, Maryland voters elected a write-in candidate to seat 3 of the County Board of Commissioners.  The election is partisan.  The county was elected three at-large commissioners.  Write-in candidate Bob Gatto received 4,112 votes; Democratic nominee Bill Welch received 2,824; Republican nominee Dennis Glotfelty received 1,947 votes.  Two other declared write-in candidates received 170 votes.

Glotfelty had won the September 2010 primary but then had died of cancer only twelve days before the election.  Before he died, he asked voters to write-in Gatto, whom Glotfelty had defeated in the Republican primary.  Thanks to Jeff Becker for this news.

The New York city council held an election day survey, and has released its findings.  They reveal that New York city voters’ top complaint about administration of the November 2, 2010 election is the confusing ballot design.  See here.  Thanks to Michael Drucker’s The Independent View for this news.

New York, starting this year, uses paper ballots.  Virtually all other states that use paper ballots designs the ballots so that all the candidates running for one particular office are grouped together.  But New York designs the paper ballots as though the state were still using mechanical voting machines.  When New York used mechanical voting machines, the state used a party column (or party row) format.  Because the mechanical voting machines didn’t have enough rows (or columns) for all the parties, the mechanical voting machines would generally put two parties into the same column.

Now that New York has given up mechanical voting machines, there is no rational reason to maintain that old format, but New York’s paper general election ballots this year mindlessly kept that old format.  The only unqualified party this year that had its own separate column was the Green Party.  And, the only unqualified party this year that definitely polled enough votes to become qualified is the Green Party.

A rational system would mean that each voter would receive more than one ballot card.  There is nothing inherently wrong with giving each voter more than a single card to vote on.  If two or even three cards were permitted, then tiny print would not need to be so tiny, and all the candidates and parties could be treated equally.  Of course not every candidate or party can have the top line on the ballot, but at least the ballot could be arranged to avoid gross discrimination.