On September 2, the District of Columbia Board of Elections transferred the case Libertarian Party v D.C. Board of Elections from the D.C. court system, to a U.S. District Court. The case is now civil action no. 09-5836, before Judge Emmet G. Sullivan, a Clinton appointee.

The issue in the case is whether the D.C. Board of Elections should have tallied the write-in votes for Bob Barr last November. Barr had filed as a declared write-in presidential candidate and submitted names of presidential elector candidates, but the Board simply announced that a total of 1,138 miscellaneous write-ins had been cast for president, and didn’t say how many were for Barr.

The U.S. Constitution protects the right of a voter to have his or her valid vote counted. U.S. District Court Judge Richard Roberts (of D.C.) wrote in 1999 in Turner v D.C. Board of Elections, “When a citizen steps into the voting booth to cast a vote, he or she intends to send a message in support of or in opposition to the candidate or measure at issue…The message of the vote is received when the election results are released thereby completing an important communication by the public to the government…the result of votes properly cast in a properly conducted election are core political speech…To cast a lawful vote only to be told that that vote will not be counted or released is to rob the vote of any communicative meaning whatsoever.”

Also relevant is Bush v Gore, which says, “Having once granted the right to vote on equal terms, the state may not, by disparate treatment, value one person’s vote over that of another.”

The U.S. Court of Appeals, 9th circuit, will hear a case against Arizona’s policy of not permitting ex-felons to register to vote if they still owe fees, fines, or restitution, on October 19. The case is Coronado v Napolitano, 08-17567. The lower court had upheld the law. The hearing will be in Tempe, Arizona.

A lower Pennsylvania state court in Mercer County must decide if a write-in candidate in Pennsylvania is a “candidate” under the law. Pennsylvania is the only large-population state that permits write-ins, but has no procedure for a write-in candidate to file a write-in declaration of candidacy. Beverly Scurpa recently was the write-in winner for Sharpsville School Board. However, after the election, one of the ballot-listed candidates who lost challenged her election. The law says “candidates” must not be polling place officials, and Scurpa was a polling place official. See this story.

Although common sense seems to dictate that anyone who wins an election was a “candidate”, it is possible in Pennsylvania for someone to be elected as a write-in, even if that person had not expressed any intention to run. There are instances in which groups of voters band together to elect someone via write-in votes, even against that person’s interest in holding the job. This generally happens only in very small municipalities that have trouble finding people to fill the local elected offices.