On October 8, the 7th circuit handed down a decision in Kozuszek v Brewer, 546 F 3d 485. The issue was whether two particular voters should have been allowed to vote, back in November 2003. The U.S. District Court had ruled against the two voters, and had also added that “there is no evidence that any elected position in the election was decided by two or less votes”, implying that even if the two voters had been unjustly prevented from voting, so what?

The 7th circuit denied relief to the two voters, but it explicitly disagreed with the U.S. District Court’s philosophy. The 7th circuit wrote, “An official who willfully interferes with an individual’s ability to express his or her political preferences at the ballot box violates the Constitution.” This language will be helpful if and when any lawsuits are filed against jurisdictions that willfully refused to count valid write-in votes for president in last November’s election. Such lawsuits are likely to be filed against both the District of Columbia, and Pennsylvania.

The Election Law Journal, volume 7, number 4 (December 2008) has an article, “Judicial Decision-Making in Nader’s Ballot Access Litigation” by Kyle C. Kopko. The article is 24 pages long. It concludes, in part, “Although much of the judicial politics literature indicates that judges behave in a partisan manner when deciding cases that involve a partisan interest, this did not occur in the context of Ralph Nader’s 2004 ballot access litigation…Even those judges who donated money to the Democratic or Republican Parties, the very individuals who should be the most partisan of all the judges included in the dataset, were not predisposed to rule in a way that favored their own political party.”

In other words, even though Ralph Nader was perceived in 2004 to injure Democratic presidential nominee John Kerry, Democratic judges were just as likely to rule in favor of Nader as Republican judges. The article studies all the state court decisions on whether Nader should have been on the 2004 ballot.

The article, of course, does not deal with the issue of whether Nader actually injured John Kerry’s campaign. An analysis in the January 1, 2005 (printed) Ballot Access News suggests that Nader did not, in fact, injure Kerry.

Congress will count the electoral votes on January 8 (Thursday) at 1 p.m.