Because Washington state is using the “top-two” system this year, no one may appear on the November ballot (for all state office, and for Congress) unless that person placed first or second in the August primary. This year’s August primary election returns reveal that the median 2nd-place finisher polled 32.41% of the vote.

Therefore, one may conclude that the ballot access barrier for the November ballot in Washington state this year is 32.41%, on the average. In other words, one may not appear on the November ballot without a prior showing of public support of almost one-third of the electorate. This fact lends strength for the pending lawsuit, Washington State Republican Party v Washington state, which will have a trial in U.S. District Court next year. The Libertarian Party, a co-plaintiff in that lawsuit, will probably take the lead, since the Libertarian Party is in a position to complain about the ballot access aspects of the “top-two” system. Prior decisions of the U.S. Supreme Court on ballot access make it clear that access to the general election ballot is protected for candidates who hold the constitutional qualifications, and who are not “sore losers”, and who have a modicum of support. “Modicum of support” has been interpreted to be 5%, a far lower level than 32%.

Frank Moore is a write-in presidential candidate, who has been diligently attempting to file for declared write-in status in as many states as possible. He is likely to succeed in 25 states, which will probably be a record. However, on October 17, the Minnesota Elections Division rejected his write-in filing on 12th Amendment Grounds. The Minnesota Elections Division seems to not understand the 12th Amendment.

The letter says, “Dear Mr. Moore, thank you for submitting the document, Written Request by Write-in Candidates for Federal and State Office. Your document has been rejected because, for the Office of President and Vice President, the candidates must be residents of different states.”

This letter is mistaken for two completely separate reasons: (1) The 12th Amendment to the U.S. Constitution does not require presidential and vice-presidential candidates to reside in different states. The only restriction is that if a presidential and vice-presidential candidate do both live in the same state, they can’t both receive electoral votes from THAT state; (2) Even setting that point aside, the residence of the candidate for president and vice-president is only material in December of the election year, when the electors meet and vote. To illustrate, in 2000, Dick Cheney and George W. Bush both lived in Texas when they were nominated. After being nominated, Cheney changed his voter registration from Texas to Wyoming, so that both he and Bush would be able to receive the Texas electoral votes.

Ironically, in 2004 a Minnesota elector did vote for someone for president, and someone for vice-president, who lived in the same state, the state of North Carolina. One Democratic elector, for reasons unknown, voted for John Edwards for both president and for vice-president. Congress counted that electoral vote.

Another point is that Minnesota in the past has placed teams of presidential and vice-presidential candidates on the November ballot, even though both individuals lived in the same state. The Socialist Workers Party ticket consisted of a New Yorker for president, and a New Yorker for vice-president, in 1968, and that team appeared on the Minnesota ballot. In 1968, a New York challenge was filed against the SWP ticket on the grounds that both lived in that state, but the challenge was defeated. The case was Application of Horowitz, 294 NYS 2d 69, affirmed, 294 NYS 2d 988.