D.C. Circuit Boots Libertarians’ Appeal

(CN) - The District of Columbia's decision not to report how many votes individual write-in candidates received in the 2008 presidential election did not violate the constitutional rights of Libertarian Party members, the D.C. Circuit ruled.

The D.C. Circuit affirmed the ruling in Libertarian Party et al. v. District of Columbia Board of Elections and Ethics.

D.C. voters cast 265,853 ballots in the election at issue, the overwhelming number of them - 245,800 - for Barack Obama. Of the remaining 20,053 votes cast, 1,138 were for write-in candidates.

The D.C. Board of Elections tallied and reported these votes, but because the votes were not sufficient to elect a write-in candidate, the board, pursuant to its rules, did not tally and report the total number of votes cast for Libertarian candidate Bob Barr or any other write-in candidate.

The Libertarian Party, Barr and several citizens sued, claiming the board violated their First and Fifth Amendment rights.

The District Court granted summary judgment to the board of elections, concluding that "When an election law imposes only 'reasonable, nondiscriminatory restrictions' upon the constitutional rights of voters,' the state's important regulatory interests are generally sufficient to justify the restrictions."

On appeal, the plaintiffs argued, among other things, that "A voter who casts a valid write-in ballot for a declared candidate like Barr is entitled to know whether she has acted in concert with other like-minded voters or whether her vote is a lone statement in the political wilderness.

"The voting public is entitled to know how Barr fared at the polls. The Libertarian Party is entitled to know whether its stature has grown or been diminished by the votes cast for Barr. None of this vital information, laden with associative and communicative value, is available if the Board fails to count and report the Barr vote."

But the three-judge panel disagreed.

Writing for the panel, Circuit Judge David S. Tatel said they were guided primarily by the Supreme Court's decision in Burdick v. Takushi.

In that case, Tatel wrote, "the court explained that '[e]lection laws will invariably impose some burden upon individual voters' and that not all laws burdening the right to vote are subject to strict scrutiny."

Courts must consider the character and magnitude of the asserted injury. In that light, Tatel wrote, there is no doubt that the board of election's rules impose burdens on write-in candidates, but, he said, like the District Court, "we have no basis for concluding that these burdens are 'severe,' or anything but 'reasonable [and] nondiscriminatory.'"

"The party nowhere disputes that its members were perfectly free to associate, to campaign freely and zealously, to mobilize supporters, and to vote as they wished," Tatel wrote. "Nor does it dispute that the Board accurately counted all votes, including the write-in votes, or that the board reported the number of votes for the named candidates, as well as the number of votes cast for the write-in option in general.

"Yet it insists that the board 'effectively disenfranchises ... registered District of Columbia voter[s] who cast a valid write-in vote for plaintiff Barr in the 2008 presidential election.' We fail to see how," Tatel said.

"They were free to vote. They voted. The number of write-in votes was counted. The party knows it 'received between 3 and 1,138 votes out of a total 265,853 votes cast -- at most, less than 0.5 percent of the total vote.'"

And, as the District Court pointed out, "their votes would have been further tabulated on a candidate-by-candidate basis, pursuant to [its rules] if there had been a sufficient number of write-ins to have a determinative effect on the election."

"In the context of an election, like this one, where write-in votes could have no possible effect on the outcome, the District's refusal to tally and report the precise number of voters who penciled in Bob Barr as their candidate of choice hardly amounts to disenfranchising those voters or, more precisely for our purposes, imposing a severe burden on their rights."

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