The Libertarian Party is appealing the dismissal last month of its lawsuit against the District of Columbia Board of Elections and Ethics over how the city releases election results. The party claims the city's decision to not publish a breakdown of the 1,138 write-in votes cast during the 2008 presidential election violated the First Amendment rights of the party and its supporters.
In a March 8 opinion, U.S. District Court Judge Beryl Howell granted the city’s request for summary judgment, writing that the Constitution does not require a breakdown of write-in votes, as long as the votes in question don’t affect the overall election results. Howell's opinion is available here (PDF).
The party filed a notice of appeal today.
In the 2008 election, the Libertarian party fielded Bob Barr as its presidential candidate. According to the complaint (PDF)the party filed in 2009 in Washington federal court, Barr was listed on the ballot in 45 states and qualified as an official write-in candidate in Washington and one other state.
In reporting election results, the elections board noted that there were 1,138 write-in votes submitted, but didn’t offer a breakdown by candidate or party. Write-in votes made up less than 0.5% of votes in the 2008 presidential election in Washington, failing to meet the city's standard for reporting the breakdown.
The party argues that not knowing how Barr fared hurts the party’s ability to organize and build support in the future; attorney Oliver Hall, who is representing the party, said the case has implications for any minor party seeking to build its base.
“The only state interests asserted by the District of Columbia are in administrative convenience, saving time and money by not counting these parties’…votes,” Hall said in a phone interview this afternoon. “The Supreme Court has explicitly stated that those interests are not justified in a state treating votes unequally. It’s important for these parties to have these votes counted.”
Alysoun McLaughlin, a spokeswoman for the elections board, declined to comment on the case, but said the city’s policy is grounded in the administrative challenges that come with using paper ballots. The city does offer residents the option of voting electronically using touchscreen machines, but the city still heavily relies on paper.
“There’s nothing in our software that can automatically tabulate [individual write-in votes] for us. If we’re going to go in and count all of the individual votes, that has to occur by hand,” she said, noting that the city doesn’t have the funds needed to shift to an all-electronic system. “In jurisdictions that use touchscreens, it’s easy to see what all the spelling variations are.”
McLaughlin noted that there have been a number of local races where write-in votes were individually counted, since enough write-in votes were cast to affect the outcome.
Ariel Waldman, senior counsel to the city's attorney general, declined to comment on the case.