June 8, 2012
D.C. Circuit: No Right to Ballot Count for Third Party
A three-judge panel of the D.C. Circuit ruled today in Libertarian Party v. D.C. Board of Elections and Ethics that the Board did not violate the Libertarian Party's First Amendment speech and association rights and its Fifth Amendment equal protection rights by declining to produce an exact count of the votes received by Bob Barr, the Libertarian candidate in the 2008 presidential election.
The Libertarians claimed that the Board's failure to provide an exact count of votes received meant that they couldn't tell how much support they had in D.C. and that they couldn't determine whether they met the 5 percent national threshold to qualify for public funding in the next election. Here's the gist:
[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.
The court rejected the claims. It ruled that the Board's failure to provide an exact count was a reasonable, nondiscriminatory restriction on the constitutional rights of voters and therefore valid with only an "important regulatory interest." The court said that the Board had a sufficient interest in saving money by not counting votes of a candidate for reasons other than determining the winner of an election. Moreover, the court said that the Libertarians could always get the ballots via the FOIA, and count them themselves.
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Decisions like this fascinate me. Voting is a fundamental right in equal protection jurisprudence, yet the courts frequently apply lower than strict scrutiny to regulations challenged as adversely affecting that right. What does it mean in this context to say that the government's action is "nondiscriminatory?" What is the connection between a "reasonable restriction" and the conclusion that the necessary government interest need only be "important" (rather than "compelling," one assumes)? Does the "reasonableness" of the restriction determine standard of review? I thought that reasonableness was a characteristic of mid-level constitutional review, not a determinant. I have read that theoretical purity and coherence are not the only values important to a system of laws, but the published decisions often appear to attach no importance to them.
Posted by: Jeffrey G. Purvis | Jun 10, 2012 9:48:42 AM