768 F. Supp. 2d 174
D.D.C.2011Background
- In the 2008 DC presidential election, Libertarian Party candidate Bob Barr ran as a write-in; three Libertarian presidential electors were also named, pledged to Barr.
- DC Municipal Regulations § 806 require reporting total write-in votes per contest, or per recipient only if it could determine a winner; the Board did not tally by candidate since those conditions were not met.
- There were 1,138 write-in votes district-wide, out of 265,853 total votes; Barr did not receive a tally by candidate under § 806.13.
- Plaintiffs Jansen, Kampia, and Rumenap were Libertarian voters/candidates who sought to know write-in totals by candidate and to have Barr’s write-ins tabulated and reported.
- Plaintiffs filed § 1983 claims alleging First, Fifth/Fourteenth Amendment rights (and related due process/equal protection) were burdened by § 806.13 and the Board’s actions.
- The court treated the Board’s motion to dismiss as a summary judgment motion and analyzed mootness, DC law interpretation, and constitutional claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do plaintiffs have a protected constitutional interest in write-in vote tabulation? | Jansen, Kampia, and Rumenap seek per-candidate tallies as part of protected voting/associational rights. | There is no right to tabulation of each write-in candidate's votes beyond the total write-ins. | Assumed protected interest exists; nonetheless, § 806.13 narrowly burdens rights and is justified. |
| What level of scrutiny applies to the challenged regulation and actions? | Strict scrutiny should apply because of burdens on voting and association. | Anderson-Burdick framework; only reasonable, nondiscriminatory restrictions apply. | Anderson-Burdick framework governs; regulation is only a slight burden, justifying the restriction. |
| Does § 806.13 impose a severe burden on rights such that strict scrutiny is required? | The District's overall ballot access scheme is burdensome and the failure to tally per candidate disenfranchises minor parties. | The burden is not severe; write-ins were counted and certified, and per-candidate tally is unnecessary when no outcome is determinative. | Burden is slight, not severe; not subject to strict scrutiny. |
| Are there legitimate government interests enough to justify § 806.13? | Reporting per-candidate write-ins is essential for party status and associational rights. | interests include efficient reporting, cost reduction, and public confidence in results. | Yes; interests are sufficiently legitimate to justify the regulation. |
| Does the case mootness prevent jurisdiction? | Issues could recur with future elections, so not moot. | Election has passed; regulation remains but the issue could reoccur; not moot due to repetition. | Case not moot under capable of repetition, yet evading review doctrine. |
Key Cases Cited
- Anderson v. Celebrezze, 460 U.S. 780 (1983) (framework for level of scrutiny in voting regulations)
- Burdick v. Takushi, 504 U.S. 428 (1992) (balancing test: reasonable, nondiscriminatory restrictions may be permitted)
- Turner v. D.C. Bd. of Elections & Ethics, 77 F. Supp. 2d 25 (D.D.C. 1999) (voting results as protected speech and distinction between content-neutral efficiency)
- Best v. D.C. Bd. of Elections and Ethics, 852 A.2d 915 (D.C. 2004) (read § 806.13 to require tallying write-ins when determinative; purpose of election controls outcome)
- Kamins v. Bd. of Elections for D.C., 324 A.2d 187 (D.C.1974) (early interpretation of write-in voting and counting in DC)
- Gray v. Sanders, 372 U.S. 368 (1963) (vote counting and equal protection in voting context)
- Dunn v. Blumstein, 405 U.S. 330 (1972) (equal protection and voting eligibility considerations)