Saturday, December 19, 2020

States are Very Inconsistent in Tallying Write-in Votes for President

Ballot Access News

Every state except Arkansas, Hawaii, Louisiana, Nevada, New Mexico, Oklahoma, South Carolina, and South Dakota prints write-in space on November ballots for president. But the 42 states (plus D.C.) that include write-in space have very different policies on whether any write-ins are tallied.

States that have already tallied some presidential write-ins (generally only for candidates who filed for write-in status) are Arizona, California, Colorado, Connecticut, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Kentucky, Maryland, Michigan, Minnesota, Missouri, Montana, New Hampshire, New York, North Carolina, Ohio, Tennessee, Texas, Utah, Vermont, West Virginia, and Wisconsin.

States that usually do tally some presidential write-ins, but which have not released any write-in returns so far this year, are Kansas, Maine, Massachusetts, Pennsylvania, and Rhode Island. Pennsylvania hasn’t even released its final totals for candidates who were on the ballot.

Jurisdictions that allow declared write-in presidential candidates to file, and yet refuse to tally the write-ins, are Alaska, D.C., Nebraska, North Dakota, Virginia, Washington, and Wyoming.

States that allow write-ins, but have no write-in filing procedure, and never release any write-in results for president, are Alabama, Iowa, Mississippi, New Jersey, and Oregon.

The Eighth Circuit ruled in McLain v Meier, 851 F.2d 1045 (1988) that “The State has an obligation to count all votes properly cast.” See page 1051.  However, it also says that to the extent North Dakota is violating the U.S. Constitution on this point, the remedy ought to be in state court. North Dakota did count presidential write-ins for declared candidates in the past, but stopped doing so in 2008. The law didn’t change; the Secretary of State simply made that decision on his own. Nebraska is also in the Eighth Circuit. It seems plausible that any presidential candidate who filed for write-in status in either of those two states could sue. Howie Hawkins is the most prominent presidential candidate in those two states who was not on the ballot in 2020.

In 2010 the U.S. Court of Appeals, D.C. Circuit, ruled that the District of Columbia Board of Elections need not count write-ins for declared presidential write-in candidates, because it would cost too much.  The decision says that if anyone wants to know how many votes were cast, they are free to file a Freedom of Information request to look at all the ballots. Of course, if anyone did this, their findings would not be “official” and no reference book that tallies the votes for president would accept their findings. Both Merrick Garland and Brett Kavanaugh signed this opinion, Barr v D.C. Board of Elections. Bob Barr, the Libertarian nominee, asked the U.S. Supreme Court to reverse this decision, but the U.S. Supreme Court refused to hear the case.

The Virginia Constitution guarantees voters the right to cast a write-in vote in general elections, and the Virginia State Board of Elections formerly tallied write-ins for declared presidential candidates, but stopped doing so in 2012. A lawsuit under the State Constitution might succeed if anyone were to file it. Howie Hawkins was the most prominent presidential candidate who wasn’t on the Virginia ballot in 2020.

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