Libertarian Party v. District of Columbia Board of Elections & Ethics

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 10, 2012 Decided June 8, 2012

No. 11-7029

LIBERTARIAN PARTY, ET AL.,
APPELLANTS

v.

DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS,
ET AL.,
APPELLEES

Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-01676)

Oliver B. Hall argued the cause and filed the briefs for
appellants.

Rudolph M.D. McGann argued the cause and filed the
brief for appellee District of Columbia Board of Elections and
Ethics. Kenneth J. McGhie entered an appearance.

James C. McKay Jr., Senior Assistant Attorney General,
Office of the Attorney General for the District of Columbia,
argued the cause for appellees Vincent C. Gray and Irvin B.
Nathan. With him on the brief were Irvin B. Nathan, Attorney
 2
General for the District of Columbia, Todd S. Kim, Solicitor
General, and Donna M. Murasky, Deputy Solicitor General.

Before: TATEL, GARLAND, and KAVANAUGH, Circuit
Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: The District of Columbia’s Board
of Elections and Ethics published the total number of write-in
votes cast in the 2008 presidential election but, consistent
with its regulations, never reported which individuals were
penciled in by voters choosing the write-in option or how
many votes any such individual accrued. The Libertarian
Party, along with its 2008 presidential candidate Bob Barr, a
write-in candidate, contends that the District’s failure to
report the number of votes cast for Barr violates the First and
Fifth Amendments. The district court granted the Board’s
motion for summary judgment. For the reasons set forth in
this opinion, we affirm.

I.
Bob Barr was listed on the ballots of forty-five states and
qualified as a write-in candidate in one other. He also
qualified as a write-in candidate in the District of Columbia.
District voters could either vote for a ballot candidate, such as
John McCain or Barack Obama, or they could opt to pencil in
a vote for Bob Barr or one of the other write-in candidates. Of
the 265,853 votes cast, 245,800 went to the future president,
Barack Obama, and of the remaining 20,053 votes, a total of
1,138 were counted as votes for write-in candidates. The D.C.
Board of Elections and Ethics tallied and reported all of these
votes, including the 1,138 write-in votes, as required by its
rules. See D.C. Mun. Regs. tit. 3, § 806.12. But because the
“total number of write-in votes” was not “sufficient to elect a
 3
write-in candidate,” id. § 806.13, the Board, pursuant to
section 806.13 of its rules, did not individually tally and
report the total number of votes cast for Barr or any other
write-in candidate. The Libertarian Party, Bob Barr, and
several citizens who voted for Barr sued in the United States
District Court for the District of Columbia, alleging that the
Board’s failure to do so violated their First Amendment
speech and associational rights and their Fifth Amendment
equal protection rights. Throughout this opinion, we shall
refer to the plaintiffs as “the Party.”

The district court granted summary judgment for the
Board. After observing that whether speech and associational
rights “extend to the manner in which votes are reported is a
close question,” the district court determined that it had no
need to resolve the issue because “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.’ ” Libertarian Party v. D.C. Bd. of Elections &
Ethics, 768 F. Supp. 2d 174, 180, 181–82 (D.D.C. 2011)
(quoting Burdick v. Takushi, 504 U.S. 428, 434 (1992)). The
district court concluded that “[t]he burden Section 806.13 puts
on Plaintiffs’ constitutional rights is accordingly very
limited,” and here, “the District’s regulatory interests trump
Plaintiffs’ limited interest in having write-in votes tabulated
and reported on a candidate-by-candidate basis.” Id. at 187.

The Party now appeals, and our review is de novo. See,
e.g., Maydak v. United States, 630 F.3d 166, 174 (D.C. Cir.
2010).
 4
II.
The Supreme Court’s decision in Burdick v. Takushi, 504
U.S. 428, provides the framework for our analysis. There, 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. Id. at
433–34. Rather, as explained in Anderson v. Celebrezze,
courts must “consider the character and magnitude of the
asserted injury” to the plaintiff’s constitutional right, as well
as “the precise interests put forward by the State as
justifications for the burden imposed by its rule.” 460 U.S.
780, 789 (1983). When a voter’s rights are “subjected to
severe restrictions, the regulation must be narrowly drawn to
advance a state interest of compelling importance.” Burdick,
504 U.S. at 434 (internal quotation marks omitted). But when
election laws impose only “reasonable, nondiscriminatory
restrictions” upon the constitutional rights of voters, “the
State’s important regulatory interests are generally sufficient
to justify the restrictions.” Id. (internal quotation marks
omitted). The question, then, is whether the District’s
regulations impose “severe restrictions” on the Party’s
constitutional rights and are thus subject to strict scrutiny (as
the Party argues), or whether they impose “reasonable,
nondiscriminatory restrictions” and are thus permissible in
light of the District’s “important regulatory interests” (as the
district court found).

Acknowledging that the Supreme Court in Burdick
upheld Hawaii’s outright ban on write-in voting, the Party
argues that the Court only did so in the context of Hawaii’s
particular statutory scheme, which provides candidates with
“easy access to the ballot.” Appellants’ Br. 11. By contrast,
the Party points out that the District, unlike Hawaii, requires
that candidates seeking to appear on the general election
ballot submit a nomination petition signed by one percent of
 5
all registered voters. D.C. Code § 1-1001.08(f). The Party
does not challenge this requirement. Instead, it argues that in
light of the burden the District imposes on candidates seeking
access to the ballot, the Board’s unwillingness to count and
report the number of votes cast for each individual write-in
candidate “severe[ly]” burdens the Party’s constitutional
rights. Appellants’ Br. 14. It does so, the Party argues, by
burdening “ ‘the right of qualified voters, regardless of their
political persuasion, to cast their votes effectively,’ ” as well
as the “ ‘right of individuals to associate for the advancement
of political beliefs.’ ” Id. at 19 (quoting Williams v. Rhodes,
393 U.S. 23, 30 (1968)). Elaborating, the Party explains:

[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.

Id. at 19–20. Finally, the Party points to case law recognizing
that each voter’s vote “must be correctly counted and
reported.” Gray v. Sanders, 372 U.S. 368, 380 (1963).

The District’s laws no doubt impose burdens on write-in
candidates, but, like the district court, we have no basis for
concluding that these burdens are “severe,” or anything but
“reasonable [and] nondiscriminatory.” Libertarian Party, 768
F. Supp. 2d at 181 (internal quotation marks omitted). The
Party nowhere disputes that its members were perfectly free
to associate, to campaign freely and zealously, to mobilize
 6
supporters, and to vote as they wished. 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.” Appellants’ Br. 17.
We fail to see how. 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.”
Libertarian Party, 768 F. Supp. 2d at 186. And, as the district
court pointed out, “their votes would have been further
tabulated on a candidate-by-candidate basis, pursuant to
Section 806.13, if there had been a sufficient number of write-
ins to have a determinative effect on the election.” Id. at 185.
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. Of course, the Party would benefit from knowing how
many people voted for its candidate. And it seems reasonable
to think that having such information may facilitate further
and future speech and association. But that alone does not
render the regulation a severe burden. It just makes the
regulation inconvenient for candidates unable to obtain
signatures from one percent of District voters in advance of
the election.

Arguing otherwise, the Party contends that a precise
count is necessary because under federal law, 26 U.S.C.
§ 9004, a minor party presidential candidate polling at least
 7
five percent of the national vote can qualify for public funding
in the next election. But as the district court pointed out,
“[e]ven if all 1,138 write-in votes from the District of
Columbia were allotted to Barr, his vote total would still be
approximately 0.40%—nowhere near the 5% threshold
required for public funding.” Libertarian Party, 768 F. Supp.
2d at 187. Thus, any such harm is, at least in this case, purely
hypothetical.

Indeed, the District’s regime is no stricter and no more
severe than the one in Hawaii upheld by the Supreme Court in
Burdick. There, Hawaii banned write-in voting and required
candidates to run in an open primary in order to appear on the
general election ballot. Burdick, 504 U.S. at 435. A
nonpartisan candidate could get on the primary ballot by
filing paperwork containing, depending on the office sought,
fifteen to twenty-five signatures, but could only advance to
the general election by receiving either ten percent of the
primary vote or the number of votes that would have allowed
the nonpartisan candidate to be nominated had she run as a
partisan candidate. Id. at 436. By contrast, a partisan
candidate—including one outside the major parties—was
required to file a party petition containing the signatures of
one percent of the state’s registered voters. Id. at 435. In
holding that Hawaii’s election scheme did not constitute a
severe burden, the Court explained that it had “previously
upheld party and candidate petition signature requirements
that were as burdensome or more burdensome than Hawaii’s
one-percent requirement.” Id. at 435 n.3. Given this, we
cannot see how the District’s regulations—which, unlike
Hawaii’s, allow voters to write in a candidate of choice, and
which provide for the counting and reporting of the total
number of write-ins, though not how many votes each
individual write-in candidate received—can be considered a
severe burden.
 8

Although we certainly understand why the Party is
interested in the ballot count for reasons other than figuring
out who won the election, so too was the plaintiff in Burdick
who sued because he wanted to register a protest vote for
Donald Duck. See id. at 438. As the Supreme Court put it,
“the function of the election process is to winnow out and
finally reject all but the chosen candidates, not to provide a
means of giving vent to short-range political goals.” Id.
(citation and internal quotation marks omitted). Accordingly,
“[a]ttributing to elections a more generalized expressive
function would undermine the ability of States to operate
elections fairly and efficiently.” Id. Likewise, in Timmons v.
Twin Cities Area New Party, 520 U.S. 351 (1997), the
Supreme Court rejected a challenge to the constitutionality of
Minnesota’s law prohibiting candidates from appearing on the
ballot as the candidate of more than one party. In doing so, the
Court explained that it was “unpersuaded . . . by the party’s
contention that it has a right to use the ballot itself to send a
particularized message, to its candidate and to the voters,
about the nature of its support for the candidate. Ballots serve
primarily to elect candidates, not as forums for political
expression.” Id. at 363.

Moreover, any burden imposed is to some extent
mitigated by the District’s Freedom of Information Act,
which provides that “[a]ny person has a right to
inspect . . . any public record of a public body,” D.C. Code
§ 2-532(a), and expressly defines the term “public record” to
include “vote data (including ballot-definition material, raw
data, and ballot images),” id. § 2-502(18). Invoking this law,
the Party, as the Board emphasized at oral argument, can
obtain the ballots and count exactly how many were cast for
Bob Barr. To be sure, like any other FOIA request, this would
cost the Party some time and resources. Thus, what is really at
 9
stake here is the allocation of cost—whether the Board has to
manually count every write-in vote, even when the write-in
votes could not possibly affect the election’s outcome, or
whether it is sufficient for the Board to count and report the
total number of write-in votes, determine that they are
irrelevant to the outcome, and leave interested parties free to
rummage through the ballots and count specifically how many
votes their write-in candidate received.

Because the Party has failed to show that the District’s
law places a severe burden on its rights, the District’s
“ ‘important regulatory interests are generally sufficient to
justify’ the restrictions.” Burdick, 504 U.S. at 434 (quoting
Anderson, 460 U.S. at 788). Here, in elections where a write-
in candidate could not possibly be declared the victor, the
District seeks to avoid the needless cost of tabulating each
write-in ballot by hand. As a declaration from the Board’s
Executive Director states, the write-in ballots would have to
be sorted from the hundreds of thousands of ballots cast and
manually counted, an undertaking that would require D.C. to
hire and train employees for a task that would “require at least
a few weeks to complete.” Decl. of Rokey Suleman ¶¶ 5–6.
The Party does not contest this declaration. Instead, it cites
cases like Dunn v. Blumstein, where the Court explained that
“states may not casually deprive a class of individuals of the
vote because of some remote administrative benefit to the
State.” 405 U.S. 330, 351 (1972) (internal quotation marks
omitted). But in Dunn and the other cases cited by the Party,
the Court was applying strict scrutiny because the states had
actually disenfranchised a segment of voters. In Dunn, the
Court invalidated a “durational residence requirement,” 405
U.S. at 338, and in Tashjian v. Republican Party of Conn.,
479 U.S. 208 (1986), it struck down a law that had banned
political parties from allowing independent voters to vote in
their primary. In such instances—where voting is literally
 10
prohibited—mere administrative costs are insufficient to
survive strict scrutiny. In a case like this, however, where the
challenged regulation imposes no severe burden, strict
scrutiny has no place and the District’s general regulatory
interests are sufficient to uphold its law.

III.
We affirm the judgment of the district court.

So ordered.