Virginia’s Restrictive Primary Rules Should Allow for Write-in Candidates

The law, lawyers, and the court.
Jan. 3 2012 3:50 PM

Writer’s Block

Virginia primary voters should be allowed to vote for the GOP nominee of their choice.

Republican presidential candidate, Texas Gov. Rick Perry speaks with potential voters in Iowa.
GOP candidate Rick Perry is challenging Virginia's primary-voting laws

Photograph by Jonathan Gibby/Getty Images.

Intelligent life exists beyond Iowa, and even beyond New Hampshire. Before the Republican Party crowns its nominee, voters from other states should and will be heard.

Or will they? According to Virginia law, many a lawful voter will not be allowed to vote for the candidate she truly favors on the day of the Virginia primary—March 6, to be precise. So far, no one seems to have highlighted this gaping flaw in the Virginia election code.

Virginia’s ultra-strict ballot-access laws, whose obstacle course kept every Republican presidential candidate off the ballot except Mitt Romney and Ron Paul, were challenged last week by Rick Perry’s legal team and supporters of Newt Gingrich. Last Friday four other GOP candidates signed onto Perry’s legal challenge as well.

Virginia’s ballot-access rules are indeed extreme, but it’s hard to say, as Perry’s lawyers are contending, that these rules are unconstitutional. Governments are allowed to print official ballots, and as long as they are in this business, surely they may choose to list only the names of the major candidates. Short lists plausibly promote democracy by making it easy for the ordinary voter to find and vote for his preferred candidate.

Governments don’t have carte blanche, of course, but Virginia’s ballot-access rules seem defensible. Virginia does not, for example, exclude persons from the ballot on improper grounds of race or sex. True, Virginia requires that each listed candidate must have presented 10,000 signatures of qualified voters—a high bar—but that line must be drawn somewhere. Virginia also requires that at least 400 signatures come from each congressional district. In this sense, not all signatures count equally. A signature surplus (above 400) from District A can never offset a signature deficit (below 400) from District B. But votes for individual district races are likewise not interchangeable, and no one thinks that districting per se is unconstitutional. So long as each district is the same size, the basic principle of one-person, one-vote is satisfied.

Virginia law also provides that only eligible voters are allowed to solicit qualifying signatures. Perry’s team is attacking this rule; but if Virginia can say that only eligible voters may vote, why can’t Virginia likewise say that only eligible voters may act as official signature gatherers? The real issue here is not whether ineligible persons can gather signatures. Constitutionally, anyone can gather signatures—and no one should ever be punished simply for gathering unauthorized signatures, absent some intent to defraud the signer or the state. But Virginia is not proposing to punish unauthorized gatherers. The state is simply choosing not to count these signatures as legally valid. Analogously, any Virginian is free to “vote” for whomever he wishes on March 7—but this “vote” doesn’t count, coming as it does a day late.

And this gets us to the real flaw in the law: A fully eligible Virginia voter who does vote on the right legal day—March 6—should be allowed to vote for whomever he pleases, and this vote should be fully valid so long as the person he votes for meets the Constitution’s rules for presidential eligibility. A March 6 vote for Mickey Mouse or Santa Clause shouldn’t legally count because these fictional characters are not natural-born citizens. Likewise, a vote for Miley Cyrus is a legally wasted vote until she reaches age 35. Of course a voter to may lawfully cast a protest vote for a cartoon rodent or a teenager; no voter can be punished for doing so. But Virginia need not count these votes.

A March 6 vote for Newt Gingrich or Rick Perry, however, is completely different and that’s what Virginia seems to have missed. Virginia law says that these votes will likewise be tossed in the trash. Because as the statute currently provides: “At all elections except primary elections it shall be lawful for any voter to vote for any person other than the listed candidates for the office by writing or hand printing the person's name on the official ballot.” (My italics added.) Why this exception? Why shouldn’t a primary voter be allowed to vote for her true first choice and have that vote counted if the name she writes is in fact constitutionally eligible?

Perry and Gingrich have yet to ask this key question of the courts and so Virginia has not felt the need to provide an answer. And perhaps Virginia has a good answer; but at this point, it’s hard to see what that good answer might be.

True, write-in votes are an expensive hassle to count. But virtually all elections are full of expensive hassles. Welcome to democracy. Once a state decides to hold an election, it must hold a fair and honest one. Non-English ballots are a hassle. Allowing old people and disabled people to vote is a hassle, if they need extra time or extra help at the polls. But constitutional first principles generally require counting all valid votes. That’s why Virginia doesn’t try to bar write-in votes, generally.

In fact, write-in votes have a much more distinguished pedigree in America than do official printed ballots. At the Founding, no elections had government-printed ballots. In some places, voice voting prevailed. In many other venues, each voter placed his own personal ballot in the box. Thus, all ballots were write-in ballots at the Founding. If Virginia and other states have been able to handle write-ins for most of American history, why not on March 6?

True, there will be line-drawing issues. Should a vote for “Knute Gingrich” count? How about for “Newt Grinch?” (Were I the ump, I would surely count both, and the second seems downright poetic—but maybe that’s just me.) The line-drawing issue is hardly unique to presidential primary elections in Virginia, and well-established American election law principles generally demand that every vote should be counted if there is clear voter intent. Alaskans should not be—and in the last congressional election were not—disfranchised just because some have trouble spelling Murkowski.

True, there is a risk that Democrats and Independents may flood the primary election with write-in votes to sabotage the Republican selection process; but sabotage is always a risk of open-primaries in general, wholly apart from the write-in issue. Frankly, a vote for Ron Paul is an effective sabotage vote, even though Paul is on the ballot. And if the real issue is sabotage, that is a question for the party itself to decide, not for state election law to dictate.

Happily, it is not too late to make clear that all valid votes will be counted on March 6, even though it may be too late to change the ballot. It might be hard for a judge in Virginia to order ballots to be redrawn at this late date; but it is easy for a judge to announce—and for candidates to publicize—that voters will be allowed to vote for the candidate of their choosing on Voting Day. As Lisa Murkowski proved in 2010, a well-organized write-in candidate can actually win in modern America.

One final wrinkle requires additional attention—the special constitutional framework applicable to presidential elections. For all the reasons we have just canvassed, it would be hard for a state to constitutionally defend any blanket no-write-in rule that applied to any ordinary U.S. House or U.S. Senate race, or any election for state or local office. But presidential races are constitutionally unique. In theory, a state legislature need not even allow voters to vote; a state legislature could pick electors itself (as indeed South Carolina consistently did before the Civil War).

But once a state decides to allow its voters to vote, various special right-to-vote rules from the U.S. Constitution clearly kick in. Thus, Section 2 of the 14th Amendment provides severe penalties for any state that tries to unduly restrict the franchise in “any election … for President.” Likewise, the 15th, 19th, 24th, and 26th Amendments prohibit a wide range of discriminatory practices in any presidential election that a state chooses to hold. The 24th Amendment specifically mentions that “primary” elections are covered by its rules; and the same implicitly goes for all the other right-to-vote amendments.

In short, once Virginia decides to hold an election for president, it must hold a fair one—one that meets basic American principles of democracy and fair play. Yes, Virginia, there is a Supremacy Clause.

Akhil Reed Amar is a Yale law professor and author of America’s Unwritten Constitution: The Precedents and Principles We Live By.

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