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