Independent and third party candidates will sue to have their votes counted

MEMORANDUM

Date: October 31, 2006
From: Chuck Moulton, Chairman, Libertarian Party of Pennsylvania
Paul Teese, Chairman, Green Party of Pennsylvania
Erik Kocher, Chairman, Constitution Party of Pennsylvania
Gabriel Ross, Chairman, Socialist Party of Pennsylvania
Russ Diamond, Independent candidate, Governor
Ronald W. Satz, Libertarian Party candidate, Governor
Marakay Rogers, Green Party candidate, Governor
Hagan Smith, Constitution Party candidate, Governor
Thomas A. Martin, Libertarian Party candidate, U.S. Senate
Carl Romanelli, Green Party candidate, U.S. Senate
Carl Edwards, Constitution Party candidate, U.S. Senate
To: Edward G. Rendell, Governor, Pennsylvania
Pedro A. Cortés, Secretary of the Commonwealth, Department of State
Harry A. VanSickle, Commissioner, Bureau of Commissions, Elections and Legislation
CC: Bob Small, Founder, Pennsylvania Ballot Access Coalition
Richard Winger, Editor, Ballot Access News
Peter Jackson, Reporter, Associated Press

Subject: Write-in Votes in the 2006 General Election

The purpose of this letter is to demand that write-in votes be counted and included in the official election results in the 2006 general election.

Libertarian, Green, Constitution, Socialist, and Independent candidates have submitted declarations of write-in candidacy to the Bureau of Commissions, Elections and Legislation within the Pennsylvania Department of State.

Almost three-fourths of the states have laws saying that if a write-in candidate wants his or her write-ins tallied at the general election, the candidate must file a declaration of write-in candidacy. Pennsylvania is the only large or medium-population state not to have such a law. Pennsylvania law requires that all write-in votes be tallied. However, many large counties ignore all write-ins, especially Philadelphia. Furthermore, even though many counties do tally them all, in the past the commonwealth has refused to make a statewide tally and include write-in totals in the official state election returns. In 1996 and 2004 a statewide count of write-in votes was provided to the Ralph Nader campaign, but his total was not included in the official election results.

The Pennsylvania Supreme Court ruled in 1905 that the state constitution requires that write-ins be permitted. "Unless there was such provision to enable the voter not satisfied to vote any ticket on the ballot, or for any names appearing on it, to make up an entire ticket of his own choice, the election as to him would not be equal, for he would not be able to express his own individual will in his own way." Oughton v. Black, 61 A 346, 348 (Pa. 1905). The write-in procedure is codified in § 2963(a) of the Pa. election code, which says in part "To vote for a person whose name is not on the ballot, write, print or paste his name in the blank space provided for that purpose."

Although the law doesn't explicitly say that write-ins must be counted, because write-ins are legal it is core doctrine of constitutional law that they must be counted. "There is more to the right to vote than the right to mark a piece of paper and drop it in a box or the right to pull a lever in a voting booth. The right to vote includes the right to have the ballot counted." South v. Peters, 339 US 276, 279 (1950). "The court has consistently recognized that all qualified voters have a constitutionally protected right to cast their ballots and have them counted at congressional elections. ... Every voter’s vote is entitled to be counted once. It must be correctly counted and reported. As stated in United States v. Mosley, "the right to have one’s vote counted" has the same dignity as "the right to put a ballot in a box." Gray v. Sanders, 372 US 368, 380 (1964). "Having once granted the right to vote on equal terms, the state may not, by later arbitrary and disparate treatment, value one person's vote over that of another." Bush v Gore, 531 US 98 (2000).

It is possible that our candidates could win the election by write-in vote. Nationwide, 6 candidates have been elected to U.S. Congress at by write-in. Strom Thurmond was elected to the U.S. Senate by write-in in 1954. Therefore, failure to count and report write-in votes would be a fundamental abuse of constitutional process and breach of voter trust. Further, because minor party status statewide and major party status in counties is determined by whether party candidates achieve a certain percentage of the vote, failure to count and report write-in votes would be a violation of the law.

The candidates who have filed declarations of write-in candidacy expect the Department of State to provide a statewide count and county by county breakdown of their votes. County boards of elections and local precinct judges of elections should be instructed to count all write-in votes and report their totals. In addition, we demand that these tallies be included in the official state election returns of the 2006 general election.

For Pennsylvania to tally some legal votes, and not others, is unconstitutional. If the commonwealth or counties refuse to tally our write-in votes and report their totals in the official election returns, we will be suing immediately in commonwealth court. The lawsuit would not be for a recount of the votes &mdash it would be for a count of the votes.

Chuck Moulton
Chairman, Libertarian Party of Pennsylvania
Ronald W. Satz
Libertarian Party candidate, Governor
Paul Teese
Chairman, Green Party of Pennsylvania
Marakay Rogers
Green Party candidate, Governor
Erik Kocher
Chairman, Constitution Party of Pennsylvania
Hagan Smith
Constitution Party candidate, Governor
Gabriel Ross
Chairman, Socialist Party of Pennsylvania
Thomas A. Martin
Libertarian Party candidate, U.S. Senate
Russ Diamond
Independent candidate, Governor
Carl Romanelli
Green Party candidate, U.S. Senate
  Carl Edwards
Constitution Party candidate, U.S. Senate