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The Write to Vote

by Eric Longley

On Election Day in Durham, a 14-year-old boy was allowed to vote. If the boy and his parents hadn't blabbed to the media, this boy's vote (straight Republican) would probably have been counted.

During that same election day, I cast my ballot as an adult, qualified voter. But the persons I voted for as President, Governor and Senator were thrown away: it will be as if I had never voted for these candidates at all.

To explain: On most of the ballot, I voted for candidates whose names were regularly printed. In four places, however, there were blank spaces where the names of write-in candidates could be placed. In these spaces, I wrote in my choices: For President: Michael Moore, host of TV Nation, producer of Roger and Me, and author of Downsize This! For Senator: Billy C. Wirtz, generally referred to as "Reverend," the great musician/comedian. For Governor: William Jenkins, of the North Carolina Farm Bureau Federation. For Soil and Water Conservation District Supervisor: Orrin H. Pilkey, Jr., the Cassandra of the coastline.

Of these votes, the vote for Pilkey was considered valid. The other three votes were thrown away.

In throwing away these votes, the Board of Elections was not breaking the law. In fact, it was acting in full compliance with the law.

Before 1987, NC voters at a general election were pretty much free to write in anyone's name they chose, if for any reason they didn't like the candidates whose names were on the ballot. Then the General Assembly passed a law providing that, to qualify as a write-in candidate, you had to present a certain number of signatures to election officials. The number of petitions usually varies from 100 to 500, depending on the office (although fewer than 100 votes are sometimes acceptable in sparsely-populated areas). The petitions are due in late July or early August, depending on how much time it takes county election officials to verify the petitions (all signers have to be registered voters). Anyone who lost a primary can't run for the same office as a write-in candidate. If voters write in the names of unapproved candidates, these votes shall not be counted. There are exceptions to the law: elections for mayor, city/town council, and for non-partisan positions are not covered by the legislation (That's why my vote for Pilkey was counted).

According to Rep. H. M. Michaux, a chief opponent of the law when it passed in 1987 (and was made permanent in 1989), the law may have been a reaction to a write-in campaign waged in his own behalf in 1982.

Whether the General Assembly passed the law in response to Rep. Michaux or not, Michaux fought it. Among other things, he thinks it is "totally unconstitutional" to deny voters the chance to write in any qualified candidate they choose, and that the exemption of municipal and non-partisan elections constitutes unconstitutional discrimination (this argument might make the law unconstitutional under the NC Constitution, which prohibits arbitrary ballot-access restrictions on candidates).

As an example of the disparities caused by the law, consider a judicial election in Robeson County in 1988. Julian Pierce was campaigning for the Democratic nomination, but was murdered on March 26. In the May 3 primary, Joe Britt, the remaining candidate, who was opposed by many county voters, was elected by default, with no write-in option for Pierce's former supporters. Write-in votes had been prohibited in primary elections before 1987, but even if this had been a general election, no one would have been able to step forward as a write-in candidate and seek the votes of Pierce's supporters, since the deadline for filing as a write-in candidate would have expired by the time of Pierce's murder.

Two other elections in Robeson County illustrate the discrepancies in the write-in law. In 1989, there were two candidates on the ballot for Town Council of Proctorville, a community of about 200 people. There were three vacancies on the council. A week before the election, way past the filing deadline for write-in candidates for most other offices, Neta Brewer decided that she would run as a write-in. A building near her is filled with tires, which, she alleges, poses an environmental problem and constitutes a fire hazard. Brewer was unable to do anything about the problem during her term on the Town Council (she is still active on the issue), and she left office for health reasons in 1994. She got three or four write-in votes in the municipal election of 1995.

In 1991, in the Robeson County town of Maxton, Wilbert McLaurin made a last-minute decision to challenge the incumbent mayor through the write-in process. Although, as he explained to the Robesonian, he "only had three days to campaign," he won 248 votes to the incumbent's 278, an impresssive showing on such short notice. Again, had McLaurin been running for almost any other office (judge, for example), he would not have met the deadline to qualify as a write-in candidate.

Ralph Nader was one of the officially-certified write-in candidates for President. Dan Coleman of the Orange County Green Party filed Nader's nominating petition with the State Board of elections. Coleman said it was "not too difficult" for the Greens and their sympathizers to get the necessary 500 votes needed in a statewide race like this one.

But, as a write-in candidate, Nader's name was not on the ballot or on any information provided to the voters. For example, I had to go to the Durham Board of Elections in person to get a list of write-in candidates. This is why James Glover, who has fought in court on behalf of the Libertarian Party in order to loosen the ballot-access laws in North Carolina, doesn't want Libertarians running as write-in candidates. Running as a write-in candidate "costs too many votes." A place on the ballot, accompanied by a party identification, helps identify the candidate and where (s)he stands on issues, but "a blank spot triggers nothing" in a voter's memory (The Libertarians got on the ballot this year).

In the best of circumstances, a write-in candidate is a second-class citizen. North Carolina laws make him or her a third-class citizen. Just ask Deborah Reid of Durham, who ran an independent candidacy for Governor as part of a long-standing crusade on behalf of court reform (Reid thinks the system is rigged in favor of judges and lawyers, and doesn't act strongly enough against alleged corruption in the judiciary). Reid had help from other people on her court-reform efforts, but her campaign to qualify as a write-in candidate was waged by her alone. In May and June, she solicited signatures in a post office, a grocery store, a drug store, and two shopping malls. She was kicked off the premises on some occasions, which led her to be more "discreet" in her petition-gathering. Instead of having her petitions on a clipboard, she would have them inside a folder, and would ask for signatures from registered voters who passed by. Waging a one-person ballot-access drive under such circumstances was a "close call," but Reid got about 950 petitions, many of them probably from people who were discontented with the court system. The State Board of Elections certified about 750 of the petitions.

In a country where the phrase "to make a federal case out of" has become part of the language, it is not surprising that laws about write-ins have been challenged in federal court. In a 1989 case decided in the Federal Fourth Circuit Court of Appeals (which has jurisdiction over North Carolina), the court struck down a Maryland law which was less onerous than the North Carolina legislation. Would-be write-in candidates had to file a declaration of candidacy and pay a fee (the fee would be waived if the candidate was poor). There was no requirement to gather petitions. As part of their "right of political expression," said the Court, voters could cast ballots for the candidates of their choice. Even for purely protest candidates or fictional persons.

In 1992, the US Supreme Court took a totally different approach to write-ins in a case from Hawaii. Hawaii had prohibited write-in voting entirely, never mind about filing fees and petitions. The Court said that what Hawaii had done was OK. The justices specifically mentioned Donald Duck, but they said that an argument asserting a right to vote for Mr. Duck was based on "false premises." As long as a state's ballot-access laws were fair, said the Court, the state could pretty much regulate write-in votes in any way, even by prohibiting such votes.

In 1992 the State Attorney-General's office said that the so-called "sore loser" clause of the write-in law (which prevents defeated candidates in primary elections from running write-in campaigns), "would not survive constitutional challenge" under the North Carolina Constitution.

The constitutional fate of the rest of the law is still in doubt. A test case would probably get the whole law struck down under the NC Constitution.

Eric Longley is a free-lance writer living in Durham.

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