Subject: Re: [EL] Write-in votes
From: Vince Leibowitz
Date: 11/17/2010, 11:11 AM
To: "Goldfeder, Jerry H." <jgoldfeder@stroock.com>
CC: Election Law <election-law@mailman.lls.edu>

In Texas, there is a portion of the statute relating to "certified write-in candidates," where, in order to be placed on the list of write-in candidates placed in the polling booth, a declaration of write-in candidacy must be made with the appropriate authority. However, I do not believe that, if you aren't on the certified list, that means your vote isn't counted.

However, a requirement to be "certified" to appear on list of eligible write-in candidates would negate the confusion if there were, for example, two Lisa Murkowski's in Alaska. Whether or not that's constitutional for a federal election, I don't know, but it would be an interesting discussion.

With regard to municipal elections in Texas, Tex. Election Code 146.051 stipulates that, in order for the votes to be counted for a write-in, the candidate must be on the certified write-in list. There isn't a similar statute relating to other elections.

When Tarrant County counted their write-in votes a few weeks ago, Dallas Cowboys Owner Jerry Jones got a few votes, as did some other pretty interesting names.

I've copied a few sections from the Texas Election Code relating to write-ins below you may find interesting.

Sec. 146.001.  WRITE-IN VOTES PERMITTED.  Except as otherwise provided by law, if the name of the person for whom a voter desires to vote does not appear on the ballot, the voter may write in the name of that person.

Sec. 146.023.  DECLARATION OF WRITE-IN CANDIDACY REQUIRED.  (a)  To be entitled to a place on the list of write-in candidates, a candidate must make a declaration of write-in candidacy.

(b)  A declaration of write-in candidacy must, in addition to satisfying the requirements prescribed by Section 141.031 for an application for a place on the ballot, be accompanied by the appropriate filing fee or, instead of the filing fee, a petition that satisfies the requirements prescribed by Subchapter C, Chapter 141.

(c)  A candidate may not file a declaration of write-in candidacy for more than one office. If a person files more than one declaration of write-in candidacy in violation of this subsection, each declaration filed subsequent to the first one filed is invalid.

(d)  A declaration of write-in candidacy is public information immediately on its filing.

Sec. 146.030.  CANDIDATE NOT CERTIFIED.  A write-in candidate may not be certified for placement on the list of write-in candidates if:

(1)  the information on the candidate's declaration of write-in candidacy indicates that the candidate is ineligible for the office;

(2)  facts indicating that the candidate is ineligible are conclusively established by another public record;

(3)  the candidate is determined ineligible by a final judgment of a court;

(4)  the candidate's declaration of write-in candidacy is invalid for the office under Section 146.023(c); or

(5)  the certifying authority learns that the candidate's name is to be omitted from the list under Section 146.0301.

Sec. 146.031.  LIST OF WRITE-IN CANDIDATES.  (a)  The authority responsible for having the official ballot prepared shall prepare a list containing the name of each write-in candidate certified to the authority. Each name must appear in the form in which it is certified.

(b)  A write-in candidate's name may not appear more than once on the list.

(c)  Copies of the list shall be distributed to the counting officers in the election for use in counting write-in votes.

(d)  Copies of the list shall be distributed to each presiding election judge with the other election supplies. A copy of the list shall be posted in each polling place at each place where an instruction poster is required to be posted.

(e)  The authority responsible for having the official ballot prepared shall retain a copy of the list and preserve it for the period for preserving the precinct election records.

Sec. 146.051.  CANDIDATE'S NAME REQUIRED TO APPEAR ON LIST.  In an election for city officers, a write-in vote may not be counted unless the name written in appears on the list of write-in candidates.

Added by Acts 1991, 72nd Leg., ch. 363, Sec. 1, eff. Sept. 1, 1991. Amended by Acts 2001, 77th Leg., ch. 215, Sec. 1, eff. Sept. 1, 2001.


Sec. 146.052.  DECLARATION OF WRITE-IN CANDIDACY REQUIRED.  To be entitled to a place on the list of write-in candidates, a candidate must make a declaration of write-in candidacy.

Added by Acts 1991, 72nd Leg., ch. 363, Sec. 1, eff. Sept. 1, 1991.


Sec. 146.053.  AUTHORITY WITH WHOM DECLARATION FILED.  A declaration of write-in candidacy must be filed with the authority with whom an application for a place on the ballot is required to be filed in the election.



On Wed, Nov 17, 2010 at 8:50 AM, Goldfeder, Jerry H. <jgoldfeder@stroock.com> wrote:

It is probably true that there are not two Lisa Murkowski’s in Alaska, but if a write-in campaign was waged for a Joe Miller, for example, how would election personnel determine which Joe Miller should receive the vote? Or Al Green? Or Betty White?  You get the idea.

 

If you have any experience with, or are aware of any statutes or articles on the subject of how to determine which write-in candidate gets the vote, please contact me off line.  Thanks.

 

Jerry H. Goldfeder

Special Counsel

Stroock & Stroock & Lavan LLP

180 Maiden Lane

New York, NY 10038

212-806-5857   (office)

917-680-3132   (cell)

212-806-7857   (fax)

www.stroock.com/goldfeder

 


IRS Circular 230
Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax
advice contained in this communication (including any attachment that does not explicitly state otherwise) is not
intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal
Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.

_______________________________________________
election-law mailing list
election-law@mailman.lls.edu
http://mailman.lls.edu/mailman/listinfo/election-law




--
~~~~~~~~~~~~~~
Vince Leibowitz
CapitolAnnex.com
twitter.com/CapitolAnnex
myspace.com/capitolannex facebook.com/profile.php?id=501233189
vince.leibowitz@gmail.com
AOL, MSN, Yahoo: vpltz || ICQ: 118433437