United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 10, 2012 Decided June 8, 2012 

No. 11-7029 

LIBERTARIAN PARTY, ET AL., 

APPELLANTS

v. 

DISTRICT OF COLUMBIA BOARD OF ELECTIONS AND ETHICS,

ET AL., 

APPELLEES

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:09-cv-01676) 

Oliver B. Hall argued the cause and filed the briefs for 

appellants. 

 

Rudolph M.D. McGann argued the cause and filed the 

brief for appellee District of Columbia Board of Elections and 

Ethics. Kenneth J. McGhie entered an appearance. 

James C. McKay Jr., Senior Assistant Attorney General, 

Office of the Attorney General for the District of Columbia, 

argued the cause for appellees Vincent C. Gray and Irvin B. 

Nathan. With him on the brief were Irvin B. Nathan, Attorney 
2 

General for the District of Columbia, Todd S. Kim, Solicitor 

General, and Donna M. Murasky, Deputy Solicitor General. 

Before: TATEL, GARLAND, and KAVANAUGH, Circuit 

Judges. 

Opinion for the Court filed by Circuit Judge TATEL. 

TATEL, Circuit Judge: The District of Columbia’s Board 

of Elections and Ethics published the total number of write-in 

votes cast in the 2008 presidential election but, consistent 

with its regulations, never reported which individuals were 

penciled in by voters choosing the write-in option or how 

many votes any such individual accrued. The Libertarian 

Party, along with its 2008 presidential candidate Bob Barr, a 

write-in candidate, contends that the District’s failure to 

report the number of votes cast for Barr violates the First and 

Fifth Amendments. The district court granted the Board’s 

motion for summary judgment. For the reasons set forth in 

this opinion, we affirm. 

I.

 Bob Barr was listed on the ballots of forty-five states and 

qualified as a write-in candidate in one other. He also 

qualified as a write-in candidate in the District of Columbia. 

District voters could either vote for a ballot candidate, such as 

John McCain or Barack Obama, or they could opt to pencil in 

a vote for Bob Barr or one of the other write-in candidates. Of 

the 265,853 votes cast, 245,800 went to the future president, 

Barack Obama, and of the remaining 20,053 votes, a total of 

1,138 were counted as votes for write-in candidates. The D.C. 

Board of Elections and Ethics tallied and reported all of these 

votes, including the 1,138 write-in votes, as required by its 

rules. See D.C. Mun. Regs. tit. 3, § 806.12. But because the 

“total number of write-in votes” was not “sufficient to elect a 
3 

write-in candidate,” id. § 806.13, the Board, pursuant to 

section 806.13 of its rules, did not individually tally and 

report the total number of votes cast for Barr or any other 

write-in candidate. The Libertarian Party, Bob Barr, and 

several citizens who voted for Barr sued in the United States 

District Court for the District of Columbia, alleging that the 

Board’s failure to do so violated their First Amendment 

speech and associational rights and their Fifth Amendment 

equal protection rights. Throughout this opinion, we shall 

refer to the plaintiffs as “the Party.” 

 The district court granted summary judgment for the 

Board. After observing that whether speech and associational 

rights “extend to the manner in which votes are reported is a 

close question,” the district court determined that it had no 

need to resolve the issue because “when an election law 

imposes only ‘reasonable, nondiscriminatory restrictions’ 

upon the constitutional rights of voters, ‘the State’s important 

regulatory interests are generally sufficient to justify the 

restrictions.’ ” Libertarian Party v. D.C. Bd. of Elections & 

Ethics, 768 F. Supp. 2d 174, 180, 181–82 (D.D.C. 2011) 

(quoting Burdick v. Takushi, 504 U.S. 428, 434 (1992)). The 

district court concluded that “[t]he burden Section 806.13 puts 

on Plaintiffs’ constitutional rights is accordingly very 

limited,” and here, “the District’s regulatory interests trump 

Plaintiffs’ limited interest in having write-in votes tabulated 

and reported on a candidate-by-candidate basis.” Id. at 187. 

 The Party now appeals, and our review is de novo. See, 

e.g., Maydak v. United States, 630 F.3d 166, 174 (D.C. Cir. 

2010). 
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II. 

 The Supreme Court’s decision in Burdick v. Takushi, 504 

U.S. 428, provides the framework for our analysis. There, the 

Court explained that “[e]lection laws will invariably impose 

some burden upon individual voters,” and that not all laws 

burdening the right to vote are subject to strict scrutiny. Id. at 

433–34. Rather, as explained in Anderson v. Celebrezze, 

courts must “consider the character and magnitude of the 

asserted injury” to the plaintiff’s constitutional right, as well 

as “the precise interests put forward by the State as 

justifications for the burden imposed by its rule.” 460 U.S. 

780, 789 (1983). When a voter’s rights are “subjected to 

severe restrictions, the regulation must be narrowly drawn to 

advance a state interest of compelling importance.” Burdick, 

504 U.S. at 434 (internal quotation marks omitted). But when 

election laws impose only “reasonable, nondiscriminatory 

restrictions” upon the constitutional rights of voters, “the 

State’s important regulatory interests are generally sufficient 

to justify the restrictions.” Id. (internal quotation marks 

omitted). The question, then, is whether the District’s 

regulations impose “severe restrictions” on the Party’s 

constitutional rights and are thus subject to strict scrutiny (as 

the Party argues), or whether they impose “reasonable, 

nondiscriminatory restrictions” and are thus permissible in 

light of the District’s “important regulatory interests” (as the 

district court found). 

Acknowledging that the Supreme Court in Burdick

upheld Hawaii’s outright ban on write-in voting, the Party 

argues that the Court only did so in the context of Hawaii’s 

particular statutory scheme, which provides candidates with 

“easy access to the ballot.” Appellants’ Br. 11. By contrast, 

the Party points out that the District, unlike Hawaii, requires 

that candidates seeking to appear on the general election 

ballot submit a nomination petition signed by one percent of 
5 

all registered voters. D.C. Code § 1-1001.08(f). The Party 

does not challenge this requirement. Instead, it argues that in 

light of the burden the District imposes on candidates seeking 

access to the ballot, the Board’s unwillingness to count and 

report the number of votes cast for each individual write-in 

candidate “severe[ly]” burdens the Party’s constitutional 

rights. Appellants’ Br. 14. It does so, the Party argues, by 

burdening “ ‘the right of qualified voters, regardless of their 

political persuasion, to cast their votes effectively,’ ” as well 

as the “ ‘right of individuals to associate for the advancement 

of political beliefs.’ ” Id. at 19 (quoting Williams v. Rhodes, 

393 U.S. 23, 30 (1968)). Elaborating, the Party explains: 

[A] voter who casts a valid write-in ballot for a declared 

candidate like Barr is entitled to know whether she has 

acted in concert with other like-minded voters or whether 

her vote is a lone statement in the political wilderness. 

The voting public is entitled to know how Barr fared at 

the polls. The Libertarian Party is entitled to know 

whether its stature has grown or been diminished by the 

votes cast for Barr. None of this vital information, laden 

with associative and communicative value, is available if 

the Board fails to count and report the Barr vote. 

Id. at 19–20. Finally, the Party points to case law recognizing 

that each voter’s vote “must be correctly counted and 

reported.” Gray v. Sanders, 372 U.S. 368, 380 (1963). 

 

The District’s laws no doubt impose burdens on write-in 

candidates, but, like the district court, we have no basis for 

concluding that these burdens are “severe,” or anything but 

“reasonable [and] nondiscriminatory.” Libertarian Party, 768 

F. Supp. 2d at 181 (internal quotation marks omitted). The 

Party nowhere disputes that its members were perfectly free 

to associate, to campaign freely and zealously, to mobilize 
6 

supporters, and to vote as they wished. Nor does it dispute 

that the Board accurately counted all votes, including the 

write-in votes, or that the Board reported the number of votes 

for the named candidates, as well as the number of votes cast 

for the write-in option in general. Yet it insists that the Board 

“effectively disenfranchises . . . registered District of 

Columbia voter[s] who cast a valid write-in vote for plaintiff 

Barr in the 2008 presidential election.” Appellants’ Br. 17. 

We fail to see how. They were free to vote. They voted. The 

number of write-in votes was counted. The Party knows it 

“received between 3 and 1,138 votes out of a total 265,853 

votes cast—at most, less than 0.5 percent of the total vote.” 

Libertarian Party, 768 F. Supp. 2d at 186. And, as the district 

court pointed out, “their votes would have been further 

tabulated on a candidate-by-candidate basis, pursuant to 

Section 806.13, if there had been a sufficient number of writeins to have a determinative effect on the election.” Id. at 185. 

In the context of an election, like this one, where write-in 

votes could have no possible effect on the outcome, the 

District’s refusal to tally and report the precise number of 

voters who penciled in Bob Barr as their candidate of choice 

hardly amounts to disenfranchising those voters or, more 

precisely for our purposes, imposing a severe burden on their 

rights. Of course, the Party would benefit from knowing how 

many people voted for its candidate. And it seems reasonable 

to think that having such information may facilitate further 

and future speech and association. But that alone does not 

render the regulation a severe burden. It just makes the 

regulation inconvenient for candidates unable to obtain 

signatures from one percent of District voters in advance of 

the election. 

Arguing otherwise, the Party contends that a precise 

count is necessary because under federal law, 26 U.S.C. 

§ 9004, a minor party presidential candidate polling at least 
7 

five percent of the national vote can qualify for public funding 

in the next election. But as the district court pointed out, 

“[e]ven if all 1,138 write-in votes from the District of 

Columbia were allotted to Barr, his vote total would still be 

approximately 0.40%—nowhere near the 5% threshold 

required for public funding.” Libertarian Party, 768 F. Supp. 

2d at 187. Thus, any such harm is, at least in this case, purely 

hypothetical. 

 Indeed, the District’s regime is no stricter and no more 

severe than the one in Hawaii upheld by the Supreme Court in 

Burdick. There, Hawaii banned write-in voting and required 

candidates to run in an open primary in order to appear on the 

general election ballot. Burdick, 504 U.S. at 435. A 

nonpartisan candidate could get on the primary ballot by 

filing paperwork containing, depending on the office sought, 

fifteen to twenty-five signatures, but could only advance to 

the general election by receiving either ten percent of the 

primary vote or the number of votes that would have allowed 

the nonpartisan candidate to be nominated had she run as a 

partisan candidate. Id. at 436. By contrast, a partisan 

candidate—including one outside the major parties—was 

required to file a party petition containing the signatures of 

one percent of the state’s registered voters. Id. at 435. In 

holding that Hawaii’s election scheme did not constitute a 

severe burden, the Court explained that it had “previously 

upheld party and candidate petition signature requirements 

that were as burdensome or more burdensome than Hawaii’s 

one-percent requirement.” Id. at 435 n.3. Given this, we 

cannot see how the District’s regulations—which, unlike 

Hawaii’s, allow voters to write in a candidate of choice, and 

which provide for the counting and reporting of the total 

number of write-ins, though not how many votes each 

individual write-in candidate received—can be considered a 

severe burden. 
8 

 Although we certainly understand why the Party is 

interested in the ballot count for reasons other than figuring 

out who won the election, so too was the plaintiff in Burdick 

who sued because he wanted to register a protest vote for 

Donald Duck. See id. at 438. As the Supreme Court put it, 

“the function of the election process is to winnow out and 

finally reject all but the chosen candidates, not to provide a 

means of giving vent to short-range political goals.” Id.

(citation and internal quotation marks omitted). Accordingly, 

“[a]ttributing to elections a more generalized expressive 

function would undermine the ability of States to operate 

elections fairly and efficiently.” Id. Likewise, in Timmons v. 

Twin Cities Area New Party, 520 U.S. 351 (1997), the 

Supreme Court rejected a challenge to the constitutionality of 

Minnesota’s law prohibiting candidates from appearing on the 

ballot as the candidate of more than one party. In doing so, the 

Court explained that it was “unpersuaded . . . by the party’s 

contention that it has a right to use the ballot itself to send a 

particularized message, to its candidate and to the voters, 

about the nature of its support for the candidate. Ballots serve 

primarily to elect candidates, not as forums for political 

expression.” Id. at 363. 

 Moreover, any burden imposed is to some extent 

mitigated by the District’s Freedom of Information Act, 

which provides that “[a]ny person has a right to 

inspect . . . any public record of a public body,” D.C. Code 

§ 2-532(a), and expressly defines the term “public record” to 

include “vote data (including ballot-definition material, raw 

data, and ballot images),” id. § 2-502(18). Invoking this law, 

the Party, as the Board emphasized at oral argument, can 

obtain the ballots and count exactly how many were cast for 

Bob Barr. To be sure, like any other FOIA request, this would 

cost the Party some time and resources. Thus, what is really at 
9 

stake here is the allocation of cost—whether the Board has to 

manually count every write-in vote, even when the write-in 

votes could not possibly affect the election’s outcome, or 

whether it is sufficient for the Board to count and report the 

total number of write-in votes, determine that they are 

irrelevant to the outcome, and leave interested parties free to 

rummage through the ballots and count specifically how many 

votes their write-in candidate received. 

Because the Party has failed to show that the District’s 

law places a severe burden on its rights, the District’s 

“ ‘important regulatory interests are generally sufficient to 

justify’ the restrictions.” Burdick, 504 U.S. at 434 (quoting 

Anderson, 460 U.S. at 788). Here, in elections where a writein candidate could not possibly be declared the victor, the 

District seeks to avoid the needless cost of tabulating each 

write-in ballot by hand. As a declaration from the Board’s 

Executive Director states, the write-in ballots would have to 

be sorted from the hundreds of thousands of ballots cast and 

manually counted, an undertaking that would require D.C. to 

hire and train employees for a task that would “require at least 

a few weeks to complete.” Decl. of Rokey Suleman ¶¶ 5–6. 

The Party does not contest this declaration. Instead, it cites 

cases like Dunn v. Blumstein, where the Court explained that 

“states may not casually deprive a class of individuals of the 

vote because of some remote administrative benefit to the 

State.” 405 U.S. 330, 351 (1972) (internal quotation marks 

omitted). But in Dunn and the other cases cited by the Party, 

the Court was applying strict scrutiny because the states had 

actually disenfranchised a segment of voters. In Dunn, the 

Court invalidated a “durational residence requirement,” 405 

U.S. at 338, and in Tashjian v. Republican Party of Conn., 

479 U.S. 208 (1986), it struck down a law that had banned 

political parties from allowing independent voters to vote in 

their primary. In such instances—where voting is literally 
10 

prohibited—mere administrative costs are insufficient to 

survive strict scrutiny. In a case like this, however, where the 

challenged regulation imposes no severe burden, strict 

scrutiny has no place and the District’s general regulatory 

interests are sufficient to uphold its law. 

III.

 We affirm the judgment of the district court. 

So ordered.