Mix record of Obama’s Supreme Court pick Merrick Garland on third party access in elections

From the Ballot Access News article, “Merrick Garland has Mixed Record on Issues Involving Minor Party and Independent Candidates”:

Judge Merrick Garland has a mixed record on issues that affect voters who wish to support minor party and independent candidates. He is President Obama’s choice for the U.S. Supreme Court, and has been a judge on the U.S. Court of Appeals for D.C. since 1997. Generally, judges in that court don’t hear ballot access cases, because the D.C. Circuit doesn’t include any states, just D.C.

In 1997, Judge Garland wrote the opinion in LaRouche v Fowler. That decision upheld the rights of political parties against the federal Voting Rights Act. The year before, the U.S. Supreme Court had ruled in Morse v Republican Party of Virginia, 517 US 186, that the Voting Rights Act applies not only to state and local governments, but to the actions of political parties. Notwithstanding that, Judge Garland wrote in LaRouche v Fowler that the Voting Rights Act cannot be used to control the actions of the national convention of a political party. In 1996, Lyndon LaRouche had entered Democratic presidential primaries and had won enough votes to be entitled to two delegates to the Demoratic National Comvention, from southern states that were covered by the pre-clearance parts of the Voting Rights Act. The Democratic National Committee then issued a rule, saying Lyndon LaRouche is not a bona fide Democrat and delegates pledged to him could not be seated. LaRouche sued the Democratic National Committee, charging that the party had not obtained permission from the U.S. Justice Department to make this change. But Garland wrote that, unlike the Morse case which only involved a Republican Party rule for nominating a U.S. Senator, the Act cannot apply to national party conventions.

In 2005 Garland wrote the opinion in Initiative & Referendum Institute v U.S. Postal Service that struck down a postal regulation barring petitioning on post office sidewalks that are parallel to a street. He remanded the case involving interior sidewalks back to the U.S. District Court. Many years later, the part of the case involving interior postal sidewalks upheld the post office, but that part of the case had no connection with Judge Garland.

Judge Garland’s lowest quality work came in Libertarian Party v D.C. Board of Elections. In 2008, Libertarian presidential nominee Bob Barr failed to get on the ballot in the District of Columbia, but he filed for declared write-in status. He was the only write-in declared presidential candidate in D.C. that year. The Board refused to count Barr’s write-ins, even though in 1974 the D.C. city appeals court (not the federal court) had ruled that presidential ballots must include write-in space and those write-ins must be counted.

The D.C. Court of Appeals, including Judge Merrick, ruled that D.C. need not count Barr’s write-ins, because D.C. had released a count of the total number of write-ins cast for President, and that was good enough. Therefore, all reference books reporting election returns for the 2008 presidential election listed Barr as having received zero votes in D.C., despite evidence that some voters had written in Barr. The D.C. Court of Appeals opinion erroneously says that the Libertarian Party was demanding that all write-ins for President be canvassed. The briefs were clear that the Libertarian Party was only asking that the write-ins for declared write-in candidates need be counted. To this day, D.C. is the only jurisdiction that allows write-in presidential candidates to file a declaration of write-in candidacy, including candidates for presidential elector, and yet still won’t count the write-ins for such declared write-in candidates.