Petition for Review of a Decision of the District of Columbia Board of Elections and Ethics
Before Farrell and Glickman, Associate Judges, and King, Senior Judge.
The opinion of the court was delivered by: Glickman, Associate Judge
In January of this year, the District of Columbia Statehood Green Party held its Presidential Preference Primary. The purpose of this primary election was to award delegates from the District of Columbia to the national nominating convention of the Green Party of the United States, which is to be held in Milwaukee from June 23 through June 28, 2004. The Statehood Green Party's primary election plan awards delegates to Green Party presidential candidates in proportion to their shares of the total vote rather than on a winner-take-all basis. The issue in this appeal is whether the District of Columbia Board of Elections and Ethics must tabulate write-in votes to determine whether any single write-in nominee received enough votes to qualify for a delegate.
Petitioner David Best, who cast a write-in ballot in the Statehood Green Party primary, requested the Board to count the write-in votes. The Board refused to do so because, based on the vote totals, no write-in nominee could have received more votes in the primary than the plurality winner received. In his pro se petition for review of that decision, Best asks us to reverse the Board and order it to count the write-in votes. He points out that, while no write-in nominee could have received a plurality of the votes, it is possible that a write-in nominee received enough votes to win a delegate.
Since the Green Party's national convention is almost upon us, we have expedited our hearing and decision in this case. We grant the relief that petitioner requests. We hold that the Board of Elections and Ethics must tabulate write-in votes where, as here, it is possible that the count would affect the outcome of the election.
I. The Statehood Green Party's Primary Election Plan
On July 17, 2003, the Statehood Green Party notified the Board of Elections of its intent to conduct a presidential preference primary and filed its Presidential Primary Election Plan for selecting delegates from the District of Columbia to the Green Party national nominating convention. See D.C. Code § 1-1001.05 (b)(3)(C) (2001). The Primary Election Plan stated that the Statehood Green Party would "use proportional representation to reflect the primary vote total" at the convention and presented a formula for awarding the District's six allotted delegates according to *fn1 the percentage of votes that each presidential candidate received. Under the formula, "[a]ny candidate who receive[d] 16.6 percent of the vote or more [would] get at least one delegate," and the delegates would be awarded in increments as follows:
Percentage of Primary VoteNumber of Delegates
Recognizing that "[a]fter delegates have been assigned to candidates based on the votes there could be delegates left uncommitted because of candidates who received less than 16.6 percent of the vote," the Plan provided that any uncommitted delegates would be awarded to the candidate with the most votes.
The delegates themselves would be selected by the Statehood Green Party after the primary based on the voting results. As the Plan explained, at the national nominating convention, these delegates would be obliged "to respect the will of DC Statehood Green Party voters" and vote for the top two vote-getters in the primary:
The Green Party of the United States uses instant-runoff voting to determine its presidential nominee. Therefore, there are no second ballots. Delegates pledged to the candidate with the most votes will list the candidate with the second-highest vote total as their No. 2 choice. Delegates pledged to the candidate who finished second or third, will list the candidate who received the most votes as their No. 2 choice. If there are additional candidates, delegates are free to rank the remaining candidates in the order they believe best.
The Primary Election Plan also specified the procedures for candidates to be listed by name on the ballot. Two members of the Green Party, David Cobb and Sheila Bilyeu, filed the necessary petitions, formal declarations of candidacy, and affidavits of qualifications. See D.C. Code § 1-1001.05 (b) (2); 3 DCMR § 601 (1998). Cobb and Bilyeu thus became the only candidates listed on the Statehood Green Party ballot.
Cobb and Bilyeu were not the only choices available to Statehood Green Party voters, however. The Primary Election Plan provided that "the ballot will also have space for write-in candidates and a place for voters to choose 'No Candidate.'" See D.C. Code § 1-1001.08 (r)(1) (Supp. 2003) ("In any primary . . . election held in the District of Columbia to nominate . . . candidates to public office, a voter may cast a write-in vote for a candidate other than those who have qualified to appear on the ballot."). The Plan did ...