Town of Chevy Chase Vice Mayor John Bickerman is a lawyer and mediator who is often quick to tout his legal talents, which makes it all the more surprising that he has failed to apologize for misleading his constituents on a key legal point related to his involvement in election shenanigans.
Specifically, as part of his defense for his support for a secret write-in campaign about which only the “right people” were informed as to who was running as a write-in candidate, Bickerman asserted in an email to the Town that it is a “Constitutional right” to be a write-in candidate. Wrote Bickerman:
A person’s right to be an a write-in candidate, and the corresponding right to seek others to vote for a write-in candidate is a Constitutional right that has been clearly acknowledged by the federal court of appeals for Maryland.
However, as Town Resident Ben Delancy has explained, Bickerman’s characterization of the law concerning write-in campaigns is simply wrong:
Mr. Bickerman and others on this board have frequently referred to a Fourth Circuit opinion confirming a constitutional right to have write-in candidates and campaigns. He suggests that any attempt to limit the ability to write-in would violate those constitutional rights. He finally implies that we would obviously understand all of this if we had bothered to consult with an election lawyer.
He is wrong.
There is no Fourth Circuit opinion holding that there is an absolute constitutional right to have write-in campaigns. There is a Fourth Circuit opinion, Dixon v. Md. State Administrative Election Laws, 878 F. 2d 776 (4th Cir. 1989), finding that it was unconstitutional for Maryland to impose restrictions on one group of write-in candidates (those who fail to pay a fee), but not to impose those same restrictions on other write-in candidates. The court did not hold that there is an absolute right to have write-in candidates because it was not asked to address that issue. In fairness to Mr. Bickerman, however, I acknowledge that the Fourth Circuit did refer to the ability to vote for a write-in candidate as a fundamental right, and that Dixon is sometimes cited for that proposition.
Nevertheless, it is perfectly clear that there is no such absolute constitutional right. The United States Supreme Court, in Burdick v. Takushi, 504 US 428 (1992), upheld a state’s complete ban on write-in candidates. If there was ever any debate about the impact of Dixon, that debate was ended by Burdick.
Given our Town’s election rules, which place very few limitations on someone’s ability to be a candidate, it is entirely likely that a complete ban on write-in candidates would be permissible and should be among the options considered.
Mr. Bickerman complains below that we are confusing the community, but I think it is perfectly clear who is causing confusion.
So either Bickerman–a lawyer himself–is misinformed on the prevailing Supreme Court law concerning write-in campaigns, or he intentionally misled people in Chevy Chase. Either way, he has yet to correct his mischaracterization of the law.
Bickerman also continues to refuse to answer questions posed by the Town Elections Board and Ethics Committee regarding his actions during the election. But his refusal to answer questions itself speaks volumes. Where an elected public official is unwilling to offer any plain account of his own involvement in a decidedly unethical campaign, his constituents will not have any trouble drawing their own conclusions.