WASHINGTON -- The Supreme Court is going to consider doing a constitutional favor for Americans who do not like the choices the political parties offer them at the polls.
In a brief order yesterday, the court said it would decide whether voters have a constitutional right to write in the name of a candidate of their own choosing, instead of marking their ballot for a listed candidate.
Although the court has repeatedly struck down barriers to the free use of citizens' voting power, it has never ruled on the role of write-in voting under the Constitution. A Hawaiian law that puts a flat ban on write-ins, in primary or general elections, has set the stage for a ruling on the issue.
The court granted review of the Hawaii law's constitutionality yesterday. That is, of course, no guarantee that it will create a constitutional right to vote by write-in.
In a separate, significant order, the court refused to assure lawyers added constitutional protection when they make public statements or write letters that criticize judges.
The court left intact lower court rulings that denied attorneys the same constitutional protection that the press has when it publishes something harmful to a public figure's reputation.
The write-in voting case was taken to the highest court by a Honolulu voter, Alan B. Burdick, who says he is frequently dissatisfied with the choice of candidates whose names appear on state or federal ballots, and wants to be free to cast his vote for others of his own choosing.
Three years ago, he told state officials that he wanted to cast write-in votes in the state primary and general elections. He was told that Hawaii allows no such thing, in any election.
A federal judge struck down the total ban, but the appeals court reinstated it, saying that there is nothing in the Constitution that gives citizens "an unlimited right to vote for any particular candidate," and thus no right to cast a vote for anyone other than those entered formally.
Three other states, Nevada, Oklahoma and South Dakota, forbid write-in voting. In 1989, a federal appeals court struck down a law that required those seeking write-in votes as candidates in Baltimore elections to pay a $150 filing fee in order to have those votes counted. That court said write-in voting was protected by the Constitution. The case is Burdick vs. Takushi (No. 91-535).
The court's refusal to consider pleas for greater protection for lawyers who make out-of-court comments critical of judges' actions came in the cases of Holtzman vs. Grievance Committee (No. 91-401) and In re Westfall (No. 91-429).
The first case involved Elizabeth Holtzman, a former New York congresswoman who is now the New York City comptroller. As a prosecutor in Brooklyn in 1987, she wrote a letter to state officials sharply criticizing a judge for allegedly requiring a female witness in a rape case to get down on the floor and demonstrate the postion in which she was allegedly raped. After the judge denied that he had done that, Ms. Holtzman was reprimanded formally.
The other case involved St. Louis lawyer George R. Westfall, who as a prosecuting attorney had appeared on television and criticized a judge's appeals court opinion. Mr. Westfall was given a public reprimand.
Other Supreme Court actions
CASE TO BE HEARD
Criminal sentences. The Supreme Court agreed yesterday to decide whether federal judges have any power to second-guess federal prosecutors' failure to suggest lower prison sentences for convicted people who cooperate with the prosecutors. Federal guidelines permit lighter sentences for those who cooperate, but only if prosecutors recommend it. A North Carolina man who began cooperating within minutes after his arrest on cocaine trafficking charges was denied a chance to test why prosecutors declined to urge such a reduction for him. He got 15 years in prison. Wade vs. U.S. (No. 91-5771).
Veterans' rights. Without comment, the court left intact a federal appeals court ruling that states may be required to pay interest on top of any money awards they make to an employee who is a military veteran and whose job rights the state has violated. The case involved a Massachusetts state trooper who was suspended without pay for joining the Army Reserve despite a state rule against that. Massachusetts vs. Reopell (No. 91-479).