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West Virginia ballot-order statute is constitutional

Where a West Virginia statute governing the order in which candidates’ names appear on state election ballots was neutral and nondiscriminatory, and any modest burden on the Democratic Party’s rights was justified by the state’s interests in promoting efficiency and reducing voter confusion and error, the statute was constitutional.


The plaintiffs are individuals and organizations affiliated with the West Virginia Democratic Party. They challenge as unconstitutional a West Virginia statute governing the order in which candidates’ names appear on state election ballots. Under the statute, election ballots for partisan state and federal elections are organized for each contest by listing first the candidates affiliated with the political party whose candidate for President of the United States received the most votes in West Virginia in the most recent presidential election. Therefore, during the four-year period following a presidential election, those candidates’ names always appear on such ballots above the names of candidates affiliated with other political parties.

The plaintiffs contend that because candidates appearing first on the ballot “almost always” receive an increased vote share based solely on this priority status, this system favors candidates based on their political affiliation and violates the plaintiffs’ rights. After conducting a bench trial, the court agreed with the plaintiffs on the merits of their claim, declaring that the statute violated their rights under the First and 14th Amendments.


The defendants contend that none of the plaintiffs demonstrated that the ballot-order statute injured them in a concrete, particularized manner. According to the defendants, the “diluted chance of partisan success” and the unequal opportunity to benefit from the primacy effect are not injuries in fact because the evidence showed only an “average primacy effect,” rather than an impact on any particular election. The defendants further maintain that the plaintiffs’ injury is not redressable by a ruling in their favor unless the Democratic Party always is listed first on the ballot. The court disagrees.

The plaintiffs included Dakota Nelson, a West Virginia voter who was a Democratic candidate for state office at the time the complaint was filed in the district court. The ballot placement allegedly deprived Nelson of any benefit from the windfall vote, allegedly injuring his chances of being elected. Given the expert testimony credited by the district court that it was extremely likely that the primacy effect would have a negative impact on Nelson’s vote tally, Nelson showed a substantial risk of injury that was particular and concrete, and that his claims are fairly traceable to the defendant’s conduct and that they are redressable by a favorable ruling.

Political question

The defendants argue, nevertheless, that the plaintiffs’ claims raise a nonjusticiable “political question,” which barred the district court from asserting subject matter jurisdiction. The court again disagrees. The question is whether West Virginia’s ballot-order statute improperly burdens the plaintiffs’ rights under the First and 14th Amendments. Courts regularly evaluate and adjudicate disputes regarding the lawfulness of state statutes, including ballot-order statutes.


This court’s decision in Libertarian Party of Virginia v. Alcorn, 826 F.3d 708 (4th Cir. 2016), makes clear that a ballot-order statute that provides a neutral rule for listing candidates’ names on the ballot does not violate the Constitution even though the statute may impair a candidate’s ability to attract “the windfall vote” in an election. Generally, such a statute places at most a modest burden on free speech and equal protection rights. And nothing in the present record demonstrates that the West Virginia ballot-order statute imposes a greater burden on those rights. The court therefore holds that the ballot-order statute is neutral and nondiscriminatory in its application, and that any modest burden imposed by the statute on the plaintiffs’ rights is justified by the state’s important interests in promoting voting efficiency and in reducing voter confusion and error.

Vacated and remanded.

Dissenting opinion

Wynn, J., dissenting:

The problem is that West Virginia’s ballot-order statute gives the state’s dominant political party a multipercentage-point head start on its opponents. Seemingly benign election rules can put an undemocratic thumb on the scale; sometimes a whole hand. The district court found that to be the case here. And it rightly determined that, as a constitutional matter, the state’s interests in cost-savings and ballot-symmetry don’t outweigh the veritable political advantage that the ballot-order statute confers. Because my colleagues reach the opposite conclusion, I must dissent.

Nelson v. Warner, Case Nos. 20-1860, 20-1861, Sept. 1, 2021. 4th Cir. (Keenan) from SDWVA at Huntington (Chambers). Lindsay Sara See for Appellant. Anthony J. Majestro for Appellees. VLW 021-2-291. 38 pp.

VLW 021-2-291

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