A panel of federal appeals judges has vacated a ruling by U.S. District Judge Chuck Chambers regarding the way candidates are placed on the ballot in West Virginia.
The three appellate judges for the Fourth Circuit Court of Appeals on Wednesday found that Chambers erred in his August 2020 ruling, in which he ordered West Virginia Secretary of State Mac Warner to establish a new way to determine the order that candidates appear on ballots during the state’s elections.
Warner appealed the ruling, and with the circuit judges’ decision, the case has been sent back to Chambers’ federal court in the Southern District of West Virginia.
The panel, consisting of Senior Circuit Judge Barbara Milano Keenan, Circuit Judge Stephanie Thacker and Circuit Judge James Andrew Wynn, remanded the case in a 2-1 decision. Wynn dissented.
Warner and Attorney General Patrick Morrisey on Wednesday praised the panel’s ruling in canceling Chambers’ order. Lindsay See, solicitor general in the Attorney General’s Office, argued the case on behalf of the state.
“The Fourth Circuit Court of Appeals’ decision is win for states’ rights,” Warner said in a news release from the Attorney General’s Office. “This is yet another indication that the state Legislature is the proper venue for debating and deciding the rules that govern our elections.”
Morrisey said it is good to see the court’s “recognition that this is not a partisan law.”
The initial lawsuit in the case was filed by Dakota Nelson, a Democratic Party candidate for the House of Delegates in District 16, which includes parts of Cabell and Lincoln counties. West Virginia Democratic Party Chairwoman Belinda Biafore, Kanawha County Democratic Executive Committee Chairwoman Elaine Harris and the West Virginia Democratic House Legislative Committee also were plaintiffs in the case.
Biafore said the plaintiffs will decide whether to seek a new hearing with the panel. The court heard arguments in the case in May.
“We proved at trial that being listed first on the ballot gives the party listed first an advantage of 5.88% over the party listed second. West Virginia unconstitutionally bestows this advantage on a partisan basis, and the trial court found this advantage alone determined the outcome in over 100 races up and down the ballot,” Biafore said. “The secretary of state did even contest these findings on appeal. Unfortunately, the two judges in the majority on appeal did not believe that spotting one political party an almost six point head start in every race rose to a level of a constitutional concern. Respectfully, we do not agree.”
Nelson ran for the House of Delegates in 2018 and 2020, and fell short of one of the district’s three seats in the general election both years.
Nelson and the Democratic Party leaders filed their lawsuit against Warner and Kanawha County Clerk Vera McCormick in December 2019, and filed an amended complaint in January 2020.
They claimed that a 1991 state law that established candidate order on the ballot by party leads to more weight and impact for the party of the candidates listed first on the ballot.
The 1991 law, passed when now-Judge Chambers was speaker of the West Virginia House of Delegates and Democrats were the majority party in the Legislature, says the political party whose candidate for president “received the highest number of votes at the last preceding presidential election is to be placed in the left, or first column, row or page.”
In August 2020, Chambers ruled that the law was an “unquestionably partisan provision” providing continued benefit to the party that held the presidency during every election cycle.
“The party benefiting from West Virginia’s law may shift over time, but this does not mean the statute is nonpartisan,” Chambers wrote last year.
He ordered Warner and other election officials to come up with a new scheme to list candidates on the ballot, but he didn’t tell Warner how to determine the order candidates would be placed.
Warner appealed the decision to the Fourth Circuit. That court hears appeals of cases from federal court districts in West Virginia, Maryland, Virginia, North Carolina and South Carolina.
In vacating the district court ruling, the panel found there had been no evidence showing that the 30-year-old law and any “windfall” votes a person might receive from being at the top of a list burdened Nelson and party officials on a “discriminatory, partisan basis.”
Any burden the plaintiffs or other candidates experienced as a result of the law was “modest,” the court ruled.
“Instead, the plaintiffs’ burden is primarily attributable to voters in West Virginia favoring one party’s presidential candidate over another, and a partisan change in the outcome of future presidential elections in West Virginia will eliminate the plaintiffs’ injury,” Keenan wrote in the court’s opinion.
In his dissent, Wynn wrote that there is a decided advantage to being listed at the top of an election ballot, noting that other states list candidates by drawing names or by alphabetical order. He said West Virginia’s method is “not only unfair to the voters in West Virginia, it’s unconstitutional.”
“The problem is that West Virginia’s ballot-order statute gives the state’s dominant political party a multi-percentage-point head start on its opponents,” Wynn wrote. “Seemingly benign election rules can put an undemocratic thumb on the scale; sometimes a whole hand.”