US judge: Candidate placement on WV ballots is unconstitutional

Chambers ordered only that Warner and election officials come up with a new scheme to list candidates on the ballot. He did not tell Warner how to determine the order candidates would be placed.

“To mandate one of the many possibilities would be too great of an intrusion into the sovereignty of West Virginia’s political branches,” Chambers said.

He listed some examples of options in his order.

On Tuesday, Warner’s office, represented by the West Virginia Attorney General’s Office, filed an appeal to the 4th U.S. Circuit Court of Appeals, which handles appeals from federal court cases out of West Virginia, Maryland, Virginia, North Carolina and South Carolina.

In his appeal, Warner asked the panel of circuit judges to issue a stay of Chambers’ order, meaning, if the court rules in his favor, the state election officials wouldn’t have to come up with another way of determining ballot order until after the 2020 election.

Warner declined to comment on the case Tuesday, since, with his office’s appeal to a higher court, it is an ongoing legal proceeding.

Warner’s deputy press secretary, Jennifer Gardner, responded to an email from the Gazette-Mail saying Aug. 25 is the deadline for Boards of Ballot Commissioners in West Virginia to randomly draw candidates names for ballot positions in down-ballot races.

“The parties are working to ensure that all deadlines and statutes will be met,” she said.

In a statement Tuesday, West Virginia Democratic Party Chairwoman Belinda Biafore commended Chambers’ “well reasoned and thoroughly analyzed decision.”

“The Court rightly acknowledged that Mac Warner was attempting to enforce an unconstitutional law that burdened the fundamental voting rights of West Virginia voters,” Biafore said. “With this decision, the Court ensured that when voters cast their ballots in this year’s general election, their rights will not be unconstitutionally interfered with.”

Chambers handed down his order after a three-day bench trial last week.

In his order, Chambers said the law in question is 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 in his order.

In a footnote, he said “this political breeze does not shift often in West Virginia.”

“Voters have favored Republican presidential candidates since George W. Bush in 2000, so the ballot order statute has kept Republican candidates at the top of ballots for the past twenty years without interruption,” he said in the footnote.

The law in question was passed in 1991, when Chambers was speaker of the West Virginia House of Delegates. Chambers served as a Democratic Party delegate from Cabell County between 1979 and 1996, and he served as speaker from 1986 to 1996.

The law, as it is written holds “the 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 ordering the injunction against the law, Chambers ordered Warner to file a plan to establish ballot order with the court when one is established for the 2020 general election. Warner also would have to notify Chambers if election officials later adopt another method for subsequent elections.

He also ordered Warner to file when the West Virginia Legislature passes a bill as an alternative to the existing law.

The case that led to Monday’s ruling came from Dakota Nelson, a Democratic Party candidate for the state House in District 16, including parts of Cabell and Lincoln counties. Biafore, Elaine Harris, chairwoman of the Kanawha County Democratic Executive Committee, as well as the West Virginia Democratic House Legislative Committee, also were plaintiffs in the case.

Nelson ran for the House of Delegates in 2018, appearing last on the ballot, and fell short of one of the district’s three seats in the general election. This year, Nelson again is a Democratic Party candidate for District 16.

Nelson and the Democratic Party leaders filed their lawsuit against Warner and Kanawha County Clerk Vera McCormick in December and filed an amended complaint in January. They have claimed that establishing candidate order on the ballot by party leads to more weight and impact for the party of the candidates listed first on the ballot, which, in 2020, would be the Republican Party.