With a stay issued late Tuesday by the 4th U.S. Circuit Court of Appeals, candidate order on West Virginia’s 2020 general election ballots appears near-certain to follow a 1991 law giving preference to the party of the incumbent president.
The order puts on hold an injunction issued last week by U.S. District Judge Robert Chambers, who concluded that the state law is unconstitutional, saying it is an “unquestionably partisan provision” that unduly benefits the party that holds the presidency.
In the injunction, Chambers directed Secretary of State Mac Warner to come up with a new mechanism for determining ballot order in time for the Aug. 25 deadline for county Boards of Ballot Commissioners to finalize candidate order for the general election.
Warner spokesman Mike Queen said Wednesday that, with the stay of the injunction, “At this time, the ballot order drawing will not change and remains the same for the 2020 general election as it has been since 1991.”
Queen said that, while it is possible the plaintiffs could appeal the stay to the U.S. Supreme Court, that is unlikely, given the tight timeline, and given recent court decisions in similar election law cases.
“We have no way of knowing whether that’s going to happen, so we just have to wait until Aug. 25 to know for certain,” he said, adding, “For planning purposes, it is safe to assume the ballot order will not change before Aug. 25.”
West Virginia Democratic Party Chairwoman Belinda Biafore, House of Delegates Democratic Party candidate Dakota Nelson and Kanawha County Democratic Executive Committee Chairwoman Elaine Harris were plaintiffs in seeking the injunction, which Warner appealed to the 4th Circuit.
Biafore, who did not respond to a request for comment Wednesday, last week lauded Chambers’ decision, stating, “The Court rightly acknowledged that Mac Warner was attempting to enforce an unconstitutional law that burdened the fundamental voting rights of West Virginia voters. 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.”
Under the state law, in determining the order of listing of candidates for offices on the ballot, candidates affiliated with the party whose candidate for president received the highest number of votes statewide in the prior election are to be placed first.
Chambers, who was speaker of a Democrat-controlled House of Delegates when the law was enacted in 1991, in issuing the injunction said the law unquestionably benefits the party that holds the presidency.
“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.