On August 19, the board of the Coalition for Free & Open Elections (COFOE) voted to contribute $1,000 toward the cost of appealing Sarvis v Alcorn to the U.S. Supreme Court. This is the case that challenges the order of candidates on Virginia general election ballots. The U.S. District Court and the Fourth Circuit had upheld the law, which says that nominees of the qualified parties appear first (in Virginia, for the last 19 years, only the Democratic and Republican Parties have been qualified parties). Then the nominees of unqualified parties appear on the ballot, and at the bottom are the independent candidates.
The judges in the U.S. District Court and the Fourth Circuit agreed that being listed first on the ballot is an advantage. But they said there is a state interest in strengthening the two major parties against all competition. Ironically, Virginia law acknowledges the importance of being listed first on the ballot, because it provides that a random method should be used in each election to determine whether the Republican or the Democrat is listed first.
COFOE obtains all its revenue from contributions from readers of the print edition of Ballot Access News. COFOE is grateful for those contributions. The cert petition is due in mid-October, although it is fairly easy to get a month’s extension. It is easier to get U.S. Supreme Court review when there is a split in the circuits on the merits of the issue. In this case, there is a circuit split, because the Seventh and Eighth Circuits have struck down discriminatory laws in North Dakota and Illinois on ballot order.
The District and Circuit Courts are just following the Timmons decision. Timmons is bad law, but it’s the law nonetheless. Is ballot order a good issue for asking SCOTUS to reconsider the reasoning behind Timmons?
The Timmons decision is about fusion, not order of candidates on the ballot.
The point of my comment is that the (alleged) consitutional basis for both decisions is the (alleged) state interest in a “stable two party system”. If that principle is valid with respect to fusion, then it is probably also valid with respect to ballot order.
Needless to say, no state has any real interest in maintaining a two party system under any constitution, except one that explicitly mandates a two party system. But that obvious fact doesn’t seem to deter the U.S. judiciary.