On June 20, the Fourth Circuit agreed with the U.S. District Court that Virginia’s discriminatory listing of candidates on the general election ballot is constitutional. Libertarian Party of Virginia v Alcorn, 15-1162. The decision is by Judge J. Harvie Wilkinson, a Reagan appointee. It is co-signed by Judge G. Stephen Agee, a Bush Jr. appointee, and Andre M. Davis, a Clinton appointee. The Virginia law says the nominees of the qualified parties are always listed first on the ballot, followed by the nominees of the unqualified parties, and then by independent candidates. Ironically, Virginia does require random placement of each candidate within each category, so a random order procedure is used in every election to determine whether the Republican or the Democratic Party nominees are listed first or second.
The decision does not mention any of the court decisions that say the U.S. Constitution requires an equal chance for all candidates to be listed first on the ballot, except for a U.S. District Court decision from Oklahoma that struck down a law saying the Democratic Party should always be listed first (the law mentioned the Democratic Party by name). The Fourth Circuit decision ignores contrary decisions of the Seventh and Eighth Circuits, a U.S. District Court in New Mexico, and the California and New Hampshire Supreme Courts.
The decision says the state has an interest in encouraging more voters for the two major parties, as opposed to all others. It says, “The ballot ordering law may also favor Virginia’s ‘strong interest in the stability of its political system. “maintaining a stable political system is, unquestionably, a compelling state interest’. While minor parties have long been an important feature of political protest and American democratic life, it is also entirely legitimate for states to correlate ballot placement with demonstrated levels of public support. Indeed, there are many who believe that ‘the emergence of a strong and stable two-party system in this country has contributed enormously to sound and effective government.’ The last sentence quotes a concurrence from a U.S. Supreme Court decision, Davis v Bandemer, which was about gerrymandering and had nothing to do with minor parties or equal treatment for candidates.
The decision admits that candidates listed first get extra votes, but says, “Virginia’s ballot ordering law ensures that at least the beneficiary will not be some entity with little actual public support. Of course, we acknowledge that the two major parties may possess a self-interest in preserving their preferred status, but we will not leap from that fact to the conclusion that a requirement of demonstrated public support is somehow inimical to the public good. Reinforcing through facially neutral and nondiscriminatory methods affiliations already democratically expressed by large portions of the public simpy does not offend the Constitution.”