PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1162
LIBERTARIAN PARTY OF VIRGINIA; WILLIAM HAMMER; JEFFREY CARSON;
JAMES CARR; MARC HARROLD; WILLIAM REDPATH; WILLIAM CARR; BO
CONRAD BROWN; PAUL F. JONES,
Plaintiffs,
and
ROBERT C. SARVIS,
Plaintiff − Appellant,
v.
JAMES B. ALCORN, in his individual and official capacities as
member of the Virginia State Board of Elections; SINGLETON B.
MCALLISTER, in her individual and official capacities as member
of the Virginia State Board of Elections; CLARA BELLE WHEELER,
in her individual and official capacities as member of the
Virginia State Board of Elections,
Defendants − Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:14-cv-00479-REP)
Argued: May 10, 2016 Decided: June 20, 2016
Before WILKINSON and AGEE, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion in which Judge Agee and Senior Judge Davis joined.
ARGUED: David I. Schoen, DAVID I. SCHOEN, ATTORNEY AT LAW,
Montgomery, Alabama, for Appellant. Stuart Alan Raphael, OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellees. ON BRIEF: Robert C. Sarvis, Alexandria, Virginia,
Appellant Pro Se. Mark R. Herring, Attorney General of
Virginia, Rhodes B. Ritenour, Deputy Attorney General, Anna T.
Birkenheier, Assistant Attorney General, Matthew R. McGuire,
Assistant Attorney General, Erin R. McNeill, Assistant Attorney
General, Trevor S. Cox, Deputy Solicitor General, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.
2
WILKINSON, Circuit Judge:
Robert Sarvis, a political figure in the Libertarian Party
of Virginia, brings a constitutional challenge to Virginia’s
three-tiered ballot ordering law. The district court found no
merit in Sarvis’s arguments and accordingly dismissed his
challenge for failure to state a claim under Fed. R. Civ. P.
12(b)(6). We now affirm.
I.
Sarvis’s attack focuses chiefly upon the ballot ordering
law found in Virginia Code § 24.2-613. That law describes the
form of ballot to be used in Virginia elections. It provides
that for elections to “federal, statewide, and General Assembly
offices” a candidate “shall be identified by the name of his
political party” or by the term “Independent.” Va. Code Ann.
§ 24.2-613. Of principal concern to this case, the law also
orders the ballot for elections to these offices in three tiers.
The first tier includes candidates from “parties” or
“political parties,” which a related section of the Code defines
as organizations of citizens that received at least 10 percent
of the vote for any statewide office filled in either of the two
preceding statewide general elections. Va. Code Ann. § 24.2-101.
In addition, the Code provides that any organization seeking
“party” or “political party” status must also have had a state
central committee and an elected state chairman present in
3
Virginia for six months prior to any nominee from that
organization filing for office. Id. The only organizations
currently designated “parties” or “political parties” under the
Code are the Republican Party and the Democratic Party. 1
The second tier includes candidates from “recognized
political parties.” For an organization of citizens to be
designated a “recognized political party” under the Code, that
organization must have had a state central committee present in
Virginia for six months prior to any nominee from that party
filing for office, and the state central committee must be
comprised of voters residing in each Virginia congressional
district. Va. Code Ann. § 24.2-613. The organization must also
have a duly elected state chairman and secretary as well as a
party plan and bylaws. Id. The Libertarian Party of Virginia has
been designated a “recognized political party” under the Code.
Finally, the third tier of the ballot includes
“[i]ndependent candidates” not associated with “political
parties” or “recognized political parties.” Id.
In addition to delineating the election ballot’s three
tiers, Virginia’s ballot ordering law also specifies how
1 We note that as recently as the mid-1990s, the Virginia
Reform Party satisfied the applicable requirements to be
designated a “political party” and thus was part of the first-
tier ballot listing on the 1996 general election ballot. Cf.
J.A. 61, 95, and 97.
4
candidates are ordered within the three tiers. In the first two
tiers, candidate order is set by lot. Importantly, this order is
replicated for each office on the ballot, creating party order
symmetry across the ballot as a whole. In the third tier,
candidate order is alphabetical by surname. Id. 2
In July 2014, just a few months before the November 2014
elections, Sarvis and others members of the Libertarian Party of
Virginia along with the Libertarian Party of Virginia itself and
one independent candidate filed a complaint that named as
defendants certain members of the Virginia State Board of
Elections. The complaint alleged that the three-tiered ballot
ordering law found in Virginia Code § 24.2-613 violated their
constitutional rights under the First and Fourteenth Amendments.
Sarvis and his co-plaintiffs sought relief from the law prior to
the November 2014 elections. 3
2Somewhat different rules govern the tiered ballot used for
elections for the offices of President and Vice President of the
United States. See Va. Code Ann. §§ 24.2-543, -613, -614.
3 The plaintiffs’ amended complaint before the district
court also targeted Virginia Code § 24.2-506, a law establishing
a signature requirement some prospective candidates must meet to
be placed on the ballot in the first place. However, the
plaintiffs later voluntarily dismissed this claim at oral
argument before the district court. Sarvis’s appellate briefs
reference the signature requirement, and it is thus unclear
whether he is attempting to revive this claim on appeal. In any
event, we will not consider this issue in light of the
plaintiffs’ decision to dismiss it below. See Unioil, Inc. v.
E.F. Hutton & Co., 809 F.2d 548, 555 (9th Cir. 1986) (“As a
general rule, a plaintiff may not appeal a voluntary dismissal
(Continued)
5
In September 2014, the plaintiffs and the Commonwealth both
determined that the litigation would not be resolved prior to
the November 2014 elections. But the parties and the district
court agreed that, should Sarvis and his co-plaintiffs intend to
seek elected office in the future, their case would remain ripe
beyond the November 2014 elections under the capable of
repetition yet evading review doctrine. The plaintiffs thus
amended their complaint to reflect their interest in seeking
relief from the ballot ordering law with regard to future
elections, and the litigation continued on this basis. Sarvis in
particular alleged that he would be “a candidate for national
office in Virginia in the 2016 election.” J.A. 32. The amended
complaint asked that the district court enjoin the law during
the “2015 statewide elections and the 2016 and beyond general
elections” and issue “an order directing the defendants to
assign ballot positions to all ballot-qualified candidates and
parties on a random basis without regard to party status.” J.A.
46.
Shortly thereafter, Virginia filed a motion to dismiss
under Rule 12(b)(6), claiming that the amended complaint failed
to state a claim upon which relief could be granted. The
because it is not an involuntary adverse judgment against
him.”), overruling on other grounds recognized by In re Keegan
Mgmt. Co., 78 F.3d 431, 435 (9th Cir. 1996).
6
district court granted Virginia’s motion to dismiss in January
2015. Sarvis v. Judd, 80 F. Supp. 3d 692, 695 (E.D. Va. 2015).
The district court based its decision primarily on the framework
established by the Supreme Court in Burdick v. Takushi, 504 U.S.
428 (1992), and Anderson v. Celebrezze, 460 U.S. 780 (1983). In
those decisions, the Supreme Court held that courts should
review First and Fourteenth Amendment-based challenges to state
election laws by weighing the severity of the burden the
challenged law imposes on a person’s constitutional rights
against the importance of the state’s interests supporting that
law. Burdick, 504 U.S. at 434; Anderson, 460 U.S. at 789.
Sarvis and his co-plaintiffs, the Commonwealth of Virginia,
and the district court all agreed that the burden imposed by the
three-tiered ballot ordering law was not severe enough to
warrant strict scrutiny. The district court gave two principal
reasons for this conclusion. First, the law is politically
neutral in that it does not entrench particular political
parties in favorable positions on the election ballot. Sarvis,
80 F. Supp. 3d at 701-02. Second, the law does not exclude any
prospective candidate from the ballot altogether. Id. at 702-03.
Turning to the question of Virginia’s interests, the
district court noted three justifications offered by Virginia
for the ballot ordering law: avoiding voter confusion, creating
party-order symmetry, and favoring parties with demonstrated
7
public support. Id. at 703. Before assessing the merits of these
justifications, however, the district court determined that
Virginia had described the nature and purpose of the three
justifications with sufficient precision. Disagreeing with the
plaintiffs, the district court held that neither additional
factual development of the case nor more concrete empirical
support for Virginia’s justifications was necessary before it
could properly rule on Virginia’s motion to dismiss. Id. at 703-
06. The district court then reviewed Virginia’s three
justifications and determined that each was important. Id. at
706-08.
Finally, in weighing the plaintiffs’ burdens against
Virginia’s interests, the district court ruled that the
interests put forward by Virginia outweighed any minor burdens
the ballot ordering law imposed on Sarvis and his co-plaintiffs.
The district court accordingly granted Virginia’s motion to
dismiss the amended complaint. Id. at 708-09. Sarvis alone
appeals that order.
II.
Sarvis’s main argument on appeal is that Virginia’s three-
tiered ballot ordering law advantages candidates from what he
calls “major parties” and disadvantages candidates like him that
hail from what he calls “minor parties.” According to Sarvis,
this conferral of advantages and disadvantages violates
8
expressive and associational rights, the right to cast a vote
for a candidate of one’s choice, and the right to stand for
election, all of which are protected by the First Amendment. In
addition, Sarvis contends that the ballot ordering law’s unequal
treatment of candidates runs afoul of the Fourteenth Amendment’s
Equal Protection Clause. Appellant’s Opening Br. 12-13.
Sarvis premises his constitutional challenge largely on
what the district court termed the “windfall vote” theory.
Sarvis, 80 F. Supp. 3d at 699. According to this theory, in any
given election, some voters will vote for candidates appearing
at the top of the ballot because of those candidates’ prominent
ballot positions. Sarvis argues that Virginia’s ballot ordering
law, in conjunction with this capricious voter bias, places an
improper burden on candidates from minor parties. Before the
district court, however, Sarvis stated that his expert would not
testify about the exact extent of the bias in Sarvis’s specific
situation. Id. at 700 n.1.
Although he concedes that the burden imposed by the three-
tiered ballot ordering law is not subject to strict scrutiny,
Sarvis contends that the district court’s Anderson/Burdick
analysis nevertheless underestimated the magnitude of the burden
imposed by the law. At the same time, he argues that the court’s
analysis over-credited the interests Virginia offered to support
the law.
9
Finally, in addition to disagreeing with the substance of
the district court’s analysis of the burdens imposed and
interests furthered by the ballot ordering law, Sarvis argues
that the district court erred in rejecting his claims at the
motion to dismiss stage. He states that the district court
should have allowed discovery so as to better ascertain how the
ballot ordering law burdens candidates who are not listed in the
ballot’s first tier, and how it does or does not actually
further the interests Virginia offers in support of the law.
III.
We begin with the uncontroversial proposition that the
legislature in each state of our federal system possesses the
presumptive authority to regulate elections within that state’s
sovereign territory. This authority stems directly from the
Constitution. With regard to congressional elections, Article I
Section 4 Clause 1 of the Constitution provides: “The Times,
Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by Law
make or alter such Regulations, except as to the Places of
chusing Senators.” Article II Section 1 Clause 2 accords similar
treatment to presidential elections: “Each State shall appoint,
in such Manner as the Legislature thereof may direct, a Number
of Electors,” who will then choose the President. And a state’s
10
authority to regulate elections for its own offices is simply a
basic incident of our federal system. The Constitution nowhere
confers – at least not as an initial matter – authority on the
federal government to regulate elections for state offices.
These constitutional provisions are the product of the
Framers’ extensive debate concerning the roles that the state
and federal governments would play in regulating elections. See,
e.g., The Federalist No. 59 (Alexander Hamilton) (arguing for
federal control over congressional elections); The Anti-
Federalist No. 7 (Cato) (arguing for state control over
congressional elections). It is no surprise that the precise
compromise that the Framers struck differs for each type of
election. For instance, the Framers chose to “invest[] the
States with responsibility for the mechanics of congressional
elections, but only so far as Congress declines to pre-empt
state legislative choices.” Arizona v. Inter Tribal Council of
Arizona, Inc., 133 S. Ct. 2247, 2253 (2013) (quoting Foster v.
Love, 522 U.S. 67, 69 (1997)). With regard to presidential
elections, however, the Framers adopted a different approach:
the Electoral College. They then gave state legislatures the
authority to decide the manner through which the electors from
each state would be appointed. McPherson v. Blacker, 146 U.S. 1,
35 (1892).
11
Of course, the Reconstruction Amendments along with later
amendments such as those providing for the election of Senators
“by the people” (1913) and prohibiting denial of the right to
vote “on account of sex” (1920) materially altered the division
of labor established by the Framers for the regulation of
elections. U.S. Const. amends. XVII, XIX. And various federal
statutes, most notably the Voting Rights Act of 1965, passed
pursuant to those amendments have made still further
alterations. Most of these steps were deeply necessary and long
overdue. Through them all, however, the Constitution has
continued to preserve for state legislatures the presumptive
authority to regulate both the larger and smaller aspects of the
federal and state elections occurring within that state’s
boundaries.
Indeed, the Supreme Court has consistently recognized this
enduring tenet of our constitutional order, noting that the
states possess a “broad power to prescribe the Times, Places and
Manner of holding Elections for Senators and Representatives,
which power is matched by state control over the election
process for state offices.” Clingman v. Beaver, 544 U.S. 581,
586 (2005) (quoting Tashjian v. Republican Party of Conn., 479
U.S. 208, 217 (1986)); see also Bush v. Palm Beach Cty.
Canvassing Bd., 531 U.S. 70, 76 (2000) (per curiam) (noting
12
state legislatures’ broad power over the appointment of
presidential electors).
This arrangement is not only long-standing – it also makes
a certain sense. All other things being equal, it is generally
better for states to administer elections. It is true that
smaller units of government can act oppressively toward minority
citizens within their borders and against unpopular points of
view. But local administration also allows for greater
individual input and accountability; a distant bureaucracy is in
danger of appearing out of reach and out of touch. Even
Alexander Hamilton, who vigorously supported greater federal
control over congressional elections, acknowledged the point:
allowing “local administrations” to regulate elections “in the
first instance” may, “in ordinary cases,” be “more convenient
and more satisfactory.” The Federalist No. 59. All of this is to
say that a lot of thought stretching over centuries has gone
into our electoral system as it now generally operates. The text
and history of the Constitution, well established Supreme Court
precedent, and the structural principles inherent in our federal
system counsel respect for the Virginia General Assembly’s power
to administer elections in Virginia.
IV.
A.
13
Mindful of state legislatures’ longstanding authority to
regulate elections, we turn first to an examination of the
alleged burdens imposed by Virginia’s three-tiered ballot
ordering law.
State election regulations often “implicate substantial
voting, associational and expressive rights protected by the
First and Fourteenth Amendments.” Pisano v. Strach, 743 F.3d
927, 932 (4th Cir. 2014) (citation omitted). “The First
Amendment, as incorporated against the states by the Fourteenth
Amendment, protects the rights of individuals to associate for
the advancement of political beliefs and ideas.” S.C. Green
Party v. S.C. State Election Comm’n, 612 F.3d 752, 755-56 (4th
Cir. 2010). For example, it is “beyond debate that freedom to
engage in association for the advancement of beliefs and ideas
is an inseparable aspect of the ‘liberty’ assured by the Due
Process Clause of the Fourteenth Amendment, which embraces
freedom of speech.” Anderson, 460 U.S. at 787 (quoting NAACP v.
Alabama, 357 U.S. 449, 460 (1958)). “[I]nvidious”
classifications also violate rights protected by the Equal
Protection Clause of the Fourteenth Amendment. Williams v.
Rhodes, 393 U.S. 23, 30 (1968). These rights, however, are not
absolute. All election laws, including perfectly valid ones,
“inevitably affect[] – at least to some degree – the
14
individual’s right to vote and his right to associate with
others for political ends.” Anderson, 460 U.S. at 788.
In order to distinguish those laws whose burdens are
uniquely unconstitutional from the majority of laws whose
validity is unquestioned, we employ the Supreme Court’s
Anderson/Burdick decisional framework. We “consider the
character and magnitude of the asserted injury to the rights
protected by the First and Fourteenth Amendments that the
plaintiff seeks to vindicate”; “identify and evaluate the
precise interests put forward by the State as justifications for
the burden imposed”; and “determine the legitimacy and strength
of each of those interests” and “the extent to which those
interests make it necessary to burden the plaintiff’s rights.”
Anderson, 460 U.S. at 789. This balancing test requires “hard
judgments” – it does not dictate “automatic” results. Id. at
789-90.
The nature of our inquiry is “flexible” and “depends upon
the extent to which a challenged regulation burdens First and
Fourteenth Amendment rights.” Burdick, 504 U.S. at 434. Laws
imposing only “modest” burdens are usually justified by a
state’s “important regulatory interests.” S.C. Green Party, 612
F.3d at 759. Laws imposing “severe” burdens, on the other hand,
“must be ‘narrowly drawn to advance a state interest of
compelling importance.’” Burdick, 504 U.S. at 434 (citation
15
omitted). They are thus subject to “strict scrutiny.” McLaughlin
v. N.C. Bd. of Elections, 65 F.3d 1215, 1221 (4th Cir. 1995).
However, the class of laws facing this higher scrutiny is
limited. Subjecting too many laws to strict scrutiny would
unnecessarily “tie the hands of States seeking to assure that
elections are operated equitably and efficiently.” Burdick, 504
U.S. at 433.
Here, Virginia’s three-tiered ballot ordering law imposes
only the most modest burdens on Sarvis’s free speech,
associational, and equal protection rights. The law is facially
neutral and nondiscriminatory – neither Sarvis’s Libertarian
Party nor any other party faces a disproportionate burden. All
parties are subject to the same requirements. None are
automatically elevated to the top of the ballot. Virginia’s
ballot ordering law thus allows any political organization - of
any persuasion – an evenhanded chance at achieving political
party status and a first-tier ballot position. Va. Code Ann.
§§ 24.2-101, -613.
Sarvis complains that the bar for achieving first-tier
political party status is nonetheless too high, but he
exaggerates the difficulty of this goal. An organization may
obtain first-tier political party status if any of its
candidates for any office receives 10 percent of the vote in
either of the two preceding statewide general elections. And, in
16
any case, his complaint is inapposite because he may be present
on the ballot in all events. Sarvis did appear on the ballot in
the past, and he may do so again in the future. What is denied,
therefore, is not ballot access, but rather access to a
preferred method of ballot ordering. But mere ballot order
denies neither the right to vote, nor the right to appear on the
ballot, nor the right to form or associate in a political
organization.
Comparing this relaxed regime with statutes upheld in other
cases demonstrates that Virginia’s ballot ordering law imposes
only a minimal burden on First and Fourteenth Amendment rights.
For example, in Munro v. Socialist Workers Party, the Supreme
Court considered the constitutionality of a Washington state law
requiring that “a minor-party candidate for partisan office
receive at least 1% of all votes cast for that office in the
State’s primary election” in order even to appear on the general
election ballot at all. 479 U.S. 189, 190 (1986). The Court
upheld the law, because Washington “ha[d] not substantially
burdened the ‘availability of political opportunity.’” Id. at
199 (citation omitted). Other cases have found that a complete
prohibition on write-in voting imposed only “very limited”
burdens on constitutional rights, Burdick, 504 U.S. at 437, and
that a law barring candidates from appearing on the ballot as
candidates of more than one political party “does not severely
17
burden” associational rights. Timmons v. Twin Cities Area New
Party, 520 U.S. 351, 359 (1997). Indeed, the Court has even held
that a state may prohibit independent candidates from appearing
on the ballot if they “had a registered affiliation with a
qualified political party” during the previous year. Storer v.
Brown, 415 U.S. 724, 726-28 (1974). Viewed in the light of these
regulations, Sarvis’s squabbles with his particular position on
the ballot appear almost inconsequential. The ballot ordering
law does not deny anyone the ability to vote for him, nor his
ability to appear on the Virginia ballot with his preferred
party affiliation.
Sarvis himself recognizes the limits of the ballot ordering
law’s burdens, as he concedes that this case “does not rise to a
level of strict scrutiny.” J.A. 183-84. He nonetheless maintains
that the law “creates a serious consequential burden,” because
“[c]andidates in inferior ballot positions have a strong
likelihood of getting fewer votes than they would otherwise”
under the theory of windfall voting. Appellant’s Opening Br. 3.
The theory is that uninformed or undecided voters are more
likely to choose candidates listed higher on the ballot. In
Sarvis’s view, Virginia’s ballot ordering law thus grants an
advantage to candidates from major political parties, and
determining the magnitude of this advantage requires that the
18
case “go forward on the merits for the development of a full
factual record.” Appellant’s Opening Br. 13.
Sarvis’s demand for discovery, however, misapprehends the
nature of a motion to dismiss. Here, the district court properly
recognized that “[t]o survive a Rule 12(b)(6) motion to dismiss,
a complaint must ‘provide enough facts to state a claim that is
plausible on its face,’” Sarvis, 80 F. Supp. 3d at 696
(quoting Robinson v. Am. Honda Motor Co., 551 F.3d 218, 222 (4th
Cir. 2009)), and that to reach facial plausibility, Sarvis must
“plead[] factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)).
The problem for Sarvis is that even if there is a windfall
vote, his complaint would still fail to raise the “reasonable
inference” that Virginia’s ballot ordering law creates
constitutionally significant burdens. The fact remains that,
“windfall” or not, the Virginia ballot ordering law still does
not “restrict access to the ballot or deny any voters the right
to vote for candidates of their choice.” Sonneman v. State, 969
P.2d 632, 638 (Alaska 1998). The law instead “merely allocates
the benefit of positional bias, which places a lesser burden on
the right to vote.” Id. And contrary to Sarvis’s cursory equal
protection argument, Appellant’s Opening Br. 12-13, it makes
19
this allocation in a neutral, nondiscriminatory manner. Compare
Graves v. McElderry, 946 F. Supp. 1569, 1582 (W.D. Okla. 1996)
(holding that an Oklahoma law placing Democratic Party
candidates in the highest ballot positions violated the Equal
Protection Clause), with Bd. of Election Comm’rs of Chicago v.
Libertarian Party of Ill., 591 F.2d 22, 25-27 (7th Cir. 1979)
(holding that an Illinois county’s facially neutral two-tiered
ballot ordering system did not violate the Equal Protection
Clause).
It remains far from clear, moreover, that federal courts
possess the power to rule that some voters’ choices are less
constitutionally meaningful than the choices of other supposedly
more informed or committed voters. This whole windfall vote
theory casts aspersions upon citizens who expressed their civic
right to participate in an election and made a choice of their
own free will. Who are we to demean their decision? “There is
‘no constitutional right to a wholly rational election, based
solely on a reasoned consideration of the issues and the
candidates’ positions, and free from other ‘irrational’
considerations.’” Schaefer v. Lamone, No. 1:06-cv-00896-BEL,
2006 U.S. Dist. LEXIS 96855, at *13 (D. Md. Nov. 30, 2006)
(quoting Clough v. Guzzi, 416 F. Supp. 1057, 1067 (D. Mass.
1976), aff’d, 248 F. App’x 484 (4th Cir. 2007). As noted, Sarvis
says that his expert would not testify as to the exact degree of
20
positional bias caused by Virginia’s law, but this admission is
unnecessary to our analysis. “[A]ccess to a preferred position
on the ballot so that one has an equal chance of attracting the
windfall vote is not a constitutional concern.” New Alliance
Party v. N.Y. State Bd. of Elections, 861 F. Supp. 282, 295
(S.D.N.Y. 1994). Even without Sarvis’s admission, the windfall
vote theory would thus fail to raise an inference of any
cognizable constitutional burden on First or Fourteenth
Amendment rights.
Given that the Virginia ballot ordering law does not
restrict candidate access to the ballot or deny voters the right
to vote for the candidate of their choice, or otherwise require
strict scrutiny, we have no need to conduct the kind of
empirical analysis into burdens that would essentially displace
the authority of state legislatures with the views of expert
witnesses. That is not to say, however, that our analysis is at
an end. In order to be sure that the district court did not
improperly dismiss Sarvis’s complaint, we need to make certain
that important state interests support Virginia’s ballot
ordering law.
B.
Virginia’s three-tiered ballot ordering law is supported by
“important regulatory interests.” Timmons, 520 U.S. at 358. In
particular, the law may assist the voting process by reducing
21
voter confusion and preserving party-order symmetry across
different offices on the ballot. Additionally, the law may also
reduce multi-party factionalism and promote political stability.
Sarvis again insists that we may not weigh these interests
without discovery. Appellant’s Opening Br. 20. But “elaborate,
empirical verification of [] weightiness” is not required.
Timmons, 520 U.S. at 364. To hold otherwise would “invariably
lead to endless court battles” over the quality of the state’s
evidence, Munro, 479 U.S. at 195, and to a corresponding loss of
certainty over the rules by which we select our whole
government. We therefore do not “require that a state justify”
reasonable and nondiscriminatory rules “in this manner.” Wood v.
Meadows, 207 F.3d 708, 716 (4th Cir. 2000). In cases where
strict scrutiny does not apply, we ask only that the state
“articulate[]” its asserted interests. Id. at 717. This is not a
high bar, and Virginia has cleared it here. Reasoned, credible
argument supports its stated interests.
First, Virginia’s three-tiered ballot ordering law serves
the important state interest of reducing voter confusion and
speeding the voting process. While Sarvis’s complaint is vague
about how his preferred ballot listing would actually operate,
J.A. 46, it is clear that he wishes to move ballot ordering
among parties and candidates to a more purely random system.
Virginia’s system, by contrast, emphasizes voter familiarity and
22
more predictable order. Listing candidates by party allows
voters to more quickly find their preferred choice for a given
office, especially when party loyalties influence many voters’
decisions. And in an environment where many voters not only hold
party loyalties but also tend to be loyal to one of only a few
major parties, it again aids the voting process to list
candidates from those parties first on the ballot. Sarvis’s
request for a court decree commanding Virginia to randomly order
its ballot betrays not only a flawed conception of federal
judicial power. It is also suspect as a practical matter. Random
ordering risks requiring voters to decipher lengthy multi-
office, multi-candidate ballots in order to find their preferred
candidates.
“Election officials have good reason to adopt a ballot
format that minimizes” this sort of “confusion.” Bd. of Election
Comm’rs of Chicago, 591 F.2d at 25. For each extra minute that a
voter spends deciphering his ballot in the voting booth, dozens
or more voters may spend another minute in line. This all adds
up. Long election lines may frustrate voters attempting to
exercise their right to vote. Hour long lines at some polling
locations have led many to complain that election officials had
discouraged their exercise of the franchise. See, e.g., Fernanda
Santos, In Arizona, Voters Demand: Why the Lines?, N.Y. Times,
23
March 25, 2016, at A13. Reducing the risk of this sort of
disincentive is undoubtedly an important state interest.
Second, and relatedly, Virginia’s ballot ordering law also
has the advantage of maintaining party-order symmetry across
many offices on the ballot. Within the first two ballot tiers,
party order is determined by lot. Va. Code Ann. § 24.2-613. The
names of all party-affiliated candidates for particular offices
then appear “in the order determined for their parties.” Id.
This is so for all “federal, statewide, and General Assembly
offices.” Id.
The effect of all this is to create “a symmetrical pattern
on the ballot.” New Alliance Party, 861 F. Supp. at 297. The
ballot law ensures that if a party’s candidate for United States
Senator is listed second, for example, then candidates from that
party will be second in lists for other offices as well. This
again advances the state’s interest in “efficient procedures for
the election of public officials.” S.C. Green Party, 612 F.3d at
759. It makes the ballot more easily decipherable, especially
for voters looking for candidates affiliated with a given party.
Finally, the ballot ordering law may also favor Virginia’s
“strong interest in the stability of [its] political system[].”
Timmons, 520 U.S. at 366. “Maintaining a stable political system
is, unquestionably, a compelling state interest.” Eu v. S.F.
Cty. Democratic Cent. Comm., 489 U.S. 214, 226 (1989). While
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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.” Davis v. Bandemer, 478 U.S. 109, 144-45
(1986) (O’Connor, J., concurring).
The Constitution therefore unsurprisingly “permits [a state
legislature] to decide that political stability is best served
through a healthy two-party system,” Timmons, 520 U.S. at 367,
as opposed to shifting coalitions of multiple party entities. Of
course, state latitude in this regard is not unlimited. While a
state legislature may not “completely insulate the two-party
system from minor parties’ or independent candidates’
competition and influence,” it may “enact reasonable election
regulations that may, in practice, favor the traditional two-
party system,” and “temper the destabilizing effects of party-
splintering and excessive factionalism.” Id.
Structuring ballot order to prefer parties already strong
enough to reach first-tier party status under the Virginia Code
may further this stabilizing goal. In Sarvis’s view, after all,
a windfall vote of some magnitude is inevitable. Assuming this
is true, some party or candidate will benefit. Some party or
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candidate has to be listed first. But 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 simply does not offend the Constitution.
V.
Having identified the asserted state interests furthered by
Virginia’s three-tiered ballot ordering law, we must at last
weigh them against the law’s burdens on the plaintiff’s First
and Fourteenth Amendment rights. Burdick, 504 U.S. at 434. Here
our job is easy – this case is one of the “usual[]” variety in
which the “State’s important regulatory interests . . . justify
reasonable, nondiscriminatory restrictions.” Timmons, 520 U.S.
at 358 (citation and internal quotation marks omitted).
The three-tiered ballot ordering law imposes little burden
on Sarvis’s constitutional rights, and Virginia articulates
several important interests supporting the law. In these
circumstances, we have “no basis for finding a state statutory
scheme unconstitutional.” Wood, 207 F.3d at 717. We leave
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further resolution of this controversy to a different and better
set of arbiters: the people, and through them, the political
branches.
AFFIRMED
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