Robert Marcellus v. Virginia State Board of Elections

PUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 16-1331

ROBERT G. MARCELLUS; DAVID WILLIAMS; BARRY HODGE;
TIMOTHY GRESHAM; POWHATAN COUNTY REPUBLICAN
COMMITTEE,

Plaintiffs - Appellants,

v.

VIRGINIA STATE BOARD OF ELECTIONS; JAMES B. ALCORN, in his
official capacity as a member and Chairman of the Virginia State Board of
Elections; CLARA BELLE WHEELER, in her official capacity as a member and
Vice Chair of the Virginia State Board of Elections; SINGLETON B.
MCALLISTER, in her official capacity as a member and Secretary of the Virginia
State Board of Elections,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of Virginia, at
Richmond. M. Hannah Lauck, District Judge. (3:15-cv-00481-MHL)

Argued: December 7, 2016 Decided: February 21, 2017

Before NIEMEYER, TRAXLER, and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge
Traxler and Judge Harris joined.
ARGUED: Patrick Michael McSweeney, MCSWEENEY, CYNKAR &
KACHOUROFF, PLLC, Powhatan, Virginia, for Appellants. Joshua D. Heslinga,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellees. ON BRIEF: Mark R. Herring, Attorney General of Virginia, Cynthia
Hudson, Chief Deputy Attorney General, John W. Daniel II, Deputy Attorney General,
Heather Hays Lockerman, Senior Assistant Attorney General, Anna T. Birkenheier,
Assistant Attorney General, Stuart A. Raphael, Solicitor General, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.

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NIEMEYER, Circuit Judge:

The Powhatan County Republican Committee and four individuals nominated by

the Committee to be candidates for election to the Board of Supervisors for Powhatan

County, Virginia, commenced this action against the Virginia State Board of Elections to

challenge the constitutionality of the portion of Virginia Code § 24.2-613(B) that

provides that only candidates in elections “for federal, statewide, and General Assembly

offices” may be identified on the ballot by the name of the political party that nominated

them or by the term “Independent.” The plaintiffs allege that providing political party

identifiers for candidates for federal, statewide, and General Assembly offices, while

denying such ballot identifiers for candidates for all local offices, violates their right of

association protected by the First and Fourteenth Amendments and their right to equal

protection under the Fourteenth Amendment.

On cross-motions for summary judgment, the district court entered judgment in

favor of the Virginia State Board of Elections, upholding the constitutionality of the

challenged portion of § 24.2-613(B), and we affirm. We conclude that the burden on

associational rights imposed by Virginia’s regulation of the use of party identifiers on

official ballots is at most minimal and is amply justified by Virginia’s important interests,

which include minimizing partisanship at the local government level, promoting impartial

governance, and maximizing the number of citizens eligible to hold local office under the

Hatch Act, 5 U.S.C. §§ 7321-7326. We similarly conclude that § 24.2-613(B)’s different

treatment of local candidates and federal, statewide, and General Assembly candidates

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with respect to party identifiers on the ballot does not violate the Equal Protection Clause

because such treatment is rationally related to legitimate governmental interests.

I. Statutory Scheme

In Virginia, candidates for elected office can generally qualify to be placed on an

election ballot either by filing a declaration of candidacy and a petition signed by the

requisite number of qualified voters, see Va. Code Ann. § 24.2-506, or by receiving the

nomination of a “political party,” as defined by statute, see id. §§ 24.2-101, 24.2-511.

The only organizations that currently qualify under the statute’s definition are the

Republican Party and the Democratic Party. See Libertarian Party of Va. v. Alcorn, 826

F.3d 708, 712 (4th Cir. 2016).

The form of ballots used in Virginia elections is tightly regulated by statute and by

standards prescribed by the Virginia State Board of Elections. See Va. Code Ann. § 24.2-

613(A). For example, every ballot, whether printed or presented through an approved

electronic voting system, contains a header with the words “Commonwealth of Virginia”

and “Official Ballot.” And Virginia’s regulation of the ballot extends to details such as

font size and the number of characters per line. Localities are required to submit ballot

proofs to the Virginia Department of Elections for verification and approval.

The ballots’ content is also strictly regulated. In 1870, when Virginia formally

adopted the use of written ballots, the General Assembly specified that the ballot be “a

white paper ticket . . . containing . . . the names of the persons for whom the elector

intends to vote, and designating the office to which each person so named[] is intended

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by him to be chosen.” An Act to Provide for a General Election, ch. 76, § 31, 1869-70

Va. Acts 78, 85. Not until 1970 did the General Assembly amplify the content to include,

in connection with candidates for President, a party identifier for each candidate. See Act

of April 3, 1970, ch. 462, § 2, 1970 Va. Acts 826, 853 (“No names of political parties

shall appear on the ballot, except in presidential elections . . .”). In 2000, the General

Assembly again expanded the list of offices for which party identifiers are to be used to

include “federal, statewide, and General Assembly offices,” but those offices “only.” Act

of April 6, 2000, ch. 514, § 1, 2000 Va. Acts 915, 915. While bills have been introduced

since to expand further the list of offices for which identifiers are used, none has been

enacted.

Thus, in its current state, Virginia Code § 24.2-613(B) provides that party

identifiers are used on the ballot only in connection with candidates for President of the

United States, members of the U.S. Senate, members of the U.S. House of

Representatives, Governor, Lieutenant Governor, Attorney General of Virginia, members

of the Senate of Virginia, and members of the Virginia House of Delegates. Conversely,

§ 24.2-613(B) prohibits party identifiers for candidates for all local offices, including

candidates for county boards of supervisors and city and town councils; local school

boards; mayors; clerks of court; Commonwealth’s attorneys; sheriffs; revenue

commissioners; treasurers; and soil and water conservation district directors. This

restriction is imposed even though candidates for most local offices are allowed to

qualify for placement on the ballot by being nominated by the local chapter of one of the

major political parties. See Va. Code Ann. §§ 24.2-509(A), 24.2-511.

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 When including identifiers, the State Board of Elections uses the name of the

political party that nominated the candidate. If the candidate qualified for the ballot by

petition, the Board uses the term “Independent,” unless the candidate produces “sufficient

and appropriate evidence” that he or she was nominated by a “recognized political party.”

Va. Code Ann. § 24.2-613(B). The Board represents these identifiers on the ballot using

capital letters — (D) for Democrat, (R) for Republican, (L) for Libertarian, (G) for

Green, (IG) for Independent Green, (C) for Constitution, and (I) for Independent.

There is no restriction on any candidate’s advertising his or her party nomination,

association, or endorsement. Moreover, voters can learn which candidates were

nominated by political parties on the “What is on my Ballot?” section of the Virginia

Department of Elections’ website.

II. Facts

In May 2015, the Powhatan County Republican Committee nominated Robert

Marcellus, David Williams, Barry Hodge, and Timothy Gresham to be Republican

candidates for positions on the Powhatan County Board of Supervisors during the

November 2015 general election. As provided by Virginia Code § 24.2-511(B), each of

those candidates qualified to have his name appear on his local ballot after the Chairman

of the Committee certified his nomination to both the Virginia State Board of Elections

and the General Registrar of Powhatan County. Accordingly, the ballots for the

November 3, 2015 general election included their names but not any party identifiers next

to their names or, indeed, next to the names of any candidate for local office. The ballot

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did, however, include party identifiers for candidates seeking seats in the General

Assembly. Even though the 2015 general election is now passed, these four candidates

state that they intend to run for local office in the future as political party nominees.

In their two-count complaint, filed in August 2015, the plaintiffs alleged that they

have the right under the First and Fourteenth Amendments “to be associated on the

general election ballot with the political party that nominated them to the same extent as

federal, statewide, and General Assembly candidates” and that § 24.2-613(B), which

denied them “the benefit of party identification,” was “arbitrary, unreasonable and

discriminatory” and therefore impermissibly burdened their right of association. They

also alleged that § 24.2-613(B) violated their right to equal protection under the

Fourteenth Amendment because they were “similarly situated” to candidates for federal,

statewide, and General Assembly offices and yet were treated disparately by the statute.

The plaintiffs sought a declaratory judgment that § 24.2-613(B) is invalid and an

injunction requiring the Commonwealth to include party identifiers on the ballot for

candidates for local offices.

On the parties’ cross-motions for summary judgment, the court entered an order

and memorandum opinion dated March 4, 2016, granting judgment to the Virginia State

Board of Elections. With respect to its jurisdiction, the court concluded that even though

the 2015 election had already taken place, the case was not moot, as the challenged action

was capable of repetition, yet evading review. On the merits, the court concluded that the

plaintiffs’ “constitutional challenges falter no matter which test applies.”

This appeal followed.

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 III. Associational Rights

The plaintiffs argue that even though “neither political parties nor their nominees

have an absolute right to placement of a party identifier on the ballot, they [do] have a

First Amendment associational right to nondiscriminatory treatment when the

government grants a privilege or benefit related to the election ballot.” They claim in this

case that it is the “unjustified discrimination between the statute’s classifications” that

defines the impermissible burden on them and their associational rights under the First

Amendment. Thus, while the plaintiffs locate their claim within the First Amendment

and accept the required analysis of balancing a statute’s burden against its justification,

they rely on equal protection principles to argue that the statute’s disparate regulation of

party identifiers burdens their associational rights.

The government argues that the Virginia statute imposes no burden on plaintiffs’

associational rights and, alternatively, that any burden that might be identified is “easily”

justified by the legitimate governmental purposes served by the statute.

It is well established that “[t]he First Amendment protects the right of citizens to

associate and to form political parties for the advancement of common political goals and

ideas,” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 357 (1997), and that this

component of the First Amendment applies to the States through the Fourteenth

Amendment, see NAACP v. Alabama, 357 U.S. 449, 460 (1958). “It does not follow,

however, that . . . the right to associate for political purposes through the ballot [is]

absolute.” Burdick v. Takushi, 504 U.S. 428, 433 (1992) (emphasis added). Rather,

“[c]ommon sense, as well as constitutional law, compels the conclusion that government

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must play an active role in structuring elections,” id., even though election laws

“inevitably affect[] — at least to some degree — the individual’s right to vote and his

right to associate with others for political ends,” Anderson v. Celebrezze, 460 U.S. 780,

788 (1983). Indeed, “[t]he States possess a ‘broad power to prescribe the “Times, Places

and Manner of holding Elections for Senators and Representatives,” Art. I, § 4, cl. 1,

which power is matched by state control over the election process for state offices.’”

Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 451 (2008) (quoting

Clingman v. Beaver, 544 U.S. 581, 586 (2005)). Nonetheless, state regulation must be

exercised in a way that does not violate other specific provisions of the Constitution. Id.

When analyzing whether a state election law impermissibly impinges on

associational rights protected by the First Amendment, we apply the framework

developed by the Supreme Court in Anderson and Burdick. See Timmons, 520 U.S. at

358.

In Anderson, where the Supreme Court was considering an early filing deadline

for independent candidates, the Court articulated the applicable analysis:

[A court] must first 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. It then must identify and evaluate the
precise interests put forward by the State as justifications for the burden
imposed by its rule. In passing judgment, the Court must not only
determine the legitimacy and strength of each of those interests, it also must
consider the extent to which those interests make it necessary to burden the
plaintiff’s rights. Only after weighing all these factors is the reviewing
court in a position to decide whether the challenged provision is
unconstitutional.

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460 U.S. at 789. And in Burdick, the Court built upon this framework, rejecting the

argument “that a law that imposes any burden upon the right to vote must be subject to

strict scrutiny.” 504 U.S. at 432. Instead, as the Court explained, the “rigorousness” of

the inquiry “depends upon the extent to which a challenged regulation burdens First and

Fourteenth Amendment rights.” Id. at 434. Specifically, while laws imposing “severe”

restrictions must be “narrowly drawn to advance a state interest of compelling

importance,” id. (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)), “a state election

law provision [that] imposes only ‘reasonable, nondiscriminatory restrictions’ upon . . .

First and Fourteenth Amendment rights” is generally justified by “the State’s important

regulatory interests,” id. (quoting Anderson, 460 U.S. at 788).

Thus, when applying the Anderson-Burdick analysis, we consider first “the

character and magnitude” of the burden that Virginia Code § 24.2-613(B) imposes on

associational rights. In doing so, we observe that the statute has no effect on any

candidate’s ability to earn a place on the ballot. Cf. Williams v. Rhodes, 393 U.S. 23, 31

(1968) (“The right to form a party for the advancement of political goals means little if a

party can be kept off the election ballot . . .”). The statute also does not have any impact

on any political organization’s “right to choose [its] ‘standard bearer’ in the form of a

nominee.” S.C. Green Party v. S.C. State Election Comm’n, 612 F.3d 752, 756 (4th Cir.

2010) (quoting Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 224 (1989)).

While the plaintiffs agree with these observations, they argue that a burden on

their associational rights is imposed by § 24.2-613(B)’s creation of a distinction between

candidates seeking a federal, state, or General Assembly office, whose names on the

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ballot include identifiers, and candidates for all other offices, whose names on the ballot

appear without identifiers. This argument is not unlike the one made in Timmons.

In Timmons, the Court was presented with a Minnesota law that “prohibit[ed] a

candidate from appearing on the ballot as the candidate of more than one party,” even

though the candidate may have been nominated by more than one party. 520 U.S. at 354.

In holding that the law did not violate the First and Fourteenth Amendments, the Court

reasoned that while a political party — there, the “New Party” — has the right to select

its own candidate, “[i]t does not follow . . . that a party is absolutely entitled to have its

nominee appear on the ballot as that party’s candidate.” Id. at 359 (emphasis added).

The New Party had argued that the law impermissibly burdened “its right . . . to

communicate its choice of nominees on the ballot on terms equal to those offered other

parties.” Id. at 362. While the Court accepted that the law “prevent[ed] the New Party

from using the ballot to communicate to the public that it supports a particular candidate

who is already another party’s candidate” and “shut[] off one possible avenue a party

might use to send a message to its preferred candidate,” id. (emphasis omitted), it was

“unpersuaded” by the New Party’s “contention that it has a right to use the ballot itself to

send a particularized message,” emphasizing that “[b]allots serve primarily to elect

candidates, not as forums for political expression,” id. at 363 (emphasis added).

In Washington State Grange, the Court relied upon Timmons when rejecting a

First Amendment challenge brought by several political parties to a Washington statute

that provided that “candidates for office shall be identified on the ballot by their self-

designated ‘party preference,’” regardless of whether they were nominated by the party

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they designated. 552 U.S. at 444. Thus, under the challenged law, “[a] political party

[could not] prevent a candidate who [was] unaffiliated with, or even repugnant to, the

party from designating it as his party of preference.” Id. at 447. As a consequence,

political parties no longer had any ability to “indicate their nominees on the ballot.” Id. at

453 n.7. The Court characterized that feature of the law as “unexceptional,” explaining

that “[t]he First Amendment does not give political parties a right to have their nominees

designated as such on the ballot.” Id. (emphasis added). And, as importantly, the Court

stated that “[p]arties do not gain such a right simply because the State affords candidates

the opportunity to indicate their party preference on the ballot.” Id.

The jurisprudence of Timmons and Washington State Grange thus makes clear that

even though a statute such as § 24.2-613(B) may prevent political parties from indicating

on the ballot which local candidates are their nominees, it does not impose a

constitutionally cognizable burden on those parties’ associational rights because “[t]he

First Amendment does not give political parties a right to have their nominees designated

as such on the ballot.” Washington State Grange, 552 U.S. at 453 n.7. Moreover, that

jurisprudence similarly confirms that local candidates themselves have no First

Amendment right to use the ballot “as [a] forum[] for political expression” in which to

communicate to voters their status as a party’s nominee. Timmons, 520 U.S. at 363.

The plaintiffs seem to accept much of this jurisprudence. They contend, however,

in somewhat of a different vein, that they “suffer[ed] a detrimental effect on their

associational rights [because] the Commonwealth of Virginia discriminate[d] against

them and other local candidates by denying them a party identifier next to their names on

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the ballot while requiring a party identifier on the ballot next to the names of party

nominees for General Assembly, statewide[,] and federal offices.” In making this

argument, they rely on the Supreme Court’s oft-stated recognition that a State’s

“important regulatory interests are generally sufficient to justify reasonable,

nondiscriminatory restrictions,” Anderson, 460 U.S. at 788 (emphasis added), and reason

that “they have a First Amendment associational right to nondiscriminatory treatment

when the government grants a privilege or benefit related to the election ballot.” They

argue that § 24.2-613(B) violates that nondiscrimination principle by treating them

differently than federal, statewide, and General Assembly candidates.

The plaintiffs, however, fail to explain why the statute’s different treatment of

candidates based on the offices they seek imposes a burden on their right of association.

Under the challenged provision, a Republican candidate for the U.S. Senate may receive

a benefit from an identifier indicating that he or she is the Republican Party nominee,

while a Republican candidate for county sheriff does not. The county sheriff candidate,

however, is hardly affected by the fact that the Senate candidate has an identifier. The

candidate for county sheriff is treated like every other candidate for that office, none of

whom can have a party identifier under § 24.2-613(B). In that manner, the restriction on

party identifiers does not burden the associational rights of any local candidate.

Of course, if a law gives some candidates for the Senate a party identifier, but not

other candidates for the Senate, it would impose a burden on the associational rights of

the candidates left unidentified, even though no candidate has an absolute right to be so

identified. See Rosen v. Brown, 970 F.2d 169, 171, 174 (6th Cir. 1992) (invalidating an

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Ohio law that provided a party identifier for candidates nominated by political parties for

an office but that prohibited a nonparty candidate for that same office from being labeled

as an “Independent”). But one can hardly conclude that a candidate for county sheriff is

burdened by the different treatment afforded to a candidate for the Senate.

The plaintiffs might argue to the contrary that the presence of party identifiers next

to the names of candidates for the Senate and the absence of such identifiers next to the

names of candidates for county sheriff might be misleading as voters might incorrectly

infer that none of the candidates for sheriff were nominated by a political party. But, as

the district court noted, the Supreme Court found exactly this type of assumption

regarding voter confusion insufficient to support a facial challenge to the election law at

issue in Washington State Grange. See 552 U.S. at 454 (“[R]espondents’ assertion that

voters will misinterpret the party-preference designation is sheer speculation. . . . There

is simply no basis to presume that a well-informed electorate will interpret a candidate’s

party-preference designation to mean that the candidate is the party’s chosen nominee or

representative or that the party associates with or approves of the candidate”). Similarly,

the plaintiffs might argue that a party-nominated candidate for county sheriff is denied

the “coattails” benefit of announcing his association with the same party that is identified

as nominating a particular candidate for the Senate. Yet, not only have the plaintiffs

failed to demonstrate any such benefit, but conveying such an associational message is

not an entitlement they have in connection with the content of Virginia’s official ballots.

The plaintiffs would merely be arguing that the law prevents them from relaying the

message that they too are party-nominated candidates. The First Amendment, however,

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does not give candidates the right to use the ballot as a forum for political expression in

which to communicate to voters their status as a party’s nominee. See Timmons, 520

U.S. at 363.

While party identifiers do not appear on the official ballot for Virginia’s local

candidates, the candidates still have every other avenue by which to inform voters of this

information. Political parties and their nominees are entirely free to publicize their

association with each other and may even distribute sample “party” tickets on election

day, as long as they do not do so within 40 feet of a polling place’s entrance. See Va.

Code Ann. § 24.2-604(A). Voters can also directly access this information by visiting the

“What is on my Ballot?” section of the Virginia Department of Elections’ website. Thus,

if it is a burden on the associational rights of the parties, the nominees, or the voters not

to have this information specifically on the ballot — which, it must be recognized, is not

designed to be a public forum to convey political information — the burden is at most

minimal. See Ohio Council 8 Am. Fed’n of State, Cnty. & Mun. Employees, AFL-CIO v.

Husted, 814 F.3d 329, 338 (6th Cir. 2016) (upholding the constitutionality of an Ohio law

that banned the use of party identifiers on general-election ballots for judicial candidates

after concluding that the law “places at most only minimal burdens on the First and

Fourteenth Amendment rights of political parties, judicial candidates, and voters in Ohio

judicial elections”).

In short, we conclude that plaintiffs’ First Amendment associational rights are at

most minimally burdened by the fact that federal, state, and General Assembly candidates

have party identifiers placed with their names, whereas local candidates do not.

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 Assuming there is some minimal burden, we must, under the Anderson-Burdick

analysis, then weigh that burden against the governmental interests offered by Virginia as

justifications for § 24.2-613(B). Because we conclude that the burden is not “severe,”

Virginia’s “asserted regulatory interests need only be ‘sufficiently weighty to justify the

limitation’ imposed on [associational] rights.” Timmons, 520 U.S. at 364 (quoting

Norman, 502 U.S. at 288-89).

Virginia has articulated three governmental interests that it claims justify § 24.2-

613(B)’s ban on including party identifiers with the names of candidates for local offices.

The law, it claims, (1) reduces partisanship in local government; (2) promotes impartial

local governance and public confidence in local government; and (3) broadens the pool of

citizens who may, consistent with the Hatch Act, serve in local elected offices. While the

plaintiffs “do not dispute the legitimacy” of those interests, they challenge whether

§ 24.2-613(B)’s restriction serves those interests.

With respect to the first two interests, which are closely related, Virginia argues

that “[w]ithout restricting the freedom of any parties or candidates, [it] has structured the

ballot to avoid emphasizing party affiliation above all other messages with respect to

local office candidates,” reasoning that “Virginia’s distinction between local offices, on

the one hand, and federal and State offices, on the other, . . . makes perfect sense” in light

of “the different role of local and non-local office[s].” To this end, it notes that “States

have a particular interest in reducing partisanship” — and thus to some degree enhancing

both impartial local governance and the public perception of such — with respect to local

elected offices like clerk of court and sheriff, as well as essential administrative positions,

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including treasurer and revenue commissioner. And “[e]ven local offices that are more

‘political’ in nature, such as members of local governing bodies, have a different scope of

authority under Virginia law, which supports a conclusion that ‘federal, statewide, and

General Assembly offices’ unavoidably touch on national and highly partisan issues, but

that local offices deal primarily with non-partisan issues of basic services and community

management.”

We agree that Virginia’s interests in minimizing divisive partisanship in local

government and in enhancing, to at least some degree, the public’s confidence that the

successful candidates will serve the local community as a whole are legitimate and

support the form of its regulation in § 24.2-613(B). The plaintiffs argue, nonetheless, that

“[i]f the Commonwealth were genuinely concerned about a negative effect of

partisanship in local governmental offices, it would have legislated that all local offices

must be nonpartisan, which it has not done.” While that approach could indeed have

been followed, the Constitution does not, of course, require States to “address all aspects

of a problem in one fell swoop.” Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1668

(2015). Rather, rational half measures can be justified. The plaintiffs also posit that

Virginia has taken the wrong approach to further the interests it identifies because the

lack of a party identifier on the ballot will actually incentivize local candidates and the

parties that have nominated them to heighten their partisan activities “to alert voters to

the party affiliation that is not permitted to be shown on the ballot.” Whether any such

risk is sufficient to outweigh the statute’s benefits, however, is a legislative judgment for

Virginia to make.

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 Virginia also proffers as a justification for § 24.2-613(B) that it broadens the pool

of citizens eligible to run for local offices without violating the Hatch Act, which

regulates the political activity of federal executive branch employees.

Although § 24.2-613(B) only marginally advances the ability of Virginians to seek

local office without running afoul of the Hatch Act, this effect, albeit small, nonetheless

helps justify the law. A federal employee covered by the Hatch Act “may not . . . run . . .

as a candidate for election to a partisan political office.” 5 U.S.C. § 7323(a)(3). The law

defines a “partisan political office” to mean “any office for which any candidate is

nominated or elected as representing” a national political party. Id. § 7322(2). But

banning ballot identifiers still might not avoid triggering the Hatch Act’s prohibitions.

According to the U.S. Office of Special Counsel, even without the use of any party

identifiers on the ballot, elections in which all candidates qualify by petition could

nonetheless lose their status as nonpartisan if “partisan politics actually enter[s] a

candidate’s campaign.” Moreover, some Virginia localities have been granted a partial

administrative exemption to the Hatch Act. See 5 U.S.C. § 7325; 5 C.F.R. § 733.103. 1

Thus, Virginia’s interest in permitting more citizens to serve in local government

consistent with the Hatch Act has potential application only with respect to elected

1
The Hatch Act provides that “[t]he Office of Personnel Management may
prescribe regulations permitting employees” living in communities in and around the
Washington, D.C., metropolitan area — including some political subdivisions in northern
Virginia — to participate in certain local political activities that would otherwise be
prohibited. 5 U.S.C. § 7325. Pursuant to that authority, federal employees living in
designated localities may “[r]un as independent candidates for election to partisan
political office in elections for local office in the municipality or political subdivision.” 5
C.F.R. § 733.103(b)(1).

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offices in Virginia localities that have not been granted an exemption and for which, by

virtue of either state or local law, candidates can only qualify for the ballot by petition, as

opposed to by party nomination. We therefore conclude that this interest is only

marginally advanced by § 24.2-613(B).

Even so, Virginia and certain of its localities continue to make an effort to require

a nonpartisan qualification process for certain local offices, and these laws could be

severely undermined if candidates could nonetheless require the Commonwealth to

designate their status as party nominees on the ballot. See Va. Code Ann. § 24.2-613(B)

(providing that candidates who qualify for the ballot by petition are to be “identified by

the term ‘Independent,’” unless they “produc[e] sufficient and appropriate evidence of

nomination by a ‘recognized political party’ to the State Board”).

At bottom, we conclude that any burden that § 24.2-613(B) imposes on the right of

association protected by the First and Fourteenth Amendments is outweighed by the

important state interests advanced by the law. Therefore, we affirm the district court’s

judgment in favor of the defendants with respect to this claim.

IV. Equal Protection Rights

The plaintiffs also contend that § 24.2-613(B) violates the Equal Protection

Clause. 2 A lengthy discussion of this claim is not required. The plaintiffs properly

2
We have previously applied the Anderson-Burdick analysis to consider equal-
protection-based challenges to state election laws when such claims have been asserted in
conjunction with claims under the First and Fourteenth Amendments. See Libertarian
Party, 826 F.3d at 714, 716-17; Pisano v. Strach, 743 F.3d 927, 930, 934 (4th Cir. 2014).

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concede, for the purposes of the Equal Protection Clause, that § 24.2-613(B)’s different

treatment with respect to the use of party identifiers for federal, statewide, and General

Assembly candidates, on the one hand, and for local candidates, on the other, must be

upheld unless there is no rational basis to support it. Because § 24.2-613(B) is rationally

related to legitimate state interests, as we discussed in our Anderson-Burdick analysis, we

conclude a fortiori that it does not violate the Equal Protection Clause.

* * *

In sum, we hold that when Virginia amended § 24.2-613(B) in 2000 to expand the

categories of offices for which official ballots would include party identifiers while

continuing to ban party identifiers for candidates for local offices, it did not violate the

right to association protected by the First and Fourteenth Amendments or the Equal

Protection Clause of the Fourteenth Amendment.

Accordingly, the judgment of the district court is

AFFIRMED.

Here, however, because of the manner in which the plaintiffs have presented their
arguments and for analytical clarity, we find it useful to consider this claim separately.

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