Nelson v. Mac Warner, 20-1860

• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)
• Writing for the Court: BARBARA MILANO KEENAN, Senior Circuit Judge
• Citation: 12 F.4th 376
• Parties: Dakota NELSON; Belinda Biafore, individually and as Chairperson of the West Virginia Democratic Party; Elaine A. Harris, individually and as Chairperson of the Kanawha County Democratic Executive Committee; West Virginia Democratic Party; West Virginia Democratic House Legislative Committee, Plaintiffs - Appellees, v. Mac WARNER, in his official capacity as West Virginia Secretary of State, Defendant - Appellant, and Vera McCormick, in her official capacity as Clerk of Kanawha County, West Virginia and all county ballot commissioners for the state of West Virginia, Defendant. State of Texas ; State of Georgia ; State of Arizona: State of Florida: State of Indiana; State of Oklahoma: Honest Elections Project, Amici Supporting Appellant. Dakota Nelson; Belinda Biafore, individually and as Chairperson of the West Virginia Democratic Party; Elaine A. Harris, individually and as Chairperson of the Kanawha County Democratic Executive Committee; West Virginia Democratic Party; West Virginia Democratic House Legislative Committee, Plaintiffs - Appellees, v. Vera McCormick, in her official capacity as Clerk of Kanawha County, West Virginia and all county ballot commissioners for the state of West Virginia, Defendant - Appellant, and Mac Warner, in his official capacity as West Virginia Secretary of State, Defendant. State of Texas ; State of Georgia ; Honest Elections Project; State of Arizona; State of Florida ; State of Indiana; State of Oklahoma, Amici Supporting Appellant.
• Docket Number: No. 20-1861,No. 20-1860,20-1860
• Decision Date: 01 September 2021

12 F.4th 376

Dakota NELSON; Belinda Biafore, individually and as Chairperson of the West Virginia Democratic Party; Elaine A. Harris, individually and as Chairperson of the Kanawha County Democratic Executive Committee; West Virginia Democratic Party; West Virginia Democratic House Legislative Committee, Plaintiffs - Appellees,
v.
Mac WARNER, in his official capacity as West Virginia Secretary of State, Defendant - Appellant,
and
Vera McCormick, in her official capacity as Clerk of Kanawha County, West Virginia and all county ballot commissioners for the state of West Virginia, Defendant.

State of Texas ; State of Georgia ; State of Arizona: State of Florida: State of Indiana; State of Oklahoma: Honest Elections Project, Amici Supporting Appellant.

Dakota Nelson; Belinda Biafore, individually and as Chairperson of the West Virginia Democratic Party; Elaine A. Harris, individually and as Chairperson of the Kanawha County Democratic Executive Committee; West Virginia Democratic Party; West Virginia Democratic House Legislative Committee, Plaintiffs - Appellees,
v.
Vera McCormick, in her official capacity as Clerk of Kanawha County, West Virginia and all county ballot commissioners for the state of West Virginia, Defendant - Appellant,
and
Mac Warner, in his official capacity as West Virginia Secretary of State, Defendant.

State of Texas ; State of Georgia ; Honest Elections Project; State of Arizona; State of Florida ; State of Indiana; State of Oklahoma, Amici Supporting Appellant.

No. 20-1860
No. 20-1861

United States Court of Appeals, Fourth Circuit.

Argued: May 7, 2021
Decided: September 1, 2021

ARGUED: Lindsay Sara See, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Appellant. Anthony J. Majestro, POWELL & MAJESTRO PLLC, Charleston, West Virginia, for Appellees. ON BRIEF: Patrick Morrisey, Attorney General, Curtis R.A. Capehart, Deputy Attorney General, Jessica A. Lee, Assistant Solicitor General, Thomas T. Lampman, Assistant Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West Virginia, for Appellant Mac Warner. Michael W. Taylor, BAILEY & WYANT, PLCC, Charleston, West Virginia, for Appellant Vera McCormick. Christina L. Smith, POWELL & MAJESTRO PLLC, Charleston, West Virginia, for Appellees. Thomas R. McCarthy, Cameron T. Norris, Alexa R. Baltes, CONSOVOY MCCARTHY PLLC, Arlington, Virginia, for Amicus Honest Elections Project. Ken Paxton, Attorney General, Jeffrey C. Mateer, First Assistant Attorney General, Brent Webster, First Assistant Attorney General, Kyle D. Hawkins, Solicitor General, Todd Lawrence Disher, Deputy Chief, Special Litigation Unit, William T. Thompson, Special Counsel, OFFICE OF THE ATTORNEY GENERAL OF TEXAS, Austin, Texas, for Amicus State of Texas. Mark Brnovich, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF ARIZONA, Phoenix, Arizona, for Amicus State of Arizona. Ashley Moody, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF FLORIDA, Tallahassee, Florida, for Amicus State of Florida. Christopher M. Carr, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF GEORGIA, Atlanta, Georgia, for Amicus State of Georgia. Curtis T. Hill, Jr., Attorney General, OFFICE OF THE ATTORNEY GENERAL OF INDIANA, Indianapolis, Indiana, for Amicus State of Indiana. Mike Hunter, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF OKLAHOMA, Oklahoma City, Oklahoma, for Amicus State of Oklahoma.

Before WYNN and THACKER, Circuit Judges, and KEENAN, Senior Circuit Judge.

Vacated and remanded by published opinion. Senior Judge Keenan wrote the majority opinion, in which Judge Thacker joined. Judge Wynn wrote a dissenting opinion.

BARBARA MILANO KEENAN, Senior Circuit Judge:

12 F.4th 379

The plaintiffs in this case are individuals and organizations affiliated with the West Virginia Democratic Party. They challenge as unconstitutional a West Virginia statute governing the order in which candidates’ names appear on state election ballots. Under West Virginia Code § 3-6-2(c)(3) (the ballot-order statute, or the statute), election ballots for partisan state and federal elections are organized for each contest by listing first the candidates affiliated with the political party whose candidate for President of the United States received the most votes in West Virginia in the most recent presidential election. Therefore, during the four-year period following a presidential election, those candidates’ names always appear on such ballots above the names of candidates affiliated with other political parties. The plaintiffs contend that because candidates appearing first on the ballot "almost always" receive an increased vote share based solely on this priority status, this system favors candidates based on their political affiliation and

12 F.4th 380

violates the plaintiffs’ rights under the First and Fourteenth Amendments.

Before addressing the merits of the plaintiffs’ argument, the district court rejected certain jurisdictional challenges raised by the defendants, including that the plaintiffs lacked standing and that the complaint presented a nonjusticiable political question. After conducting a bench trial, the court agreed with the plaintiffs on the merits of their claim, declaring that the statute violated their rights under the First and Fourteenth Amendments.

Upon our review, we conclude that the district court properly asserted subject matter jurisdiction over the case. We hold that (1) an individual plaintiff, who was a Democratic candidate for state office, alleged an injury-in-fact and satisfied the other criteria for standing, and (2) that we may consider the lawfulness of the statute despite its partisan context.

We disagree, however, with the district court's ultimate conclusion that the statute is unconstitutional. Our decision in Libertarian Party of Virginia v. Alcorn , 826 F.3d 708, 714, 717-18 (4th Cir. 2016), makes clear that a ballot-order statute, which provides a neutral rule for listing candidates’ names on the ballot, does not violate the Constitution even though the statute may impair a candidate's ability to attract "the windfall vote" in an election. Generally, such a statute places at most a modest burden on free speech and equal protection rights. And nothing in the present record demonstrates that the West Virginia ballot-order statute imposes a greater burden on those rights. We therefore hold that the ballot-order statute is neutral and nondiscriminatory in its application, and that any modest burden imposed by the statute on the plaintiffs’ rights is justified by the state's important interests in promoting voting efficiency and in reducing voter confusion and error. We therefore vacate the district court's judgment and remand the case to the district court for entry of an order dismissing the complaint.

I.

Since its enactment in 1991, the ballot-order statute has governed the order in which candidates for partisan elections appear on ballots in West Virginia. The statute states that "[t]he party whose candidate for president received the highest number of votes [in the state]¹ at the last preceding presidential election" is entitled to have its candidates listed first on the ballots.² W. Va. Code § 3-6-2(c)(3). Voters in West Virginia favored the Democratic nominee for president in 1988, 1992, and 1996, and favored the Republican nominee for president in 2000, 2004, 2008, 2012, 2016, and 2020.³ Accordingly, since the statute's first application 30 years ago, Democratic candidates were listed first on the ballot for ten years, while Republican candidates have been listed first since that

12 F.4th 381

time. Republican candidates also will be listed first for the next three years based on the results of the 2020 presidential election.

The plaintiffs challenged the constitutionality of the statute in a complaint filed in December 2019 against Mac Warner, the West Virginia Secretary of State, who serves as the state's chief election official; and Vera McCormick, clerk of Kanawha County and a representative member of all West Virginia Ballot Commissioners (the defendants).⁴ The plaintiffs include two organizations, the West Virginia Democratic Party and the West Virginia Democratic House Legislative Committee, which both filed suit on behalf of themselves and their members. The plaintiffs also include three individuals who are all registered voters in West Virginia: (1) Belinda Biafore, the Chairperson of the West Virginia Democratic Party; (2) Elaine Harris, Chairperson of the Kanawha County Democratic Executive Committee; and (3) Dakota Nelson, a Democratic candidate in 2018 and 2020 for the West Virginia House of Delegates, District 16. Nelson ultimately was unsuccessful in both those contests.

The plaintiffs based their claim on the ballot order's "primacy effect," which occurs when candidates who are listed first on the ballot receive "windfall" votes based solely on their ballot position. See Alcorn , 826 F.3d at 714 ; Jacobson v. Fla. Sec'y of State , 974 F.3d 1236, 1242 (11th Cir. 2020) (describing this effect as "positional bias"). The plaintiffs contended that the statute unduly burdens both the individual and organizational-member plaintiffs’ right to vote, in violation of the First and Fourteenth Amendments, by decreasing the impact of their votes and by making it more difficult to elect...