Robert Sarvis v. Charles Judd

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 3:14-cv-00479-REP. [999858939]. [15-1162]

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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,

v.

Plaintiff − Appellant,

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
opinion in which Judge Agee and Senior Judge Davis joined.

the

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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.

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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
3

state

chairman

present

in

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Virginia

for

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months

filing

organization

six

for

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prior

to

office.

any

Id.

nominee

The

only

from

that

organizations

currently designated “parties” or “political parties” under the
Code are the Republican Party and the Democratic Party. 1
The

second

political

tier

parties.”

includes

For

an

candidates

organization

from

of

“recognized

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

comprised

office,
of

and

voters

the

state

residing

in

central
each

committee

Virginia

must

be

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,
“[i]ndependent

the

third

candidates”

tier
not

of

the

ballot

associated

with

includes
“political

parties” or “recognized political parties.” Id.
In
tiers,

addition
Virginia’s

to

delineating

ballot

the

ordering

1

election
law

also

ballot’s
specifies

three
how

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 firsttier ballot listing on the 1996 general election ballot.
Cf.
J.A. 61, 95, and 97.
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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

defendants

candidate

certain

members

filed
of

a
the

complaint
Virginia

that

named

as

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

2

Somewhat 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)
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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

repetition

November
yet

2014

evading

elections

review

under

doctrine.

the

The

capable

plaintiffs

of
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).
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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

challenged

by

law

weighing

imposes

the

on

a

severity

person’s

of

the

burden

constitutional

the

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

neutral

in

this
that

conclusion.
it

does

First,

not

the

entrench

law

is

politically

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
7

parties

with

demonstrated

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public support. Id. at 703. Before assessing the merits of these
justifications,
Virginia

had

however,

described

the
the

district
nature

court

and

determined

purpose

of

the

that
three

justifications with sufficient precision. Disagreeing with the
plaintiffs,
factual

the

district

development

of

court

the

case

held

that

neither

nor

more

additional

concrete

empirical

support for Virginia’s justifications was necessary before it
could properly rule on Virginia’s motion to dismiss. Id. at 70306.

The

district

court

then

reviewed

Virginia’s

three

justifications and determined that each was important. Id. at
706-08.
Finally,
Virginia’s

in

weighing

interests,

the

the

plaintiffs’

district

court

burdens
ruled

against

that

the

interests put forward by Virginia outweighed any minor burdens
the ballot ordering law imposed on Sarvis and his co-plaintiffs.
The

district

dismiss

the

court
amended

accordingly
complaint.

granted

Virginia’s

Id.

708-09.

at

motion

Sarvis

to

alone

appeals that order.
II.
Sarvis’s main argument on appeal is that Virginia’s threetiered 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
8

and

disadvantages

violates

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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
what

the

premises

district

his

court

constitutional
termed

the

challenge

“windfall

largely

vote”

on

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 threetiered 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.
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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

Representatives,

of

shall

holding
be

Elections

prescribed

in

for
each

Senators
State

by

and
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
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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

Federalist

No.

over
7

congressional

(Cato)

(arguing

elections);
for

state

The

Anti-

control

over

congressional elections). It is no surprise that the precise
compromise
election.

that
For

the

Framers

instance,

the

struck

differs

Framers

chose

for
to

each

type

“invest[]

of
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).

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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

continued

to

them

preserve

all,
for

however,

state

the

Constitution

legislatures

the

has

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,

Canvassing

217

(1986));

Bd.,

531

U.S.

see
70,

also
76

12

Bush

(2000)

v.
(per

Palm

Beach

curiam)

Cty.

(noting

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legislatures’

broad

Pg: 13 of 27

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

Alexander
control

appearing
Hamilton,

over

out
who

of

reach

vigorously

congressional

and

out

supported

elections,

of

touch.

greater

acknowledged

the

Even

federal
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.

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Mindful

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of

state

regulate

elections,

alleged

burdens

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legislatures’

we

turn

imposed

by

first

longstanding
to

an

authority

examination

Virginia’s

of

three-tiered

to
the

ballot

ordering law.
State
voting,

election

regulations

associational

and

often

expressive

“implicate

rights

substantial

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

classifications
Protection

U.S.
also

Clause

449,
violate

of

the

460

(1958)).

rights

protected

Fourteenth

“[I]nvidious”
by

Amendment.

the

Equal

Williams

v.

Rhodes, 393 U.S. 23, 30 (1968). These rights, however, are not
absolute.

All

“inevitably

election

affect[]

laws,
–

at

including
least

14

to

perfectly
some

valid

degree

ones,
–

the

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individual’s

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right

to

vote

Pg: 15 of 27

and

his

right

to

associate

with

others for political ends.” Anderson, 460 U.S. at 788.
In

order

to

distinguish

uniquely

unconstitutional

validity

is

from

unquestioned,

Anderson/Burdick

those
the

we

decisional

laws

whose

majority

employ

the

framework.

burdens

of

laws

Supreme

We

are
whose

Court’s

“consider

the

character and magnitude of the asserted injury to the rights
protected

by

the

plaintiff

seeks

First
to

and

Fourteenth

vindicate”;

Amendments

“identify

the

evaluate

and

that

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

compelling

‘narrowly

drawn

importance.’”

to

advance

Burdick,
15

504

a

state

U.S.

at

interest
434

of

(citation

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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

limited.

of

Subjecting

laws

too

facing

many

this

laws

to

higher

strict

scrutiny

scrutiny

is

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

automatically

to

the

elevated

to

same

the

top

requirements.

of

the

ballot.

None

are

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
political

complains
party

that

status

the

is

bar

for

nonetheless

achieving
too

first-tier

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
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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,
preferred

is

not

method

ballot

of

access,

ballot

but

ordering.

rather

But

access

mere

to

a

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
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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

likely

to

is

that

choose

uninformed

candidates

or

listed

undecided
higher

on

voters
the

are

more

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

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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

reasonable

content

inference

that

that

allows

the

the

defendant

court
is

to

liable

draw

the

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

constitutionally

Virginia’s
significant

ballot
burdens.

ordering
The

fact

law

creates

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
19

Opening

Br.

12-13,

it

makes

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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

candidates’

a

reasoned

consideration

positions,

considerations.’” Schaefer

and
v.

free

of

the

from

Lamone,

No.

issues

other

and

the

‘irrational’

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
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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

cognizable

would

thus

fail

constitutional

to

raise

burden

on

an

inference

First

or

of

any

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
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confusion

and

Pg: 22 of 27

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,
strict

207

F.3d

scrutiny

708,

does

716

not

(4th

apply,

Cir.
we

2000).

ask

only

In

cases

that

the

where
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
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predictable

order.

Pg: 23 of 27

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,

candidates

it

from

again

those

aids

parties

the

process

to

on

first

voting

ballot.

Sarvis’s

the

list

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,

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25,

2016,

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at

A13.

Pg: 24 of 27

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

legitimate

American
for

states

democratic
to

life,

correlate

it

is

ballot

also

entirely

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
system

legislature
from

may

minor

not

“completely

parties’

or

insulate
independent

the

two-party

candidates’

competition and influence,” it may “enact reasonable election
regulations that may, in practice, favor the traditional twoparty system,” and “temper the destabilizing effects of partysplintering 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

entity

with

acknowledge

that

at

little
that

least

the

actual

the

two

beneficiary

public

major

will

support.

parties

may

not

Of

be

some

course,

possess

a

we

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

several

constitutional

important

rights,

interests

and

Virginia

supporting

the

articulates

law.

In

these

circumstances, we have “no basis for finding a state statutory
scheme

unconstitutional.”

Wood,
26

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

27