Sarvis et al v. Judd et al
Filing
35
MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 1/13/2015. (sbea, )
JL_L_J1_ -^1:
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
^
,
,
Richmond Dxvision
ROBERT C.
et ai.,
JN I32015 Jj
CLERK. U.S. DISTRICT COURl
WtCHMONO. va
SARVIS,
Plaintiffs,
V-
Civil Action No.
CHARLES E.
et ai..
3:14cv479
JUDD,
Defendants.
MEMORANDUM OPINION
This
DISMISS
moved
matter
is
(Docket No.
to
dismiss
before
23) .
the
Court
DEFENDANTS'
At oral argument,
Count
II
of
DECLARATORY AND INJUNCTIVE RELIEF
was granted
on
(Docket No.
33) ,
the
Plaintiffs'
AMENDED
(Docket No.
MOTION
counsel
COMPLAINT
20)
TO
FOR
and the motion
For the reasons set forth below,
the motion to dismiss will be granted as to the remaining claim,
Count
I.
FACTUAL BACKGROUND
The
candidates
Libertarian
for
Representatives,
the
Party
United
and one
of
Virginia,
States
independent
several
Senate
and
its
House
of
candidate
for
(collectively,
the
(non-party)
the United States House of Representatives
of
"Candidates") filed a complaint against members of the Virginia
State Board of Elections
("Board of Elections").
(Docket No.
1.)
Pursuant to an Amended Complaint,
Candidates
sought
declaratory
and
(Docket No.
injunctive
20),
relief
the
from
Virginia laws and practices that assign independent candidates
and candidates from smaller parties a lower place on the voting
ballot.
violate
The Candidates allege that these laws and practices
their
First
and
Fourteenth
Amendment
rights.
(Am.
Compl., Docket No. 20, ^[5 40, 54.)
According to Virginia state law,
a "party" or "political
party" is an organization of citizens of the Commonwealth that,
at
either of the
two
preceding
statewide
general
elections,
received at least 10 percent of the total vote cast for any
statewide office filled in that election.
Va.
Code § 24.2-101.
To qualify as a "party" or "political party," the organization
must
have
a
state
central
committee
and
an
office
of
elected
state chairman both of which have been continually in existence
for the six months preceding the filing of a nominee for any
office.
Id.
A "recognized political party," on the other hand,
is "an
organization that, for at least six months preceding the filing
of its nominee for
[an] office, has had in continual existence a
state central committee composed of registered voters residing
in each congressional district of the Commonwealth, a party plan
and bylaws, and a duly elected state chairman and secretary."
24.2-613.
§
A "recognized political party" need not have received
10 percent of the total vote cast for a
either
of
the
last
two
statewide
statewide office in
general
elections.
The
Libertarian Party of Virginia is a recognized political party
under Virginia law.
(Am. Compl., Docket No. 20, f 6.)
The Board of Elections assigns candidates a place on the
ballot
in the order prescribed by Va.
1 18.
That provision requires that "political party" candidates
appear
first
Candidates
on
the
ballot
in
an
Code
order
§ 24.2-613.
Id.
determined by
lot.
representing "recognized political parties" appear
next on the ballot in an order determined by lot.
Independent
(non-party) candidates appear last on the ballot in alphabetical
order.
Because
the
Candidates
are
not
"political
party"
candidates, they cannot be placed in the first position on the
next
ballot.
Id.
?[
21.
The
Candidates
allege
that
this
violates their constitutional rights because candidates who are
listed
at
the
top
of
an
election
ballot
receive
an
unfair
"positional advantage" that fortuitously yields more votes than
candidates not listed at the top of the ballot and Virginia has
reserved this positional advantage for major parties.
29.
Id. SI 23,
DISCUSSION
I.
Legal Standard
The Commonwealth has filed a motion to dismiss pursuant to
Fed.
R. Civ.
P.
12(b)(6).
To survive a Rule 12(b)(6) motion to
dismiss, a complaint must "provide enough facts to state a claim
that
is
Co.,
551 F.3d 218, 222
V.
plausible
Twombly,
550
plausibility
allows
on
U.S.
when
the
court
its
face."
(4th Cir. 2009)
544,
the
to
Robinson
555
"A
pleads
the
Am.
Honda
Motor
(quoting Bell Atl.- Corp.
(2007)).
plaintiff
draw
v.
claim has
factual
reasonable
facial
content
inference
that
that
the
defendant is liable for the misconduct alleged."
Ashcroft v.
Iqbal,
556
550
556).
A court "will accept the pleader's description of what
U.S.
662,
678
(2009)
(citing Twombly,
U.S.
at
happened . . . along with any conclusions that can be reasonably
drawn therefrom," but
"need not accept
conclusory allegations
encompassing the legal effects of the pleaded facts."
A.
Wright
1357
& Arthur R.
{3d ed.
1998) ;
2014 WL 1415095,
*4
made
Miller,
the
clear
that
Federal Practice and Procedure §
Chamblee v.
(E.D.
Charles
Va.
Old Dominion Sec.
2014).
analytical
Co.,
L.L.C.,
"Twombly and Iqbal also
approach
for
evaluating
Rule
12(b)(6) motions to dismiss requires courts to reject conclusory
allegations
that
amount
to
mere
formulaic
recitation
of
the
elements of a claim and to conduct a context-specific analysis
to
determine
whether
the
well-pleaded
factual
allegations
plausibly
suggest
considering a
an
entitlement
motion to dismiss,
to
the
relief."
II.
Count I:
572 F.3d 176,
180
In
court may "properly take
judicial notice of matters of public record."
Cnty. Mem^l Hosp.,
Id.
(4th Cir.
Philips v.
Pitt
2009).
Ballot Order Under Virginia Code § 24.2-613
The importance of a fair and functional electoral system to
a
representative democracy can hardly be gainsaid.
Supreme Court has
most
the
found it "beyond cavil that voting is of the
fundamental
structure."
Indeed,
significance
Burdick
v.
under
Takushi,
504
our
U.S.
constitutional
428,
433
(1992)
(internal citations and quotations omitted).
/
Of course,
not
the
"absolute."
right
See
to vote
id.
And,
in any manner one wishes
without
a
is
meaningful system to
capture and reflect the will of the People, the right to vote is
a mere abstraction.
are fundamental,
candidates'
suspect
Therefore,
of the voters
"not all restrictions imposed by the States on
on
voters'
among candidates."
If
processes,"
rights
Anderson v.
elections
sort of order,
"[c]omraon
rights
eligibility for the ballot impose constitutionally-
burdens
(1983) .
while the
"are
to
be
rather than chaos,
Storer
sense,
as
v.
Brown,
well
as
415
to
associate
Celebrezze,
fair
and
or
to
4 60 U.S.
honest
and
choose
780,
if
788
some
is to accompany the democratic
U.S.
724,
constitutional
730
law,
(1974),
compels
then
the
conclusion
that
government
must
play
an
active
structuring elections," Burdick, 504 U.S. at 433.
may enact
"comprehensive and sometimes
role
in
Hence, States
complex election .codes"
notwithstanding the fact that "[e]ach provision of these schemes
.
inevitably
individual's
affects
right
to
-
vote
the
voting
Candidates'
rights
liberty."
"implicate
rights
Pisano v.
complaint
some
degree
to
associate
right
-
the
with
460 U.S. at 788.
reflects,
affect
voting,
by
the
743
Strach,
to
ballot
and
strands
"interwoven
access
of
Ballot access restrictions, for example,
substantial
protected
his
Anderson,
restrictions
Id. at 787.
least
and
others for political ends."
As
at
F.3d 927,
associational
First
and
932
and
Fourteenth
(4th Cir.
expressive
Amendments."
2014).
Because
"the rights of voters and the rights of candidates do not lend
themselves to neat separation," Anderson,
4 60
U.S.
at 786,
the
Supreme Court has "minimized the extent to which voting rights
cases
are
distinguishable
504 U.S. at 438.
analyses
of
associative
from
ballot
access
cases,"
Burdick,
Rather than conducting separate, crosscutting
electoral
rights,
restrictions
expressive
rights,
under
due
the
rubrics
process,
or
of
equal
protection, the Supreme Court has articulated a single framework
for
evaluating
"based
.
Anderson,
.
.
the
constitutionality
of
state
election
laws
directly on the First and Fourteenth Amendments."
460 U.S. at 787 n.7; see also Pisano,
743 F.3d at 934.
This
framework,
established
refined in Burdick v.
Takushi,
regulatory
need
interests
justify the limitation'
V.
v.
Reed,
Anderson/Burdick
502
Anderson
holds
only
that
be
v.
Celebrezze
*sufficiently
U.S.
test,
520 U.S.
279,
the
351,
288-89
Court
is
and
"the State's asserted
weighty
imposed on the party's rights."
Twin Cities Area New Party,
Norman
in
364
guided
Timmons
(1997)
(1992)),
To
by
to
(quoting
apply
the
the
following
procedure:
[The
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
to which those
to burden the
after weighing
reviewing court
whether
the
must
consider
the
extent
interests make it necessary
plaintiff's
rights.
Only
all
these
factors
is
the
in a
position to decide
challenged
provision
is
unconstitutional.
Anderson,
which
a
Amendment
4 60
U.S.
challenged
rights,"
scrutiny
review
Burdick,
504
subjected
narrowly
at
to
drawn
the
a
at
'severe'
to
"Depend [ing]
regulation
or
U.S.
78 9.
burdens
regulation
more
434.
deferential
When
the
restrictions,
advance
will
a
state
7
upon
First
the
and
face
standard
of
of
strict
review.
"rights
regulation
interest
to
Fourteenth
either
plaintiffs'
the
extent
must
are
be
compelling
importance.
But when a state election law provision imposes
only 'reasonable, nondiscriminatory restrictions' upon the First
and Fourteenth Amendment rights of voters, the State's important
regulatory interests are generally sufficient to justify the
restrictions."
Id.
(internal citations and quotations omitted).
In other words, modest burdens are balanced "against the extent
to which the regulations advance the state's interests," Pisano,
743 F.3d at 936, but there is a presumption that important state
interests
are
"generally
sufficient
to
justify
nondiscriminatory restrictions," Wood v. Meadows
F.3d 708, 715-717 {4th Cir. 2000)
789).
Justice
O'Connor
reasonable,
(Wood II), 207
{citing Anderson, 460 U.S. at
summarized
the
rationale
for
flexible approach in Clinqman v. Beaver:
This
regime
important
reflects
role
of
the
limited
courts
electoral regulation.
in
but
reviewing
Although the State has
a legitimate - and indeed critical - role to
play in regulating elections,
it must be
recognized
that
it
is
not
a
wholly
independent or neutral arbiter.
Rather, the
State is itself controlled by the political
party or parties in power,
which presumably
have an incentive to shape the rules of the
electoral
game
to
their
own
benefit.
Recognition of that basic reality need not
render suspect most electoral regulations.
Where
the
State
imposes
genuinely
neutral
associational
rights,
only
reasonable
restrictions
there
is
no
and
on
threat
to
the integrity of the electoral process and no
apparent
As
such
reason
for
judicial
restrictions
become
intervention.
more
however, and particularly where
discriminatory effects, there is
8
severe,
they have
increasing
this
cause for concern that those in power may be
using electoral rules to erect barriers to
electoral
competition.
In
such
cases,
applying heightened scrutiny helps to ensure
that such limitations are truly justified and
that
the
State's
asserted
interests
are
not
merely
a
pretext
for
exclusionary
anticompetitive restrictions.
544
U.S.
581,
added).
The
Candidates'
603
foregoing
contention
rights by using a
that,
in
turn,
of
(O'Connor,
principles
that
the
J.,
concurring)
guide
the
Commonwealth
ballot that provides a
channels
largest parties,
candidates
(2005)
"windfall
or
(emphasis
analysis
has
of
offended
the
their
"positional advantage"
votes"
to
the
Commonwealth's
while depriving smaller parties and independent
the
same
opportunity
to
capture
those
"windfall
votes."
A.
The Candidates'
The
first
step
Burden
in
the
Anderson/Burdick
analysis
is
to
"consider the character and magnitude of the asserted injury" to
the Candidates'
constitutional rights.
and magnitude of the burden is
determines
whether
the
pivotal
Examining the character
because this
Commonwealth's
interests
assessment
must
be
compelling and whether the Commonwealth's selected means must be
narrowly
imposed
tailored
by
reasonable
the
to
its
interests.
Commonwealth
in magnitude,
the
When
are
neutral
Court
conducts
the
in
a
restrictions
character
more
and
deferential
constitutional
analysis
and
the
Commonwealth's
important
interests will usually prevail.
The alleged burden in this case is that "candidates listed
lower
on
the
ballot
are
placed
at
a
disadvantage
compared
to
those who are listed in the top positions" due to a
phenomenon
known as "positional bias."
20,
(Tr.
of Oral Arg.
6,
44).
higher ballot position "carries
Guzzi,
with
416 F.
advantage
is
it
a
Supp.
(Am.
Docket No.
5 25);
"Positional bias" is the notion that
especially the first ballot position -
certain
1057,
Compl.,
statistical
1062
(D.
advantage."
Mass.
1976).
Clough
v.
This perceived
said to exist because of "the voting habits
of a
segment of the total electoral vote sometimes referred to as the
^windfall
vote'
or
Monkey
vote',
i.e.,
the
vote
cast
by
citizens who are either uninformed about or indifferent to any
or all of the candidates for a particular office on the ballot."
Id.
at
1063.
According to this
theory,
the
candidates placed
higher on the ballot receive more votes than those placed lower
on the ballot "not from any thoughtful or meaningful choice by
voters,
but
from .
Graves v. McElderry,
Of course,
Virginia's
candidates
of
fatigue,
apathy
or
confusion."
946 F. Supp. 1569, 1579 (W.D. Okla. 1996).
the existence of this phenomenon alone is not -
and could not be -
is
. . voter
the burden;
statutory
the
rather,
scheme,
established,
10
the restriction at issue
which
and
involves
larger,
placing
parties
ahead
the
of
smaller
parties
and
independents
on
the
ballot,
thereby
depriving the Candidates of an opportunity to reap the windfall
vote.
That
occurs
"tiered
ballot
states.
(Def.
Commonwealth
political
order,"
Ex.
places
third.
Id.
the
Commonwealth
method
State
employed
Survey,
"political
second,
Va.
categories,
drawing.
a
2,
parties"
candidates
second
because
Code
§
candidate
Id.
by
parties"
so-called
No.
24-2.)
The
first,
"recognized
independent
and
(non-party)
24.2-613.
order
the
twenty-one. other
Docket
Within
is
the
determined
Within the third category,
alphabetically.
uses
first
by
and
random
candidates are ordered
In order to qualify as a political party
and be eligible for the first tier lottery, a party must receive
at
least
10 percent
of
the
total
vote
cast
for
any
statewide
office in either of the two preceding general elections.
24.2-101.
is
to
reserve
("When
§
The cumulative effect of ballot-ordering regulations
the
so-called "positional advantage"
parties with more widespread support.
933
Id.
deciding
unconstitutionally
whether
burdensome,
Cf.
for -larger
Pisano,
a
state's
filing
we
evaluate
the
743 F.3d at
deadline
combined
is
effect
of the state's ballot-access regulations.").
The existence and degree of the "windfall-vote phenomenon"
that
underlies
highly
debated
variables.
See
the
and
asserted
subject
Clouqh,
416
"positional
to
F.
11
a
advantage"
multitude
Supp.
at
1063
of
("A
theory
is
confounding
number
of
written
the
studies ,
designation
elections.
.
.
of
.
Some
plaintiff's
State Bd.
purpor[t]
.
of
factual
the
first
them
861 F.
effect
of
demonstrate
position
support,
premise.");
of Elections,
(discussing
.
to
282,
incumbency,
race visibility on positional bias).
of
resolving this motion,
vote
phenomenon^
the
exists
and
of
outcome
of
some
party
assumes
some
New York
(S.D.N.Y.
1994)
affiliation,
However,
Court
contradict,
Party v.
288-90
that
and
effects
the
on
New Alliance
Supp.
the
for
that
and
the purpose
the windfall-
positional
advantage
accrues to those candidates whose names appear at the top of the
ballot.
The
vote,
if
Court
it
is
does
also
initially
exist,
is
a
skeptical
the
windfall
constitutional
burden of
that
concern.
It is not entirely clear that positional bias claims should have
any constitutional significance because the theory of injury for
such
claims
has
been
predicated
to
date
upon
the
troubling
notion that "windfall" votes are meaningless compared to "real"
votes
and
thereby
dilute
the
impact
of
votes
cast
by
more
"thoughtful" or "informed" voters.^
^ The exact quantification of this phenomenon is not at issue.
When
asked
at
oral
argument
whether
the
Candidates
intended
to
introduce evidence of the percentage at stake, counsel responded
that their proposed expert "will not give a number."
(Tr. of
Oral Arg. 59.)
Instead, counsel for the Candidates took the
view t h a t
^
the
number
does
Gould V. Grubb,
not make
a
difference.
Id.
536 P.2d 1337, 1343 {Cal. 1975)
12
(holding
In
fixed
for
typical
vote
districts
less
than
dilution
results
votes
cases,
in votes
cast
in
malapportionment
among
from large districts counting
small
districts
because
it
takes
a
larger number of voters in the former district to have the same
electoral
impact
district.
as
That
a
smaller
form
of
number
of
voters
in
disenfranchisement
constitutional principle of "one person,
Sims,
377 U.S.
On
case
the
law,
533,
other
the
hand,
Court
motivations
of
voting
invalid
are
voters'
went
to
protected
the
the
the
exercise
irrational vote
is
voters
one vote" because each
prevailing
have
and
had
meaningful
asked
sciences;
and
cast
of
See Reynolds
the
as
their
look
behind
the
their
reasons
for
effect
of
is
not
other
It
worth
just a
represents
in
democratic
a
making
result.
ballots
bias
to
a
it
just as much of
positional
that
hold
"windfall vote"
social
polls
the
implicitly
and
less
remembering that
of
is
the
(1964).
under
individual
ballots
anomaly
567
latter
violates
individual's vote is not accorded the same weight.
V.
the
a
statistical
individuals
as
who
constitutionally
rights.
vote
is
a
And,
rational
"an
one."
that an "election practice which reserves such an advantage for
a particular class of candidates inevitably dilutes the weight
of
the
vote
candidate
of
who
all
those
is
not
electors
included
who
cast
within
their
the
ballots
favored
for
a
class");
Graves,
946 F.
Supp.
at 1579 ("This accrual of randomly or
irrationally selected windfall votes causes a dilution of the
number of votes which are meaningfully and thoughtfully cast by
more careful or interested voters at the election polls.").
13
New Alliance,
861 F.
Supp. at 297.
of uninformed voters,
Supp.
may,
at
1067
they should inform them.
("[Candidates]
have
access
in theory and possibly in practice,
eliminate
the
donkey
position bias.").
"no
If candidates want the votes
on
right
reasoned
candidates'
positions,
484
Yet,
complaint
ballot
in
ordering
voters
and
so educate them as to
eliminate
wholly
the
rational
of
free
also
(D.
statistical
the
from
Schaefer
Md.
Nov.
30,
here
have
not
election,
issues
other
v.
and
the
^irrational'
Lamone,
2006),
based
2006
aff'd,
U.S.
248 Fed.
2007).
Candidates
terms
a
and
*12
(4th Cir.
the
to
see
LEXIS 96855,
App'x.
thus
consideration
considerations."
Dist.
and
those
416 F.
Moreover, and perhaps unfortunately, there is
constitutional
solely
vote
to
Clouqh,
of
vote
dilution.
requirements
deprives
explicitly
Their
cast
their
contention is
them of
a
chance
that
at
the
"windfall vote."
The ballot is accepted as "the state devised form through
which
candidates
viewpoints."
and
Graves,
voters
946 F.
are
Supp.
permitted
at 1578.
to
express
their
Because the ballot
is an inherently and necessarily limited vehicle for political
expression, the format and structure of the ballot may implicate
expressive
purposes
Burdick,
rights
of
and present
conducting
the
504 U.S. at 437-39
a
cognizable
restriction
Anderson/Burdick
analysis.
for
the
See
(weighing petitioner's claimed right
14
to
cast
holding
a
"protest
that
the
burden on voters'
serve
"to
vote"
State's
under
the
Anderson
restriction
"imposes
framework
only
a
and
limited
rights to make free choices" because elections
winnow
out
and
finally
reject
all
but
the
chosen
candidates" rather than "a generalized expressive function").
Even assuming that positional bias exists and that it may
be
cause
for
constitutional
concern,
the
Court
concludes
-
and
the parties agree -
that the burden at issue in this case is not
severe.
(Tr.
Oral
agreement,
it is useful to understand why the alleged burden is
not
a
severe
of
Arg.
45,
system.
The
that
Supreme
it
Court
favors
has
the traditional
"repeatedly
at
upheld
politically neutral regulations that have the effect
of channeling expressive activity at the polls."
U.S.
that
the tiered approach here at issue is politically
neutral notwithstanding the fact
reasonable,
Notwithstanding
one.
To begin,
two-party
53.)
438.
Thus,
when
a
regulation
is
not "unreasonably exclusionary," i t "may,
traditional two-party system."
facially
Burdick,
504
neutral
and
in practice,
favor the
Timmons, 520 U.S. at 367.^
That
is Virginia's tiered-system.
^ Anderson distinguished between restrictions that permissibly
"favor a ^two-party system'" and those that impermissibly favor
"two particular parties - the Republicans and the Democrats and in effect ten[d] to give them a complete monopoly" through
the "virtual exclusion of other political aspirants from the
political arena."
Anderson, 460 U.S. at 802 (citing Williams v.
15
First,
Virginia's
laws
do
not
entrench
particular,
identifiable parties in power or foreclose smaller parties and
independents from competing in any meaningful way.^
By placing
any party that has received at least 10 percent of the vote in
the first tier of the ballot, the regulation "in no way freezes
the status quo, but implicitly recognizes the potential fluidity
of American political life." Jenness v.
439
Fortson,
403 U.S.
431,
(1971).
Second,
that
tiered
distinguish
support
and
ballot
between
parties
ordering
parties
with
less
laws,
with
such
as
Virginia's,
widespread
demonstrable
electoral
electoral
success
have also been found neutral specifically in contrast to ballot
ordering laws that place particular parties first on the ballot.
Compare Graves,
law that
946 F. Supp. at 1579 (holding unconstitutional a
"effectively selects
Democratic party candidates
for
public office for the top position . . . on any General Election
ballot.")
Cir.
and Sanqmeister v.
1977)
Rhodes,
(holding
Woodard,
unconstitutional
393 U.S. at 23,
565
a
F.2d
460,
"practice
462
by
(7th
Illinois
31-32).
^ The ballot ordering laws provide a reasonable and neutral
system with a first
surpassed by third
tier threshold that can be, and has been,
parties.
(Def.
Ex.
1,
Declaration of
Custodian of Records, Docket No. 24-1, at S[S[ 6, 7, Ex. E at 32,
Ex.
F at 35)
Independent
after
its
(listing the Virginia Reform Party, f/k/a Virginia
Party,
1994
first
nominee
on
for
the
U.S.
vote) .
16
1996
general
Senate
election
received
11.4%
ballot
of
the
County Clerks of placing their own political party in the first
or
top
position
on
voting
ballots
in
all
with Libertarian Party of Colorado v.
F.
Supp,
687,
statute
(D.
Colo.
issue
at
692
in
Graves/
neutral.
It
first-tier
ballot positions
relegate
does
'all
not
1996)
Buckley
(Buckley I) ,
Colorado's
statute
candidates
is
by party affiliation,
for
position
Comm'rs
of
as
public
Plaintiffs
Chicago
v.
22, 25 (7th Cir. 1979)
that
'the
Different
procedure
office
treatment
of
them from the ballot,
suggest.")
Libertarian
...
minority
be
of
for
the
nor does
other
and
Party
("In Sanqmeister,
adopted
938
facially
eligible
nominated by the Republican or Democratic Parties'
tier
elections")
("Unlike the ballot position
classify
candidates
general
than
to a
Bd.
of
it
those
second-
Election
Illinois,
591
F.2d
[we required on remand]
neutral
parties
that
in
character.'
does
not
exclude
prevent them from attaining major- party
status if they achieve widespread support, or prevent any voter
from
voting
for
the
candidate
reasonably determined to
state
interest
does
be
of
his
necessary to
not
result
in
choice,
further
a
and
an
denial
that
is
important
of • equal
protection.").
Even if the law could be considered facially discriminatory
against
smaller
discriminatory
Reform
Party
parties
burden
of
is
Allegheny
with
not
limited
ipso
Cnty.
17
v.
facto
electoral
a
support,
severe
Allegheny
Cnty.
one.'
Dep't
a
See
of
Elections, 174 F.3d 305, 312, 315 {3d Cir. 1999)
(holding that
prescribing different fusion rules for major and minor parties
"is, on its face, discriminatory," but applying "an intermediate
level of scrutiny . . . to weigh, against the burdens imposed,
any
plausible
justification
the
State
has
advanced").
The
Fourth Circuit, for example, has not treated laws that classify
on this basis as inherently severe.
Carolina Bd. of Elections,
Compare McLaughlin v.
65 F.3d 1215, 1221
N.
(4th Cir. 1995)
{"[T]he burden that North Carolina's ballot access restrictions
impose
on
Pisano,
protected
743
F.3d
interests
at
936
is
undoubtedly
("[W]e conclude
deadline] burden on Plaintiffs is modest.
severe.")
that
the
with
[filing
Because the deadline
does not impose a severe burden,
. . . we simply 'balance the
character
burdens
extent
and
to
magnitude
which
interests [.]"') .
of
the
Here,
the
regulations
imposed
against
advance
the
the
state's
as in Libertarian Party of Colorado v.
Buckley (Buckley II), 8 F. Supp. 2d 1244, 1248 (D. Colo. 1998),
the alleged discriminatory burden is "all but illusory" because
"the
Libertarian
[qualify
assertion
for
that
Party
the
need
first
10% of
doubt
uncharacteristic
whose
candidates
previous elections."
tier
the
of
have
only
obtain
on the
vote
is
Id.
18
of
ballot].
unattainable
any political
already
10%
qualified
party,
for
the
.
to
.
[A]ny
reveals
self-
let
the
.
vote
alone one
ballot
in
Next,
the ballot order regulation in Virginia is also a
far
cry from the kinds of restrictions that warrant strict scrutiny.
For example,
as in Timmons,
the Virginia ballot format does not
"restrict the ability of the
support,
limit
the
party's
access
internal
Timmons,
to
the
structure,
520 U.S.
at
363.
The laws do not directly
ballot.
They
governance,
are
and
silent
on
policymaking."
As the Sixth Circuit has explained,
restriction does not affect a political party's ability to
perform
its
members,
primary
and
Harqett,
functions,
choosing
typically is not
V.
and its members to endorse,
or vote for anyone they like.
parties'
"If a
[party]
and
such
as
organizing,
a
candidate,
promoting
considered severe."
767
F.3d
533,
547
recruiting
the
burden
Green Party of Tennessee
(6th
Cir.
2014)
(internal
quotations omitted).
The
Candidates
do not
allege
from competing on the ballot.
disputing
that
those
who
that
they have been excluded
They have not been.
desire
to
vote
for
There is no
a
Libertarian
candidate or any other recognized political party or independent
candidate
task
See
made
can
find
faster
Schaefer,
their
and
2006
[the Candidates]
candidate
easier
U.S.
Dist.
by
of
virtue
LEXIS
really alleg[e]
choice
is
of"
96855,
that
on
the
at
Supp.
at
295.
That
singular
19
allegation
ballot,
tiered
*12.
[their]
capture the windfall vote has been impeded."
F.
the
design.
"All
that
opportunity to
New Alliance,
of
"a
infirmity
861
is
significant
because
restriction
in
it
no
demonstrates
way
independent-minded voters
Anderson,
460
U.S.
at
that
"limit[s]
the
the
opportunities
to associate in the
794.
Commonwealth's
Furthermore,
of
electoral arena."
the
argument
that
"windfall voters" are prevented from associating with the party
of
their
choosing
definition,
making
windfall
their
windfall
is
an
voters
choice.
voters.
If
In
the
have
they
short,
ballot order statute i s a
Neither
argument
at
have
political
party
Those
candidate
barrier to doing so.
at most,
a
not,
By
association
in
then
imposed
nor
the
they
are
not
by Virginia's
who
or
Commonwealth
(Tr.
desire
an
to
argue
of Oral Arg.
vote
independent
for
a
45,
that
53.)
recognized
candidate
Because the regulations at
modest burden on the Candidates'
Amendment rights,
itself.
minor one.
strict scrutiny is warranted here.
agrees.
with
disregarded
any burden
Candidates
The Court
war
face
no
issue impose,
First and Fourteenth
the Court will undertake the more deferential
constitutional analysis.
B.
The S t a t e ' s
Under
the
Interests
second
step
of
the
Anderson/Burdick
framework,
the Court must "identify and evaluate the precise interests put
forward by the State as justifications for the burden imposed by
its rule."
Anderson,
pose
a
only
modest
460 U.S.
burden,
at 789.
the
20
Because the regulations
regulations
need
not
be
compelling or narrowly tailored.
Burdick,
504 U.S.
at 434.
The
Commonwealth advances three justifications for its tiered ballot
order:
avoiding
voter
confusion,
party-order
symmetry,
and
favoring parties with demonstrated public support.
Before
evaluating
the
Commonwealth's
identified
address
Candidates'
the
evaluation
is
Commonwealth
not
has
legitimacy
interests,
at
the
of Oral Arg.
Allegheny
the
Cnty.
point
between
45-47.)
that
the
attained"
v.
The Candidates
Allegheny
courts
Cnty.
must
and
that,
Dep't
on
adopted
of
and
"unlike
.
because
the
evidence
interests.
.
Elections
(Tr.
to
knowing
the
the
object
rational
intermediate standard of review .
such
rely upon Reform Party of
"insist
classification
must
empirical
that its laws further or advance the foregoing
the
that
juncture
through
of
Court
contention
this
demonstrated
strength
however,
threshold
permissible
not
and
basis
make
relation
to
review,
be
the
'does not permit the Court
to supplant the precise interests put forward by the State with
other suppositions.'"
argue
that
evidentiary
the
174
Supreme
support
under
F.3d at
Court
the
315-16.
has
The Candidates also
required
intermediate
more
demanding
standards
of
review
applied in gender-based equal protection claims and certain free
speech
536,
"no
claims.
539
(1996)
persuasive
See
United
States
(undertaking a
evidence
in
v.
Virginia,
518
"searching analysis"
th[e]
21
record"
that
U.S.
515,
and finding
the
rule
in
question was "in furtherance of a state policy of 'diversity'");
Turner
Broad.
Sys.,
Inc.
v.
F.C.C.,
520
U.S.
180,
195
(1997)
(according "substantial deference to the predictive judgments of
Congress," but
Congress
has
"assur[ing]
drawn
that,
reasonable
in formulating
inferences
based
its
on
judgments.
substantial
evidence").
The Candidates'
the
standard
of
position is not
review
Anderson/Burdick
applied
occasionally
"intermediate" by courts.
Cnty.,
174
F.3d
Anderson/Burdick
"important
to
States
V.
least
that
Virginia,
governmental
employed are
objectives.")
See,
the
been
e.g..
U.S.
at
challenged
objectives
substantially
refer
which
533
related
("The
the
to
First Amendment if it advances
the
striking
See
must
serves
at
important
achievement
be
United
show
discriminatory
Turner,
the
State's
a
States
the
regulation will
to
tests.
(internal quotations omitted);
("A content-neutral
as
employing
bears
scrutiny
that
under
characterized
classification
and
burdens
courts
frequently
intermediate
First,
Reform Party of Allegheny
interests,"
518
modest
Second,
framework
most
to
has
314.
regulatory
similarity
18 9
at
an illogical one.
means
of those
520 U.S.
at
sustained under the
important governmental interests
unrelated to the suppression of free speech and does not burden
substantially
more
speech
interests.").
Lastly,
the
than
necessary
to
further
Fourth Circuit itself has
22
those
remanded a
filing deadline case "for further factual development as to the
burdens
[of a
filing deadline],
and as to the interests of the
Commonwealth in imposing that deadline."
, 117 F.3d 770, 776 (4th Cir. 1997)
However,
side.
Meadows
(Wood
(emphasis added).
the weight of authority is not on the Candidates'
Although
there
nondiscriminatory
when the
Wood v.
a
election
State proffers
F.3d at 773,
is
presumption
regulations
important
that
will
state
reasonable
usually
interests.
be
and
upheld
Wood I,
117
the Anderson/Burdick test itself has been described
as "flexible" because the "State's asserted regulatory interest
need
only
imposed."
be
sufficiently
Timmons,
288-89).
If
scrutiny,
weighty
520 U.S.
the
at 364
test
Beaver,
burden
voters."
544 U.S.
restriction]
interests.")
(quoting Norman,
demanded
that
504
at 587
the
[to be]
U.S.
Pisano,
of
the
limitation
502 U.S.
at
intermediate
sufficient to outweigh
upon
[the
see
also
("We are persuaded that any burden
[the
U.S.
[restriction]
at
440
impose[d]
(emphasis
added);
imposes is minor and justified by legitimate state
(emphasis
added).
These
holdings
balancing test with a wide spectrum of outcomes.
460
the
the Burdick Court would not have found the "legitimate
limited
State's]
justify
consistently
interests asserted by the State
the
to
at
789
(declining
743 F.3d at 936
burdens
to
apply
a
bespeak
a
See Anderson,
"litmus-paper
test");
(balancing the "character and magnitude
imposed
against
23
the
extent
to
which
the
regulations
advance
the
state's
interests");
Republican Orq. of New Jersey v. Guadaqno,
453
(D.N.J.
that
2012)
Anderson
three
Circuit
the
that
is
[scrutiny]
in Wood
burdens
700 F.3d 130
"promulgated
classification"
the
aff'd,
I
and
a
900 F. Supp. 2d 447,
{3d Cir.
less
categories").
for
the
"the
its
interests
state must
factually
make
it
demonstrate
necessary
to
the proposition,
"limited
to
explaining that
[regulations]
discriminatory burden."
It
is
true
evaluate
that,
the
precision
"insist[s]
Wood I,
on
interests
not
equate
issue.
to
at
the
715.
test simply does
nondiscriminatory
at
the
had
to
not
alleging
to which
plaintiff's
the Court firmly rejected
is generally
an
unreasonable,
the
relation
the Court must "identify
forward
by
the
empiricism.
between
the
State,"
The
Court
classification
the plaintiff argued that the Commonwealth was
which
Id.
Fourth
117 F,3d at
extent
burden
put
to
required to "factually demonstrate"
extent
into
Wood II, 207 F.3d at 715, 716.^
precise
knowing
the
constitute
under Anderson,
does
^ In Wood II,
Id.
framework
such an analysis
that
of
development both as
Anderson
rights" even short of strict scrutiny,
but
the
When the Plaintiff in that case appealed again,
that
and
"pegged
while
yet been applied by the lower court at all.
774.
(holding
system
not
And,
factual
interests,
2012)
categorical
"weighing process"
remanded
the
a
Democratic-
State
The
interest
Fourth
access
716.
24
necessitates
Circuit
not require that a
ballot
with empirical
held
state
evidence
the
that
"the
justify
restrictions
in
burden
the
at
Anderson
^reasonable,
this
manner."
adopted and the object to be attained" and will not "speculate
about
possible
interests
put
justifications"
forward
by
the
or
"supplant
State"
with
the
merely
precise
conceivable
interests as it might under rational basis review.
Reform Party
of
there
Allegheny
difference
Cnty.,
between
174
F,3d
at
requiring
articulate precise
interests
315-16.
the
But
Commonwealth
with arguments
and requiring the Commonwealth to produce
to
is
a
clearly
tethered by reason
hard data
evidencing
the teleological relation between the law and its stated aims.
Unless
strict
only marshal
enables
its
scrutiny is
interests
the Court
to
required by Anderson.
.
to
show why
[its]
warranted,
and present
conduct
the Commonwealth need
a
logical
the weighing
nexus.
of precise
That
interests
If the Commonwealth makes "no effort
interests
justify
[the
.
.
regulation]" or the
Court finds the reasons "unpersuasive" or the law "too broad or
too narrow" to be justified,
insufficient.
Id.
at
then the Court can hold the latter
316-18.
The Supreme Court has instructed
no differently.
See Timmons,
520 U.S.
State's
interest
the
"strong
in
at 366 n.lO
stability
of
(weighing the
[its]
political
syste[m]" based on the State's briefing and oral arguments);
at 375,
377
asserted
(Stevens,
interests
J.,
must
dissenting)
at
least
id.
(noting that "the State's
bear
some
plausible
relationship to the burdens it places on political parties" and
"the
State
has
not
convincingly
25
articulated"
how
the
statute
advances
its
interest);
id.
at
383
(holding that
''our election cases
'the
precise
interests
must
"judge the
put
(Souter,
restrict
forward
by
challenged statutes
J.,
dissenting)
our consideration to
the
State'"
only on
and
courts
the
interests
the
that
demanded
the
State has raised in their defense").
Moreover,
Commonwealth
it
to
would
prove
be
a
curious
empirically
rule
that
its
law
furthered
interest that it did not need to prove empirically.
the
Supreme
Court
"elaborate,
was
empirical
quite
clear
verification
State's asserted justifications,"
not required
.
.
.
restrictions.'"
Socialist Workers
Party,
"Legislatures
.
Munro,
lead
.
apply here.
F.3d
479 U.S.
did
not
require
weightiness
at 364.
of
the
"States are
electoral
response
impinge
U.S.
at
on
195.
court
marshaled by a
The
imposition of
at
189,
937
reasonable
(citing
194-95
Munro
(1986)).
v.
Rather,
should be permitted to respond to potential
the
endless
'evidence'
743
the
that
479
to
.
in
significantly
the
520 U.S.
prior to the
Pisano,
provided
of
it
In Timmons,
'to make a particularized showing of the existence
of voter confusion
deficiencies
that
an
process
is
with
foresight
reasonable
constitutionally
Holding
battles
State."
Candidates
have
the
Id.
aired
does
protected
otherwise
over
and
"would
.
.
.,
not
rights."
invariably
sufficiency
of
the
The same considerations
conclusory doubt
about
the ballot's efficacy and thereby claim to have raised a factual
26
dispute
that
However,
forecloses
dismissal
at
stage
of
the
case.
the Commonwealth should not be made to carry a burden
that is not legally its to bear.
to
this
support
the
imposition
Demanding empirical evidence
of
every
routine
and
ordinary
electoral regulation would "hamper the ability of States to run
efficient and equitable elections."
And,
it
runs
contrary
Court and the
to
the
Beaver,
explicit
544 U.S.
holdings
of
the
the
State has
electoral
precise
the
implemented reasonable
restrictions,
interests
legitimacy and
State's
empirical
the
put
Court
forth
strength
articulated
burden
Supreme
Fourth Circuit.
In order to "identify and evaluate" governmental
when
at 593.®
of
the
and nondiscriminatory
must
rely
the
by
State,
interests,
rationale bears
a
solely
and
The
Court
does
verification
that
the
not
State's
upon
the
determine
ensure
plausible
imposed.
interests
the
that
the
relationship to
require
interest
is
elaborate,
a
weighty
one or that the regulation chosen advances that interest.
This
approach distinguishes even the most forgiving Anderson analysis
from rational basis review but exhibits an appropriate deference
to
the
in
a
legislature's
field
Const,
art.
® Moreover,
explicitly
I,
§
4,
and nondiscriminatory judgments
reserved
cl.
1
("The
for
a
Times,
coequal
branch.
Places
and
U.S.
Manner
of
the conclusory allegations on which the Candidates
rely would not
were
reasonable
suffice under Twombly and
otherwise.
27
Iqbal
even
if the
law
holding
Elections
for
Senators
and
Representatives,
shall
be
prescribed in each State by the Legislature thereof").
1.
The
first
interest
ballots
voter
Avoiding Voter Confusion
interest
identified
by
the
in avoiding voter confusion.
in
a
comprehensible
confusion
Schaefer,
2006
Alliance,
861
compelling
and
constitutes
U.S.
F.
and
Dist.
Supp.
interest
at
in
manageable ballot.").
LEXIS
296
fashion
compelling
96855
at
(holding
"organizing
is
its
Developing and ordering
logical
a
Commonwealth
a
helps
prevent
interest..
*12;
that
see
See
also
states
New
have
comprehensible
a
and
As the court explained in New Alliance,
A
manageable
ballot
is
one
where
the
parties,
offices
and
candidates
are
presented
in
a
logical
and
orderly
arrangement.
Were the ballot to be arranged
in a scattershot fashion, the average voter
would be unable to discern an underlying
rationale
to
the
ballot's
organization.
Identifying candidates who can demonstrate
the support to qualify for party affiliation
and separating them from those who cannot is
one method of keeping the ballot in a format
that
the
voter
can
easily
read
and
assimilate.
861 F. Supp. at 296.
According
to
unlike
randomized
easily
and
Dismiss,
order"
and
quickly
Docket
and
the
Commonwealth,
alphabetical
find
No.
"having
24,
a
candidates
at
15.)
clear
28
tiered
ballot
ordering,
allows
by
By
party.
voters
(Def.'s
"simplifying
ordering
ordering,
[by]
the
Mot.
to
to
ballot
party,"
the
Commonwealth
voters
Arg.
to
22,
avoids
find
voter
candidates
confusion
and
makes
it
by party affiliation.
easier
(Tr.
for
of
Oral
33-34.)
The Commonwealth's justification is not just plausible.
is
eminently
identified,
reasonable
2.
interest
logical.
and properly advanced,
least important,
The
and
a
The
state
It
Commonwealth
interest
that
has
is
at
if not compelling.
Party-Order Symmetry
second
in
interest
identified by the
party-order
ballot
Commonwealth
symmetry.
is
Streamlining
its
the
ability for voters to engage in "straight party voting" through
party levers or other devices is an "important interest" because
it speeds up the election process.
See Meyer v. Texas,
1806524,
addition,
that
*5
(S.D.
Tex.
"constructing
falls
within
the
a
2011).
In
symmetrical
"need
to
pattern
construct
ballot and prevent voter confusion."
at
and
courts
on
the
order
2011 WL
have
ballot"
a
New Alliance,
also
manageable
861 F.
Supp.
297.
The Commonwealth argues that tiered ballot ordering,
randomized and alphabetical ordering,
across
24,
found
offices
at 15);
possible.
(Tr.
(Def.'s
of Oral Arg.
is the same in each contest,
affiliated
candidate
of
23).
unlike
also makes party symmetry
Mot.
to
Dismiss,
Docket
"Voters see that
No.
the order
making i t easier to find the party-
their
29
choosing."
(Def.'s
Mot.
to
Dismiss,
Docket No.
24,
vote along party lines,
(Tr. of Oral Arg.
Courts
reducing
In addition,
"if you want to
i t makes it easier for you to do that."
22.)
have
voter
at 15.)
recognized
confusion
the
through
government's
a
logical
and
interest
in
comprehensible
ballot format and improving the speed and ease with which voters
cast their ballots.
all
offices
on
By maintaining the same party order across
the
ballot,
the
Commonwealth
has
implemented
a
system that is likely to improve the accuracy and efficiency of
the voting process,
3.
The
Favoring Parties with Demonstrated Public Support
third
interest
in
support.
interest
favoring
This
including
an important state interest.
parties
interest
"political
factionalism,"
identified
and
by
that
has
the
have
been
is
its
demonstrated widespread
articulated
stability,"
"preventing
Commonwealth
in
many
"preventing
ways,
excessive
party-splintering,"
although
these labels are not entirely interchangeable.
In Timmons,
the
Supreme
interest
the
Court
held
that
States
stability of their political
election
regulations
traditional
two-party
"unreasonably
several
position
courts
upon
"have
systems"
that
may,
system."
exclusionary
520
a
strong
and can
in
restrictions"
have
found
it
past
electoral
at
performance
to
favor
366-67.
will
reasonable
30
"enact reasonable
practice,
U.S.
in
not
Although
be
condition
or
the
ballot
upheld,
ballot
access
method.
See Bd.
of Election Comm'rs of Chicago,
("[W]e think that it was permissible to .
convenient and intelligible as possible
of
voters,
who,
history
indicated,
.
the great majority
wish
candidate of one of the two major parties.");
F.
Supp.
at 299
a
State
may
between
to
*6
a
ballot
entities
{"[F]ederal
interests
in
for
New Alliance,
that
which
rationally
previously
861
courts
basing
have
ballot
noted
placement
a
significant
2011 WL 1806524
state's
upon
a
legitimate
showing
of
past
strength among the electorate.");
Democratic-Republican Org.
New
459
Jersey,
voters
to
ballot,
900
F.
easily
which
political
a
distinguishes
attracted
public support and those that did not."); Meyer,
at
vote
{"[T]o assure the orderly conduct of elections,
design
those
F.2d at 27
. make the ballot as
for
would
591
Supp.
2d
at
identify these
is
accomplished
parties
are
candidates
by
clearly
("[I]t
important
and parties
ensuring
separated
is
that
on
for
on the
candidates
the
of
ballot
for
from
candidates nominated by petition.").
The
Commonwealth
advantage
over
a
two
parties,
but
that
rather
multiplicity of parties"
ten percent or more
placing
contends
larger
of
by
the vote."
parties
at
its
ballot
encourages
favoring
does
not
"larger
"parties
(Tr.
of
the
parties
that
of Oral Arg.
top
the
solely
25.)
ballot,
have
By
the
Commonwealth gives "most voters who favor one of the major party
candidates
the
easiest
ability
31
to
find
them
on
a
ballot,
particularly
ballot."
if
Id.
[there
are]
34.^
The
at
a
number
of
Commonwealth
candidates
claims
on
that
the
such
an
interest is permissible in the wake of Timmons.
The Commonwealth is correct.
.
Legislature
served
at
through
367.
If
ordering
for
the
the
decide
healthy
Virginia
of
ballot
vast
that
employs
reasonable
these
larger
format
majority
political
stability
two-party system."
regulations,
consolidation
that
a
to
"The Constitution permits the
makes
of
Timmons,
and
regulations
parties.
It
voting
voters.
is
By
best
520 U.S.
neutral
may
also
easier
is
ballot
favor
the
quite
plausible
and more
efficient
distinguishing
between
parties that have garnered more widespread electoral support and
those
that
enhances
have
the
not,
the
ballot
ability of voters
provides
to
a
logical
order
that
quickly comprehend important
and objective information about the candidates and that fosters
the stability of Virginia's political system.
C.
The Constitutional Analysis
The final step in the Anderson/Burdick analysis is to weigh
all
of
the
Commonwealth's
factors
and
interests
consider
make
it
the
extent
necessary
to
to
which
the
burden
the
' The Court takes judicial notice of the fact that "[t]h.e vast
majority of voters will choose a candidate from one of the major
parties."
(Def.'s Mot. to Dismiss, Docket No. 24, at 16.)
See
Hall V. Virginia, 385 F.3d 421, 424 n.3 (4th Cir. 2004) (noting
i t was proper during Rule 12(b)(6) review to consider publicly
available statistics on an official government website).
32
plaintiff's rights.
See Anderson,
460 U.S.
at 789.
Because the
ballot ordering regulations are reasonable and neutral,
a
presumption
will
that
prevail.
Id.
interests
that
that
ballot
its
the
State's
at
are
788.
Virginia
important,
design
important
if
furthers
not
regulatory
has
recited
compelling,
those
there is
interests
a
number
and has
interests.
The
of
shown
ballot
ordering regulation is constitutional on that basis alone.
Yet,
even
reasonable
weighing,
if
the
Commonwealth's
threshold
of
prior
classification
electoral
based
success
on
a
required
the burden alleged here would remain a minor one and
the statute would survive Anderson's balancing test.
extent that the plaintiff[s]
experienc[e]
constitutional rights from
[their]
on the ballot,
injury is
regulatory
that minor
interests
in
"[T]o the
any injury to
[their]
inability to be listed first
organizing
outweighed by the
a
clear
and
state's
intelligible
ballot, presenting a logical arrangement based on the reasonable
and
nondiscriminatory
and
displaying
confusion."
2006
U.S.
burden
on
sake
of
2011
LEXIS
argument,
in
WL
and
harm,
Buckley II,
of
the
8 F.
that
the
historical
a
simple
1806524
96855
candidates
constitutional
burden.");
candidates
Meyer,
Dist.
basis
at
*12
voters
State's
Supp.
way
that
*6;
see
("Even
rises
support,
avoids
also
the
interests
Position
of
assuming
to
2d at 1249
Ballot
33
at
strength
Schaefer,
that
level
("Assuming,
the
of
outweigh
Statute
voter
a
that
for the
infringes
even slightly on voting rights,
that
the
I reiterate my conclusion .
character and magnitude of any
such
.
infringement
.
is
outweighed by the State's interest in regulating and organizing
their
elections.")
Republican
("Because
Org.
the
(internal
of
New
quotations
Jersey,
Plaintiffs'
900
burden,
omitted);
F.
if
Supp.
any,
is
Democratic-
2d
at
459-60
negligible,
any
reasonable regulatory interest provided by the State will ensure
the
statutes'
satisfied
constitutionality
that
[the
Protection Clause or
in
the
statutes]
the
thoughtful
under
do
Anderson.
not
violate
First T^endment.").
analyses
conducted
...
by
I
the
am
Equal
The Court concurs
its
sister
courts
throughout the country.
While
phenomenon
"windfall
randomized
of
which
vote"),
or
the
even
rotational
ballots
Candidates'
courts
that
complain
have
provisions
constitutionally
infirm
"appropriate
...
a
must be
followed
to mandate
address
(capture
found
have
single
in every election."
may
ballot
the
ordering
found
it
form of procedure
that
Gould,
not
of
the
536
P.2d at 1343.
This hesitancy reflects the very reason for a deferential review
of the ballot design chosen by the Commonwealth.
observed in Clouqh v.
[N]one
of
As
Guzzi,
the
available
alternatives
are
themselves
without
disadvantages.
Alphabetical order or a lottery would, in
the
end,
give
only
one
candidate
first
position, and would arguably entail an even
34
the court
more arbitrary system than the present one.
The rotational
of
states
system,
have
.
.
.
adopted,
which a
would
number
presumably
allow
all
candidates
to
occupy
first
position on an equal number of ballots, and
thus
share
equally
in
the
advantage.
However, the system is more burdensome to
administer and more costly because of the
necessity of printing more than one ballot;
some
critics
say
that
it
is
also
more
susceptible to tabulation error.
Without
meaning
to
overstate
these
difficulties,
which may well be offset by the greater
equity or appearance of equity provided by
the rotational system, still we cannot say
that a legislature could not rationally give
some weight to them in declining to adopt
such a system.
Clouqh,
416
F.
Supp.
sufficiently weighty
at
1068.
reason
If
for
Virginia
its ballot
reasonable regulations in its service,
has
articulated
design
and
a
employed
then the Commonwealth has
acted within constitutional bounds and this Court may not stand
in
judgment
of
legislative body.
that
discretion
exercised
by
the
Virginia has met its obligations.
For the foregoing reasons,
ordering law is
properly
the Commonwealth's tiered ballot
constitutional and the Commonwealth's motion to
dismiss will be granted as to Count I.
35
CONCLUSION
For
the
(Docket No.
as
to Count
foregoing
23)
reasons,
DEFENDANTS'
will be granted as to Count I
II,
which
has
been
MOTION
TO DISMISS
and denied as moot
dismissed voluntarily by the
plaintiffs.
I t i s so ORDERED.
/s/
Robert E.
Payne
Senior United States District Judge
Richmond, Virginia
Date:
January 13, 2015
36
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