Libertarian Party of Virginia v. Alcorn

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 15-1162

LIBERTARIAN PARTY OF VIRGINIA; WILLIAM HAMMER; JEFFREY CARSON;

JAMES CARR; MARC HARROLD; WILLIAM REDPATH; WILLIAM CARR; BO

CONRAD BROWN; PAUL F. JONES,

Plaintiffs,

and

ROBERT C. SARVIS,

Plaintiff − Appellant,

v.

JAMES B. ALCORN, in his individual and official capacities as

member of the Virginia State Board of Elections; SINGLETON B.

MCALLISTER, in her individual and official capacities as member

of the Virginia State Board of Elections; CLARA BELLE WHEELER,

in her individual and official capacities as member of the

Virginia State Board of Elections,

Defendants − Appellees.

Appeal from the United States District Court for the Eastern

District of Virginia, at Richmond. Robert E. Payne, Senior

District Judge. (3:14-cv-00479-REP)

Argued: May 10, 2016 Decided: June 20, 2016

Before WILKINSON and AGEE, Circuit Judges, and DAVIS, Senior

Circuit Judge.

Affirmed by published opinion. Judge Wilkinson wrote the

opinion in which Judge Agee and Senior Judge Davis joined.

ARGUED: David I. Schoen, DAVID I. SCHOEN, ATTORNEY AT LAW,

Montgomery, Alabama, for Appellant. Stuart Alan Raphael, OFFICE

OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for

Appellees. ON BRIEF: Robert C. Sarvis, Alexandria, Virginia,

Appellant Pro Se. Mark R. Herring, Attorney General of

Virginia, Rhodes B. Ritenour, Deputy Attorney General, Anna T.

Birkenheier, Assistant Attorney General, Matthew R. McGuire,

Assistant Attorney General, Erin R. McNeill, Assistant Attorney

General, Trevor S. Cox, Deputy Solicitor General, OFFICE OF THE

ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.

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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 state chairman present in

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Virginia for six months prior to any nominee from that

organization filing for office. Id. The only organizations

currently designated “parties” or “political parties” under the

Code are the Republican Party and the Democratic Party. 1

The second tier includes candidates from “recognized

political parties.” For an organization of citizens to be

designated a “recognized political party” under the Code, that

organization must have had a state central committee present in

Virginia for six months prior to any nominee from that party

filing for office, and the state central committee must be

comprised of voters residing in each Virginia congressional

district. Va. Code Ann. § 24.2-613. The organization must also

have a duly elected state chairman and secretary as well as a

party plan and bylaws. Id. The Libertarian Party of Virginia has

been designated a “recognized political party” under the Code.

Finally, the third tier of the ballot includes

“[i]ndependent candidates” not associated with “political

parties” or “recognized political parties.” Id.

In addition to delineating the election ballot’s three

tiers, Virginia’s ballot ordering law also specifies how

1 We note that as recently as the mid-1990s, the Virginia

Reform Party satisfied the applicable requirements to be

designated a “political party” and thus was part of the first-

tier ballot listing on the 1996 general election ballot. Cf.

J.A. 61, 95, and 97.

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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 candidate filed a complaint that named as

defendants certain members of the Virginia State Board of

Elections. The complaint alleged that the three-tiered ballot

ordering law found in Virginia Code § 24.2-613 violated their

constitutional rights under the First and Fourteenth Amendments.

Sarvis and his co-plaintiffs sought relief from the law prior to

the November 2014 elections. 3

2Somewhat different rules govern the tiered ballot used for

elections for the offices of President and Vice President of the

United States. See Va. Code Ann. §§ 24.2-543, -613, -614.

3 The plaintiffs’ amended complaint before the district

court also targeted Virginia Code § 24.2-506, a law establishing

a signature requirement some prospective candidates must meet to

be placed on the ballot in the first place. However, the

plaintiffs later voluntarily dismissed this claim at oral

argument before the district court. Sarvis’s appellate briefs

reference the signature requirement, and it is thus unclear

whether he is attempting to revive this claim on appeal. In any

event, we will not consider this issue in light of the

plaintiffs’ decision to dismiss it below. See Unioil, Inc. v.

E.F. Hutton & Co., 809 F.2d 548, 555 (9th Cir. 1986) (“As a

general rule, a plaintiff may not appeal a voluntary dismissal

(Continued)

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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 November 2014 elections under the capable of

repetition yet evading review doctrine. The plaintiffs thus

amended their complaint to reflect their interest in seeking

relief from the ballot ordering law with regard to future

elections, and the litigation continued on this basis. Sarvis in

particular alleged that he would be “a candidate for national

office in Virginia in the 2016 election.” J.A. 32. The amended

complaint asked that the district court enjoin the law during

the “2015 statewide elections and the 2016 and beyond general

elections” and issue “an order directing the defendants to

assign ballot positions to all ballot-qualified candidates and

parties on a random basis without regard to party status.” J.A.

46.

Shortly thereafter, Virginia filed a motion to dismiss

under Rule 12(b)(6), claiming that the amended complaint failed

to state a claim upon which relief could be granted. The

because it is not an involuntary adverse judgment against

him.”), overruling on other grounds recognized by In re Keegan

Mgmt. Co., 78 F.3d 431, 435 (9th Cir. 1996).

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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 by weighing the severity of the burden the

challenged law imposes on a person’s constitutional rights

against the importance of the state’s interests supporting that

law. Burdick, 504 U.S. at 434; Anderson, 460 U.S. at 789.

Sarvis and his co-plaintiffs, the Commonwealth of Virginia,

and the district court all agreed that the burden imposed by the

three-tiered ballot ordering law was not severe enough to

warrant strict scrutiny. The district court gave two principal

reasons for this conclusion. First, the law is politically

neutral in that it does not entrench particular political

parties in favorable positions on the election ballot. Sarvis,

80 F. Supp. 3d at 701-02. Second, the law does not exclude any

prospective candidate from the ballot altogether. Id. at 702-03.

Turning to the question of Virginia’s interests, the

district court noted three justifications offered by Virginia

for the ballot ordering law: avoiding voter confusion, creating

party-order symmetry, and favoring parties with demonstrated

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

justifications, however, the district court determined that

Virginia had described the nature and purpose of the three

justifications with sufficient precision. Disagreeing with the

plaintiffs, the district court held that neither additional

factual development of the case nor more concrete empirical

support for Virginia’s justifications was necessary before it

could properly rule on Virginia’s motion to dismiss. Id. at 703-

06. The district court then reviewed Virginia’s three

justifications and determined that each was important. Id. at

706-08.

Finally, in weighing the plaintiffs’ burdens against

Virginia’s interests, the district court ruled that the

interests put forward by Virginia outweighed any minor burdens

the ballot ordering law imposed on Sarvis and his co-plaintiffs.

The district court accordingly granted Virginia’s motion to

dismiss the amended complaint. Id. at 708-09. Sarvis alone

appeals that order.

II.

Sarvis’s main argument on appeal is that Virginia’s three-

tiered ballot ordering law advantages candidates from what he

calls “major parties” and disadvantages candidates like him that

hail from what he calls “minor parties.” According to Sarvis,

this conferral of advantages and disadvantages violates

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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 premises his constitutional challenge largely on

what the district court termed the “windfall vote” theory.

Sarvis, 80 F. Supp. 3d at 699. According to this theory, in any

given election, some voters will vote for candidates appearing

at the top of the ballot because of those candidates’ prominent

ballot positions. Sarvis argues that Virginia’s ballot ordering

law, in conjunction with this capricious voter bias, places an

improper burden on candidates from minor parties. Before the

district court, however, Sarvis stated that his expert would not

testify about the exact extent of the bias in Sarvis’s specific

situation. Id. at 700 n.1.

Although he concedes that the burden imposed by the three-

tiered ballot ordering law is not subject to strict scrutiny,

Sarvis contends that the district court’s Anderson/Burdick

analysis nevertheless underestimated the magnitude of the burden

imposed by the law. At the same time, he argues that the court’s

analysis over-credited the interests Virginia offered to support

the law.

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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 of holding Elections for Senators and

Representatives, shall be prescribed in each State by the

Legislature thereof; but the Congress may at any time by Law

make or alter such Regulations, except as to the Places of

chusing Senators.” Article II Section 1 Clause 2 accords similar

treatment to presidential elections: “Each State shall appoint,

in such Manner as the Legislature thereof may direct, a Number

of Electors,” who will then choose the President. And a state’s

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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 over congressional elections); The Anti-

Federalist No. 7 (Cato) (arguing for state control over

congressional elections). It is no surprise that the precise

compromise that the Framers struck differs for each type of

election. For instance, the Framers chose to “invest[] the

States with responsibility for the mechanics of congressional

elections, but only so far as Congress declines to pre-empt

state legislative choices.” Arizona v. Inter Tribal Council of

Arizona, Inc., 133 S. Ct. 2247, 2253 (2013) (quoting Foster v.

Love, 522 U.S. 67, 69 (1997)). With regard to presidential

elections, however, the Framers adopted a different approach:

the Electoral College. They then gave state legislatures the

authority to decide the manner through which the electors from

each state would be appointed. McPherson v. Blacker, 146 U.S. 1,

35 (1892).

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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 them all, however, the Constitution has

continued to preserve for state legislatures the presumptive

authority to regulate both the larger and smaller aspects of the

federal and state elections occurring within that state’s

boundaries.

Indeed, the Supreme Court has consistently recognized this

enduring tenet of our constitutional order, noting that the

states possess a “broad power to prescribe the Times, Places and

Manner of holding Elections for Senators and Representatives,

which power is matched by state control over the election

process for state offices.” Clingman v. Beaver, 544 U.S. 581,

586 (2005) (quoting Tashjian v. Republican Party of Conn., 479

U.S. 208, 217 (1986)); see also Bush v. Palm Beach Cty.

Canvassing Bd., 531 U.S. 70, 76 (2000) (per curiam) (noting

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state legislatures’ broad power over the appointment of

presidential electors).

This arrangement is not only long-standing – it also makes

a certain sense. All other things being equal, it is generally

better for states to administer elections. It is true that

smaller units of government can act oppressively toward minority

citizens within their borders and against unpopular points of

view. But local administration also allows for greater

individual input and accountability; a distant bureaucracy is in

danger of appearing out of reach and out of touch. Even

Alexander Hamilton, who vigorously supported greater federal

control over congressional elections, acknowledged the point:

allowing “local administrations” to regulate elections “in the

first instance” may, “in ordinary cases,” be “more convenient

and more satisfactory.” The Federalist No. 59. All of this is to

say that a lot of thought stretching over centuries has gone

into our electoral system as it now generally operates. The text

and history of the Constitution, well established Supreme Court

precedent, and the structural principles inherent in our federal

system counsel respect for the Virginia General Assembly’s power

to administer elections in Virginia.

IV.

A.

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Mindful of state legislatures’ longstanding authority to

regulate elections, we turn first to an examination of the

alleged burdens imposed by Virginia’s three-tiered ballot

ordering law.

State election regulations often “implicate substantial

voting, associational and expressive rights protected by the

First and Fourteenth Amendments.” Pisano v. Strach, 743 F.3d

927, 932 (4th Cir. 2014) (citation omitted). “The First

Amendment, as incorporated against the states by the Fourteenth

Amendment, protects the rights of individuals to associate for

the advancement of political beliefs and ideas.” S.C. Green

Party v. S.C. State Election Comm’n, 612 F.3d 752, 755-56 (4th

Cir. 2010). For example, it is “beyond debate that freedom to

engage in association for the advancement of beliefs and ideas

is an inseparable aspect of the ‘liberty’ assured by the Due

Process Clause of the Fourteenth Amendment, which embraces

freedom of speech.” Anderson, 460 U.S. at 787 (quoting NAACP v.

Alabama, 357 U.S. 449, 460 (1958)). “[I]nvidious”

classifications also violate rights protected by the Equal

Protection Clause of the Fourteenth Amendment. Williams v.

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

absolute. All election laws, including perfectly valid ones,

“inevitably affect[] – at least to some degree – the

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individual’s right to vote and his right to associate with

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

In order to distinguish those laws whose burdens are

uniquely unconstitutional from the majority of laws whose

validity is unquestioned, we employ the Supreme Court’s

Anderson/Burdick decisional framework. We “consider the

character and magnitude of the asserted injury to the rights

protected by the First and Fourteenth Amendments that the

plaintiff seeks to vindicate”; “identify and evaluate the

precise interests put forward by the State as justifications for

the burden imposed”; and “determine the legitimacy and strength

of each of those interests” and “the extent to which those

interests make it necessary to burden the plaintiff’s rights.”

Anderson, 460 U.S. at 789. This balancing test requires “hard

judgments” – it does not dictate “automatic” results. Id. at

789-90.

The nature of our inquiry is “flexible” and “depends upon

the extent to which a challenged regulation burdens First and

Fourteenth Amendment rights.” Burdick, 504 U.S. at 434. Laws

imposing only “modest” burdens are usually justified by a

state’s “important regulatory interests.” S.C. Green Party, 612

F.3d at 759. Laws imposing “severe” burdens, on the other hand,

“must be ‘narrowly drawn to advance a state interest of

compelling importance.’” Burdick, 504 U.S. at 434 (citation

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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 of laws facing this higher scrutiny is

limited. Subjecting too many laws to strict scrutiny would

unnecessarily “tie the hands of States seeking to assure that

elections are operated equitably and efficiently.” Burdick, 504

U.S. at 433.

Here, Virginia’s three-tiered ballot ordering law imposes

only the most modest burdens on Sarvis’s free speech,

associational, and equal protection rights. The law is facially

neutral and nondiscriminatory – neither Sarvis’s Libertarian

Party nor any other party faces a disproportionate burden. All

parties are subject to the same requirements. None are

automatically elevated to the top of the ballot. Virginia’s

ballot ordering law thus allows any political organization - of

any persuasion – an evenhanded chance at achieving political

party status and a first-tier ballot position. Va. Code Ann.

§§ 24.2-101, -613.

Sarvis complains that the bar for achieving first-tier

political party status is nonetheless too high, but he

exaggerates the difficulty of this goal. An organization may

obtain first-tier political party status if any of its

candidates for any office receives 10 percent of the vote in

either of the two preceding statewide general elections. And, in

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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, is not ballot access, but rather access to a

preferred method of ballot ordering. But mere ballot order

denies neither the right to vote, nor the right to appear on the

ballot, nor the right to form or associate in a political

organization.

Comparing this relaxed regime with statutes upheld in other

cases demonstrates that Virginia’s ballot ordering law imposes

only a minimal burden on First and Fourteenth Amendment rights.

For example, in Munro v. Socialist Workers Party, the Supreme

Court considered the constitutionality of a Washington state law

requiring that “a minor-party candidate for partisan office

receive at least 1% of all votes cast for that office in the

State’s primary election” in order even to appear on the general

election ballot at all. 479 U.S. 189, 190 (1986). The Court

upheld the law, because Washington “ha[d] not substantially

burdened the ‘availability of political opportunity.’” Id. at

199 (citation omitted). Other cases have found that a complete

prohibition on write-in voting imposed only “very limited”

burdens on constitutional rights, Burdick, 504 U.S. at 437, and

that a law barring candidates from appearing on the ballot as

candidates of more than one political party “does not severely

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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 is that uninformed or undecided voters are more

likely to choose candidates listed higher on the ballot. In

Sarvis’s view, Virginia’s ballot ordering law thus grants an

advantage to candidates from major political parties, and

determining the magnitude of this advantage requires that the

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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 content that allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged.” Id. (quoting Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009)).

The problem for Sarvis is that even if there is a windfall

vote, his complaint would still fail to raise the “reasonable

inference” that Virginia’s ballot ordering law creates

constitutionally significant burdens. The fact remains that,

“windfall” or not, the Virginia ballot ordering law still does

not “restrict access to the ballot or deny any voters the right

to vote for candidates of their choice.” Sonneman v. State, 969

P.2d 632, 638 (Alaska 1998). The law instead “merely allocates

the benefit of positional bias, which places a lesser burden on

the right to vote.” Id. And contrary to Sarvis’s cursory equal

protection argument, Appellant’s Opening Br. 12-13, it makes

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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 a reasoned consideration of the issues and the

candidates’ positions, and free from other ‘irrational’

considerations.’” Schaefer v. Lamone, No. 1:06-cv-00896-BEL,

2006 U.S. Dist. LEXIS 96855, at *13 (D. Md. Nov. 30, 2006)

(quoting Clough v. Guzzi, 416 F. Supp. 1057, 1067 (D. Mass.

1976), aff’d, 248 F. App’x 484 (4th Cir. 2007). As noted, Sarvis

says that his expert would not testify as to the exact degree of

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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 would thus fail to raise an inference of any

cognizable constitutional burden on First or Fourteenth

Amendment rights.

Given that the Virginia ballot ordering law does not

restrict candidate access to the ballot or deny voters the right

to vote for the candidate of their choice, or otherwise require

strict scrutiny, we have no need to conduct the kind of

empirical analysis into burdens that would essentially displace

the authority of state legislatures with the views of expert

witnesses. That is not to say, however, that our analysis is at

an end. In order to be sure that the district court did not

improperly dismiss Sarvis’s complaint, we need to make certain

that important state interests support Virginia’s ballot

ordering law.

B.

Virginia’s three-tiered ballot ordering law is supported by

“important regulatory interests.” Timmons, 520 U.S. at 358. In

particular, the law may assist the voting process by reducing

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voter confusion and preserving party-order symmetry across

different offices on the ballot. Additionally, the law may also

reduce multi-party factionalism and promote political stability.

Sarvis again insists that we may not weigh these interests

without discovery. Appellant’s Opening Br. 20. But “elaborate,

empirical verification of [] weightiness” is not required.

Timmons, 520 U.S. at 364. To hold otherwise would “invariably

lead to endless court battles” over the quality of the state’s

evidence, Munro, 479 U.S. at 195, and to a corresponding loss of

certainty over the rules by which we select our whole

government. We therefore do not “require that a state justify”

reasonable and nondiscriminatory rules “in this manner.” Wood v.

Meadows, 207 F.3d 708, 716 (4th Cir. 2000). In cases where

strict scrutiny does not apply, we ask only that the state

“articulate[]” its asserted interests. Id. at 717. This is not a

high bar, and Virginia has cleared it here. Reasoned, credible

argument supports its stated interests.

First, Virginia’s three-tiered ballot ordering law serves

the important state interest of reducing voter confusion and

speeding the voting process. While Sarvis’s complaint is vague

about how his preferred ballot listing would actually operate,

J.A. 46, it is clear that he wishes to move ballot ordering

among parties and candidates to a more purely random system.

Virginia’s system, by contrast, emphasizes voter familiarity and

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more predictable order. Listing candidates by party allows

voters to more quickly find their preferred choice for a given

office, especially when party loyalties influence many voters’

decisions. And in an environment where many voters not only hold

party loyalties but also tend to be loyal to one of only a few

major parties, it again aids the voting process to list

candidates from those parties first on the ballot. Sarvis’s

request for a court decree commanding Virginia to randomly order

its ballot betrays not only a flawed conception of federal

judicial power. It is also suspect as a practical matter. Random

ordering risks requiring voters to decipher lengthy multi-

office, multi-candidate ballots in order to find their preferred

candidates.

“Election officials have good reason to adopt a ballot

format that minimizes” this sort of “confusion.” Bd. of Election

Comm’rs of Chicago, 591 F.2d at 25. For each extra minute that a

voter spends deciphering his ballot in the voting booth, dozens

or more voters may spend another minute in line. This all adds

up. Long election lines may frustrate voters attempting to

exercise their right to vote. Hour long lines at some polling

locations have led many to complain that election officials had

discouraged their exercise of the franchise. See, e.g., Fernanda

Santos, In Arizona, Voters Demand: Why the Lines?, N.Y. Times,

23

March 25, 2016, at A13. Reducing the risk of this sort of

disincentive is undoubtedly an important state interest.

Second, and relatedly, Virginia’s ballot ordering law also

has the advantage of maintaining party-order symmetry across

many offices on the ballot. Within the first two ballot tiers,

party order is determined by lot. Va. Code Ann. § 24.2-613. The

names of all party-affiliated candidates for particular offices

then appear “in the order determined for their parties.” Id.

This is so for all “federal, statewide, and General Assembly

offices.” Id.

The effect of all this is to create “a symmetrical pattern

on the ballot.” New Alliance Party, 861 F. Supp. at 297. The

ballot law ensures that if a party’s candidate for United States

Senator is listed second, for example, then candidates from that

party will be second in lists for other offices as well. This

again advances the state’s interest in “efficient procedures for

the election of public officials.” S.C. Green Party, 612 F.3d at

759. It makes the ballot more easily decipherable, especially

for voters looking for candidates affiliated with a given party.

Finally, the ballot ordering law may also favor Virginia’s

“strong interest in the stability of [its] political system[].”

Timmons, 520 U.S. at 366. “Maintaining a stable political system

is, unquestionably, a compelling state interest.” Eu v. S.F.

Cty. Democratic Cent. Comm., 489 U.S. 214, 226 (1989). While

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minor parties have long been an important feature of political

protest and American democratic life, it is also entirely

legitimate for states to correlate ballot placement with

demonstrated levels of public support. Indeed, there are many

who believe that “the emergence of a strong and stable two-party

system in this country has contributed enormously to sound and

effective government.” Davis v. Bandemer, 478 U.S. 109, 144-45

(1986) (O’Connor, J., concurring).

The Constitution therefore unsurprisingly “permits [a state

legislature] to decide that political stability is best served

through a healthy two-party system,” Timmons, 520 U.S. at 367,

as opposed to shifting coalitions of multiple party entities. Of

course, state latitude in this regard is not unlimited. While a

state legislature may not “completely insulate the two-party

system from minor parties’ or independent candidates’

competition and influence,” it may “enact reasonable election

regulations that may, in practice, favor the traditional two-

party system,” and “temper the destabilizing effects of party-

splintering and excessive factionalism.” Id.

Structuring ballot order to prefer parties already strong

enough to reach first-tier party status under the Virginia Code

may further this stabilizing goal. In Sarvis’s view, after all,

a windfall vote of some magnitude is inevitable. Assuming this

is true, some party or candidate will benefit. Some party or

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candidate has to be listed first. But Virginia’s ballot ordering

law ensures that at least the beneficiary will not be some

entity with little actual public support. Of course, we

acknowledge that the two major parties may possess a self-

interest in preserving their preferred status, but we will not

leap from that fact to the conclusion that a requirement of

demonstrated public support is somehow inimical to the public

good. Reinforcing through facially neutral and nondiscriminatory

methods affiliations already democratically expressed by large

portions of the public simply does not offend the Constitution.

V.

Having identified the asserted state interests furthered by

Virginia’s three-tiered ballot ordering law, we must at last

weigh them against the law’s burdens on the plaintiff’s First

and Fourteenth Amendment rights. Burdick, 504 U.S. at 434. Here

our job is easy – this case is one of the “usual[]” variety in

which the “State’s important regulatory interests . . . justify

reasonable, nondiscriminatory restrictions.” Timmons, 520 U.S.

at 358 (citation and internal quotation marks omitted).

The three-tiered ballot ordering law imposes little burden

on Sarvis’s constitutional rights, and Virginia articulates

several important interests supporting the law. In these

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

scheme unconstitutional.” Wood, 207 F.3d at 717. We leave

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further resolution of this controversy to a different and better

set of arbiters: the people, and through them, the political

branches.

AFFIRMED

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