Dakota Nelson v. Mac Warner, 12 F.4th 376

West Virginia Code § 3-6-2(c)(3) requires partisan ballots to list first the candidates of the party whose presidential nominee won the state in the last presidential election (the “ballot-order statute”).
Plaintiffs: West Virginia Democratic Party organizations and individuals including candidate Dakota Nelson challenged the statute as violating the First and Fourteenth Amendments by diluting votes through a ballot-position "primacy effect."
At bench trial the district court credited plaintiffs’ expert (Dr. Krosnick), finding a likely primacy advantage (~2.94%) that was outcome-determinative in numerous races, and declared the statute unconstitutional; it enjoined use of the statute.
Defendants (Secretary of State and county clerk/ballot commissioners) defended the statute as neutral and justified by interests in administrative efficiency, voter clarity, and reduced error; they appealed and sought a stay, which was granted.
The Fourth Circuit (Keenan majority) held Nelson established Article III standing and that the claims are justiciable, but concluded—relying on Anderson/Burdick and Libertarian Party of Va. v. Alcorn—that the statute is neutral, imposes at most a modest burden, and is justified by West Virginia’s important regulatory interests; it vacated and remanded to dismiss. Judge Wynn dissented, arguing the burden is substantial and discriminatory.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Standing	Nelson (candidate) alleges concrete, particularized injury from being listed below opposing-party candidates and loss of windfall votes	The harm is generalized partisan dilution based on an average primacy effect and is not traceable/redressable	Nelson has Article III standing; jurisdiction satisfied
Political-question / Justiciability	Anderson/Burdick gives manageable standards; courts can resolve ballot-order claims	Rucho shows courts should avoid allocating partisan advantages; this is a nonjusticiable political question	Not a political question; courts may adjudicate under Anderson/Burdick
Constitutional burden (First/Equal Protection)	Statute produces a substantial, outcome-determinative primacy effect that discriminates against Democrats	Statute neutrally allocates positional bias; burden at most modest because parties can obtain top position every 4 years	Statute is neutral and places at most a modest burden on plaintiffs’ rights
State interests / Tailoring	Plaintiffs: administrative interests do not justify substantial, discriminatory burden; feasible less-burdensome alternatives exist	Defendants: important interests in voting efficiency, reduced confusion, and administrability justify the neutral rule	State’s important regulatory interests justify the modest burden; statute upheld

Libertarian Party of Virginia v. Alcorn, 826 F.3d 708 (4th Cir. 2016) (applied Anderson/Burdick to ballot-order claim; neutral allocation of positional bias upheld)
Rucho v. Common Cause, 139 S. Ct. 2484 (2019) (partisan gerrymandering claims present nonjusticiable political questions)
Anderson v. Celebrezze, 460 U.S. 780 (1983) (framework for balancing burdens of election laws against state interests)
Burdick v. Takushi, 504 U.S. 428 (1992) (refined Anderson balancing for challenges to election regulations)
Gill v. Whitford, 138 S. Ct. 1916 (2018) (standing requirements for partisan gerrymandering claims; caution about ‘‘average’’ statewide metrics)
Jacobson v. Florida Secretary of State, 974 F.3d 1236 (11th Cir. 2020) (standing rejected for ballot-order challenge lacking particularized member injury)
Pavek v. Donald J. Trump for President, Inc., 967 F.3d 905 (8th Cir. 2020) (addressed ballot-order statute under Anderson/Burdick; manageable standards available)