477 F.Supp.3d 486
S.D.W. Va2020Background
- West Virginia Code § 3-6-2(c)(3) (the "Ballot Order Statute") requires ballots to list first the party whose presidential candidate received the most votes in the last presidential election (interpreted using West Virginia returns).
- Plaintiffs (Dakota Nelson, West Virginia Democratic Party, party officials and committees) alleged the statute gives an unconstitutional partisan advantage via the "primacy effect" (top-listed candidates gain votes), violating the First and Fourteenth Amendments.
- The case was expedited because ballot order must be set August 25; bench trial occurred July 27–30, 2020. Defendants are Sec. of State Mac Warner, Kanawha County Clerk Vera McCormick, and county ballot commissioners.
- Plaintiffs’ expert (Dr. Jon Krosnick) testified the primacy effect occurs in ~80–85% of elections and gives the top-listed candidate an average ~2.94 percentage-point advantage (doubling to ~5.88 points on margin). Defense expert produced a smaller estimate but court found Krosnick more credible.
- Court found Article III standing for Nelson, the West Virginia Democratic Party, and the House Legislative Committee (including associational standing for committee members in contested races).
- Applying Anderson/Burdick balancing, the court held the statute is politically discriminatory, the state’s asserted administrative and efficiency interests did not justify the partisan ordering, and permanently enjoined enforcement; defendants must adopt a constitutional ballot-ordering scheme and notify the court of the method used for November 2020.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue | Nelson and party organizations suffer concrete electoral injury because the primacy effect likely harms their candidates’ prospects | Injury speculative; relied on averages (citing Jacobson) insufficient to show particularized imminent injury | Court held Nelson, Dem Party, and Legislative Committee have direct and associational standing based on substantial risk of harm shown by expert evidence |
| Whether statute burdens constitutional rights | Statute dilutes votes and discriminates among major parties by awarding top-ballot position based on partisan performance, burdening First and Fourteenth Amendment rights | Statute serves legitimate administrative and ballot-efficiency interests; burden is minimal and justified | Court found statute imposes a politically discriminatory and substantial burden on voting and equal-protection rights |
| Standard of review / balancing | Plaintiffs argued the discrimination required a more rigorous review and rejected mere rational-basis deference | Defendants urged deference under Anderson/Burdick because regulation concerns election administration | Court applied Anderson/Burdick with a more rigorous balancing (between rational basis and strict scrutiny) and found the state’s interests insufficient to justify the partisan burden |
| Remedy / injunction | Plaintiffs requested a permanent injunction and a nondiscriminatory ordering system (e.g., rotation or lottery) | Defendants cautioned about practical burdens and asked for delay; urged retention of statute | Court permanently enjoined §3-6-2(c)(3), ordered defendants not to use partisan top-listing, allowed the State to choose any constitutional alternative, and required notice of the method for the November 2020 ballot (immediate relief granted) |
Key Cases Cited
- Anderson v. Celebrezze, 460 U.S. 780 (establishes balancing framework for election regulations)
- Burdick v. Takushi, 504 U.S. 428 (explains flexible scrutiny for burdens on voting rights)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (standing requirements: injury, causation, redressability)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (future injury and substantial-risk standing)
- Libertarian Party of Va. v. Alcorn, 826 F.3d 708 (4th Cir.) (upholding nondiscriminatory tiered ballot ordering; applied Anderson/Burdick)
- Jacobson v. Florida Secretary of State, 957 F.3d 1193 (11th Cir.) (addressed standing in a ballot-order challenge)
- Shays v. Fed. Election Comm'n, 414 F.3d 76 (D.C. Cir.) (competitor/competitive standing principles)
- Texas Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir.) (party standing based on harm to electoral prospects)
- McLain v. Meier, 637 F.2d 1159 (8th Cir.) (invalidating incumbent-first ballot rule as violating equal protection)
- Sangmeister v. Woodard, 565 F.2d 460 (7th Cir.) (ballot placement discrimination violates equal protection)