CHARLESTON — West Virginia Attorney General Patrick Morrisey and Secretary of State Mac Warner are celebrating a court ruling that says a state law about election ballot listing.
The Fourth Circuit Court of Appeals issued the ruling September 1 saying the state law governing the listing of candidates on ballots is constitutional and does not present an unfair advantage to one party or another.
“It’s good to see the court’s recognition that this is not a partisan law,” Morrisey said. “In fact, it’s the opposite of partisan in that it treats all political parties equally. If a party’s presidential candidate gets the most votes in one election, that party’s candidates are listed first in the next one.”
Warner
Warner called the ruling a victory for states’ rights.
“This is yet another indication that the state Legislature is the proper venue for debating and deciding the rules that govern our elections,” Warner said.
State Democratic Party Chairwoman Belinda Biafore said the party is weighing its options.
"We proved at trial that being listed first on the ballot gives the party listed first an advantage of 5.88 percent over the party listed second," Biafore told The West Virginia Record. "West Virginia unconstitutionally bestows this advantage on a partisan basis, and the trial court found this advantage alone determined the outcome in over 100 races up and down the ballot. The Secretary of State did not even contest these findings on appeal.
"Unfortunately, the two judges in the majority on appeal did not believe that spotting one political party an almost six-point head start in every race rose to a level of a constitutional concern. Respectfully, we do not agree. We are carefully evaluating whether to seek a rehearing before the full court."
The court said the statute isn’t partisan and that any consequences of the system simply are a result from voters preferring one party over another.
The lawsuit stemmed from legislation passed three decades ago. The West Virginia Legislature created a process to order names on ballots based on political party affiliation. The party whose presidential candidate received the most votes in West Virginia receives the first position in all races for its candidates. This can change every four years based on each election. Over the years the law has benefited both parties.
Last summer, U.S. District Judge Chuck Chambers issued an injunction saying the Secretary of State’s office needed to figure out a new way to determine how candidates are placed on the ballot. The next day, Warner’s office filed an appeal to the Fourth Circuit in Richmond, Virginia. The appeal asked for the court to issue a stay regarding Chambers’ injunction.
“To mandate one of the many possibilities would be too great of an intrusion into the sovereignty of West Virginia’s political branches,” Chambers wrote in the injunction.
Chambers said the law about ballot placement is an “unquestionably partisan provision” to the party of the sitting president. The law establishes that “the party whose candidate for president received the highest number of votes at the last preceding presidential election is to be placed in the left, or first column, row or page.”
“The party benefiting from West Virginia’s law may shift over time, but this does not mean the statute is nonpartisan,” Chambers wrote in his injunction. “Voters have favored Republican presidential candidates since George W. Bush in 2000, so the ballot order statute has kept Republican candidates at the top of ballots for the past twenty years without interruption.”
The law was established in 1991 when Chambers, a Democrat, was speaker of the House of Delegates.
The case Chambers ruled on was filed by then-House of Delegates candidate Dakota Nelson, a Democrat, and state Democratic Party leaders.
Nelson appeared last on the ballot in 2018 when he ran for the House and failed to make the general election ballot. He is running again this year in District 16, which covers parts of Cabell and Lincoln counties. This year, Nelson again is a Democratic Party candidate for District 16.
In the complaint, Nelson and the Democratic leaders say having candidate order on the ballot by party gives more power to the party of the candidates listed first.
At the time, Biafore praised Chambers’ ruling, calling it “well reasoned” and “thoroughly analyzed.”
“The court rightly acknowledged that Mac Warner was attempting to enforce an unconstitutional law that burdened the fundamental voting rights of West Virginia voters,” Biafore said. “With this decision, the court ensured that when voters cast their ballots in this year’s general election, their rights will not be unconstitutionally interfered with.”
Former state Republican Party Chairwoman Melody Potter chastised Democrats for objecting to a law they enacted in 1991.
“This policy has been in state code for the past 29 years, without objection from either political party or any elected official,” Potter said. “Republican presidential candidates have won West Virginia every election since 2000, which positions them first on the ballot.
“Democrats had no problem with this policy from 2000 to 2010 when they held the majority. Now that President Donald J. Trump will be on the General Election ballot, they are trying to circumvent their legislation to give themselves an advantage. What hypocrisy.
“Unfortunately, left-wing radicals, including West Virginia Democratic Party Chairwoman Belinda Biafore, Kanawha County Democratic Executive Committee Chairman Elaine Harris, and the West Virginia Democratic House Legislative Committee, now object to the very law their party enacted 29 years ago claiming that it is now unconstitutional. They have sued because it's no longer politically advantageous for them.”