By Daniel Bruce
A ballot order challenge currently pending before the Fourth Circuit may have significant implications for the development of political question doctrine following the Supreme Court’s controversial decision in Rucho v. Common Cause.
In August, the United States District Court for the Southern District of West Virginia enjoined the West Virginia Secretary of State from enforcing the state’s nearly thirty-year-old ballot order statute and ordered it to implement a nondiscriminatory alternative for the 2020 election. Passed by Democrats in 1991, W. Va. Code § 3-6-2(c)(3) requires candidates appearing on statewide ballots to be placed in the order of the party whose candidate received the highest number of statewide votes in the previous presidential election.
The seemingly benign administrative rule now poses a significant hurdle to West Virginia Democrats in 2020, who face significant opposition in the now conservative stronghold. This is due to a phenomenon called the “primacy effect,” which awards a boost in votes to the candidate appearing first on the ballot due to the prime position of their name. According to Dr. Jon Krosnik, the plaintiffs’ expert witness at trial, the primacy effect benefits candidates in West Virginia to the tune of 2.94 percentage points.
The district court held that West Virginia’s policy of awarding this “frequently outcome-determinative” benefit based solely on a candidate’s party affiliation unconstitutionally burdened the plaintiffs’ right to vote and “to participate in elections on an equal basis with other citizens.” The Fourth Circuit stayed that decision pending appeal.
The appeal presents several critical questions that are regularly raised in challenges to election laws, including whether the Democratic organizational plaintiffs have standing and what standard of scrutiny should be applied to the facially neutral election regulation. However, one important question, raised by amicus before the Fourth Circuit but otherwise overlooked in the litigation thus far, is whether a federal court can hear the case at all—i.e., whether challenges to ballot ordering statutes constitute nonjusticiable political questions.
The answer may be yes. At least three lower federal courts have held that ballot ordering challenges present political questions similar to the partisan gerrymandering claims the Supreme Court addressed in Rucho v. Common Cause. Most notably, in Jacobsen v. Florida Secretary of State, the Eleventh Circuit relied heavily on the Supreme Court’s reasoning in Rucho to hold that a Florida statute prescribing ballot ordering based on the party that received the most votes in the prior gubernatorial election presented a political question. The court revised its original opinion limited to finding the plaintiffs lacked standing and explained that the plaintiffs’ claims were also nonjusticiable because the “lawsuit asks us ‘to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct’ our decision.” Two federal district courts in Texas and Arizona reached similar conclusions in dismissing challenges to those states’ ballot ordering laws for lack of jurisdiction.
While these courts’ decisions vary to some degree, they focus on two major components of the Supreme Court’s reasoning in Rucho: (1) the Constitution’s vesting of state legislatures with the power to prescribe the manner in which elections are conducted, and (2) the lack of judicially manageable standards to determine the fairest ballot ordering scheme.
Some commentators worry that extending Rucho’s political question doctrine too far may permit “politicians [to] manipulate elections with impunity.” However, the issues presented by ballot order challenges arguably fit more squarely in Rucho’s political question analysis than even the partisan gerrymandering claims it was designed to address.
Ballot ordering schemes likely align more with the state’s power under the Elections Clause to prescribe the manner in which elections are conducted—they merely determine the order in which a name is printed on a piece of paper. Recognizing this, states have taken a variety of approaches to ballot ordering. Some tie the order of the candidate’s placement on the ballot to the party that won the election for governor or secretary of state, some to the party that received the most votes for statewide federal offices, and others to the party that holds a majority in the state legislature.
Given these varying approaches, it is not clear that any judicially manageable standard exists—unlike the racial and numerical gerrymandering standards available in Rucho—to prevent the court from making blatant policy decisions regarding how a state should perform such an administrative electoral function. By mandating a politically neutral scheme, the Southern District of West Virginia simply made a policy decision that randomness is a more desirable standard for ballot ordering.
Despite these considerations, the Fourth Circuit has waded into the political thicket of ballot ordering before. In Libertarian Party of Virginia v. Alcorn, the Fourth Circuit held that Virginia’s ballot ordering statute did not unconstitutionally discriminate based on party affiliation because it treated similarly situated political parties equally. Having exercised jurisdiction over a similar challenge before, the court must now address whether Rucho requires a different decision.
If it does, the Fourth Circuit will become the latest court to limit its jurisdiction over election related claims in a post-Rucho world. Will this mark the future of judicial review of election laws? Only time will tell.