Fourth Circuit Says WV GOP Can Give Itself Top Billing On Ballots Forever

fAcIaLly nEuTrAl.

Even before SCOTUS gutted Roe at midnight on the shadow docket, it was a lousy day for democracy in the federal judiciary with the Fourth Circuit allowing West Virginia to institutionalize a 1-3 percent Republican advantage on every ballot printed.

The case, which was flagged by Law & Crime, involved a challenge to West Virginia’s Ballot Order Statute, which mandates 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, as is appropriate to the voting system.”

In plain English, whichever party wins the presidential election get top billing up and down the ticket for the next four years. And in a state where Trump beat Biden 69-30, it’s not hard to figure out which party that will be.

Candidates whose name appears first net an advantage of 1-3 points on average. It’s called the “primacy effect,” and it’s been documented for decades. It’s why responsible jurisdictions print candidates’ names in either alphabetical or random order on the ballot.

Indeed, the state defendants’ own expert witness testified that being placed first on the ballot was likely to result in a 1.6 percent advantage for the candidate. The trial judge found the plaintiff’s estimate of a 2.94 percent windfall to be more credible, but a majority of the panel shrugged it off, ignoring testimony that this would have affected the outcome in at least 105 races since 1960 — a fact remarked on by Judge James Wynn in a pointed dissent.

Judges Barbara M. Keenan and Stephanie Thacker insist that (more than a few) flipped elections is but a “modest” burden, far outweighed by the state’s interest in not having to flip a coin to decide who goes first:

While we have concluded for standing purposes that the plaintiffs alleged a substantial risk of injury based on the primacy effect, any burden imposed by the statute is not elevated from a “modest” to a “significant” burden even under [plaintiffs’ expert] Dr. Krosnick’s quantification of the primacy effect. As noted above, according to Dr. Krosnick, the primacy effect usually generates windfall votes for the first-listed candidate. However, the ballot-order statute allocates this positional bias on a neutral basis.

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As for the law’s neutrality, the court chirps that “the statute affords the major political parties an equal ability to access the benefit of the windfall vote … both Democrats and Republicans have an equal opportunity every four years to obtain the most votes in West Virginia for their presidential candidates.” Pointing out that Democrats routinely won presidential elections in West Virginia until 1996, the court reasons that it all averages out — not that the law was partisan from its inception, and remains so, even if the beneficiary party has flipped.

Reasoning that the state’s interest in “the efficient administration of elections and a reduction in voter confusion and errors made by voters” outweighed the statistically significant disadvantage it will impose on every Democratic candidate up and down the ticket:

Although West Virginia could have devised a different ballot-order regime that also achieved these benefits, the state was not required to do so or to show that its chosen method was the least burdensome means of allocating the primacy effect because any modest burden imposed by the ballot-order statute was justified by the state’s important regulatory interests.

Thank goodness we can rely on that Supreme Court to call balls and strikes and sort this whole mess out.

HA HA.

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Nelson v. Warner [Docket via Court Listener]


Elizabeth Dye lives in Baltimore where she writes about law and politics.