Represented by the Albemarle County-based Rutherford Institute, a public-interest law firm known primarily for its work on religious-liberty issues but more broadly for civil liberties litigation under the leadership of John Whitehead  (in photo, right), U.S. Senate candidate Robert Sarvis and several other congressional candidates have filed a law suit challenging Virginia’s laws defining how and in what order candidates’ names appear on the ballot.
The suit asserts that the state government cannot privilege certain political parties and cannot treat other parties unequally in such a fashion that Republicans and Democrats benefit while independent or third-party candidates are disadvantaged. It alleges violations of the 14th Amendment’s equal protection clause because, in Virginia, Republicans and Democrats are always listed first on the ballot, third-party candidates come next, and independent candidates always come last.
The 17-page filing  points out that it has been known for at least 70 years that ballot order makes a difference in how voters perceive candidates, and the first person listed on a ballot always has a measurable advantage.
The filing quotes a 1940 case from Michigan, Elliott v. Secretary of State, which ruled: “It is a commonly known and accepted fact that in an election, either primary or general, where a number of candidates or nominees for the same office are before the electorate, those whose names appear at the head of the list have a distinct advantage.”
Acknowledging that fact is why, I suppose, that before every general election the State Board of Elections chooses ballot order by lot — to decide which candidates from the Republican and Democratic parties will come first, and which will come second — so that there is some randomness year by year. Other candidates who do not have an R or D beside their names always come third, fourth, or later. (Ballot order in primary elections is also decided by lot — literally drawing names out of a hat.)
A wordy news release  on the institute’s web site explains:
The Rutherford Institute’s lawsuit alleges that Virginia’s signature and ballot placement laws violate the First and Fourteenth Amendments to the U.S. Constitution by favoring the election chances of Democrat and Republican candidates at the expense of Libertarian Party and independent candidates. Under Virginia’s election laws, a candidate for public office is allowed to be listed on the official ballot printed by the SBE only if the candidate obtains numerous signatures of qualified voters (in the case of a candidate for U.S. Senate, 10,000 signatures). That requirement is waived, however, if the candidate is the nominee of a “party.” Since only the Democratic and Republican Parties have obtained enough votes in previous elections to qualify as a “party,” only those parties’ nominees are exempt from obtaining signatures in order to be placed on the ballot. Additionally, even if a minor party or independent candidate qualifies for placement on the ballot, they are automatically relegated to a position below that of the Democrat or Republican nominee. Virginia law provides that the names of candidates of “parties” for an office are listed at the top of the ballot, while candidates of any other political parties are listed below “party” candidates. Independent candidates are always listed at the bottom of the ballot. In filing suit against the SBE, Rutherford Institute attorneys point to numerous cases and studies showing that candidates listed lower on ballots are placed at a material disadvantage, which harms their chances for election.
The filing includes at least one noteworthy error, in paragraph 21, which reads:
… any party which has not achieved at least 10% of the vote in at least two of the immediately preceding general elections cannot be a “political party” under Virginia Code § 24.2-613 and, thus, cannot be placed in the number one position on the next ballot.
That should instead say something like “which has not achieved at least 10% of the vote in at least one of the two immediately preceding general elections.”
The law was changed after the 1990 general election, when the Democratic Party had no candidate for the U.S. Senate and lost its ballot status. At the time, the law required a party to receive at least 10% of the vote in the immediately preceding election. When Virginia Democrats, who controlled both houses of the General Assembly and the governorship at the time, realized they had lost their ballot status, they liberalized the law to allow the 10% threshold to count in either of the two preceding elections.
I’m sure this slip will be rectified before the suit moves forward.
Once the litigation takes shape, this case will probably be known as Sarvis v. Judd, although it may be designated Libertarian Party of Virginia v. State Board of Elections.