LIBERTARIAN PARTY OF VIRGINIA; WILLIAM HAMMER; JEFFREY CARSON; JAMES CARR; MARC HARROLD; WILLIAM REDPATH; WILLIAM CARR; BO CONRAD BROWN; PAUL F. JONES, Plaintiffs,
JAMES B. ALCORN, in his individual and official capacities as member of the Virginia State Board of Elections; SINGLETON B. MCALLISTER, in her individual and official capacities as member of the Virginia State Board of Elections; CLARA BELLE WHEELER, in her individual and official capacities as member of the Virginia State Board of Elections, Defendants-Appellees. and ROBERT C. SARVIS, Plaintiff - Appellant,
Argued: May 10, 2016
from the United States District Court for the Eastern
District of Virginia, at Richmond. Robert E. Payne, Senior
District Judge. (3:14-cv-00479-REP)
I. Schoen, DAVID I. SCHOEN, ATTORNEY AT LAW, Montgomery,
Alabama, for Appellant.
Alan Raphael, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellees.
C. Sarvis, Alexandria, Virginia, Appellant Pro Se.
R. Herring, Attorney General of Virginia, Rhodes B. Ritenour,
Deputy Attorney General, Anna T. Birkenheier, Assistant
Attorney General, Matthew R. McGuire, Assistant Attorney
General, Erin R. McNeill, Assistant Attorney General, Trevor
S. Cox, Deputy Solicitor General, OFFICE OF THE ATTORNEY
GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.
WILKINSON and AGEE, Circuit Judges, and DAVIS, Senior Circuit
WILKINSON, Circuit Judge.
Sarvis, a political figure in the Libertarian Party of
Virginia, brings a constitutional challenge to Virginia's
three-tiered ballot ordering law. The district court found no
merit in Sarvis's arguments and accordingly dismissed his
challenge for failure to state a claim under Fed.R.Civ.P.
12(b)(6). We now affirm.
attack focuses chiefly upon the ballot ordering law found in
Virginia Code § 24.2-613. That law describes the form of
ballot to be used in Virginia elections. It provides that for
elections to "federal, statewide, and General Assembly
offices" a candidate "shall be identified by the
name of his political party" or by the term
"Independent." Va. Code Ann. § 24.2-613. Of
principal concern to this case, the law also orders the
ballot for elections to these offices in three tiers.
first tier includes candidates from "parties" or
"political parties, " which a related section of
the Code defines as organizations of citizens that received
at least 10 percent of the vote for any statewide office
filled in either of the two preceding statewide general
elections. Va. Code Ann. § 24.2-101. In addition, the
Code provides that any organization seeking "party"
or "political party" status must also have had a
state central committee and an elected state chairman present
in Virginia for six months prior to any nominee from that
organization filing for office. Id. The only
organizations currently designated "parties" or
"political parties" under the Code are the
Republican Party and the Democratic Party.
second tier includes candidates from "recognized
political parties." For an organization of citizens to
be designated a "recognized political party" under
the Code, that organization must have had a state central
committee present in Virginia for six months prior to any
nominee from that party filing for office, and the state
central committee must be comprised of voters residing in
each Virginia congressional district. Va. Code Ann. §
24.2-613. The organization must also have a duly elected
state chairman and secretary as well as a party plan and
bylaws. Id. The Libertarian Party of Virginia has
been designated a "recognized political party"
under the Code.
the third tier of the ballot includes "[i]ndependent
candidates" not associated with "political
parties" or "recognized political parties."
addition to delineating the election ballot's three
tiers, Virginia's ballot ordering law also specifies how
candidates are ordered within the three tiers. In the first
two tiers, candidate order is set by lot. Importantly, this
order is replicated for each office on the ballot, creating
party order symmetry across the ballot as a whole. In the
third tier, candidate order is alphabetical by surname.
2014, just a few months before the November 2014 elections,
Sarvis and others members of the Libertarian Party of
Virginia along with the Libertarian Party of Virginia itself
and one independent candidate filed a complaint that named as
defendants certain members of the Virginia State Board of
Elections. The complaint alleged that the three-tiered ballot
ordering law found in Virginia Code § 24.2-613 violated
their constitutional rights under the First and Fourteenth
Amendments. Sarvis and his co-plaintiffs sought relief from
the law prior to the November 2014 elections.
September 2014, the plaintiffs and the Commonwealth both
determined that the litigation would not be resolved prior to
the November 2014 elections. But the parties and the district
court agreed that, should Sarvis and his co-plaintiffs intend
to seek elected office in the future, their case would remain
ripe beyond the November 2014 elections under the capable of
repetition yet evading review doctrine. The plaintiffs thus
amended their complaint to reflect their interest in seeking
relief from the ballot ordering law with regard to future
elections, and the litigation continued on this basis. Sarvis
in particular alleged that he would be "a candidate for
national office in Virginia in the 2016 election." J.A.
32. The amended complaint asked that the district court
enjoin the law during the "2015 statewide elections and
the 2016 and beyond general elections" and issue
"an order directing the defendants to assign ballot
positions to all ballot-qualified candidates and parties on a
random basis without regard to party status." J.A. 46.
thereafter, Virginia filed a motion to dismiss under Rule
12(b)(6), claiming that the amended complaint failed to state
a claim upon which relief could be granted. The district
court granted Virginia's motion to dismiss in January
2015. Sarvis v. Judd, 80 F.Supp.3d 692, 695 (E.D.
Va. 2015). The district court based its decision primarily on
the framework established by the Supreme Court in Burdick
v. Takushi, 504 U.S. 428 (1992), and Anderson v.
Celebrezze, 460 U.S. 780 (1983). In those decisions, the
Supreme Court held that courts should review First and
Fourteenth Amendment-based challenges to state election laws
by weighing the severity of the burden the challenged ...