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Marcellus v. Virginia State Board of Elections

United States Court of Appeals, Fourth Circuit

February 21, 2017

ROBERT G. MARCELLUS; DAVID WILLIAMS; BARRY HODGE; TIMOTHY GRESHAM; POWHATAN COUNTY REPUBLICAN COMMITTEE, Plaintiffs - Appellants,
v.
VIRGINIA STATE BOARD OF ELECTIONS; JAMES B. ALCORN, in his official capacity as a member and Chairman of the Virginia State Board of Elections; CLARA BELLE WHEELER, in her official capacity as a member and Vice Chair of the Virginia State Board of Elections; SINGLETON B. MCALLISTER, in her official capacity as a member and Secretary of the Virginia State Board of Elections, Defendants-Appellees.

          Argued: December 7, 2016

         Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. M. Hannah Lauck, District Judge. (3:15-cv-00481-MHL)

         ARGUED:

          Patrick Michael McSweeney, MCSWEENEY, CYNKAR & KACHOUROFF, PLLC, Powhatan, Virginia, for Appellants.

          Joshua D. Heslinga, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.

         ON BRIEF:

          Mark R. Herring, Attorney General of Virginia, Cynthia Hudson, Chief Deputy Attorney General, John W. Daniel II, Deputy Attorney General, Heather Hays Lockerman, Senior Assistant Attorney General, Anna T. Birkenheier, Assistant Attorney General, Stuart A. Raphael, Solicitor General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.

          Before NIEMEYER, TRAXLER, and HARRIS, Circuit Judges.

          NIEMEYER, Circuit Judge

         The Powhatan County Republican Committee and four individuals nominated by the Committee to be candidates for election to the Board of Supervisors for Powhatan County, Virginia, commenced this action against the Virginia State Board of Elections to challenge the constitutionality of the portion of Virginia Code § 24.2-613(B) that provides that only candidates in elections "for federal, statewide, and General Assembly offices" may be identified on the ballot by the name of the political party that nominated them or by the term "Independent." The plaintiffs allege that providing political party identifiers for candidates for federal, statewide, and General Assembly offices, while denying such ballot identifiers for candidates for all local offices, violates their right of association protected by the First and Fourteenth Amendments and their right to equal protection under the Fourteenth Amendment.

         On cross-motions for summary judgment, the district court entered judgment in favor of the Virginia State Board of Elections, upholding the constitutionality of the challenged portion of § 24.2-613(B), and we affirm. We conclude that the burden on associational rights imposed by Virginia's regulation of the use of party identifiers on official ballots is at most minimal and is amply justified by Virginia's important interests, which include minimizing partisanship at the local government level, promoting impartial governance, and maximizing the number of citizens eligible to hold local office under the Hatch Act, 5 U.S.C. §§ 7321-7326. We similarly conclude that § 24.2-613(B)'s different treatment of local candidates and federal, statewide, and General Assembly candidates with respect to party identifiers on the ballot does not violate the Equal Protection Clause because such treatment is rationally related to legitimate governmental interests.

         I. Statutory Scheme

         In Virginia, candidates for elected office can generally qualify to be placed on an election ballot either by filing a declaration of candidacy and a petition signed by the requisite number of qualified voters, see Va. Code Ann. § 24.2-506, or by receiving the nomination of a "political party, " as defined by statute, see id. §§ 24.2-101, 24.2-511. The only organizations that currently qualify under the statute's definition are the Republican Party and the Democratic Party. See Libertarian Party of Va. v. Alcorn, 826 F.3d 708, 712 (4th Cir. 2016).

         The form of ballots used in Virginia elections is tightly regulated by statute and by standards prescribed by the Virginia State Board of Elections. See Va. Code Ann. § 24.2-613(A). For example, every ballot, whether printed or presented through an approved electronic voting system, contains a header with the words "Commonwealth of Virginia" and "Official Ballot." And Virginia's regulation of the ballot extends to details such as font size and the number of characters per line. Localities are required to submit ballot proofs to the Virginia Department of Elections for verification and approval.

         The ballots' content is also strictly regulated. In 1870, when Virginia formally adopted the use of written ballots, the General Assembly specified that the ballot be "a white paper ticket . . . containing . . . the names of the persons for whom the elector intends to vote, and designating the office to which each person so named[] is intended by him to be chosen." An Act to Provide for a General Election, ch. 76, § 31, 1869-70 Va. Acts 78, 85. Not until 1970 did the General Assembly amplify the content to include, in connection with candidates for President, a party identifier for each candidate. See Act of April 3, 1970, ch. 462, § 2, 1970 Va. Acts 826, 853 ("No names of political parties shall appear on the ballot, except in presidential elections . . ."). In 2000, the General Assembly again expanded the list of offices for which party identifiers are to be used to include "federal, statewide, and General Assembly offices, " but those offices "only." Act of April 6, 2000, ch. 514, § 1, 2000 Va. Acts 915, 915. While bills have been introduced since to expand further the list of offices for which identifiers are used, none has been enacted.

         Thus, in its current state, Virginia Code § 24.2-613(B) provides that party identifiers are used on the ballot only in connection with candidates for President of the United States, members of the U.S. Senate, members of the U.S. House of Representatives, Governor, Lieutenant Governor, Attorney General of Virginia, members of the Senate of Virginia, and members of the Virginia House of Delegates. Conversely, § 24.2-613(B) prohibits party identifiers for candidates for all local offices, including candidates for county boards of supervisors and city and town councils; local school boards; mayors; clerks of court; Commonwealth's attorneys; sheriffs; revenue commissioners; treasurers; and soil and water conservation district directors. This restriction is imposed even though candidates for most local offices are allowed to qualify for placement on the ballot by being nominated by the local chapter of one of the major political parties. See Va. Code Ann. §§ 24.2-509(A), 24.2-511.

         When including identifiers, the State Board of Elections uses the name of the political party that nominated the candidate. If the candidate qualified for the ballot by petition, the Board uses the term "Independent, " unless the candidate produces "sufficient and appropriate evidence" that he or she was nominated by a "recognized political party." Va. Code Ann. § 24.2-613(B). The Board represents these identifiers on the ballot using capital letters - (D) for Democrat, (R) for Republican, (L) for Libertarian, (G) for Green, (IG) for Independent Green, (C) for Constitution, and (I) for Independent.

         There is no restriction on any candidate's advertising his or her party nomination, association, or endorsement. Moreover, voters can learn which candidates were nominated by political parties on the "What is on my Ballot?" ...


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