West Virginians are starting to vote in the general election. They’re using a ballot that one federal judge has ruled is unconstitutional.

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September 30th, 2020

This story was originally published by Mountain State Spotlight. For more stories from Mountain State Spotlight, visit www.mountainstatespotlight.org. This story can also be found at https://mountainstatespotlight.org/2020/09/30/west-virginians-are-starting-to-vote-in-the-general-election-theyre-using-a-ballot-that-one-federal-judge-has-ruled-is-unconstitutional/

While West Virginians had their attention fixed on the pandemic and the state’s economy  last summer, Republican and Democratic party leaders were battling in a Huntington courtroom over the ballot slated for the November election.

At issue: Which candidate’s name goes first on the ballot for each race.

On the morning of July 27, state Democratic Party Chairwoman Belinda Biafore took the witness stand, removing her mask, moments before testifying during the first day of a bench trial — where the outcome is decided by a judge instead of a jury — triggered by a lawsuit she and other state Democrats had filed. They wanted West Virginia’s ballot deemed unconstitutional and changed.

Biafore said her party’s candidates were discriminated against by the state’s ballot.

“I believe it [gives Republicans an advantage] in every race,” she said, according to a trial transcript.

In West Virginia, GOP candidates get listed first on the ballot because state law gives preference to the party whose presidential nominee received the most votes in the last election. Because Donald Trump won in 2016, Republican candidates are listed before Democrats. That’s been the case since George W. Bush won in 2000.

The ballot, in its original form, began to be mailed on Friday to West Virginians who requested an absentee ballot.

Some experts say a ballot’s name ordering gives one party the upper hand because of the “primacy effect” —  voters have a tendency to select the first candidate listed on the ballot in each race.

“If I give you four glasses of beer to taste, and I ask you to tell me which is your favorite, without knowing the brands of the beers, you will tend to prefer the first one you taste over the later ones that you taste,” said Stanford University political scientist Jon Krosnick, who testified during the trial over Zoom.

Krosnick, who has researched name-order effects in elections for a quarter-century, said candidates listed before others on a ballot have an advantage, especially when voters lack information about a race or are ambivalent about the candidates.

West Virginia Democrats hired Krosnick as an expert witness in the lawsuit against Secretary of State Mac Warner and Kanawha County Clerk Vera McCormick, who is serving as a representative for all ballot commissioners in the state.

Krosnick said the primacy effect gave the candidates who were listed first an advantage of almost 3 percentage points in West Virginia elections (or nearly 6 percentage points, since what’s added to one candidate’s total is taken away from another’s). He estimated an 80% to 85% probability that the effect occurs in every West Virginia election.

Recent elections that might have been affected include Warner’s 1.7-percentage point win over incumbent Secretary of State Natalie Tennant in 2016, and West Virginia Attorney General Patrick Morrisey’s 2012 victory by less than 3 percentage points over incumbent Darrell McGraw, according to Krosnick’s court-filed expert report. The attorney general’s office is representing the secretary of state in the lawsuit.

In his report, Krosnick said research about the benefits of ballot placement has been going on since in 1910, when Woodrow Wilson, several years from becoming president, speculated that voters are likely to select candidates who are listed at the top of ballots.

Krosnick declined to comment beyond his testimony and his reports due to the ongoing litigation.

The judge who oversaw the trial on the ballot played a hand in its creation.

U.S. District Judge Robert C. Chambers was the speaker of the Democrat-majority House of Delegates in 1991, when the Legislature passed the ballot order law. At the time, only three Republican presidential candidates had won in West Virginia in more than 60 years: Ronald Reagan, Richard Nixon and Dwight D. Eisenhower, all while vying for their second terms.

At the end of the trial in late July, Chambers said, “I find that this ballot order statute, because of the primacy effect, results in a significant impairment of candidates’ prospects, and that that impairment is not justified by the limited state interests as I’ve examined them.”

Chambers concluded that West Virginia’s ballot was unconstitutional. On Aug.10, the judge ruled that a new ballot-ordering system be made ready for the upcoming election, though he did not mandate that any specific method replace it.

The West Virginia Republican Party called the lawsuit “liberal amnesia.”

“They have sued because it’s no longer politically advantageous for them,” the GOP said in a Facebook post.

Democratic Party leaders praised the ruling, but their applause was short-lived.

Warner appealed to the 4th U.S. Circuit Court of Appeals, which suspended Chambers’ ruling on Aug. 18.  The appellate court has yet to decide on the ballot’s constitutionality.

In the appeal, lawyers for the attorney general’s office wrote that there were “serious hurdles” to changing the ballot before Aug. 25,  the day counties drew names to determine the ordering of the ballot.

“The ballot commissioners, as well as the secretary [of state], must deliberate and make several important decisions to implement the district court’s injunction,” Morrisey’s lawyers wrote. “These major changes take time in the best of times — and these are not the best of times.”

Several dozen county clerks, a county commission and Jonathan Adler, the executive director of the West Virginia Association of  Counties, urged that ballot changes not be made prior to the November election.

Adler wrote to Chambers that the judge’s decision to change the ballot “needlessly complicates an overburdened election system process, already grossly damaged by cynical interests who have sown distrust among the public.”

To prevent the unconstitutionally-ruled ballot from being used, Ronnie Oakley, a Mercer County Commission candidate and an independent, filed a motion on Aug. 26 to stop Warner and county ballot commissioners from proceeding with the November ballot. Chambers dismissed it the next day.

“I’m just going to have to campaign extra hard now,” said Oakley, whose name is listed below a Republican candidate on the ballot.

Billy Wolfe, communications director for the American Civil Liberties Union of West Virginia, said the organization opposes the appeals court’s stay.

“Studies have shown that who goes first on a ballot can actually be a deciding factor in some races,” he said in an email. “Handing that coveted spot to the party in office only favors incumbency.”

ACLU-WV, along with West Virginia’s Mountain and Libertarian parties, asked Chambers to allow the ballot changes before the election.

A 2016 study by Darren Grant, an economics professor at Sam Houston State University, found the name-order effect ranges from as little as one percentage point to 10 in Texas. He said the biggest effects were in down-ballot races.

“The integrity of [the political process] requires true randomization of ballot order across counties, so that its effects can even out to an appreciable degree,” he said in the study. “Otherwise the consequences could be substantial, because in Texas down-ballot primary elections, the ballot order effect is huge.”

The plaintiffs did not respond to questions after Chambers’ ballot change order was suspended. Mike Queen, a spokesman for the secretary of state, referred questions to the state attorney general’s office because of the ongoing litigation. Curtis Johnson, a spokesman for the attorney general’s office, did not respond to requests for comment.

Michael Taylor, a lawyer representing McCormick and West Virginia ballot commissioners, said in an email they were “disappointed in the decision” by Chambers, especially in light of federal court rulings in other jurisdictions.

“As a result, we have appealed this decision and look forward to a full review by the 4th Circuit Court of Appeals,” he said. “We were happy the 4th Circuit stayed the order to allow a full review of this matter.”

West Virginia is not the only state with a legal fight over its ballot order. In Florida, the governor’s party determines a candidate’s ballot position. Last year, a federal judge ruled the Florida law was unconstitutional. The 11th U.S. Circuit Court of Appeals vacated that ruling in April.

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