For many years, West Virginia has used an unconstitutional method for determining the order that candidates appear on our ballots. Under this method, officials give the top placement on the ballot to the candidate whose party won the last presidential election.
Last month, a federal judge in Huntington said that process is unconstitutional. But the judge also indicated he may order a “stay” on his ruling. In other words, if this happens, the ruling won’t apply until after the fall election. We applaud the judge’s ruling, but disagree that it should be stayed for this election. We see no reason to continue enforcing an unconstitutional law.
Ballot order matters. Studies have shown that the person listed first on a ballot can receive 2.5 percent more of the vote than those who are listed after. That can be the deciding factor in many races.
The plaintiffs in this case are the West Virginia Democratic Party, the West Virginia House Legislative Committee, the chairperson of the Kanawha County Democratic Executive Party and individual candidates. The defendants in the case are Secretary of State Mac Warner and the Kanawha County Clerk.
Yesterday, we filed an amicus — or “friend of the court” brief in the case on behalf of ACLU-WV, and two of West Virginia’s ballot-qualified parties, the Mountain Party and the Libertarian Party of West Virginia, urging the judge not to stay the ruling past the time of the election, and emphasizing the negative impact a stay would have on access to democracy.
We hope the judge reconsiders. Although deadlines regarding ballot order are approaching, there is still time to conduct a constitutionally sound election.