Virginia

Do State Legislators have Standing to Appeal a District Court Racial Gerrymandering Ruling?

Election Law Society · December 4, 2018 ·

By Jakob Stalnaker

In June 2018, in a case called Bethune-Hill v. Virginia State Board of Elections, a federal district court in Richmond struck 11 districts as unconstitutional racial gerrymanders. Because the remedial map will likely impact the balance of power in the state legislature, its majority members would like to appeal the district court ruling.

The original defendant in this case was the Virginia State Board of Elections. The Virginia House of Delegates and the Speaker of the House of Delegates were permitted as Defendant-Intervenors in the original litigation. The trouble is, Virginia Attorney General Mark Herring declined to appeal the ruling on behalf of the Virginia State Board of Elections. The Virginia House of Delegates and Speaker Kirk Cox, appealed the ruling as Defendant-Intervenors.

The Continuing Implications of Virginia’s Off-Year Elections

Election Law Society · February 21, 2018 ·

By: Jacob Dievendorf

As readers of this blog will well know, each state has its own particular electoral quirks. One of Virginia’s best known quirks is its off-year election of a governor. As a previous posting on this blog points out, Virginians have been electing their governor in off years for as long as they have been electing governors directly, since 1852.

Tiebreakers Across the Country

Election Law Society · January 4, 2018 ·

By: Cody Brandon

“A tie is like kissing your sister” – the famous phrase widely attributed to Navy football coach Eddie Erdelatz – is emblematic of the American competitive spirit. On my way home from Christmas vacation I scanned through AM radio stations broadcasting in the mountains of western Virginia to listen to the Oklahoma-Georgia College Football Playoff game that refused to end in a tie. The NFL has created a series of 12 tie-breaking procedures that end in a coin toss to determine the winner of a division. One of the most exhilarating legal practices in the NHL is the shootout to break a tie, topped perhaps only by the illegal act of dropping one’s gloves. The Constitution even provides a tie-breaking procedure for the Presidential election in the Twelfth Amendment.

Ballot Ordering: A Recurrent Controversy in Virginia?

Election Law Society · October 13, 2017 ·

By: Jacob Dievendorf

In at least the two most recent “big” elections in Virginia, the 2016 Presidential race, and the 2017 race for Governor, there has been some controversy over the method used to decide which order candidates appear on the ballot. In March 2017, the Corey Stewart campaign issued a press release accusing Ed Gillespie’s campaign of “manipulating the Virginia Board of Elections in a last-ditch, rule-breaking effort to have Ed’s name placed at the top of the [primary] ballot.” Virginia law provides that ballot order for primaries is determined by the time that a candidate files for the office, on a first come first served basis. If candidates file simultaneously, ballot order is determined by lottery. The Stewart campaign went so far as to camp out in front of the Board of Elections offices the night before in order to be first, but alleged that Gillespie’s campaign was pressuring the Board to consider their filings simultaneous.

Looking back just a bit further, Virginia’s ballot ordering rules also caused some controversy during the 2016 election cycle. In general elections, Virginia law provides that candidates from major political parties, that is, parties that receive more than 10 percent of the vote in two previous statewide elections, are listed on the ballot first, followed by candidates from minor parties, and lastly, the names of independent candidates. This law was challenged by a former minor party candidate for governor, Robert Sarvis, of the Libertarian Party, and eventually found its way up to the 4th Circuit. In June, 2016, a three judge panel of the 4th Circuit affirmed the district court’s dismissal of the case, based largely on a theory that the ballot ordering law does not harm minor parties.

It is hard to say whether this controversy will continue. Two data points hardly make a trend, but the issue has proved important enough to drive a gubernatorial campaign to literally camp out in front of the Board of Elections, and a third party candidate to fight a case up to the 4th Circuit. Why is ballot ordering even an issue? Surely voters are able to discern which candidate they prefer, no matter the order of names on the ballot.

Contrary to this notion, there is a body of evidence that suggests that order on a list does matter. It seems that when people make choices, there is some preference for selecting choices that are listed first, or higher, in a list of choices. Larry Sabato, writing for the University of Virginia Center for Politics, has looked at the political implications of this bias. His conclusions contain an interesting implication for ballot ordering in Virginia. While he concludes that races for major offices such as president and governor are not highly impacted by serial position effects, lesser offices and non-partisan races are especially susceptible. Therefore, many “lesser” elections in Virginia, where candidates are not associated with parties, may be especially influenced by this form of selection bias.

It is possible that ballot ordering controversies will go nowhere, and that the issues raised in 2016 and 2017 will be a fluke. On the other hand, in an increasingly polarized voting climate, where parties compete to eke out whatever advantages they can, perhaps the minor advantage gained by being listed first on a ballot will become increasingly attractive. Ballot ordering is a currently minor issue, but one with increasingly significant potential.

Defining “Compactness”: Meaningless Truism or Gerrymander Slayer?

Election Law Society · March 31, 2017 ·

By: Ben Williams

This past week, an upstart election law reform organization in Virginia garnered national attention for a lawsuit that could redefine the legal strategies of anti-gerrymandering activists across the country. Per Article II, § 6 of the Virginia Constitution, “[e]very electoral district shall be composed of contiguous and compact territory…” (emphasis added). Virginia is not alone in requiring its districts to be compact—a majority of states have such a requirement. But while the word “contiguous” is easily defined (all parts of the district are connected in a single, unbroken shape), the political science community lacks a common understanding of what exactly contiguity is. As a threshold issue, there are two potential ways to measure a district’s compactness: spatially (the physical shape and area of the district) or demographically (calculating the spread of persons within a given district). While many states do not define which of these measures should govern, or if one should be preferred over the other, the Virginia Supreme Court in Jamerson v. Womack said the language of Art. II (cited above) “clearly limits [the Article’s] meaning as definitions of spatial restrictions in the composition of electoral districts.” Thus, one of the key questions the Circuit Court judge and the attorneys in the case had to address was how to measure spatial compactness in Virginia?