POWHATAN – A federal judge last week heard arguments in a case of the Powhatan County Republican Committee and four Republican candidates for the Powhatan County Board of Supervisors trying to challenge state election law.

U. S. District Judge M. Hannah Lauck presided over a hearing on Thursday, Sept. 3 that saw the local Republicans suing the Virginia State Board of Elections to challenge a state code they say would unconstitutionally prevent the political party affiliation of local candidates from being included on the Nov. 3 general election ballot next to the candidate’s name. The suit was filed in the U.S. District Court for the Eastern District of Virginia, Richmond Division.

Pat McSweeney, chairman of the Powhatan Republican Committee, acted as the lawyer for the plaintiffs, who in this case are Robert G. "Bob" Marcellus, who is running for the District 2 supervisor seat; David T. Williams, District 1; Barry Hodge, District 3; and Timothy L. "Tim" Gresham, who is running for the District 5 seat.

The Sept. 3 hearing was to argue the case of an injunction filed by the Powhatan Republicans to mandate that the names of the individual plaintiffs be accompanied on the official ballot on Nov. 3 by their political party affiliation.

This goes against the part of Va. Code § 24.2-613 that requires party affiliations to be listed "for elections for federal, statewide, and General Assembly offices only."

Joshua Heslinga, the assistant attorney general who acted as counsel for the board of elections, said in a status hearing on Monday, Aug. 17 that if this injunction were granted, it would affect not only Powhatan County ballots but ballots statewide for the sake of uniformity.

The injunction proceedings were being moved along on an accelerated timeline because of impending deadlines to get ballots printed. The State Board of Elections has a deadline of Friday, Sept. 11 to make changes to entries on ballots and of Friday, Sept. 18 to print them in time to be sent out for absentee voting.

The biggest statewide impact would be on Fairfax County, which has already printed its ballots. If an injunction were granted, it would have to print them again.

Lauck said she would rule on the injunction by early this week. Her decision had not been released at press time.

 

Laying out the case

A big focus of the arguments heard in the case were two documents – the ballots themselves and a website sponsored by the state board that simplifies voter information. The link to the page is called "What is on my ballot?" and is found at https://voterinfo.sbe.virginia.gov.

Speaking after the hearing, Marcellus said that when he asked state board officials how to verify the information he had just filed was entered correctly, he was referred to the "What is on my Ballot?" website. Party affiliation is listed on the site, and he said that based on how the website represents itself, he thought the ballot would reflect him as the Republican candidate for the District 2 supervisor seat.

It wasn’t until another supervisor pointed out that might not be the case that he began checking into it and learned about the state code that prohibits party affiliation being listed on the actual ballot for local candidates, he said.

The issue is more sensitive for Marcellus than any of the other plaintiffs in the case because his opponent is incumbent Larry Nordvig, who successfully ran for the seat as a Republican in a special election on Feb. 10. However, on May 18, Nordvig publically split with the party.

McSweeney said some voters might be confused as to who the Republican candidate in that race is if they are not aware of what happened earlier this year.

McSweeney and Heslinga each had a chance to make their case to the judge, who questioned the attorneys during their arguments, with McSweeney also getting a second chance to answer issues raised by Heslinga.

Through the course of the hearing, a variety of issues were touched on, including several key ones.

 

Voter confusion

McSweeney said that regardless of whether voters are diligent about educating themselves, listen only to candidate claims or try to block out all the distractions entirely, there is potential for confusion if the party affiliation is not listed, especially in the District 2 race.

Heslinga wrote in a brief to the court explaining the commonwealth’s case that instead of real evidence of relevant voter confusion, the plaintiffs offered speculation that on Nov. 3, "there will be an electorally-significant group of voters who are uninformed enough to be confused about who the Republican candidate is, yet savvy enough to draw erroneous conclusions about party affiliation by closely comparing the ballot’s candidate listings for different offices."

Delay in plaintiffs filing

McSweeney argued Marcellus did not learn about the state law until Aug. 3, which was why the group filed so close to the ballot deadlines.

Lauck said that if the law has been in place more than 14 years, shouldn’t Marcellus have been aware of it if he voted in any of the previous elections?

McSweeney said Marcellus relied on the state’s website, believing it to be an indication of how the ballot would look. He added that even staff of the state board of election were not immediately aware of the law until they went looking for reasons why party affiliation doesn’t appear with local candidates.

Heslinga argued that laches bars preliminary injunctive relief when a plaintiff inexcusably delays bringing suit, thereby causing prejudice. He said Marcellus’ only argument in defense of that delay was ignorance, which is legally barred.

He also pointed out that Marcellus’ brief states the fact another supervisor advised him meant at least one of the plaintiffs knew party affiliation wasn’t on the ballot.

In regard to the state’s website, Heslinga said that it doesn’t have on there a statement saying it reflects exactly what appears on a ballot. He pointed out that some candidates’ names also have websites listed with them on the "What is on my Ballot?" website but that information is not included on a ballot.

 

Administrative burden

In answer to questions about the administrative burden of changing the ballots, McSweeney argued it wouldn’t be as onerous as the defense claimed. The board of elections posted the names of more than 1,500 candidates statewide on its website within days of the primaries, so adding a hyphen, space and a letter to signify republican, democrat, libertarian or independent to the ballots would represent significantly less work and would not call for a ballot redesign.

Moreover, those changes would be made to a master thumb drive that would simply have to be downloaded to secondary thumb drives used by localities, he said.

Several times, McSweeney referenced a written declaration from Cecil Jordan, a member of the Powhatan County Electoral Board, that gave his opinion on several aspects of the case.

Jordan questioned several facts presented by Judy Flaig, elections manager for Fairfax County, including the number of different ballot styles used in her county and how much work it would take to make the changes to the ballot.

Lauck questioned Jordan’s ability to speak to procedures if he has no direct knowledge of their procedures.

McSweeney argued it didn’t matter because they use the same technology.

After the hearing, Jordan said he felt the judge disregarded his knowledge of the patents he used as reference to define his understanding of the technology used in optical scanners that read ballots.

Heslinga reiterated the validity of Flaig’s statement that there are 76 unique ballot styles and the fact that, Fairfax County already printed its ballots due to its size and election preparation needs at a cost of more than $94,000.

Revising the ballots now would require changes to each of the 76 ballot styles, and some candidate names are too long to allow simply putting the party identifier after the name, creating further design issues, he said.

McSweeney took issue with the 25 character limit for a candidate entry in a Ballot Standards and Verification Procedures document, pointing to examples in other jurisdictions where it had gone over. Adding those three extra characters with the party affiliation would be a simple matter with current technology and is doable in the space allowed, he said.

"The ballot standards are obsolete and ignored by local registrars for good reason," he said, adding technology allows for adjustments much easier now.

Heslinga said having a limit is necessary because there are only so many characters that can be included before the font would need to go below an acceptable size to fit all of them.

If the ballots had to be re-designed, Fairfax would be required to re-order hundreds of thousands of paper ballots from its printing company – likely at a higher cost – and to reprogram about 1,000 thumb drives for electronic voting systems, a time-consuming task, according to the defendant’s brief.

Virginia has 133 localities (counties and independent cities), and a preliminary injunction would also require the commonwealth to re-review revised ballots and to coordinate with hundreds of local electoral board members and general registrars to ensure uniform and proper implementation of ballot, Heslinga said.

 

Partisanship

McSweeney said the plaintiffs have stated that they do not claim an absolute right to have their party’s identifier after their names on the ballot.

Instead, their equal protection and freedom of association claims are based on the unreasonable and discriminatory treatment of local party-nominated candidates, he said.

The law whose constitutionality is being contested serves the purpose of minimizing partisanship in local offices, attempting to ensure that as many citizens are eligible to hold local office as possible, and promoting impartial local governance and administration of law, according to Heslinga’s brief.

During the hearing, he said the plaintiffs are trying to get the court involved in a "local county squabble" and that any voter confusion about the Republican candidate’s identity can be cleared up through normal campaign activities in the coming weeks.

Laura McFarland may be reached at Lmcfarland@powhatantoday.com.

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