Robert C. Sarvis, the Libertarian candidate for U.S. Senate, several of the party’s congressional candidates and an independent have filed a federal lawsuit against the Virginia State Board of Elections.

They are asking the court to strike down Virginia’s law requiring Democrat and Republican candidates to be given the two top spots on ballots.

In the complaint, the plaintiffs allege that the law violates the First and 14th Amendments to the U.S. Constitution by favoring the election chances of Democrat and Republican candidates at the expense of Libertarian Party and independent candidates. The Rutherford Institute, a conservative nonprofit legal organization, filed the suit Wednesday with the U.S. District Court of the Eastern District of Virginia.

The complaint says that while it is obvious that, in any given election, some candidate must be listed first, and some candidate listed last, “an electoral system that is designed to ensure that a specific class of candidates always has a ballot position more favorable than other classes of candidates is inherently unconstitutional.”

Sarvis, a former Libertarian candidate for governor, had repeatedly complained about the ballot process for third-party candidates. It not only affords these candidates the third or lesser place on the ballot, but it also requires 10,000 valid signatures from registered Virginia voters, including 400 from each of the state’s 11 congressional districts, to qualify.

Sarvis announced last week that he received notice of qualification after submitting 19,000 signatures.

Charles E. Judd, chairman of the elections board, said Thursday that he had not yet been made aware of the suit and that the board was bound by the statute unless the code is changed.

“Current law says that the two major parties get first and second place on the ballot by drawing, followed by independents and other candidates,” he said. “We can’t change the law.”

Sarvis said in a phone interview Thursday that he first discovered the statute last year when he filed the ballot petition for his gubernatorial bid. “I looked into filing a suit that year, but we didn’t find a lawyer in time,” he said.

The statute, Sarvis said, speaks to the “voluminous nature of our laws; we have way too many and nobody reads through them all.”

Only the General Assembly — not the elections board — can change the law. But Sarvis said he would not expect a legislature consisting of Republicans and Democrats to support such change. “It would be against their interest,” Sarvis said.

John W. Whitehead, president of The Rutherford Institute, said in a statement that there was a time in the nation’s history when “a person’s vote counted for something more than merely the illusion of participation” and when the people’s referendum at the ballot boxes brought about a change in the way government did business.

“That is no longer the case, thanks in large part to a corrupt political establishment that favors an elitist, two-party system whose primary aim is to maintain the status quo,” Whitehead said.

(804) 649-6537

Twitter: @MSchmidtRTD

​mschmidt@timesdispatch.com   (804) 649-6537   Twitter: @MSchmidtRTD

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