Much of the support for Bernie Sanders and Donald Trump this year comes from voters who feel the system is rigged. On Monday the 4th Circuit Court in Richmond lent support to that notion. Sanders and Trump themselves agree — at least in broad strokes. Sanders says he “wouldn’t use the word rigged,” just “really dumb.” Trump is (surprise!) not so restrained: “It’s a rigged system, it’s a corrupt enterprise.” Those complaints look a trifle odd coming from those sources. Nationwide, Hillary Clinton received 3 million more votes than Sanders did in the Democratic primaries and caucuses. Trump complains the system is rigged and corrupt in one breath — and then boasts about how many states he won in the next. Merits aside, Trump and Sanders are complaining about the nominating processes of the Republican and Democratic political parties, which are essentially private organizations. Any advantages or disadvantages a candidate faces are imposed by internal party rules, not the machinery of government. That’s not the case regarding third parties, which face obstacles imposed by law.
In Virginia, one of those obstacles arises from the ordering of candidates on the ballot. State law stipulates that candidates from the major political parties (defined as those getting at least 10 percent of the vote for a statewide office in at least one of the past two statewide elections) will be listed first. In practice that means Democrats and Republicans. The second class of candidates belong to “recognized political parties,” which didn’t get at least 10 percent but have a party apparatus, and they are grouped and listed next. Independent candidates are listed third.
Two years ago Robert Sarvis, a former Libertarian Party candidate for governor, challenged the ballot-ordering law in court. The wheels of justice grind slowly, so it was only Monday that the 4th Circuit issued a ruling that upheld a district court’s decision to dismiss the case. In short, the 4th Circuit found that the ballot-ordering law did not unduly burden the constitutional rights of Sarvis or other Libertarians. States have the authority to regulate elections, the court said, and Virginia has legitimate reasons for ordering the ballot the way it does.
The ruling illustrates a point too often overlooked: “unfair” is not a synonym for “unconstitutional.” But then the converse is also true: “constitutional” is not a synonym for “fair.”