                               PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 15-1162


LIBERTARIAN PARTY OF VIRGINIA; WILLIAM HAMMER; JEFFREY CARSON;
JAMES CARR; MARC HARROLD; WILLIAM REDPATH; WILLIAM CARR; BO
CONRAD BROWN; PAUL F. JONES,

                Plaintiffs,

and

ROBERT C. SARVIS,

                Plaintiff − Appellant,
           v.

JAMES B. ALCORN, in his individual and official capacities as
member of the Virginia State Board of Elections; SINGLETON B.
MCALLISTER, in her individual and official capacities as member
of the Virginia State Board of Elections; CLARA BELLE WHEELER,
in her individual and official capacities as member of the
Virginia State Board of Elections,

                Defendants − Appellees.



Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.   Robert E. Payne, Senior
District Judge. (3:14-cv-00479-REP)


Argued:   May 10, 2016                      Decided:   June 20, 2016


Before WILKINSON and AGEE, Circuit Judges, and DAVIS, Senior
Circuit Judge.


Affirmed by published opinion.       Judge Wilkinson wrote       the
opinion in which Judge Agee and Senior Judge Davis joined.
ARGUED: David I. Schoen, DAVID I. SCHOEN, ATTORNEY AT LAW,
Montgomery, Alabama, for Appellant. Stuart Alan Raphael, OFFICE
OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for
Appellees.   ON BRIEF: Robert C. Sarvis, Alexandria, Virginia,
Appellant Pro Se.      Mark R. Herring, Attorney General of
Virginia, Rhodes B. Ritenour, Deputy Attorney General, Anna T.
Birkenheier, Assistant Attorney General, Matthew R. McGuire,
Assistant Attorney General, Erin R. McNeill, Assistant Attorney
General, Trevor S. Cox, Deputy Solicitor General, OFFICE OF THE
ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.




                               2
WILKINSON, Circuit Judge:

      Robert Sarvis, a political figure in the Libertarian Party

of   Virginia,     brings     a    constitutional          challenge     to    Virginia’s

three-tiered ballot ordering law. The district court found no

merit     in    Sarvis’s      arguments       and        accordingly     dismissed      his

challenge for failure to state a claim under Fed. R. Civ. P.

12(b)(6). We now affirm.

                                             I.

      Sarvis’s attack focuses chiefly upon the ballot ordering

law found in Virginia Code § 24.2-613. That law describes the

form of ballot to be used in Virginia elections. It provides

that for elections to “federal, statewide, and General Assembly

offices” a candidate “shall be identified by the name of his

political party” or by the term “Independent.” Va. Code Ann.

§ 24.2-613.      Of    principal        concern     to    this   case,   the    law   also

orders the ballot for elections to these offices in three tiers.

        The    first   tier       includes        candidates      from    “parties”     or

“political parties,” which a related section of the Code defines

as organizations of citizens that received at least 10 percent

of the vote for any statewide office filled in either of the two

preceding statewide general elections. Va. Code Ann. § 24.2-101.

In addition, the Code provides that any organization seeking

“party” or “political party” status must also have had a state

central       committee    and     an    elected     state       chairman     present   in

                                             3
Virginia    for       six     months      prior       to     any     nominee      from        that

organization         filing      for     office.      Id.    The     only       organizations

currently designated “parties” or “political parties” under the

Code are the Republican Party and the Democratic Party. 1

     The     second         tier       includes      candidates          from    “recognized

political       parties.”        For     an   organization          of     citizens      to    be

designated a “recognized political party” under the Code, that

organization must have had a state central committee present in

Virginia for six months prior to any nominee from that party

filing    for    office,         and    the   state    central        committee       must     be

comprised       of   voters       residing      in    each        Virginia      congressional

district. Va. Code Ann. § 24.2-613. The organization must also

have a duly elected state chairman and secretary as well as a

party plan and bylaws. Id. The Libertarian Party of Virginia has

been designated a “recognized political party” under the Code.

     Finally,         the        third        tier     of     the        ballot       includes

“[i]ndependent         candidates”            not    associated          with      “political

parties” or “recognized political parties.” Id.

     In    addition         to    delineating        the     election       ballot’s      three

tiers,     Virginia’s         ballot      ordering          law     also     specifies        how


     1 We note that as recently as the mid-1990s, the Virginia
Reform Party satisfied the applicable requirements to be
designated a “political party” and thus was part of the first-
tier ballot listing on the 1996 general election ballot.   Cf.
J.A. 61, 95, and 97.


                                                4
candidates are ordered within the three tiers. In the first two

tiers, candidate order is set by lot. Importantly, this order is

replicated for each office on the ballot, creating party order

symmetry   across   the    ballot    as       a   whole.   In     the   third   tier,

candidate order is alphabetical by surname. Id. 2

      In July 2014, just a few months before the November 2014

elections, Sarvis and others members of the Libertarian Party of

Virginia along with the Libertarian Party of Virginia itself and

one   independent   candidate       filed         a   complaint    that   named   as

defendants   certain      members    of       the     Virginia    State   Board   of

Elections. The complaint alleged that the three-tiered ballot

ordering law found in Virginia Code § 24.2-613 violated their

constitutional rights under the First and Fourteenth Amendments.

Sarvis and his co-plaintiffs sought relief from the law prior to

the November 2014 elections. 3


      2Somewhat different rules govern the tiered ballot used for
elections for the offices of President and Vice President of the
United States. See Va. Code Ann. §§ 24.2-543, -613, -614.
     3  The plaintiffs’ amended complaint before the district
court also targeted Virginia Code § 24.2-506, a law establishing
a signature requirement some prospective candidates must meet to
be placed on the ballot in the first place. However, the
plaintiffs later voluntarily dismissed this claim at oral
argument before the district court. Sarvis’s appellate briefs
reference the signature requirement, and it is thus unclear
whether he is attempting to revive this claim on appeal. In any
event, we will not consider this issue in light of the
plaintiffs’ decision to dismiss it below. See Unioil, Inc. v.
E.F. Hutton & Co., 809 F.2d 548, 555 (9th Cir. 1986) (“As a
general rule, a plaintiff may not appeal a voluntary dismissal
(Continued)
                                          5
       In September 2014, the plaintiffs and the Commonwealth both

determined that the litigation would not be resolved prior to

the November 2014 elections. But the parties and the district

court agreed that, should Sarvis and his co-plaintiffs intend to

seek elected office in the future, their case would remain ripe

beyond    the      November       2014    elections      under     the    capable    of

repetition        yet   evading    review       doctrine.   The    plaintiffs       thus

amended their complaint to reflect their interest in seeking

relief   from      the   ballot     ordering       law   with    regard     to    future

elections, and the litigation continued on this basis. Sarvis in

particular alleged that he would be “a candidate for national

office in Virginia in the 2016 election.” J.A. 32. The amended

complaint asked that the district court enjoin the law during

the “2015 statewide elections and the 2016 and beyond general

elections”        and   issue   “an      order   directing      the    defendants    to

assign ballot positions to all ballot-qualified candidates and

parties on a random basis without regard to party status.” J.A.

46.

       Shortly     thereafter,        Virginia     filed    a    motion    to    dismiss

under Rule 12(b)(6), claiming that the amended complaint failed

to    state   a    claim   upon     which       relief   could    be     granted.   The



because it is not an involuntary adverse judgment against
him.”), overruling on other grounds recognized by In re Keegan
Mgmt. Co., 78 F.3d 431, 435 (9th Cir. 1996).


                                            6
district court granted Virginia’s motion to dismiss in January

2015. Sarvis v. Judd, 80 F. Supp. 3d 692, 695 (E.D. Va. 2015).

The district court based its decision primarily on the framework

established by the Supreme Court in Burdick v. Takushi, 504 U.S.

428 (1992), and Anderson v. Celebrezze, 460 U.S. 780 (1983). In

those   decisions,          the    Supreme       Court      held       that    courts    should

review First and Fourteenth Amendment-based challenges to state

election     laws      by    weighing        the      severity         of    the    burden   the

challenged       law     imposes      on    a    person’s         constitutional        rights

against the importance of the state’s interests supporting that

law. Burdick, 504 U.S. at 434; Anderson, 460 U.S. at 789.

     Sarvis and his co-plaintiffs, the Commonwealth of Virginia,

and the district court all agreed that the burden imposed by the

three-tiered       ballot         ordering      law       was    not    severe      enough   to

warrant strict scrutiny. The district court gave two principal

reasons    for    this       conclusion.         First,         the    law    is    politically

neutral    in     that      it     does    not       entrench         particular      political

parties in favorable positions on the election ballot. Sarvis,

80 F. Supp. 3d at 701-02. Second, the law does not exclude any

prospective candidate from the ballot altogether. Id. at 702-03.

     Turning        to      the    question          of   Virginia’s          interests,     the

district court noted three justifications offered by Virginia

for the ballot ordering law: avoiding voter confusion, creating

party-order      symmetry,         and     favoring        parties          with   demonstrated

                                                 7
public support. Id. at 703. Before assessing the merits of these

justifications,           however,     the    district          court    determined     that

Virginia      had    described       the     nature       and    purpose    of   the    three

justifications with sufficient precision. Disagreeing with the

plaintiffs,         the    district     court       held    that    neither      additional

factual      development        of   the     case    nor    more    concrete       empirical

support for Virginia’s justifications was necessary before it

could properly rule on Virginia’s motion to dismiss. Id. at 703-

06.    The     district         court      then       reviewed          Virginia’s      three

justifications and determined that each was important. Id. at

706-08.

       Finally,       in    weighing       the      plaintiffs’          burdens     against

Virginia’s         interests,        the     district       court       ruled    that     the

interests put forward by Virginia outweighed any minor burdens

the ballot ordering law imposed on Sarvis and his co-plaintiffs.

The    district      court      accordingly         granted      Virginia’s      motion    to

dismiss      the    amended      complaint.         Id.    at    708-09.    Sarvis      alone

appeals that order.

                                              II.

       Sarvis’s main argument on appeal is that Virginia’s three-

tiered ballot ordering law advantages candidates from what he

calls “major parties” and disadvantages candidates like him that

hail from what he calls “minor parties.” According to Sarvis,

this    conferral          of    advantages          and        disadvantages      violates

                                               8
expressive and associational rights, the right to cast a vote

for a candidate of one’s choice, and the right to stand for

election, all of which are protected by the First Amendment. In

addition, Sarvis contends that the ballot ordering law’s unequal

treatment of candidates runs afoul of the Fourteenth Amendment’s

Equal Protection Clause. Appellant’s Opening Br. 12-13.

       Sarvis   premises     his   constitutional    challenge   largely   on

what   the   district   court      termed   the   “windfall   vote”   theory.

Sarvis, 80 F. Supp. 3d at 699. According to this theory, in any

given election, some voters will vote for candidates appearing

at the top of the ballot because of those candidates’ prominent

ballot positions. Sarvis argues that Virginia’s ballot ordering

law, in conjunction with this capricious voter bias, places an

improper burden on candidates from minor parties. Before the

district court, however, Sarvis stated that his expert would not

testify about the exact extent of the bias in Sarvis’s specific

situation. Id. at 700 n.1.

       Although he concedes that the burden imposed by the three-

tiered ballot ordering law is not subject to strict scrutiny,

Sarvis     contends   that    the    district     court’s   Anderson/Burdick

analysis nevertheless underestimated the magnitude of the burden

imposed by the law. At the same time, he argues that the court’s

analysis over-credited the interests Virginia offered to support

the law.

                                       9
       Finally, in addition to disagreeing with the substance of

the    district          court’s       analysis        of    the        burdens       imposed       and

interests furthered by the ballot ordering law, Sarvis argues

that the district court erred in rejecting his claims at the

motion      to    dismiss       stage.      He    states      that           the    district    court

should have allowed discovery so as to better ascertain how the

ballot ordering law burdens candidates who are not listed in the

ballot’s         first    tier,    and      how    it       does    or       does    not    actually

further the interests Virginia offers in support of the law.

                                                 III.

       We    begin       with    the     uncontroversial                proposition         that    the

legislature in each state of our federal system possesses the

presumptive authority to regulate elections within that state’s

sovereign         territory.       This     authority         stems          directly       from    the

Constitution. With regard to congressional elections, Article I

Section 4 Clause 1 of the Constitution provides: “The Times,

Places      and     Manner        of    holding         Elections             for    Senators       and

Representatives,           shall       be   prescribed             in    each       State    by     the

Legislature thereof; but the Congress may at any time by Law

make   or    alter       such     Regulations,          except          as    to    the    Places    of

chusing Senators.” Article II Section 1 Clause 2 accords similar

treatment to presidential elections: “Each State shall appoint,

in such Manner as the Legislature thereof may direct, a Number

of Electors,” who will then choose the President. And a state’s

                                                  10
authority to regulate elections for its own offices is simply a

basic incident of our federal system. The Constitution nowhere

confers – at least not as an initial matter – authority on the

federal government to regulate elections for state offices.

     These    constitutional         provisions     are    the      product    of    the

Framers’ extensive debate concerning the roles that the state

and federal governments would play in regulating elections. See,

e.g., The Federalist No. 59 (Alexander Hamilton) (arguing for

federal     control       over    congressional        elections);       The    Anti-

Federalist     No.    7     (Cato)      (arguing    for    state      control       over

congressional elections). It is no surprise that the precise

compromise    that    the    Framers     struck    differs     for    each    type    of

election.     For    instance,     the    Framers      chose   to    “invest[]       the

States with responsibility for the mechanics of congressional

elections,    but    only    so   far    as    Congress   declines      to    pre-empt

state legislative choices.” Arizona v. Inter Tribal Council of

Arizona, Inc., 133 S. Ct. 2247, 2253 (2013) (quoting Foster v.

Love,   522   U.S.    67,    69   (1997)).      With    regard   to    presidential

elections, however, the Framers adopted a different approach:

the Electoral College. They then gave state legislatures the

authority to decide the manner through which the electors from

each state would be appointed. McPherson v. Blacker, 146 U.S. 1,

35 (1892).



                                          11
        Of course, the Reconstruction Amendments along with later

amendments such as those providing for the election of Senators

“by the people” (1913) and prohibiting denial of the right to

vote “on account of sex” (1920) materially altered the division

of   labor     established           by    the    Framers       for     the    regulation      of

elections. U.S. Const. amends. XVII, XIX. And various federal

statutes, most notably the Voting Rights Act of 1965, passed

pursuant       to      those         amendments          have     made        still      further

alterations. Most of these steps were deeply necessary and long

overdue.       Through        them        all,    however,        the     Constitution        has

continued      to   preserve         for       state     legislatures         the   presumptive

authority to regulate both the larger and smaller aspects of the

federal      and    state      elections           occurring       within       that     state’s

boundaries.

        Indeed, the Supreme Court has consistently recognized this

enduring     tenet       of   our     constitutional            order,    noting       that   the

states possess a “broad power to prescribe the Times, Places and

Manner of holding Elections for Senators and Representatives,

which    power      is    matched         by     state    control       over     the    election

process for state offices.” Clingman v. Beaver, 544 U.S. 581,

586 (2005) (quoting Tashjian v. Republican Party of Conn., 479

U.S.    208,     217     (1986));          see    also     Bush    v.     Palm      Beach     Cty.

Canvassing      Bd.,     531    U.S.       70,    76     (2000)    (per       curiam)   (noting



                                                  12
state     legislatures’          broad        power    over    the    appointment          of

presidential electors).

     This arrangement is not only long-standing – it also makes

a certain sense. All other things being equal, it is generally

better    for    states     to    administer          elections.     It    is   true    that

smaller units of government can act oppressively toward minority

citizens within their borders and against unpopular points of

view.     But     local     administration             also    allows       for       greater

individual input and accountability; a distant bureaucracy is in

danger    of     appearing       out     of    reach     and   out    of    touch.      Even

Alexander       Hamilton,    who       vigorously       supported     greater         federal

control    over    congressional         elections,       acknowledged          the   point:

allowing “local administrations” to regulate elections “in the

first instance” may, “in ordinary cases,” be “more convenient

and more satisfactory.” The Federalist No. 59. All of this is to

say that a lot of thought stretching over centuries has gone

into our electoral system as it now generally operates. The text

and history of the Constitution, well established Supreme Court

precedent, and the structural principles inherent in our federal

system counsel respect for the Virginia General Assembly’s power

to administer elections in Virginia.

                                              IV.

                                               A.



                                               13
       Mindful    of    state       legislatures’          longstanding        authority         to

regulate      elections,       we       turn    first      to    an    examination        of     the

alleged       burdens     imposed          by    Virginia’s           three-tiered         ballot

ordering law.

       State    election       regulations            often       “implicate       substantial

voting,    associational          and      expressive       rights       protected         by    the

First and Fourteenth Amendments.” Pisano v. Strach, 743 F.3d

927,    932     (4th    Cir.        2014)       (citation         omitted).        “The        First

Amendment, as incorporated against the states by the Fourteenth

Amendment, protects the rights of individuals to associate for

the    advancement      of     political        beliefs         and    ideas.”      S.C.       Green

Party v. S.C. State Election Comm’n, 612 F.3d 752, 755-56 (4th

Cir. 2010). For example, it is “beyond debate that freedom to

engage in association for the advancement of beliefs and ideas

is an inseparable aspect of the ‘liberty’ assured by the Due

Process    Clause       of     the      Fourteenth         Amendment,        which    embraces

freedom of speech.” Anderson, 460 U.S. at 787 (quoting NAACP v.

Alabama,        357       U.S.          449,         460        (1958)).       “[I]nvidious”

classifications         also      violate       rights          protected     by    the        Equal

Protection       Clause      of      the    Fourteenth           Amendment.        Williams      v.

Rhodes, 393 U.S. 23, 30 (1968). These rights, however, are not

absolute.      All    election          laws,   including         perfectly        valid       ones,

“inevitably       affect[]          –      at   least       to        some   degree        –     the



                                                14
individual’s          right        to   vote    and       his     right    to       associate        with

others for political ends.” Anderson, 460 U.S. at 788.

      In    order        to    distinguish           those        laws    whose           burdens     are

uniquely        unconstitutional            from         the      majority          of     laws     whose

validity         is     unquestioned,           we        employ     the        Supreme           Court’s

Anderson/Burdick              decisional            framework.            We        “consider            the

character and magnitude of the asserted injury to the rights

protected        by     the    First      and       Fourteenth           Amendments          that     the

plaintiff        seeks        to    vindicate”;            “identify       and           evaluate        the

precise interests put forward by the State as justifications for

the burden imposed”; and “determine the legitimacy and strength

of   each       of    those    interests”           and    “the     extent          to    which     those

interests make it necessary to burden the plaintiff’s rights.”

Anderson, 460 U.S. at 789. This balancing test requires “hard

judgments” – it does not dictate “automatic” results. Id. at

789-90.

      The nature of our inquiry is “flexible” and “depends upon

the extent to which a challenged regulation burdens First and

Fourteenth Amendment rights.” Burdick, 504 U.S. at 434. Laws

imposing        only     “modest”        burdens          are     usually       justified           by    a

state’s “important regulatory interests.” S.C. Green Party, 612

F.3d at 759. Laws imposing “severe” burdens, on the other hand,

“must      be    ‘narrowly          drawn      to        advance     a    state           interest       of

compelling           importance.’”        Burdick,          504    U.S.        at    434     (citation

                                                    15
omitted). They are thus subject to “strict scrutiny.” McLaughlin

v. N.C. Bd. of Elections, 65 F.3d 1215, 1221 (4th Cir. 1995).

However,       the    class   of     laws       facing        this     higher    scrutiny       is

limited.       Subjecting      too      many     laws       to    strict       scrutiny       would

unnecessarily “tie the hands of States seeking to assure that

elections are operated equitably and efficiently.” Burdick, 504

U.S. at 433.

       Here, Virginia’s three-tiered ballot ordering law imposes

only     the     most    modest         burdens          on      Sarvis’s       free     speech,

associational, and equal protection rights. The law is facially

neutral    and       nondiscriminatory           –    neither        Sarvis’s     Libertarian

Party nor any other party faces a disproportionate burden. All

parties     are       subject      to     the        same       requirements.          None    are

automatically         elevated     to     the      top     of    the    ballot.    Virginia’s

ballot ordering law thus allows any political organization - of

any persuasion – an evenhanded chance at achieving political

party status and a first-tier ballot position. Va. Code Ann.

§§ 24.2-101, -613.

       Sarvis     complains        that      the     bar      for    achieving     first-tier

political       party     status        is      nonetheless            too     high,     but    he

exaggerates the difficulty of this goal. An organization may

obtain     first-tier         political         party         status      if     any     of    its

candidates for any office receives 10 percent of the vote in

either of the two preceding statewide general elections. And, in

                                                16
any case, his complaint is inapposite because he may be present

on the ballot in all events. Sarvis did appear on the ballot in

the past, and he may do so again in the future. What is denied,

therefore,       is    not        ballot     access,     but   rather      access   to   a

preferred       method       of    ballot     ordering.    But    mere     ballot    order

denies neither the right to vote, nor the right to appear on the

ballot,   nor     the     right      to     form    or   associate    in    a   political

organization.

     Comparing this relaxed regime with statutes upheld in other

cases demonstrates that Virginia’s ballot ordering law imposes

only a minimal burden on First and Fourteenth Amendment rights.

For example, in Munro v. Socialist Workers Party, the Supreme

Court considered the constitutionality of a Washington state law

requiring       that    “a    minor-party          candidate   for    partisan      office

receive at least 1% of all votes cast for that office in the

State’s primary election” in order even to appear on the general

election ballot at all. 479 U.S. 189, 190 (1986). The Court

upheld    the    law,     because          Washington    “ha[d]   not      substantially

burdened the ‘availability of political opportunity.’” Id. at

199 (citation omitted). Other cases have found that a complete

prohibition       on     write-in      voting       imposed    only     “very   limited”

burdens on constitutional rights, Burdick, 504 U.S. at 437, and

that a law barring candidates from appearing on the ballot as

candidates of more than one political party “does not severely

                                               17
burden” associational rights. Timmons v. Twin Cities Area New

Party, 520 U.S. 351, 359 (1997). Indeed, the Court has even held

that a state may prohibit independent candidates from appearing

on    the   ballot      if   they     “had    a       registered    affiliation       with   a

qualified political party” during the previous year. Storer v.

Brown, 415 U.S. 724, 726-28 (1974). Viewed in the light of these

regulations, Sarvis’s squabbles with his particular position on

the ballot appear almost inconsequential. The ballot ordering

law does not deny anyone the ability to vote for him, nor his

ability      to    appear     on    the   Virginia         ballot   with   his    preferred

party affiliation.

       Sarvis himself recognizes the limits of the ballot ordering

law’s burdens, as he concedes that this case “does not rise to a

level of strict scrutiny.” J.A. 183-84. He nonetheless maintains

that the law “creates a serious consequential burden,” because

“[c]andidates           in   inferior        ballot        positions     have     a   strong

likelihood of getting fewer votes than they would otherwise”

under the theory of windfall voting. Appellant’s Opening Br. 3.

The    theory      is    that      uninformed         or   undecided     voters   are   more

likely      to    choose     candidates      listed        higher   on    the   ballot.      In

Sarvis’s view, Virginia’s ballot ordering law thus grants an

advantage         to    candidates        from        major   political     parties,      and

determining the magnitude of this advantage requires that the



                                                 18
case “go forward on the merits for the development of a full

factual record.” Appellant’s Opening Br. 13.

     Sarvis’s demand for discovery, however, misapprehends the

nature of a motion to dismiss. Here, the district court properly

recognized that “[t]o survive a Rule 12(b)(6) motion to dismiss,

a complaint must ‘provide enough facts to state a claim that is

plausible    on   its    face,’”     Sarvis,       80     F.    Supp.    3d    at    696

(quoting Robinson v. Am. Honda Motor Co., 551 F.3d 218, 222 (4th

Cir. 2009)), and that to reach facial plausibility, Sarvis must

“plead[]    factual     content    that    allows       the    court    to    draw    the

reasonable    inference     that    the        defendant       is   liable    for    the

misconduct alleged.” Id. (quoting Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009)).

     The problem for Sarvis is that even if there is a windfall

vote, his complaint would still fail to raise the “reasonable

inference”     that      Virginia’s       ballot        ordering        law    creates

constitutionally      significant     burdens.          The    fact    remains      that,

“windfall” or not, the Virginia ballot ordering law still does

not “restrict access to the ballot or deny any voters the right

to vote for candidates of their choice.” Sonneman v. State, 969

P.2d 632, 638 (Alaska 1998). The law instead “merely allocates

the benefit of positional bias, which places a lesser burden on

the right to vote.” Id. And contrary to Sarvis’s cursory equal

protection   argument,     Appellant’s          Opening       Br.   12-13,    it    makes

                                          19
this allocation in a neutral, nondiscriminatory manner. Compare

Graves v. McElderry, 946 F. Supp. 1569, 1582 (W.D. Okla. 1996)

(holding      that     an     Oklahoma     law     placing       Democratic       Party

candidates in the highest ballot positions violated the Equal

Protection Clause), with Bd. of Election Comm’rs of Chicago v.

Libertarian Party of Ill., 591 F.2d 22, 25-27 (7th Cir. 1979)

(holding that an Illinois county’s facially neutral two-tiered

ballot   ordering      system     did    not   violate    the     Equal    Protection

Clause).

       It remains far from clear, moreover, that federal courts

possess the power to rule that some voters’ choices are less

constitutionally meaningful than the choices of other supposedly

more   informed      or     committed    voters.   This    whole       windfall   vote

theory casts aspersions upon citizens who expressed their civic

right to participate in an election and made a choice of their

own free will. Who are we to demean their decision? “There is

‘no constitutional right to a wholly rational election, based

solely   on    a     reasoned    consideration       of    the    issues    and    the

candidates’        positions,      and     free    from        other    ‘irrational’

considerations.’” Schaefer           v.    Lamone,       No.     1:06-cv-00896-BEL,

2006 U.S. Dist. LEXIS 96855, at *13 (D. Md. Nov. 30, 2006)

(quoting Clough v. Guzzi, 416 F. Supp. 1057, 1067 (D. Mass.

1976), aff’d, 248 F. App’x 484 (4th Cir. 2007). As noted, Sarvis

says that his expert would not testify as to the exact degree of

                                          20
positional bias caused by Virginia’s law, but this admission is

unnecessary to our analysis. “[A]ccess to a preferred position

on the ballot so that one has an equal chance of attracting the

windfall vote is not a constitutional concern.” New Alliance

Party v. N.Y. State Bd. of Elections, 861 F. Supp. 282, 295

(S.D.N.Y. 1994). Even without Sarvis’s admission, the windfall

vote   theory    would    thus    fail     to   raise     an   inference      of   any

cognizable      constitutional        burden       on    First      or     Fourteenth

Amendment rights.

       Given    that   the     Virginia     ballot      ordering    law    does    not

restrict candidate access to the ballot or deny voters the right

to vote for the candidate of their choice, or otherwise require

strict    scrutiny,      we    have   no    need    to    conduct    the    kind   of

empirical analysis into burdens that would essentially displace

the authority of state legislatures with the views of expert

witnesses. That is not to say, however, that our analysis is at

an end. In order to be sure that the district court did not

improperly dismiss Sarvis’s complaint, we need to make certain

that     important     state     interests         support     Virginia’s      ballot

ordering law.

                                           B.

       Virginia’s three-tiered ballot ordering law is supported by

“important regulatory interests.” Timmons, 520 U.S. at 358. In

particular, the law may assist the voting process by reducing

                                           21
voter    confusion   and    preserving          party-order       symmetry      across

different offices on the ballot. Additionally, the law may also

reduce multi-party factionalism and promote political stability.

     Sarvis again insists that we may not weigh these interests

without discovery. Appellant’s Opening Br. 20. But “elaborate,

empirical    verification       of    []    weightiness”      is    not    required.

Timmons, 520 U.S. at 364. To hold otherwise would “invariably

lead to endless court battles” over the quality of the state’s

evidence, Munro, 479 U.S. at 195, and to a corresponding loss of

certainty    over    the    rules      by       which   we   select       our    whole

government. We therefore do not “require that a state justify”

reasonable and nondiscriminatory rules “in this manner.” Wood v.

Meadows,    207   F.3d   708,   716    (4th      Cir.   2000).     In   cases    where

strict   scrutiny    does   not      apply,     we   ask   only    that   the    state

“articulate[]” its asserted interests. Id. at 717. This is not a

high bar, and Virginia has cleared it here. Reasoned, credible

argument supports its stated interests.

     First, Virginia’s three-tiered ballot ordering law serves

the important state interest of reducing voter confusion and

speeding the voting process. While Sarvis’s complaint is vague

about how his preferred ballot listing would actually operate,

J.A. 46, it is clear that he wishes to move ballot ordering

among parties and candidates to a more purely random system.

Virginia’s system, by contrast, emphasizes voter familiarity and

                                           22
more    predictable      order.     Listing       candidates         by   party        allows

voters to more quickly find their preferred choice for a given

office, especially when party loyalties influence many voters’

decisions. And in an environment where many voters not only hold

party loyalties but also tend to be loyal to one of only a few

major    parties,      it   again     aids      the    voting        process      to     list

candidates      from   those   parties         first   on    the     ballot.      Sarvis’s

request for a court decree commanding Virginia to randomly order

its    ballot   betrays     not     only   a    flawed      conception       of       federal

judicial power. It is also suspect as a practical matter. Random

ordering      risks    requiring     voters      to    decipher        lengthy         multi-

office, multi-candidate ballots in order to find their preferred

candidates.

       “Election      officials     have   good       reason    to    adopt       a    ballot

format that minimizes” this sort of “confusion.” Bd. of Election

Comm’rs of Chicago, 591 F.2d at 25. For each extra minute that a

voter spends deciphering his ballot in the voting booth, dozens

or more voters may spend another minute in line. This all adds

up.    Long   election      lines    may   frustrate        voters        attempting       to

exercise their right to vote. Hour long lines at some polling

locations have led many to complain that election officials had

discouraged their exercise of the franchise. See, e.g., Fernanda

Santos, In Arizona, Voters Demand: Why the Lines?, N.Y. Times,



                                           23
March   25,   2016,   at   A13.   Reducing   the   risk    of   this   sort   of

disincentive is undoubtedly an important state interest.

      Second, and relatedly, Virginia’s ballot ordering law also

has   the   advantage   of   maintaining     party-order    symmetry    across

many offices on the ballot. Within the first two ballot tiers,

party order is determined by lot. Va. Code Ann. § 24.2-613. The

names of all party-affiliated candidates for particular offices

then appear “in the order determined for their parties.” Id.

This is so for all “federal, statewide, and General Assembly

offices.” Id.

      The effect of all this is to create “a symmetrical pattern

on the ballot.” New Alliance Party, 861 F. Supp. at 297. The

ballot law ensures that if a party’s candidate for United States

Senator is listed second, for example, then candidates from that

party will be second in lists for other offices as well. This

again advances the state’s interest in “efficient procedures for

the election of public officials.” S.C. Green Party, 612 F.3d at

759. It makes the ballot more easily decipherable, especially

for voters looking for candidates affiliated with a given party.

      Finally, the ballot ordering law may also favor Virginia’s

“strong interest in the stability of [its] political system[].”

Timmons, 520 U.S. at 366. “Maintaining a stable political system

is, unquestionably, a compelling state interest.” Eu v. S.F.

Cty. Democratic Cent. Comm., 489 U.S. 214, 226 (1989). While

                                     24
minor parties have long been an important feature of political

protest    and    American       democratic   life,    it   is    also   entirely

legitimate       for    states    to    correlate     ballot     placement   with

demonstrated levels of public support. Indeed, there are many

who believe that “the emergence of a strong and stable two-party

system in this country has contributed enormously to sound and

effective government.” Davis v. Bandemer, 478 U.S. 109, 144-45

(1986) (O’Connor, J., concurring).

     The Constitution therefore unsurprisingly “permits [a state

legislature] to decide that political stability is best served

through a healthy two-party system,” Timmons, 520 U.S. at 367,

as opposed to shifting coalitions of multiple party entities. Of

course, state latitude in this regard is not unlimited. While a

state    legislature      may    not   “completely    insulate     the   two-party

system     from        minor     parties’     or     independent     candidates’

competition and influence,” it may “enact reasonable election

regulations that may, in practice, favor the traditional two-

party system,” and “temper the destabilizing effects of party-

splintering and excessive factionalism.” Id.

     Structuring ballot order to prefer parties already strong

enough to reach first-tier party status under the Virginia Code

may further this stabilizing goal. In Sarvis’s view, after all,

a windfall vote of some magnitude is inevitable. Assuming this

is true, some party or candidate will benefit. Some party or

                                         25
candidate has to be listed first. But Virginia’s ballot ordering

law   ensures    that   at    least    the    beneficiary       will    not    be    some

entity    with    little      actual    public      support.       Of    course,       we

acknowledge      that   the   two     major   parties     may     possess      a    self-

interest in preserving their preferred status, but we will not

leap from that fact to the conclusion that a requirement of

demonstrated public support is somehow inimical to the public

good. Reinforcing through facially neutral and nondiscriminatory

methods affiliations already democratically expressed by large

portions of the public simply does not offend the Constitution.

                                         V.

      Having identified the asserted state interests furthered by

Virginia’s three-tiered ballot ordering law, we must at last

weigh them against the law’s burdens on the plaintiff’s First

and Fourteenth Amendment rights. Burdick, 504 U.S. at 434. Here

our job is easy – this case is one of the “usual[]” variety in

which the “State’s important regulatory interests . . . justify

reasonable, nondiscriminatory restrictions.” Timmons, 520 U.S.

at 358 (citation and internal quotation marks omitted).

      The three-tiered ballot ordering law imposes little burden

on    Sarvis’s    constitutional       rights,      and   Virginia       articulates

several    important       interests     supporting         the   law.        In    these

circumstances, we have “no basis for finding a state statutory

scheme    unconstitutional.”          Wood,   207    F.3d    at    717.       We    leave

                                         26
further resolution of this controversy to a different and better

set of arbiters: the people, and through them, the political

branches.

                                                        AFFIRMED




                               27
