PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 16-1331

ROBERT G. MARCELLUS; DAVID WILLIAMS; BARRY HODGE; 

TIMOTHY GRESHAM; POWHATAN COUNTY REPUBLICAN 

COMMITTEE,

Plaintiffs - Appellants,

v.

VIRGINIA STATE BOARD OF ELECTIONS; JAMES B. ALCORN, in his 

official capacity as a member and Chairman of the Virginia State Board of 

Elections; CLARA BELLE WHEELER, in her official capacity as a member and 

Vice Chair of the Virginia State Board of Elections; SINGLETON B. 

MCALLISTER, in her official capacity as a member and Secretary of the Virginia 

State Board of Elections,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern District of Virginia, at 

Richmond. M. Hannah Lauck, District Judge. (3:15-cv-00481-MHL)

Argued: December 7, 2016 Decided: February 21, 2017 

Before NIEMEYER, TRAXLER, and HARRIS, Circuit Judges.

Affirmed by published opinion. Judge Niemeyer wrote the opinion, in which Judge 

Traxler and Judge Harris joined. 
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ARGUED: Patrick Michael McSweeney, MCSWEENEY, CYNKAR & 

KACHOUROFF, PLLC, Powhatan, Virginia, for Appellants. Joshua D. Heslinga, 

OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for 

Appellees. ON BRIEF: Mark R. Herring, Attorney General of Virginia, Cynthia 

Hudson, Chief Deputy Attorney General, John W. Daniel II, Deputy Attorney General, 

Heather Hays Lockerman, Senior Assistant Attorney General, Anna T. Birkenheier, 

Assistant Attorney General, Stuart A. Raphael, Solicitor General, OFFICE OF THE 

ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.
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NIEMEYER, Circuit Judge:

The Powhatan County Republican Committee and four individuals nominated by 

the Committee to be candidates for election to the Board of Supervisors for Powhatan 

County, Virginia, commenced this action against the Virginia State Board of Elections to 

challenge the constitutionality of the portion of Virginia Code § 24.2-613(B) that

provides that only candidates in elections “for federal, statewide, and General Assembly 

offices” may be identified on the ballot by the name of the political party that nominated 

them or by the term “Independent.” The plaintiffs allege that providing political party 

identifiers for candidates for federal, statewide, and General Assembly offices, while 

denying such ballot identifiers for candidates for all local offices, violates their right of 

association protected by the First and Fourteenth Amendments and their right to equal 

protection under the Fourteenth Amendment.

On cross-motions for summary judgment, the district court entered judgment in 

favor of the Virginia State Board of Elections, upholding the constitutionality of the 

challenged portion of § 24.2-613(B), and we affirm. We conclude that the burden on 

associational rights imposed by Virginia’s regulation of the use of party identifiers on 

official ballots is at most minimal and is amply justified by Virginia’s important interests, 

which include minimizing partisanship at the local government level, promoting impartial 

governance, and maximizing the number of citizens eligible to hold local office under the 

Hatch Act, 5 U.S.C. §§ 7321-7326. We similarly conclude that § 24.2-613(B)’s different 

treatment of local candidates and federal, statewide, and General Assembly candidates 
4

with respect to party identifiers on the ballot does not violate the Equal Protection Clause 

because such treatment is rationally related to legitimate governmental interests.

I. Statutory Scheme

In Virginia, candidates for elected office can generally qualify to be placed on an 

election ballot either by filing a declaration of candidacy and a petition signed by the 

requisite number of qualified voters, see Va. Code Ann. § 24.2-506, or by receiving the 

nomination of a “political party,” as defined by statute, see id. §§ 24.2-101, 24.2-511. 

The only organizations that currently qualify under the statute’s definition are the 

Republican Party and the Democratic Party. See Libertarian Party of Va. v. Alcorn, 826 

F.3d 708, 712 (4th Cir. 2016). 

The form of ballots used in Virginia elections is tightly regulated by statute and by 

standards prescribed by the Virginia State Board of Elections. See Va. Code Ann. § 24.2-

613(A). For example, every ballot, whether printed or presented through an approved 

electronic voting system, contains a header with the words “Commonwealth of Virginia” 

and “Official Ballot.” And Virginia’s regulation of the ballot extends to details such as 

font size and the number of characters per line. Localities are required to submit ballot 

proofs to the Virginia Department of Elections for verification and approval. 

The ballots’ content is also strictly regulated. In 1870, when Virginia formally 

adopted the use of written ballots, the General Assembly specified that the ballot be “a 

white paper ticket . . . containing . . . the names of the persons for whom the elector 

intends to vote, and designating the office to which each person so named[] is intended 
5

by him to be chosen.” An Act to Provide for a General Election, ch. 76, § 31, 1869-70 

Va. Acts 78, 85. Not until 1970 did the General Assembly amplify the content to include, 

in connection with candidates for President, a party identifier for each candidate. See Act 

of April 3, 1970, ch. 462, § 2, 1970 Va. Acts 826, 853 (“No names of political parties 

shall appear on the ballot, except in presidential elections . . .”). In 2000, the General 

Assembly again expanded the list of offices for which party identifiers are to be used to 

include “federal, statewide, and General Assembly offices,” but those offices “only.” Act 

of April 6, 2000, ch. 514, § 1, 2000 Va. Acts 915, 915. While bills have been introduced 

since to expand further the list of offices for which identifiers are used, none has been 

enacted. 

Thus, in its current state, Virginia Code § 24.2-613(B) provides that party 

identifiers are used on the ballot only in connection with candidates for President of the 

United States, members of the U.S. Senate, members of the U.S. House of 

Representatives, Governor, Lieutenant Governor, Attorney General of Virginia, members 

of the Senate of Virginia, and members of the Virginia House of Delegates. Conversely, 

§ 24.2-613(B) prohibits party identifiers for candidates for all local offices, including 

candidates for county boards of supervisors and city and town councils; local school 

boards; mayors; clerks of court; Commonwealth’s attorneys; sheriffs; revenue 

commissioners; treasurers; and soil and water conservation district directors. This

restriction is imposed even though candidates for most local offices are allowed to 

qualify for placement on the ballot by being nominated by the local chapter of one of the 

major political parties. See Va. Code Ann. §§ 24.2-509(A), 24.2-511.
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When including identifiers, the State Board of Elections uses the name of the

political party that nominated the candidate. If the candidate qualified for the ballot by 

petition, the Board uses the term “Independent,” unless the candidate produces “sufficient 

and appropriate evidence” that he or she was nominated by a “recognized political party.” 

Va. Code Ann. § 24.2-613(B). The Board represents these identifiers on the ballot using

capital letters — (D) for Democrat, (R) for Republican, (L) for Libertarian, (G) for 

Green, (IG) for Independent Green, (C) for Constitution, and (I) for Independent.

There is no restriction on any candidate’s advertising his or her party nomination, 

association, or endorsement. Moreover, voters can learn which candidates were 

nominated by political parties on the “What is on my Ballot?” section of the Virginia 

Department of Elections’ website. 

II. Facts

In May 2015, the Powhatan County Republican Committee nominated Robert 

Marcellus, David Williams, Barry Hodge, and Timothy Gresham to be Republican 

candidates for positions on the Powhatan County Board of Supervisors during the 

November 2015 general election. As provided by Virginia Code § 24.2-511(B), each of 

those candidates qualified to have his name appear on his local ballot after the Chairman 

of the Committee certified his nomination to both the Virginia State Board of Elections 

and the General Registrar of Powhatan County. Accordingly, the ballots for the 

November 3, 2015 general election included their names but not any party identifiers next 

to their names or, indeed, next to the names of any candidate for local office. The ballot 
7

did, however, include party identifiers for candidates seeking seats in the General 

Assembly. Even though the 2015 general election is now passed, these four candidates 

state that they intend to run for local office in the future as political party nominees. 

In their two-count complaint, filed in August 2015, the plaintiffs alleged that they 

have the right under the First and Fourteenth Amendments “to be associated on the 

general election ballot with the political party that nominated them to the same extent as 

federal, statewide, and General Assembly candidates” and that § 24.2-613(B), which 

denied them “the benefit of party identification,” was “arbitrary, unreasonable and 

discriminatory” and therefore impermissibly burdened their right of association. They

also alleged that § 24.2-613(B) violated their right to equal protection under the 

Fourteenth Amendment because they were “similarly situated” to candidates for federal, 

statewide, and General Assembly offices and yet were treated disparately by the statute. 

The plaintiffs sought a declaratory judgment that § 24.2-613(B) is invalid and an 

injunction requiring the Commonwealth to include party identifiers on the ballot for 

candidates for local offices. 

On the parties’ cross-motions for summary judgment, the court entered an order 

and memorandum opinion dated March 4, 2016, granting judgment to the Virginia State 

Board of Elections. With respect to its jurisdiction, the court concluded that even though 

the 2015 election had already taken place, the case was not moot, as the challenged action

was capable of repetition, yet evading review. On the merits, the court concluded that the 

plaintiffs’ “constitutional challenges falter no matter which test applies.”

This appeal followed.
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III. Associational Rights

The plaintiffs argue that even though “neither political parties nor their nominees 

have an absolute right to placement of a party identifier on the ballot, they [do] have a 

First Amendment associational right to nondiscriminatory treatment when the 

government grants a privilege or benefit related to the election ballot.” They claim in this 

case that it is the “unjustified discrimination between the statute’s classifications” that 

defines the impermissible burden on them and their associational rights under the First 

Amendment. Thus, while the plaintiffs locate their claim within the First Amendment

and accept the required analysis of balancing a statute’s burden against its justification, 

they rely on equal protection principles to argue that the statute’s disparate regulation of 

party identifiers burdens their associational rights. 

The government argues that the Virginia statute imposes no burden on plaintiffs’ 

associational rights and, alternatively, that any burden that might be identified is “easily” 

justified by the legitimate governmental purposes served by the statute.

It is well established that “[t]he First Amendment protects the right of citizens to 

associate and to form political parties for the advancement of common political goals and 

ideas,” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 357 (1997), and that this 

component of the First Amendment applies to the States through the Fourteenth 

Amendment, see NAACP v. Alabama, 357 U.S. 449, 460 (1958). “It does not follow, 

however, that . . . the right to associate for political purposes through the ballot [is] 

absolute.” Burdick v. Takushi, 504 U.S. 428, 433 (1992) (emphasis added). Rather, 

“[c]ommon sense, as well as constitutional law, compels the conclusion that government 
9

must play an active role in structuring elections,” id., even though election laws 

“inevitably affect[] — at least to some degree — the individual’s right to vote and his 

right to associate with others for political ends,” Anderson v. Celebrezze, 460 U.S. 780,

788 (1983). Indeed, “[t]he States possess a ‘broad power to prescribe the “Times, Places 

and Manner of holding Elections for Senators and Representatives,” Art. I, § 4, cl. 1, 

which power is matched by state control over the election process for state offices.’” 

Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 451 (2008) (quoting 

Clingman v. Beaver, 544 U.S. 581, 586 (2005)). Nonetheless, state regulation must be 

exercised in a way that does not violate other specific provisions of the Constitution. Id.

When analyzing whether a state election law impermissibly impinges on 

associational rights protected by the First Amendment, we apply the framework 

developed by the Supreme Court in Anderson and Burdick. See Timmons, 520 U.S. at 

358. 

In Anderson, where the Supreme Court was considering an early filing deadline 

for independent candidates, the Court articulated the applicable analysis: 

[A court] must first 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. It then must identify and evaluate the 

precise interests put forward by the State as justifications for the burden 

imposed by its rule. In passing judgment, the Court must not only 

determine the legitimacy and strength of each of those interests, it also must 

consider the extent to which those interests make it necessary to burden the

plaintiff’s rights. Only after weighing all these factors is the reviewing 

court in a position to decide whether the challenged provision is 

unconstitutional. 
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460 U.S. at 789. And in Burdick, the Court built upon this framework, rejecting the 

argument “that a law that imposes any burden upon the right to vote must be subject to 

strict scrutiny.” 504 U.S. at 432. Instead, as the Court explained, the “rigorousness” of 

the inquiry “depends upon the extent to which a challenged regulation burdens First and 

Fourteenth Amendment rights.” Id. at 434. Specifically, while laws imposing “severe” 

restrictions must be “narrowly drawn to advance a state interest of compelling 

importance,” id. (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)), “a state election 

law provision [that] imposes only ‘reasonable, nondiscriminatory restrictions’ upon . . . 

First and Fourteenth Amendment rights” is generally justified by “the State’s important 

regulatory interests,” id. (quoting Anderson, 460 U.S. at 788).

Thus, when applying the Anderson-Burdick analysis, we consider first “the 

character and magnitude” of the burden that Virginia Code § 24.2-613(B) imposes on 

associational rights. In doing so, we observe that the statute has no effect on any 

candidate’s ability to earn a place on the ballot. Cf. Williams v. Rhodes, 393 U.S. 23, 31

(1968) (“The right to form a party for the advancement of political goals means little if a 

party can be kept off the election ballot . . .”). The statute also does not have any impact 

on any political organization’s “right to choose [its] ‘standard bearer’ in the form of a 

nominee.” S.C. Green Party v. S.C. State Election Comm’n, 612 F.3d 752, 756 (4th Cir. 

2010) (quoting Eu v. S.F. Cnty. Democratic Cent. Comm., 489 U.S. 214, 224 (1989)). 

While the plaintiffs agree with these observations, they argue that a burden on 

their associational rights is imposed by § 24.2-613(B)’s creation of a distinction between 

candidates seeking a federal, state, or General Assembly office, whose names on the 
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ballot include identifiers, and candidates for all other offices, whose names on the ballot

appear without identifiers. This argument is not unlike the one made in Timmons. 

In Timmons, the Court was presented with a Minnesota law that “prohibit[ed] a 

candidate from appearing on the ballot as the candidate of more than one party,” even 

though the candidate may have been nominated by more than one party. 520 U.S. at 354. 

In holding that the law did not violate the First and Fourteenth Amendments, the Court 

reasoned that while a political party — there, the “New Party” — has the right to select 

its own candidate, “[i]t does not follow . . . that a party is absolutely entitled to have its 

nominee appear on the ballot as that party’s candidate.” Id. at 359 (emphasis added). 

The New Party had argued that the law impermissibly burdened “its right . . . to 

communicate its choice of nominees on the ballot on terms equal to those offered other 

parties.” Id. at 362. While the Court accepted that the law “prevent[ed] the New Party 

from using the ballot to communicate to the public that it supports a particular candidate 

who is already another party’s candidate” and “shut[] off one possible avenue a party 

might use to send a message to its preferred candidate,” id. (emphasis omitted), it was 

“unpersuaded” by the New Party’s “contention that it has a right to use the ballot itself to 

send a particularized message,” emphasizing that “[b]allots serve primarily to elect 

candidates, not as forums for political expression,” id. at 363 (emphasis added).

In Washington State Grange, the Court relied upon Timmons when rejecting a 

First Amendment challenge brought by several political parties to a Washington statute

that provided that “candidates for office shall be identified on the ballot by their selfdesignated ‘party preference,’” regardless of whether they were nominated by the party 
12

they designated. 552 U.S. at 444. Thus, under the challenged law, “[a] political party 

[could not] prevent a candidate who [was] unaffiliated with, or even repugnant to, the 

party from designating it as his party of preference.” Id. at 447. As a consequence, 

political parties no longer had any ability to “indicate their nominees on the ballot.” Id. at 

453 n.7. The Court characterized that feature of the law as “unexceptional,” explaining 

that “[t]he First Amendment does not give political parties a right to have their nominees 

designated as such on the ballot.” Id. (emphasis added). And, as importantly, the Court 

stated that “[p]arties do not gain such a right simply because the State affords candidates 

the opportunity to indicate their party preference on the ballot.” Id.

The jurisprudence of Timmons and Washington State Grange thus makes clear that 

even though a statute such as § 24.2-613(B) may prevent political parties from indicating

on the ballot which local candidates are their nominees, it does not impose a 

constitutionally cognizable burden on those parties’ associational rights because “[t]he 

First Amendment does not give political parties a right to have their nominees designated 

as such on the ballot.” Washington State Grange, 552 U.S. at 453 n.7. Moreover, that 

jurisprudence similarly confirms that local candidates themselves have no First 

Amendment right to use the ballot “as [a] forum[] for political expression” in which to 

communicate to voters their status as a party’s nominee. Timmons, 520 U.S. at 363.

The plaintiffs seem to accept much of this jurisprudence. They contend, however,

in somewhat of a different vein, that they “suffer[ed] a detrimental effect on their 

associational rights [because] the Commonwealth of Virginia discriminate[d] against 

them and other local candidates by denying them a party identifier next to their names on 
13

the ballot while requiring a party identifier on the ballot next to the names of party 

nominees for General Assembly, statewide[,] and federal offices.” In making this 

argument, they rely on the Supreme Court’s oft-stated recognition that a State’s 

“important regulatory interests are generally sufficient to justify reasonable, 

nondiscriminatory restrictions,” Anderson, 460 U.S. at 788 (emphasis added), and reason 

that “they have a First Amendment associational right to nondiscriminatory treatment 

when the government grants a privilege or benefit related to the election ballot.” They 

argue that § 24.2-613(B) violates that nondiscrimination principle by treating them

differently than federal, statewide, and General Assembly candidates. 

The plaintiffs, however, fail to explain why the statute’s different treatment of 

candidates based on the offices they seek imposes a burden on their right of association. 

Under the challenged provision, a Republican candidate for the U.S. Senate may receive 

a benefit from an identifier indicating that he or she is the Republican Party nominee, 

while a Republican candidate for county sheriff does not. The county sheriff candidate, 

however, is hardly affected by the fact that the Senate candidate has an identifier. The 

candidate for county sheriff is treated like every other candidate for that office, none of

whom can have a party identifier under § 24.2-613(B). In that manner, the restriction on 

party identifiers does not burden the associational rights of any local candidate. 

Of course, if a law gives some candidates for the Senate a party identifier, but not 

other candidates for the Senate, it would impose a burden on the associational rights of 

the candidates left unidentified, even though no candidate has an absolute right to be so

identified. See Rosen v. Brown, 970 F.2d 169, 171, 174 (6th Cir. 1992) (invalidating an 
14

Ohio law that provided a party identifier for candidates nominated by political parties for 

an office but that prohibited a nonparty candidate for that same office from being labeled 

as an “Independent”). But one can hardly conclude that a candidate for county sheriff is 

burdened by the different treatment afforded to a candidate for the Senate. 

The plaintiffs might argue to the contrary that the presence of party identifiers next 

to the names of candidates for the Senate and the absence of such identifiers next to the 

names of candidates for county sheriff might be misleading as voters might incorrectly 

infer that none of the candidates for sheriff were nominated by a political party. But, as 

the district court noted, the Supreme Court found exactly this type of assumption 

regarding voter confusion insufficient to support a facial challenge to the election law at 

issue in Washington State Grange. See 552 U.S. at 454 (“[R]espondents’ assertion that 

voters will misinterpret the party-preference designation is sheer speculation. . . . There 

is simply no basis to presume that a well-informed electorate will interpret a candidate’s 

party-preference designation to mean that the candidate is the party’s chosen nominee or 

representative or that the party associates with or approves of the candidate”). Similarly, 

the plaintiffs might argue that a party-nominated candidate for county sheriff is denied 

the “coattails” benefit of announcing his association with the same party that is identified 

as nominating a particular candidate for the Senate. Yet, not only have the plaintiffs 

failed to demonstrate any such benefit, but conveying such an associational message is 

not an entitlement they have in connection with the content of Virginia’s official ballots. 

The plaintiffs would merely be arguing that the law prevents them from relaying the 

message that they too are party-nominated candidates. The First Amendment, however,
15

does not give candidates the right to use the ballot as a forum for political expression in 

which to communicate to voters their status as a party’s nominee. See Timmons, 520 

U.S. at 363.

While party identifiers do not appear on the official ballot for Virginia’s local 

candidates, the candidates still have every other avenue by which to inform voters of this 

information. Political parties and their nominees are entirely free to publicize their 

association with each other and may even distribute sample “party” tickets on election 

day, as long as they do not do so within 40 feet of a polling place’s entrance. See Va. 

Code Ann. § 24.2-604(A). Voters can also directly access this information by visiting the 

“What is on my Ballot?” section of the Virginia Department of Elections’ website. Thus, 

if it is a burden on the associational rights of the parties, the nominees, or the voters not 

to have this information specifically on the ballot — which, it must be recognized, is not 

designed to be a public forum to convey political information — the burden is at most 

minimal. See Ohio Council 8 Am. Fed’n of State, Cnty. & Mun. Employees, AFL-CIO v. 

Husted, 814 F.3d 329, 338 (6th Cir. 2016) (upholding the constitutionality of an Ohio law 

that banned the use of party identifiers on general-election ballots for judicial candidates 

after concluding that the law “places at most only minimal burdens on the First and 

Fourteenth Amendment rights of political parties, judicial candidates, and voters in Ohio 

judicial elections”).

In short, we conclude that plaintiffs’ First Amendment associational rights are at 

most minimally burdened by the fact that federal, state, and General Assembly candidates 

have party identifiers placed with their names, whereas local candidates do not. 
16

Assuming there is some minimal burden, we must, under the Anderson-Burdick

analysis, then weigh that burden against the governmental interests offered by Virginia as 

justifications for § 24.2-613(B). Because we conclude that the burden is not “severe,” 

Virginia’s “asserted regulatory interests need only be ‘sufficiently weighty to justify the 

limitation’ imposed on [associational] rights.” Timmons, 520 U.S. at 364 (quoting 

Norman, 502 U.S. at 288-89). 

Virginia has articulated three governmental interests that it claims justify § 24.2-

613(B)’s ban on including party identifiers with the names of candidates for local offices. 

The law, it claims, (1) reduces partisanship in local government; (2) promotes impartial 

local governance and public confidence in local government; and (3) broadens the pool of 

citizens who may, consistent with the Hatch Act, serve in local elected offices. While the 

plaintiffs “do not dispute the legitimacy” of those interests, they challenge whether 

§ 24.2-613(B)’s restriction serves those interests. 

With respect to the first two interests, which are closely related, Virginia argues 

that “[w]ithout restricting the freedom of any parties or candidates, [it] has structured the 

ballot to avoid emphasizing party affiliation above all other messages with respect to 

local office candidates,” reasoning that “Virginia’s distinction between local offices, on 

the one hand, and federal and State offices, on the other, . . . makes perfect sense” in light 

of “the different role of local and non-local office[s].” To this end, it notes that “States 

have a particular interest in reducing partisanship” — and thus to some degree enhancing 

both impartial local governance and the public perception of such — with respect to local 

elected offices like clerk of court and sheriff, as well as essential administrative positions, 
17

including treasurer and revenue commissioner. And “[e]ven local offices that are more 

‘political’ in nature, such as members of local governing bodies, have a different scope of 

authority under Virginia law, which supports a conclusion that ‘federal, statewide, and 

General Assembly offices’ unavoidably touch on national and highly partisan issues, but 

that local offices deal primarily with non-partisan issues of basic services and community 

management.” 

We agree that Virginia’s interests in minimizing divisive partisanship in local 

government and in enhancing, to at least some degree, the public’s confidence that the 

successful candidates will serve the local community as a whole are legitimate and 

support the form of its regulation in § 24.2-613(B). The plaintiffs argue, nonetheless, that 

“[i]f the Commonwealth were genuinely concerned about a negative effect of 

partisanship in local governmental offices, it would have legislated that all local offices 

must be nonpartisan, which it has not done.” While that approach could indeed have 

been followed, the Constitution does not, of course, require States to “address all aspects 

of a problem in one fell swoop.” Williams-Yulee v. Fla. Bar, 135 S. Ct. 1656, 1668 

(2015). Rather, rational half measures can be justified. The plaintiffs also posit that 

Virginia has taken the wrong approach to further the interests it identifies because the 

lack of a party identifier on the ballot will actually incentivize local candidates and the 

parties that have nominated them to heighten their partisan activities “to alert voters to 

the party affiliation that is not permitted to be shown on the ballot.” Whether any such 

risk is sufficient to outweigh the statute’s benefits, however, is a legislative judgment for 

Virginia to make.
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Virginia also proffers as a justification for § 24.2-613(B) that it broadens the pool 

of citizens eligible to run for local offices without violating the Hatch Act, which 

regulates the political activity of federal executive branch employees. 

Although § 24.2-613(B) only marginally advances the ability of Virginians to seek 

local office without running afoul of the Hatch Act, this effect, albeit small, nonetheless 

helps justify the law. A federal employee covered by the Hatch Act “may not . . . run . . . 

as a candidate for election to a partisan political office.” 5 U.S.C. § 7323(a)(3). The law 

defines a “partisan political office” to mean “any office for which any candidate is 

nominated or elected as representing” a national political party. Id. § 7322(2). But 

banning ballot identifiers still might not avoid triggering the Hatch Act’s prohibitions. 

According to the U.S. Office of Special Counsel, even without the use of any party 

identifiers on the ballot, elections in which all candidates qualify by petition could 

nonetheless lose their status as nonpartisan if “partisan politics actually enter[s] a 

candidate’s campaign.” Moreover, some Virginia localities have been granted a partial 

administrative exemption to the Hatch Act. See 5 U.S.C. § 7325; 5 C.F.R. § 733.103.1

 

Thus, Virginia’s interest in permitting more citizens to serve in local government 

consistent with the Hatch Act has potential application only with respect to elected 

 1 The Hatch Act provides that “[t]he Office of Personnel Management may 

prescribe regulations permitting employees” living in communities in and around the 

Washington, D.C., metropolitan area — including some political subdivisions in northern 

Virginia — to participate in certain local political activities that would otherwise be 

prohibited. 5 U.S.C. § 7325. Pursuant to that authority, federal employees living in 

designated localities may “[r]un as independent candidates for election to partisan 

political office in elections for local office in the municipality or political subdivision.” 5 

C.F.R. § 733.103(b)(1). 
19

offices in Virginia localities that have not been granted an exemption and for which, by 

virtue of either state or local law, candidates can only qualify for the ballot by petition, as 

opposed to by party nomination. We therefore conclude that this interest is only 

marginally advanced by § 24.2-613(B). 

Even so, Virginia and certain of its localities continue to make an effort to require 

a nonpartisan qualification process for certain local offices, and these laws could be 

severely undermined if candidates could nonetheless require the Commonwealth to 

designate their status as party nominees on the ballot. See Va. Code Ann. § 24.2-613(B)

(providing that candidates who qualify for the ballot by petition are to be “identified by 

the term ‘Independent,’” unless they “produc[e] sufficient and appropriate evidence of 

nomination by a ‘recognized political party’ to the State Board”). 

At bottom, we conclude that any burden that § 24.2-613(B) imposes on the right of 

association protected by the First and Fourteenth Amendments is outweighed by the 

important state interests advanced by the law. Therefore, we affirm the district court’s 

judgment in favor of the defendants with respect to this claim. 

IV. Equal Protection Rights

The plaintiffs also contend that § 24.2-613(B) violates the Equal Protection 

Clause.2

 A lengthy discussion of this claim is not required. The plaintiffs properly

 2 We have previously applied the Anderson-Burdick analysis to consider equalprotection-based challenges to state election laws when such claims have been asserted in 

conjunction with claims under the First and Fourteenth Amendments. See Libertarian 

Party, 826 F.3d at 714, 716-17; Pisano v. Strach, 743 F.3d 927, 930, 934 (4th Cir. 2014). 
20

concede, for the purposes of the Equal Protection Clause, that § 24.2-613(B)’s different 

treatment with respect to the use of party identifiers for federal, statewide, and General 

Assembly candidates, on the one hand, and for local candidates, on the other, must be 

upheld unless there is no rational basis to support it. Because § 24.2-613(B) is rationally 

related to legitimate state interests, as we discussed in our Anderson-Burdick analysis, we 

conclude a fortiori that it does not violate the Equal Protection Clause. 

* * *

In sum, we hold that when Virginia amended § 24.2-613(B) in 2000 to expand the 

categories of offices for which official ballots would include party identifiers while

continuing to ban party identifiers for candidates for local offices, it did not violate the 

right to association protected by the First and Fourteenth Amendments or the Equal 

Protection Clause of the Fourteenth Amendment. 

Accordingly, the judgment of the district court is 

AFFIRMED.

 

Here, however, because of the manner in which the plaintiffs have presented their 

arguments and for analytical clarity, we find it useful to consider this claim separately.