TALLAHASSEE, Fla. – In a case that could have a significant impact on the 2020 elections and future partisan races, a federal appeals court is scheduled Wednesday to hear arguments in a challenge to a decades-old Florida law requiring candidates who are in the same party as the governor to appear first on the ballot.
The Democratic National Committee, other national Democratic organizations and the Priorities USA super-PAC filed the federal lawsuit in 2018.
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In November, U.S. District Judge Mark Walker found the state law unconstitutional because it “imposes a discriminatory burden on plaintiffs’ voting rights.”
The effect of being the first candidate listed on the ballot -- known as the “primacy effect,” the “windfall vote” or the “donkey vote” -- is especially meaningful in Florida, where razor-thin margins are common in statewide elections.
“By systematically awarding a statistically significant advantage to the candidates of the party in power, Florida’s ballot order scheme takes a side in partisan elections,” Walker wrote.
The Constitution does not allow “a state to put its thumb on the scale and award an electoral advantage to the party in power” he added.
Gov. Ron DeSantis’ administration and national Republican groups, who joined the case as intervenors, appealed Walker’s decision, and the 11th U.S. Circuit Court of Appeals will hear arguments Wednesday in Atlanta.
Arguing that a federal court “has no subject-matter jurisdiction” in the lawsuit, the state is asking the appellate court to reverse Walker’s order and dismiss the challenge.
The plaintiffs lack standing in the case, DeSantis’ lawyers wrote in a brief filed last month.
“To open the doors of the federal court, plaintiffs bore the burden of establishing a legally cognizable injury-in-fact; a causal connection between their purported injury and the defendant they sued (the Florida secretary of state); and a remedy that is both feasible and could meaningfully redress their purported injury. They succeed in carrying their burden on none of these elements,” the state lawyers argued.
The state is relying, in part, on its interpretation of a U.S. Supreme Court ruling, in a case known as Rucho v. Common Cause, which found “partisan gerrymandering claims present political questions beyond the reach of federal courts,” according to court documents.
That decision “leaves such questions of political advantage to the political branches,” the state’s lawyers argued in a 71-page brief filed Jan. 7.
“At its core, plaintiffs ask this court to do just that: reallocate a slight and incidental thumb-on-the-scale that, for the minority of the ballot-order statute’s existence, has worked to the detriment of their partisan interests,” lawyers for Secretary of State Laurel Lee wrote. The Rucho decision directs the federal courts “to stay out of the fray,” the lawyers added.
Walker issued a permanent injunction prohibiting enforcement of the law and asked the Legislature to fix the issue.
But midway through the annual 60-day legislative session, lawmakers have not addressed the issue.
At least 29 states “rotate, alphabetize, or randomize the order of candidate names in general elections in an apparent effort to neutralize the effects of position bias,” Democrats said in a brief filed in the appeal.
The case “presents a simple question of equal protection to determine whether a state may, consistent with the Fourteenth Amendment, grant top ballot placement to one class of candidates, burdening other candidates similarly situated,” the Democrats’ lawyers argued in a January brief, referring to the amendment that includes an equal-protection clause.
In the appeal, the defendants argued, “if politicians may deliberately create an advantage for their political party without a federal court exercising any oversight, it necessarily follows that the court should stay its hand when the controversy turns on whether a political party incidentally benefits from a ballot-order regime that, on its face, favors no political party.”
But, according to the Democrats, that rationale “gets Rucho exactly backwards.”
While the Supreme Court found that gerrymandering claims cannot be challenged in federal court because of their partisan nature, “federal courts regularly adjudicate challenges to election laws that provide ‘incidental’ benefits to one political party or candidate precisely because the voting process is not meant to be partisan,” Democrats argued.
Unlike in the context of gerrymandering, the plaintiffs “are not asking for a ‘fair share of political power and influence’ … they are simply asking for the fair shot the equal protection clause is meant to guarantee,” they wrote.
But the state’s lawyers countered that the ballot-order law “serves the state’s interests” by upholding the policy choices of the Legislature, preventing voter confusion and assisting with the election administration process by promoting uniformity.
The law works by “promoting voter confidence in the integrity of the elections administration process, because people know that their ballot is being arranged consistent with the choices their elected officials made, in a manner that makes it easy to find candidates of their choice on the ballot, in a manner that is uniform throughout the state and in a manner that allows for accurate vote tabulation,” DeSantis’ lawyers wrote.
During a three-day trial Walker held in July, Florida Division of Elections Director Maria Matthews and two county supervisors of elections testified that rotating the names of Democratic and Republican candidates from precinct-to-precinct within a county “is unworkable.” County-by-county rotation creates other problems, the state argued.
But the Democrats said the court should reject the state’s take on potential ballot-order alternatives, calling the arguments “not just one-sided, but flatly incorrect.”
The plaintiffs -- which include the Democratic National Committee, the Democratic Governors Association, the Democratic Legislative Campaign Committee, Priorities USA and the Democratic Congressional Campaign Committee -- relied in part on testimony from three political scientists who testified during the trial.
Walker also based his decision in large part on the experts’ testimony.
For example, political scientist Jon Krosnick’s analysis of Florida elections from 1978 through 2016 found that first-listed candidates have historically gained an average advantage of 5 percentage points due to their ballot position, an effect that has less than a 1 percent probability of occurring by chance, Walker noted in his November ruling.
In a state with a “history of election results in which the margin of victory or defeat is less than three to five percentage points,” Walker wrote, the state law has impacted plaintiffs First and 14th Amendment rights “by systematically allocating that small but statistically significant advantage” to candidates of the same party as the last-elected governor.
Walker did not specify what the state must do to replace the current system but ordered that “from the date of this order forward, no ballot shall issue which is organized pursuant to the ballot order scheme” described in the law.
Florida’s ballot-position law was enacted 68 years ago, when Democrats controlled the governor’s office and the Legislature.