TALLAHASSEE – 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.
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.
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.