11th Circuit Resurrects Ballot-Order Scheme in Florida

The appeals court found Democrats did not prove they suffered any injury under a law that favors members of the governor’s political party.

This November 2018 photo shows an original Florida ballot from the 2000 presidential election. (AP Photo/Wilfredo Lee)

ATLANTA (CN) — The 11th Circuit ruled Wednesday that a Florida ballot-ordering law that Democrats say gives an unfair electoral advantage to Republican candidates is not unconstitutional.

A three-judge panel of the Atlanta-based appeals court struck down a lower court’s injunction preventing Florida Secretary of State Laurel Lee and state election supervisors from enforcing a law that governs the order in which candidates appear on the ballot in Florida’s general elections.

The law directs election officials to place candidates who are members of the governor’s party first for each office on the ballot.

Claiming that the ballot-order scheme violated their First and 14th Amendment rights, Democratic organizations and voters won their fight against the law last year. U.S. District Judge Mark Walker, a Barack Obama appointee, found that the law placed a “discriminatory burden” on voters and was unconstitutional.

In their May 2018 lawsuit, the Democratic National Committee, Democratic Congressional Campaign Committee and other national Democratic groups claimed that Florida Republicans on average gain 5 percentage points over Democratic candidates when listed first on the ballot, leading to a so-called “primacy effect” or “position bias.”

They alleged that the primacy effect allows Republicans to enjoy a “windfall vote” from a small number of voters who choose candidates solely based on their top-ballot position.

Democrats say the primacy effect is exceptionally threatening to candidates in Florida, where statewide elections often come down to razor-thin margins.

Republicans have maintained control over the Florida governor’s office since 1999, preventing Democratic candidates from appearing first on the ballot for over two decades.

According to the 11th Circuit’s ruling, the statute has placed Democrats first on the ballot in 20 general elections and Republicans first in 14 elections since its enactment in 1951. The court heard oral arguments in the case in February.

On Wednesday, the panel found that the voters and organizations lacked standing to sue Lee because they failed to prove they suffered any injury under the law.

The panel also found that Walker did not have jurisdiction to issue the injunction.

“Unfortunately, the district court took its obligation to ensure its jurisdiction far too lightly. It dismissed weighty challenges to the voters’ and organizations’ standing under Article III as a “hodgepodge” of “[p]reliminary [m]iscellanea” and proceeded to declare Florida’s ballot statute unconstitutional and enter an injunction against both the secretary and the nonparty supervisors. In doing so, the district court acted ultra vires by ordering relief that the voters and organizations had no standing to seek,” U.S. Circuit Judge William Pryor, a George W. Bush appointee, wrote for the court.  

Pryor expressed doubts about the consistency of the primacy effect and determined that the Democrats “failed to prove that they have suffered or will suffer partisan vote dilution in any particular election.”

Even if the voters and organizations had proved their rights were violated by the law, the panel found that the injury would be traceable to elections supervisors, not Lee, since supervisors are tasked with actually printing the names of candidates on the ballots.

“Because the voters and organizations failed to sue the officials who will cause any future injuries, even the most persuasive of judicial opinions would have been powerless to redress those injuries,” Pryor wrote.

Since the supervisors were not parties to the lawsuit, the district court exceeded its authority by including them in the injunction, according to the ruling.

Pryor was joined in the majority by U.S. Circuit Judge Robert Luck, a Donald Trump appointee.

U.S. Circuit Judge Jill Pryor, a Barack Obama appointee, wrote a partial dissent agreeing that the plaintiffs lacked standing to sue but arguing that the majority did not correctly assess the limits of Lee’s authority over election supervisors.

A spokesperson for Lee did not immediately provide a comment when reached via email Wednesday afternoon.

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