ATLANTA (CN) — Barreling into the 2020 election season, the 11th Circuit appeared critical Wednesday of a suit by Democrats seeking to shake up the ordering of candidates on the Florida ballot.
Democrats won an injunction last year against the law that gives ballot priority to the party of the governor, but U.S. Circuit Judge William Pryor repeatedly focused appellate arguments Tuesday on whether they erred in naming of Florida Secretary of State Laurel Lee as defendant to the suit.
“The secretary of state does not prepare ballots … It’s hard for me to see how [this issue] is redressable by the secretary of state,” said Pryor, an appointee of President George W. Bush. “Isn’t that the most fundamental, clean, easy problem with the injunction?”
Pryor is one of three judges handling the appeal in Atlanta. Florida’s lawyer said the state agreed with Pryor’s point but had been reluctant to revisit an issue that had failed in U.S. District Court.
The Democratic National Committee, Democratic Congressional Campaign Committee and other national Democratic organizations brought the underlying suit with the Priorities USA Super PAC in May 2018.
One of their lawyer, Abha Khanna with the firm Perkins Coie, offered an explanation as to why they did not sue the County Board of Election Supervisors.
“The secretary of state is the chief elections officer,” Khanna argued, adding, “as chief elections officer, this court has said the secretary of state has the authority to enforce rules and to oversee the ballot order.”
From Jeb Bush to Ron DeSantis, Republicans have controlled the Florida governor’s office without interruption since 1999, and no Democratic candidate has thus appeared first on the ballot in the intervening years.
The complaint alleged that Florida Republicans gain 5 percentage points over Democratic candidates when listed first on the ballot, leading to a so-called “primacy effect” or “position bias.”
Democrats contend that the primacy effect is especially threatening to candidates in Florida, where statewide elections frequently come down to razor-thin margins.
U.S. District Judge Mark Walker enjoined the law as unconstitutional last year with a 74-page ruling, after finding that the ballot-order scheme placed a “discriminatory burden” on voters.
But attorneys for the state and two intervening national Republican groups argued on appeal Tuesday that the evidence put forward by Democrats had been “hypothetical and speculative,”
“There has been no harm to any individual’s right to vote,” said Jason Torchinsky of the firm Holtzman Vogel Josefiak Torchinsky. “There is no evidence that any voter mistakenly voted for the wrong candidate. … There is no evidence that any candidate had difficulty getting on the ballot.”
Mohammad Jazil of Hopping Green & Sams defended the scheme as well, casting doubt on claims that the ballot-ordering law results in a significantly higher drain on Democratic resources.
“There is no specific evidence of what [the organizations] do differently because of the primacy effect,” Jazil said.
Judge Pryor took another jab at the complaint meanwhile by suggesting that the civil rights claim may not fall under the Equal Protection Clause of the 14th Amendment but may instead be a partisan vote-dilution claim.
“There are nine parties in Florida,” Pryor said. “They’re all already on the ballot, so how are they not all similarly situated for equal protection?”
“What right is being burdened here? It’s not an issue of getting on the ballot. So isn’t it a partisan vote-dilution claim?” he continued.
“The individual voter burden is the burden on advancing their political choices,” Khanna responded.
Pryor was joined on the panel by U.S. Circuit Judges Robert Luck, a Donald Trump appointee, and Jill Pryor, a Barack Obama appointee.
Although the panel did not indicate when it would reach a decision in the case, it is likely that a decision will be issued before Florida’s March 17 presidential primary election.