Arizona U.S. District judge dismisses ‘ballot order bias’ case

Update to Democrats challenge ‘ballot order bias’ in several states – Arizona case developments:

[Last] November, a federal judge declared unconstitutional a decades-old Florida law that requires candidates who are in the same party as the governor to be listed first on the ballot (Arizona has a similar law). Judge rejects old Florida law that gave ballot priority to party in power:

Chief U.S. District Judge Mark Walker ruled that the state law “imposes a discriminatory burden on plaintiffs’ voting rights which is not of the same magnitude as entirely denying plaintiffs the franchise but is not negligible either.”

The effect of being the first candidate listed on the ballot — known as the “primacy effect” vote, 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,” the judge 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.

In his 74-page order (.pdf), Walker relied in part on testimony from three expert witnesses who represented 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.

With this success in Florida, in November Democrats sued three battleground states over law that GOP candidates’ names be listed first on ballot.

Unfortunately, Arizona U.S. District Judge Diane Humetewa has decided to punt on this issue. Judge rejects bid by Democrats to get their candidates better play on Arizona ballots:

A federal judge has tossed a bid by Democrats to get their candidates a higher spot on the ballot in Republican-dominated Arizona counties.

U.S. District Judge Diane Humetewa ruled that the individuals who challenged the way state law determines ballot order have no legal standing to sue because they are not injured in any way. She said they still have the right to vote for any candidate.

Similarly, she said claims by the Democratic National Committee and the Democratic Senatorial Campaign Committee were flawed because they failed to show that the current system frustrates their bid to get Democrats elected to statewide office. And exhibit No. 1, Humetewa said, was the 2018 election of Kyrsten Sinema to the U.S. Senate.

Finally, Humetewa said even if they did have a right to sue, it is not within the legal authority of courts in cases like this to come up with a “fairer” alternative.

The decision is a setback for the challengers who said the current system is not just unfair but also illegal.

Under that system, candidates on the general election ballot are listed in each county in order based on how well the governor did in that county in the last general election.

What that means in 2020 is that Republicans will be listed ahead of Democrats in 11 of the state’s 15 counties — including Maricopa which has more voters than the other 14 combined. And the reason that’s important, challengers argued, is research showing there is a tendency of voters, all else being equal, to choose the first candidate on a list.

Humetewa said all that is irrelevant, saying she has no legal basis to consider the claim.

She said anyone seeking federal court intervention must demonstrate “a personal stake in the outcome.” And that, the judge said, means showing that they would be injured “in a personal and individual way.”

That isn’t the case here.

“The harm that plaintiffs allege is not harm to themselves, but rather an alleged harm to the Democratic candidates whom they intend, at this juncture, to support,” Humetewa wrote. And she said that a candidate’s failure to get elected does not injure those who voted for that person.

Nor, the judge said, can they show other harms by the law.

“They do not order that the ballot order statute prevents them from casting a ballot for their intended candidate, nor do they argue that their lawfully cast votes will not be counted,” she said. And she brushed aside any arguments about the fact that some people were having their votes for the candidates diluted because others were simply picking the first name they saw.

“Plaintiffs will not be injured simply because other voters may act ‘irrationally’ in the ballot box by exercising their right to choose the first-listed candidate,” Humetewa said.

She also took a slap of sorts at the Democrats for their proposed solution: rotating the position of Democrats and Republicans on the general election ballot.

“Their definition of ‘fairness’ does not require rotation of independent party candidates, write-in candidates from the primary election, or other third-party candidates in their ballot scheme, meaning that those candidates would never be listed first on the ballot,” the judge said.

So Judge Humetewa ignored the weight of solid political science research into the effect of being the first candidate listed on the ballot — known as the “primacy effect” vote, the “windfall vote” or the “donkey vote,” and was entirely dismissive of the possibility that anyone can be harmed by this effect. She is OK with Republicans putting their thumb on the scale to award an electoral advantage to the party in power.

Her decision is completely at odds with U.S. District Judge Mark Walker in Florida. I expected far better from her.