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


Ahead of the 2020 election, the DNC and other party-affiliated groups are looking at a slew of election laws they believe could tip the scale in Republicans’ favor, filing lawsuits all over the country over matters like voting access for college students and ballot order.

The DNC and other party-affiliated groups filed a lawsuit in Florida in July challenging ballot order bias. In 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.

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 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.

The judge also found that the defendants’ justifications for the “ballot order scheme” were “weak and entitled to little weight.”

While the advantage of appearing first on the ballot “is (a) relatively small percentage taken in isolation,” Walker agreed, “the records of Florida’s elections which are before this court demonstrate it is more than the margin of victory or defeat in a great many elections in Florida.”

Walker also acknowledged the ballot order is not the only reason a candidate wins or loses an election.

“But although no single raindrop bursts a dam, and a single small transaction rare is the sole cause of a bankruptcy, the dam still fails and the debtor becomes insolvent. Similarly, candidate name order effects are not the only reason elections are won and lost, but they do contribute substantially to candidates’ successes or failures at the polls,” he wrote.

The ballot order advantage “is a fair-weather friend to the party in power, whichever party that may be, and though its inclination may change depending on the prevailing political breeze it is unquestionably a partisan provision,” and is therefore politically discriminatory, the judge found.

Democratic National Committee Chairman Tom Perez hailed Walker’s decision, calling it “an important step in ensuring every Floridian can participate in a fair election.”

An unbiased ballot is one of the cornerstones of our democratic system and Democrats are taking every action possible to protect the integrity of our democratic process,” Perez said in a prepared statement.

Florida, of course, has filed an appeal.

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

Democratic organizations filed lawsuits in Georgia, Arizona and Texas on Friday saying Republicans are given an unfair advantage by being listed first on those states’ general election ballots.

The traditionally red states Democrats hope to make competitive in 2020 have slightly different rules about ballot placement, but in each case, because Republicans control the governorships, every other race from president on down is listed with the Republican candidate first.

“We know from the social science that there is something called the ‘primacy effect,’ studied across all kinds of things that have nothing to do with politics,” said Marc Elias, a Washington-based Democratic attorney. “This is putting an invisible thumb on the scale for the Republican candidate.”

The ballot placement rules, the lawsuits argue, are unconstitutional because they violate the 14th Amendment’s Equal Protection Clause by treating “similarly-situated major-party candidates differently.”

Pleadings in Arizona’s case were filed yesterday. The Arizona Capitol Times reports, GOP, state ask court to keep status quo on ballot order:

Attorneys for the state and Republican legislative leaders are asking a federal judge to throw out a lawsuit by Democrats challenging the way candidates are listed on the ballot.

Attorney Mary O’Grady, representing Secretary of State Katie Hobbs, does not dispute that a 1979 Arizona law spells out that the party whose candidate got more votes in the last gubernatorial election in each county gets to list its candidates first. That means that in 2020 GOP candidates will be listed ahead of Democrats in 11 of the state’s 15 counties.

But in new legal filings from earlier this month, O’Grady told Judge Diane Humetewa, a President Obama appointee, that even if people tend to choose the first person on the ballot, that doesn’t make the system illegal.

“Arizona’s ballot order statute establishes logical, efficient, and manageable rules that determine the order in which candidates’ names appear on a general election ballot,” O’Grady wrote. And she argued that nothing in the law precludes those who have sued – Democrats and Democratic organizations – from voting for the candidates of their choice.

In their lawsuit, the challengers say the statute is illegally “diluting” some people’s votes, citing research which shows that, everything else being equal, people tend to vote for the first candidate on the list.

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But attorney Kory Langhofer, representing Senate President Karen Fann and House Speaker Rusty Bowers, argued that even if there is some such edge for the first position on the ballot – what he said has been dubbed the “donkey vote” – that does not make it an unconstitutional government-imposed burden. Anyway, he told Humetewa, it’s not like ballot order is the only thing that might make people decide how to vote.

“Even assuming that the ‘donkey vote’ exists, and even if it were possible to quantify its precise impact on election outcomes, ballot order is merely one of many cognitive shortcuts that voters employ in their electoral decision-making,” Langhofer wrote. He said there are other studies which show the impact of party label, incumbency, gender, name familiarity and even “religious-ethnic cues apparent from candidate surnames” that may influence voters’ decisions.

O’Grady, in her own arguments, told Humetewa that there are even simpler reasons for the judge to throw out the case.

First, she said, the individuals that sued lack legal standing, as they have suffered no particular harm — other than being unhappy about election results. And she said that does not change even if some voters do lean toward selecting the first candidate listed.

“The lack of an entirely rational electorate is not an injury-in-fact’ necessary to invoke (constitutional) standing,” O’Grady wrote.

She similarly argued that the committees who sued, including the Democratic National Committee, the Democratic Senatorial Campaign Committee, and Priorities USA, a political action committee that backs Democrats, also have not identified any members who are actually harmed. Instead, O’Grady said, the groups are alleging “nothing more than a statistical probability that some of its members might be injured,” an allegation the attorney said is not enough to sue.

But that does not mean such a lawsuit is legally impossible.

“Candidates themselves may have standing to bring the equal protection claim alleged,” O’Grady wrote.

A hearing is set for March.

Much of the focus is on Maricopa County, where unless the law is enjoined, nearly two-thirds of the state population will get ballots with Republicans in top position in every partisan race.

According to the lawsuit, Maricopa voters have favored Republican gubernatorial hopefuls in all but two elections in the nearly 40 years that the ballot order statute has been in place. The only exceptions have been in 1982 when they supported Democrat Bruce Babbitt over Republican Leo Corbet, and in 2006 when Janet Napolitano, seeking a second term, outpolled Republican Len Munsil.

The Democratic response is likely to hew closely to the reasoning in the order of U.S. District Judge Mark Walker in Florida.

Stat tuned.