Placing GOP Candidates at Top of Ballot is Unlawful, 9th Circuit Rules

The Ninth Circuit Court of Appeals ruled against an Arizona statute allowing GOP incumbents to place their names on top of their Democratic rivals.’

“In 2022, the Republicans will be listed ahead of Democrats in all races in 11 of the state’s 15 counties, where Republican Gov. Doug Ducey outpolled Democrat David Garcia,” the Arizona Republic’s Howard Fischer reports.

That includes Maricopa County, which has more voters than the other 14 counties combined.

The plaintiffs include the Democratic National Committee, which charges the ballot order law violates the First and Fourteenth Amendments.

“The law gives candidates the benefit of appearing first on the ballot, not on the basis of some politically neutral ordering (such as alphabetically or by lot), but on the basis of political affiliation,” wrote Ninth Circuit Judge Jed Rakoff said.

“Plaintiffs allege that the candidate whose name appears first on a ballot in a contested race receives the benefit resulting from a recognized psychological phenomenon known as ‘position bias’ or the ‘primacy effect,’” Rakoff wrote.

Voters acting irrationally

Earlier, US District Court Judge Diane Humetewa in Phoenix had dismissed the Democrats’ suit, claiming voters were acting “irrationally” by voting for the top candidate, Blog for Arizona previously reported.

“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 stated.

She concluded that even if Democrats had the right to sue, it was not within her authority to develop a “fairer alternative.”

The Ninth Circuit panel reversed Humetewa’s politically-biased decision

2.2 to 5.6 percentage point advantage

Unfortunately, the Ninth Circuit is sending the case back to her to hear the challengers’ new evidence.

Attorneys for the Democratic Party cited data from Jonathan Rodden, a political science professor at Stanford University. He estimated that top-of-the-ballot candidates get an advantage average of 2.2 percentage points up to 5.6 percentage points.

Judge Humetewa also ruled that the Democrats had no right to sue, and that the complaint presented “a nonjusticiable political question.”

Overruling her, Judge Rakoff wrote, “Plaintiffs argued that the district court erred in dismissing their suit on these grounds. We agree.”

“Specifically, we hold that at least one of the plaintiffs—the DNC—has standing to bring this suit and that Plaintiffs’ claims do not present a nonjusticiable political question.”

“Finally, we hold that Plaintiffs have stated a claim sufficient to survive a motion to dismiss. We, therefore, reverse the dismissal of the complaint and remand for further proceedings, “Judge Rakoff concluded.