Tallahassee, FL – After a string of narrow victories by Republicans in Florida, Gov. Ron DeSantis’ administration is quickly challenging a court decision that could help Democrats in next year’s presidential election.
U.S. District Judge Mark Walker, siding with state and national Democrats, on Friday struck down a decades-old state law requiring candidates who are in the same party as the governor to be listed first on the ballot.
The Republican governor’s administration quickly filed a notice of appealing the decision.
Walker found the 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 narrow margins are common in statewide contests.
A year ago, DeSantis defeated Democratic gubernatorial candidate Andrew Gillum by fewer than 33,000 votes, or four-tenths of a percentage point. And the race between former Democratic U.S. Sen. Bill Nelson and former Gov. Rick Scott, a Republican, was even closer. After a statewide recount, Scott emerged the victor in the Senate race by about 10,000 votes, or two-tenths of a percentage point.
In 2016, Trump edged out Democratic challenger Hillary Clinton by about 113,000 votes, or 1.2 percentage points, capturing Florida’s critical 29 electoral votes.
The margins in those elections was smaller than the advantage first-listed candidates have historically gained in Florida, according to political scientist Jon Krosnick’s analysis of elections in the state from 1978 through 2016.
Krosnick, an expert witness for the plaintiffs in the federal lawsuit, found that candidates who appear first 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. The advantage is even greater when just two candidates are in the race, Krosnick found.
As is typical, Secretary of State Laurel Lee’s notice of appeal Friday did not elaborate on the DeSantis administration’s reasons for appealing Walker’s decision.
But DeSantis spokeswoman Helen Ferré told The News Service of Florida Monday that the judge was “questioning the legality of a law that is nearly 70 years old.”
“Given that this was approved by a legislature that was majority Democrat and signed into law by a Democrat governor in 1951, it is difficult to see how it is discriminatory to Democrats. This is purely motivated by politics and has no legal merit,” she said in an email.
Florida’s ballot-position law was enacted 68 years ago, when Democrats controlled the governor’s office and the Legislature.
But with narrow margins in many high-profile elections, who is listed first on the ballot is more important than ever, Democrats argued in the lawsuit.
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.”
Lee had argued that the ballot order provision is necessary because it is “upholding the policy choices of Florida duly-elected representatives.”
But Walker disagreed.
“If the Florida Legislature adopts an unconstitutional law, Florida’s interest in having made that legislative choice will not render that law constitutional,” he wrote.
The federal judge, who has frequently ruled against the state in election-related challenges, issued a stern warning to Lee and set a tight schedule for her to comply with his order.
He gave Lee two weeks to inform county supervisors of elections in writing that the ballot order law had been declared unconstitutional and ordered her to come up with an alternative process. And Walker gave Lee three weeks to file a “notice of compliance” with the court. The judge also ordered Lee to inform him when the state adopts a new ballot order “scheme,” which he left up to Florida officials.
Since the appeal was filed, Walker will have to decide whether to put his ruling on hold until the appeal has been decided or, possibly, until the case has been finalized. Such a delay could threaten Democrats’ opportunity to undo the GOP advantage on next year’s ballot.
But Marc Elias — who represented the Democratic National Committee, the Democratic Governors Association, the Democratic Legislative Campaign Committee, Priorities USA, the Democratic Congressional Campaign Committee and other plaintiffs in the case — told the News Service he has “every expectation that the citizens of Florida will have a new fair ballot order system in place for the 2020 elections.”
Elias, who argued that the state law enables Republicans to put an invisible “thumb … on the scale” of elections, recently filed similar lawsuits in Arizona, Texas and Georgia.
The legal challenges are part of Democrats’ attacks on elections laws in so-called red states in an effort to gain traction prior to next year’s presidential contest.
“Everyone recognizes that the goal here is to prevent one party from enjoying an unfair advantage over another,” Elias said.
In his 74-page order Friday, Walker said a majority of states do not use the same system as Florida. He 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.
“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.
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