Decades-old ballot law that favors GOP finally struck down

TALLAHASSEE — Some voters who look over at their election ballots come to a very quick conclusion: They don’t have a clue about any of the candidates.

This point was driven home the other day in a countywide poll in Broward. Testing popular support for a strong mayor system of government, the poll said 68% of re- spondents couldn’t identify Mark Bogen as the county’s mayor. I’m surprised the figure wasn’t higher.

So other than choosing candidates based solely on party labels, how do voters make up their minds?

One simple answer is ballot order, or what’s known as the “primacy effect.” According to studies, the candidate listed first, above all opponents for the same office, holds a decisive advantage — as much as 5 percentage points, according to political scientists who have reviewed hundreds of partisan elections.

For decades, Florida has listed candidates based on the party of the governor. Until 1951, candidates were listed alphabetically regardless of party, but Democrats changed the law that year to give themselves an unfair advantage, and for most of the rest of the 20th century, they reaped the benefits of ballot order. But the last time a Democratic was elected governor was Lawton Chiles in 1994.

Things changed when Republican Jeb Bush became governor in 1998. Now the GOP had ballot order supremacy, and more and more Republican candidates began winning elections for statewide office and the Legislature, using the same unfair advantage.

The ballot order law was decisively struck down as unconstitutional in Tallahassee Friday by U.S. District Mark Walker, who has rendered important decisions in a series of voting rights cases in Florida over the past five years. The cases have dealt with registering to vote, early voting on campuses and restoring the right to vote to convicted felons.

In a case pitting Democratic plaintiffs against Republican defendants, Walker once again rewrote the rules of Florida politics in a way that has the potential to shake up the status quo in 2020. First and foremost, it means President Donald Trump’s name won’t necessarily appear first on the November ballot.

“Florida has advanced no sufficient justification nor combination of justifications nor a necessity, reasonable or otherwise, for employing a ballot order scheme which systematically advantages candidates of one party and disadvantages candidates of another party,” Walker wrote.

The judge sharply criticized the Republican defendants’ legal arguments, calling them “universally weak.” He noted that a group of Republican organizations intervened in the case arguing that they “stand to be most directly harmed by a change” in Florida’s ballot order scheme, but they later argued that ballot order did not favor any candidate or party.

The judge also rejected legal arguments by Secretary of State Laurel Lee, the lead defendant, including the idea that listing Republicans first is a reflection of the “policy choices” by voters. In dismissing her arguments, Walker wrote: “Defendant Lee essentially argues Florida’s current ballot order scheme is necessary because the Florida Legislature has decided it is.”

Based on peer-reviewed expert testimony at trial, ballot order is worth up to 5 percentage points to the first-listed candidate. The Democrats’ key witness was Dr. Jon Krosnick, who studies the psychology of political decisions at Stanford and reviewed every Florida election from 1978 through 2016.

During that time, if one candidate was the leading beneficiary of ballot order, it would have to be Rick Scott, a Republican who won three statewide elections in a row by very narrow margins, including his U.S. Senate victory over Democrat Bill Nelson last year by 0.13 percentage points.

Republican Ron DeSantis, listed first on the ballot like Scott, won the 2018 governor’s race over Andrew Gillum by 0.4 percentage points.

Friday’s decision could be another decisive blow to the waning influence of political parties in Florida.

In recent years, they have become weakened by wealthy self-funded politicians such as Scott, who don’t need party money, as well as the proliferation of political committees with no contribution limits controlled by individual politicians.

Two other threats to the two-party system are the growth in unaffiliated voters who refuse to identify with either party, and a proposed ballot initiative that would dismantle Florida’s current “closed primary” system by allowing all voters to vote in party primaries.

In Walker’s 74-page ruling, the judge did not replace the current system of Republicans first with a new ballot order scheme. That, he said, “is a question for the Florida Legislature to resolve,” in the next session that begins on Jan. 14, 2020.

The options include listing candidates alphabetically regardless of party affiliation, or randomly rotating the order of the candidates’ names from county to county or precinct to precinct.

Based on peer-reviewed expert testimony at trial, ballot order is worth up to 5 percentage points to the first-listed candidate.

Steve Bousquet