Democrats lose appeal of Florida ballot order lawsuit
A challenged law giving top billing on the Florida ballot to candidates from the current governor’s political party will stand, an appeals court ruled Wednesday, returning a political advantage to the GOP in a key swing state ahead of the 2020 election.
The law, passed in 1951 when Democrats controlled Florida politics, was ruled unconstitutional in November by U.S. District Court Judge Mark Walker, who said it gave an unfair edge to one political party. But the 11th Circuit Court of Appeals in Atlanta opined Wednesday that the plaintiffs and Democratic political organizations suing the state didn’t prove that they were harmed by the law.
And, even if they had, the panel opined, Democrats erred when they chose to sue the Florida Secretary of State in 2018 rather than the state’s local supervisors of elections, who are tasked with actually placing the names on the ballot.
“Because the voters and organizations failed to sue the officials who will cause any future injuries, even the most persuasive of judicial opinions would have been powerless to redress those injuries,” Judge William Pryor wrote in a majority opinion joined in full by Judge Robert Luck.
The ruling is one of the most significant decisions to come from a series of election-related challenges filed over the last two years by Democrats in a state Republicans have controlled for nearly two decades. As a result of lawsuits, the state has in recent months agreed to establish early voting locations on college campuses and expand the availability of Spanish-language ballots.
A federal trial over a constitutional amendment restoring felons’ voting rights is underway.
But Marc Elias, the attorney who argued the ballot order case for three Florida voters, the Democratic National Committee and other Democratic organizations, told the Miami Herald recently in an interview that the ballot order case was arguably the most significant among all the lawsuits given the bump candidates receive by being named first on the ballot.
That advantage, called the “primacy effect,” is worth up to five points, according to one expert for the plaintiffs. That’s a massive bump in a state where Al Gore lost the 2000 presidency by 537 votes and three statewide races were decided in 2018 by less than half a percentage point.
“The implication is obvious,” Walker wrote in November. “Florida’s ballot order statute ensures one party’s candidates receive that advantage in every race, all down the ballot, in every election.”
Walker, at the time, blocked supervisors of elections from setting their ballots according to the challenged law, and ordered the state to come up with a new process. But the 11th circuit vacated his judgment Wednesday and ordered the case back before Walker, who they said should dismiss the lawsuit.
“While we disagree strongly with the court’s ruling that Democrats don’t have standing, it is important to note that the Court did not dispute that Republicans are given an unfair advantage due to ballot order,” Elias said Wednesday in a statement. “Arguing that Democrats are not harmed by an illegal and unwarranted 5%
Republican advantage in every single election in the state is wrong, inconsistent with running a fair election, and we are considering all of our options in this case.”
The offices of Florida Gov. Ron DeSantis and Secretary of State Laurel Lee did not respond to a request for comment.