Abigail Kertzman, CLS ’21
On November 15, the District Court for the Northern District of Florida struck down a Florida election law mandating that candidates in the same party as the current Governor be listed first on ballots.[1] The challengers to the law claimed that this rule gave the Governor’s party (currently in Florida, Republicans) an unfair and unconstitutional advantage.
To analyze whether the law was in fact unconstitutional, the court applied the Anderson/Burdick standard which weighs the character and magnitude of the burden on the plaintiffs’ First and Fourteenth Amendment rights against the legitimacy and necessity of the interests the State expresses to justify the burden.[2] Under this framework, the Court then considers the magnitude of the burden in order to determine which level of scrutiny to apply.[3]
In assessing the Plaintiff’s injury, the court explored the existence and potential impact of the primacy effect – the theory that voters are more likely to vote for the first candidate on a ballot. Judge Mark E. Walker relied heavily on the testimony of two Plaintiff’s experts who testified that scholarship on ballot ordering indicates that a candidate listed first likely receives an advantage of three[4] to five[5] percentage points. The court noted that this may seem like a “relatively small percentage taken in isolation, but 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.”[6] Accordingly, the court held that the law was discriminatory because it gave candidates “a statistically significant advantage in that election, conferred by the primacy effect; and it does so on the explicit basis of the candidates’ party affiliation.”[7]
In weighing the State’s interests to justify this burden, the court considered Florida’s expressed interests of ballot uniformity and preventing voter confusion.[8] While the court did agree that the State had some legitimate interests, it found that the evidence linking the current ballot ordering scheme to those interests was weak.[9] The court decided that the burdens imposed by this scheme merited a level of review between rational basis and strict scrutiny. The court held that Florida’s law did not satisfy this level of review, opining in dicta that it would not even hold up to rational-basis review, and thus found that the law violated the First and Fourteenth Amendments. [10] As Judge Walker wrote, “[i]n our democracy there are no head starts.”[11]
Florida Secretary of State Laurel Lee says that the State will comply with the order to devise a new rule for ordering candidates while seeking to appeal.[12]
Multiple states, including New York, have similar laws that now may face similar challenges.[13] Earlier in the month, Democratic organizations filed such challenges in Texas, Arizona, and Georgia – three states which have a similar history of close elections results as Florida.[14] While the results of any potential appeal remain to be seen, Democrats may see Judge Walker’s opinion as an open door to continue challenging state ballot rules that can be perceived as giving any slight advantage to one party.
[1] Jacobson. v. Lee, No. 4:18cv262-MW/CAS (N.D. Fla. Nov. 15, 2019).
[2] Id. at 27.
[3] Id. at 60.
[4] Id. at 39.
[5] Id. at 33.
[6] Id. at 48.
[7] Id. at 49.
[8] Id. at 51.
[9] Id. at 60.
[10] Id. at 64.
[11] Id. at 26.
[12] Lori Rozsa, Federal judge declares Florida ballots unconstitutional, orders change, Washington Post (Nov. 15, 2019), https://www.washingtonpost.com/politics/federal-judge-declares-florida-ballots-unconstitutional-orders-change/2019/11/15/0b91dc0a-0810-11ea-924a-28d87132c7ec_story.html.
[13] N.Y. Elec. Law § 7-116 (McKinney).
[14] Colby Itkowitz, Democrats sue three battleground states over law that GOP candidates’ names be listed first on ballot, Washington Post (Nov 1, 2019), https://www.washingtonpost.com/politics/democrats-sue-three-battleground-states-over-law-that-gop-candidates-names-be-listed-first-on-ballot/2019/11/01/b62c8f44-fcc0-11e9-8906-ab6b60de9124_story.html.
