Court adds to fight over ballot order law

By Jim Saunders
News Service of Florida

More than four months after upholding a Florida law that determines how candidates are listed on the election ballot, a federal appeals court revisited the issue last Thursday — and added fuel to the debate.

A divided three-judge panel of the 11th U.S. Circuit Court of Appeal issued a new ruling that again said Democratic voters and allied organizations did not have legal standing to challenge the decades-old law, which requires that candidates who are in the same party as the governor appear first on the ballot. Also, a majority again found that the lawsuit improperly targeted Secretary of State Laurel Lee as the defendant.

But the new ruling also said the case involves a “political question” that cannot be resolved by judges, a conclusion that drew a fierce dissent from Judge Jill Pryor, who wrote that the majority opinion renders “unreviewable constitutional claims that can and should be resolved by federal courts.”

“These are grave mistakes that portend dark days for the Constitution and the fundamental rights it guarantees,” she wrote. “I hope that our en banc (full appeals) court or the Supreme Court will step in to correct the majority’s mistakes and preserve the federal judiciary’s vital role in protecting constitutional rights in the context of elections.”

The legal battle focuses on arguments about whether the state law, passed in 1951, improperly favors the party that controls the governor’s mansion. While the law was passed during a time of Democratic dominance of Florida politics, the state has elected Republican governors since 1998 — leading to GOP candidates appearing first on the ballot.

Individual plaintiffs and organizations, including the Democratic National Committee, the Democratic Congressional Campaign Committee and the progressive-advocacy group Priorities USA, challenged the constitutionality of the law. They pointed to what is known as the “primacy effect,” which indicates that being listed first gives an advantage to candidates.

U.S. District Judge Mark Walker sided with the plaintiffs, writing, in part, that the U.S. Constitution does not allow “a state to put its thumb on the scale and award an electoral advantage to the party in power.”

But Gov. Ron DeSantis’ administration and national Republican groups, which intervened in the case, appealed Walker’s ruling to the Atlanta-based appeals court. The panel on April 29 vacated the ruling by Walker and ordered that he dismiss the case, based on standing issues and whether Lee was a proper defendant.

The plaintiffs in May requested a hearing by the full appeals court.

Chief Judge William Pryor and Judge Robert Luck, however, substituted a new 70-page majority opinion last Thursday that went beyond the April ruling and said the ballot-order is a “non-justiciable” political issue. In making their decision, the pair relied heavily on a U.S. Supreme Court decision last year in redistricting legal disputes from North Carolina and Maryland, a decision known as the Rucho case.

William Pryor had expressed similar reasoning in April when he wrote a concurring opinion in the Florida ballot-order case. But Luck, a former Florida Supreme Court justice, signed on in last Thursday’s majority opinion.

“Their (the plaintiffs’) complaint is that some voters who are neither Democrats nor Republicans will vote for the Republican candidate solely because the Republican is listed first, giving Republicans an advantage beyond their actual number of supporters,” the chief judge wrote in the majority opinion. “But the Supreme Court has never accepted that baseline as providing a justiciable standard in any context. It has instead emphatically rejected the idea that federal courts are ‘responsible for vindicating generalized partisan preferences.’”

But Jill Pryor, in her 81-page dissent, said the ballot-order issue in the Florida case is not like the redistricting issues decided last year by the Supreme Court.

“Because it is possible to organize ballots without basing the organization on a candidate’s political party, the question of how to order a ballot is nothing like deciding which values to elevate other others in making districts more ‘fair,’ whether to draw a boundary around this neighborhood or that one, or making the thousands of tiny judgment calls that drawing political districts requires,” she wrote. “And unlike drawing districts, ordering ballots is not a zero-sum game: with a system that is not based on party affiliation, one party’s associational rights do not have to lose out to another party’s.”