State under pressure to revamp ballot order rules for upcoming election

State elections officials will have until June 1 to decide how they want to comply with a federal judge’s ruling that rejected a decades-old Florida law requiring candidates who are in the same party as the governor to appear first on the ballot.

U.S. District Judge Mark Walker, who held a hearing in the case last Friday, ruled in November that the law is unconstitutional because it “imposes a discriminatory burden on plaintiffs’ voting rights.”

The effect of being the first candidate listed on the ballot — known as the “primacy effect,” the “windfall vote” or the “donkey vote” — is especially meaningful in Florida, where narrow margins are common in statewide elections. Walker’s decision could play an important role in the November 2020 elections, including the presidential election.

“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,” Walker wrote.

Secretary of State Laurel Lee, who was appointed by Gov. Ron DeSantis, filed an appeal at the 11th U.S. Circuit Court of Appeals in November. The Atlanta-based appeals court heard arguments in February in the case, filed by the Democratic National Committee, other national Democratic organizations and the Priorities USA super-PAC in 2018.

A decision by U.S. District judge Mark Walker’s could play an important role in the November 2020 elections, including the presidential election.
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Walker and the appellate court have refused to put the district judge’s November decision on hold while the appeal is pending.

In December, Walker, who had asked the Legislature to fix the issue, gave Lee until after the legislative session ended in March to inform the court about how she intends to proceed.

Since the Legislature did not address the ballot-order issue, Lee’s lawyers last week asked Walker to put his order on hold until seven days after the appeals court issues an opinion “or until June 1, 2020, whichever comes later.”

“An opinion appears imminent,” Lee’s lawyers wrote. “That opinion might prove dispositive of the issues in this case and make further guidance from the secretary unnecessary.”

But, in a response filed last Tuesday, the Democrats’ lawyers scoffed at Lee’s contention that the appeals court’s decision is looming, saying “there is no guarantee that the 11th Circuit decides this matter this week, this month or in the next two months.”

In addition, the novel coronavirus pandemic “has led to significant disruptions of daily life and the judicial system,” the Democrats argued.

“Even in ordinary times appellate rulings can take a significant amount of time to be issued … and these are hardly ordinary times,” they wrote.

During last Friday’s telephonic hearing, Walker said it’s unknown when the appeals court will rule.

“Only time will tell,” he said.

Walker said he wanted more information to make a “thoughtful choice about how much time we really have to address the issue before us.”

State elections officials have said ballots for the general election need to be sent to the printer by Sept. 1, so elections supervisors can begin mailing overseas ballots on Sept. 19.

The secretary of state could issue an emergency rule, a regular rule or a directive to local supervisors laying out a new method of listing candidates on the ballot, Lee’s lawyer, Mohammad Jazil, told Walker. The Legislature could also hold a special session to come up with new ballot-order requirements, he said.

“How much time does that emergency rulemaking process take and what does it look like?” Walker asked, noting that an emergency rule would only last for 90 days, meaning the regulation cannot be issued too early for it to remain in effect for the Nov. 3 election.

Under pressure from Walker to come up with a date, Jazil said the secretary of state should be able to tell Walker how she intends to proceed by June 1.

“If there’s no opinion from the 11th circuit by June 1, I think it’s incumbent upon the state to have a plan in place to run an election in November, with … ballots going out as early as mid-September,” Jazil said. “That’s a deadline for the state to have a plan, whether it’s an emergency rule, whether it’s a regular rule, whether it’s a directive, whether it’s some kind of legislation during a possible special session.”

June 1 is a “placeholder,” Jazil said.

“There’s no magic to that one particular date,” he added.

But Walker appeared frustrated about time running out before the deadline to print and mail ballots for the fall election.

“My concern is that in these election cases everyone wants to do everything at the last minute and then there’s a great weeping and wailing and gnashing of teeth that the courts have gotten involved and somehow that we’ve asked to get involved at the eleventh hour,” the judge said.

If the appeals court hasn’t ruled by June 1, Lee would “be just where we’re at today,” he added.

“It seems to me that we’re just kicking the can down the road and then suddenly we’re going to have an emergency potentially on June 1 where nothing’s been done,” Walker said.

The judge asked Jazil what order he should issue, assuming the appeals court hasn’t acted by June 1.

“Perhaps it’s appropriate for the secretary of state to provide a detailed plan with specific timelines about how the secretary of state intends to proceed with the general election,” Jazil said.

Lee’s lawyer also advised Walker against requiring “a specific ballot order,” which would prompt further appeals and delay the resolution of the case.

“Just putting my cards out on the table,” Jazil said.

In his November order, Walker did not specify what the state must do to replace the current system but ordered that “from the date of this order forward, no ballot shall issue which is organized pursuant to the ballot order scheme” described in the law.

He ordered Lee to employ a county-by-county rotational system “until such time as the state adopts a new ballot order scheme on a permanent basis.”

In last week’s court filing, Lee’s lawyers also noted that the secretary of state had concerns about “the limits of her emergency rulemaking powers” to develop a new ballot-order system.

“Waiting makes sense,” her lawyers argued.

But the Democrats disagreed.

“While the secretary may prefer a wait-and-see approach to address the constitutional violation found by this court, plaintiffs — and Florida’s electorate writ large — are entitled to a timely resolution to ensure that general election ballots in November 2020 employ an appropriate ballot ordering scheme,” the Democrats’ lawyers wrote.