Federal judge tosses state law that put Republican candidates at the top of the ballot

By: - November 15, 2019 4:22 pm

Voters casting ballots. Photo by Mario Tama/Getty Images

Was Republican Gov. Ron DeSantis’ narrow electoral victory over Democrat Andrew Gillum last year aided by an unconstitutional state law that put Republican candidates at the top of the ballot?

That argument gained ground with U.S. District Judge Mark Walker’s ruling Friday, considered monumental by supporters.

It said that the state law that favors the party that holds the governor’s office when it comes to placing names on the general election ballot is unconstitutional.

What would that mean, if upheld?

Here’s one big example: Donald Trump’s name will not be at the top of all of the ballots in the presidential race next year, which may be a factor in Florida where recent presidential races have been decided by razor-thin margins.

And here’s a series of intriguing what-ifs based on testimony that being first on the ballot can give a candidate as much as a 5 percent advantage:

–Did the 5 percent advantage help DeSantis, whose name was at the top of the gubernatorial candidates on the ballot, beat Gillum by 0.4 percent of the 2018 general election vote?

–Did the advantage help Republican Rick Scott, who was at the top of the U.S. Senate candidates, beat Democrat Bill Nelson by 0.2 percent of the vote last year?

–Did Democrat Nikki Fried, a Democrat, have to overcome the 5 percent advantage, to beat Republican Matt Caldwell, whose name was at the top of the 2018 ballot, in the race for agriculture commissioner? The outcome was statistically tied, although Fried won by about 6,700 votes.

–Did the 5 percent advantage help Trump win Florida in 2016, when he beat Hillary Clinton by a 49-47.8 percent margin with his name at the top of the general election ballot?

The court case that led to Walker’s ruling revolved around a concept called the “primacy effect,” meaning humans tend to pick the first item on a list.

Under Florida law, the names of the “major party” candidates are listed in each partisan race in the general election, starting with the candidates who are in the same party as the governor.

If the Republicans hold the governor’s office, their candidates are listed first. If the Democrats have a governor, their candidates are first, although they haven’t had a Florida governor since 1998.

“The first issue in this case is whether plaintiffs have proven the primacy effect exists and affects Florida’s elections. This court finds they have done so,” Walker wrote in his 74-page order.

“The second issue is whether the (federal) Constitution allows a state to put its thumb on the scale and award an electoral advantage to the party in power. The answer is simple. It does not.”

As part of the lawsuit, the opponents presented testimony from Jon Krosnick, a Stanford University political scientist and psychology expert. He estimated the primacy effect could give candidates as much as a 5 percent advantage based on analyzing election results where both Republican and Democratic candidates have been on the top of the ballot.

Walker’s ruling permanently blocked the enforcement of the ballot-ordering law.

But he left open the remedy of how state officials can fix the invalidated law.

Among the options are rotating the list of candidates for each partisan race from county to county or even from voting precinct to precinct. Another remedy would be to simply list the candidates by alphabetical order.

“It’s not hard — the way for Florida to conduct a free and fair election is, to conduct a free and fair election,” Walker wrote.

The state will appeal Walker’s order.

“The Department of State will comply with the court’s order while we seek appellate review of the trial court ruling,” Secretary of State Laurel Lee said in a statement. “The Department of State will continue to provide guidance and direction to Florida’s 67 elected supervisors of elections as the legal challenge continues.

Democrats praised Walker’s ruling.

“An unbiased ballot is one of the cornerstones of our democratic system and Democrats are taking every action possible to protect the integrity of our democratic process,” Democratic National Committee Chair Tom Perez said in a statement. “This victory is an important step in ensuring every Floridian can participate in a fair election.”

Florida Democratic Party Chair Terrie Rizzo called it “a huge victory for Florida voters.”

“This law was another attempt by Florida Republicans to unconstitutionally sway an election — and give Republicans an unfair advantage,” Rizzo said in a statement. “In a state where elections are decided by less than half a percentage point — this is a monumental ruling.”

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Lloyd Dunkelberger
Lloyd Dunkelberger

Lloyd Dunkelberger has been covering Florida government for over three decades. He’s reported and edited in Tallahassee for the New York Times Regional Newspapers group, Florida Politics, and the News Service of Florida. He grew up in Jacksonville and Palm Beach County and got his journalism degree at the University of Florida.