Capital Report: Constitutional Law Professor Weighs In On Judge Walker's Ballot Order Ruling

Nov 22, 2019

Broward County staff member Daphnee Sainvil places a ballot back in an envelope after it was examined by members of the canvassing board at the Broward County Supervisor of Elections after a hand recount, Friday, Nov. 16, 2018, in Lauderhill, Fla.
Credit Wilfredo Lee / AP Photo

Ahead of the 2020 election, a federal judge in Florida ruled against a 70-year-old law placing the party controlling the governor’s mansion first on ballots. WFSU spoke with a professor of constitutional law who breaks down the ruling.

“In some respects, his finding is consistent with the greater body of social science literature, which supports the existence of a primacy effect,” said Michael Morley a Florida State University constitutional law professor.

Morley says there are two sides to U.S. District Judge Mark Walker’s ruling on ballot order:

“Does empirical research support the existence of what we call ballot order effect, that your placement on the ballot has an impact on the percentage of votes that candidates get,” he said Monday. “And the second aspect of the ruling is, what if anything is the constitutional significance of any such ballot order effect?”

The 70-year-old law has applied to Republicans for the last 20 years, but it was put in place by a Democratic administration. Still, Morley says, Walker’s ruling is onto something.

“The court concluded that yes, there is in fact a ballot order effect of about 3 ½ to 5 percent – that being listed first on the ballot, what’s called the primacy effect, gives you an advantage,” Morley said.

Yet Morley asserts that effect is far less potent in presidential and gubernatorial races, where voters have more familiarity with their candidate of choice.

“Primarily for nonpartisan elections – a primary election is the biggest example, where being listed first on the ballot tends to give people an advantage of several percentage points,” he said.

Interestingly enough, Morley points out there’s a countervailing force to the primacy effect called the recency effect, showing the last person listed on a ballot can gain a several-point advantage. He says Walker’s ruling didn’t address that. Morley also sees problems with Walker’s reasoning concerning the burden put on voters by the ballot order law.

“So, (Walker) concluded that having candidates from the same party be listed first throughout the state puts a substantial burden on the rights of voters from other parties.”

But Morley doesn’t see eye to eye with Walker on that idea:

“Of course, there has to be some order in which candidates go on the ballot. So, it wasn’t actually a procedure that voters had to follow, it wasn’t a burden or a hurdle that voters had to overcome.”

Governor Ron DeSantis’ administration is appealing Judge Walker’s ruling. Morley suspects the state could file for a stay, and if it’s issued by the 11th circuit court, the ruling will be put on pause and the current law would be enforced until the appeal plays out. Morley is keeping an eye on it.

“Some of Judge Walker’s previous election-related rulings have been overturned by the 11th Circuit, so I think it’s certainly at least a very close question as to whether his ruling is likely to be affirmed on appeal,” Morley said.

In the meantime, the ruling has drawn polar opposite reactions from party officials. Evan Power is chairman of the Leon County Republican Party. He’s dismissing Walker’s ruling as that of an activist judge.

“It’s not shocking that Judge Walker has another activist ruling that sides with the Democratic Party and their increasingly litigious manner. I think that obviously, this law’s been in effect for 70 years, and it is a good way to create ballot placement that’s fair and predictable,” Power said this week.

Meanwhile Terrie Rizzo, who heads the state’s Democratic Party, is calling Walker’s ruling a “monumental” victory. In a statement, Rizzo said “this law was another attempt by Florida Republicans to unconstitutionally sway an election."

If the ruling is upheld, Secretary of State Laurel Lee and elections supervisors around the state would have little more than a month to present a new ballot order scheme.