In a big win for Gov. Ron DeSantis’ administration and Republican groups, a federal appeals court Wednesday tossed out a ruling that said a decades-old Florida law about how candidates should be listed on the ballot is unconstitutional.
A panel of the 11th U.S. Circuit Court of Appeals said Democratic voters and allied organizations did not have legal standing to challenge the law, which requires that candidates who are in the same party as the governor appear first on the ballot. Also, a majority of the appeals court found that the lawsuit improperly targeted Secretary of State Laurel Lee as the defendant.
The appeals court vacated the ruling by Chief U.S. District Judge Mark Walker and ordered that he dismiss the case. In November, Walker ruled that the state law was unconstitutional because it “imposes a discriminatory burden on plaintiffs’ voting rights.”
Wednesday’s majority opinion said Walker ordered “relief that the voters had no standing to seek.” It said, in part, that individual plaintiffs and organizations, including the Democratic National Committee, the Democratic Congressional Campaign Committee and the progressive-advocacy group Priorities USA, did not prove that they were injured by the law.
“We hold that the voters and organizations lack standing to sue the secretary (of state),” said the majority opinion written by Judge William Pryor and joined fully by Judge Robert Luck. “None of them proved an injury in fact. And any injury they might suffer is neither fairly traceable to the secretary nor redressable by a judgment against her because she does not enforce the challenged law. Instead, the (elections) supervisors --- county officials independent of the secretary --- are responsible for placing candidates on the ballot in the order the law prescribes.”
The crux of the lawsuit was that the ballot law benefits the governor’s party --- Republicans for the past two decades --- because it requires that the party’s candidates be listed first. Arguments centered on what is known as the “primacy effect,” which indicates that being listed first gives an advantage to candidates.
“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, adding 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.”
DeSantis’ administration and national Republican groups, who joined the case as intervenors, appealed Walker’s decision, pointing to issues such as standing.
Wednesday’s majority opinion, which was partly joined by Judge Jill Pryor, focused on standing and whether Lee should be a defendant rather than the underlying arguments about how candidates should be listed on the ballot. William Pryor wrote a concurring opinion that raised questions about whether courts should delve into such disputes.
“The voters and organizations’ complaint is based on the notion that Florida’s ballot statute, by virtue of the primacy effect, confers an unfair partisan advantage on the party that last won the governorship,” the concurring opinion said. “But courts cannot rely on legal standards to adjudicate this kind of complaint because it does not allege any burden on individual voting rights. Instead, adjudicating this kind of complaint would require courts to pick among various conceptions of a politically ‘fair’ ballot order that have no basis in the Constitution.”
The ballot order law dates to 1951, when Democrats dominated the state. But with Florida’s history of close statewide elections --- and Republicans firmly in control ---- Democrats launched the constitutional challenge in 2018.
In a statement issued after Wednesday’s ruling, Marc Elias, an attorney for the plaintiffs, pointed to a potential 5 percentage-point advantage associated with being listed first on the ballot.
"While we disagree strongly with the court's ruling that Democrats don't have standing, it is important to note that the court did not dispute that Republicans are given an unfair advantage due to ballot order,” Elias said in the statement. “Arguing that Democrats are not harmed by an illegal and unwarranted 5% Republican advantage in every single election in the state is wrong, inconsistent with running a fair election, and we are considering all of our options in this case. We can assure you that we will take whatever steps are necessary to protect Florida voters this November."
In a partial dissent Wednesday, Jill Pryor agreed with William Pryor and Luck, a former Florida Supreme Court justice, that the plaintiffs did not establish standing to challenge the law. But she said the majority opinion unnecessarily also ruled that Lee was not a proper defendant in the case.
Jill Pryor wrote that “principles of judicial restraint counsel us to refrain” from addressing the issues related to Lee’s role because the case could be decided on a lack of injury to the plaintiffs.
“I believe that the questions of Florida law we must resolve to decide traceability and redressability --- in ordering candidates’ names on ballots, what role does the secretary of state play and does she exercise sufficient authority over county election supervisors? --- are considerably harder than the majority makes them out to be,” Jill Pryor wrote. “I cannot agree with the majority’s decision to forge ahead nonetheless and reach alternative holdings that depend on resolving unsettled and difficult questions of state law about the scope of a state official’s role and the extent of her power.”
But the majority opinion said that any “injury from ballot order is not traceable to the secretary.”
“The problem for the (plaintiff) voters and organizations is that Florida law tasks the (county) supervisors, independently of the secretary, with printing the names of candidates on ballots in the order prescribed by the ballot statute,” the majority opinion said.
