The state of Florida does not have to come up with a new way to list candidates on the ballot, a federal appellate court ruled Wednesday, dealing a blow to Democrats who argued that Republicans have an unfair advantage because the current system automatically lists their candidates first.
The high-stakes jockeying over name order on Florida’s ballot is hardly inconsequential as Republicans and Democrats grapple for every advantage they can get in elections that are often too close to call on election night.
Tossing out a lower court’s ruling, the appellate court found that the lawsuit filed by three Florida voters and several Democratic groups had wrongly targeted the state’s chief elections officer, who the court said isn’t responsible for printing ballots and setting the order in which names appear.
In a statement, the groups said they would weigh their options. They also took issue with the court’s finding that Democrats were not harmed.
Under Florida law, President Donald Trump would automatically appear at the top of the ballot in November — ahead of former Vice President Joe Biden, the presumed Democratic nominee.
That’s because top ballot billing goes to the party of the state’s Governor. Republicans have now occupied the Governor’s office for two decades. Florida’s name-ordering law dates to 1951 when Democrats were in power.
Wednesday’s ruling vacates a U.S. District Court decision handed down in November that sided with Democrats, including the Democratic National Committee, the Democratic Congressional Campaign Committee and the super PAC Priorities USA.
Similar ballot-order lawsuits are pending in Arizona, Georgia and Texas.
In his ruling in November, Judge Mark Walker of the U.S. District Court for the Northern District of Florida said that the current scheme allows the state “to put its thumb on the scale and award an electoral advantage to the party in power.”
The judge ordered the state to come up with a new way to list candidates but did not specify how the state should comply. Any changes would have applied only to ballots being contested by Democrats and Republicans — and would have had its first real test in November’s presidential election.
In its ruling Wednesday, the Atlanta-based 11th Circuit Court of Appeals said the plaintiffs in the case lacked standing to sue Florida’s Secretary of State, Laurel Lee. The majority opinion said the plaintiffs did not demonstrate they were harmed.
“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,” the court ruled.
The appellate court, which instructed the lower court to dismiss the case, said that Florida’s 67 county elections supervisors — none of whom were named as defendants in the case — were responsible for placing candidates on the ballot, not the secretary of state.
Phone calls seeking comment from the Secretary of State’s Office were not immediately returned.
Some studies suggest that there is a “primacy effect” favoring the first name listed in an election contest, although the extent of it remains in dispute.
Even so, some studies show that the “windfall,” as the appellate court put it, could be enough to cover the 1.2% margin in Florida that allowed Trump to capture the state’s 29 electoral votes and help him defeat Democrat Hillary Clinton in 2016.
“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,” one of the plaintiffs’ attorneys, Marc Elias, said in a statement.
The suit is one of several recent battles playing out in the legal arena over Florida’s ballot box.
An ongoing federal trial began Monday in Tallahassee that could help settle whether impoverished Florida felons can be denied the right to vote.
Earlier this month, state elections officials agreed to allow early voting sites back on college campuses after voting rights groups challenged rules that disqualified most colleges from hosting polling places because of parking restrictions on college campuses.