Democrats want court to reconsider ballot order ruling

AP How Will We Vote Coronavirus
"Democratic Party organizations are not injured by an election law that provides a competitive advantage to Republican Party candidates."

National Democratic Party organizations are asking a federal appeals court to reconsider a decision that rejected a challenge to a decades-old Florida law about how candidates are listed on election ballots.

The organizations have requested that the full 11th U.S. Circuit Court of Appeals take up the case after a three-judge panel on April 29 said the Democratic plaintiffs did not have legal standing to challenge the constitutionality of the law. The law requires that candidates who are in the same party as the Governor appear first on the ballot — a requirement that Democrats say unfairly favors Republicans in the GOP-controlled state.

The panel of the Atlanta-based appeals court also found that the lawsuit improperly targeted Florida Secretary of State Laurel Lee as the defendant, a ruling that has started to ripple through at least one other major elections case.

In seeking a rehearing before the full court — known as seeking an en banc hearing — the Democratic Party organizations disputed both parts of the panel’s ruling.

“Political parties exist to elect candidates to public office, and Florida’s secretary of state oversees enforcement of Florida’s election laws,” attorneys for the Democratic organizations wrote in the petition, filed May 20. “Despite these two irrefutable facts, the panel … erroneously concluded that Democratic Party organizations are not injured by an election law that provides a competitive advantage to Republican Party candidates and, even if they were, the secretary has no role in enforcing the law.”

U.S. District Judge Mark Walker last year sided with the plaintiffs, which include the Democratic National Committee, the Democratic Senatorial Campaign Committee, the Democratic Congressional Campaign Committee and other organizations and individual voters, and said the state law was unconstitutional because it “imposes a discriminatory burden on plaintiffs’ voting rights.”

But the appeals court panel found that the plaintiffs did not show that they were injured by the law and that Lee was not a proper defendant.

“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.”

Judge Jill Pryor agreed on the standing issue but said the majority unnecessarily ruled that Lee was not a proper defendant. In a partial dissent, 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.

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 for the past two decades — Democrats launched the constitutional challenge in 2018.

Arguments in the case have 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.”

The part of the panel’s ruling that found Lee was not a proper defendant could affect other elections cases. Lee’s attorneys last week filed a document arguing that she should be dismissed from a long-running lawsuit about providing Spanish-language ballots and election materials in 32 Florida counties.

Citing the ruling in the ballot-order lawsuit, Lee’s attorneys contended that county elections supervisors are responsible for complying with a federal voting-rights law involved in the Spanish-language materials case.

“The secretary’s role as chief elections officer and her broad supervisory powers do not make any alleged injuries fairly traceable to her in this case just as the same provisions did not make the injuries fairly traceable to her in (the ballot order case),” said the document, filed in federal district court.

But in seeking a hearing by the full appeals court in the ballot-order case, Democratic Party attorneys said the panel decision about Lee’s role contradicted legal precedents.

“The majority’s novel interpretation of Florida law is not only out of line with the state law itself, but squarely contrary to longstanding Eleventh Circuit precedent, in which this (appeals) court has repeatedly found that injuries stemming from Florida’s election laws are traceable to and redressable by the secretary — even when county election supervisors also play a role,” the petition said.

Jim Saunders

Jim has been executive editor of the News Service since 2013 and has covered state government and politics in Florida since 1998. Jim came to the News Service in 2011 after stints as Tallahassee bureau chief for The Florida Times-Union, The Daytona Beach News-Journal and Health News Florida. He moved to Florida in 1990 and worked eight years for the Times-Union in Jacksonville and St. Johns County. A native of Cedar Rapids, Iowa, he graduated from Northwestern University and worked at The Blade newspaper in Toledo, Ohio, before moving to the Times-Union. Jim enjoys covering legal and regulatory issues and has extensive experience in covering health care.


Florida Politics is a statewide, new media platform covering campaigns, elections, government, policy, and lobbying in Florida. This platform and all of its content are owned by Extensive Enterprises Media.

Publisher: Peter Schorsch

Contributors & reporters: Phil Ammann, Jason Delgado, Renzo Downey, Rick Flagg, A.G. Gancarski, Anne Geggis, Joe Henderson, Janelle Irwin, Ryan Nicol, Jacob Ogles, Jesse Scheckner, Scott Powers, Andrew Wilson, and Kelly Hayes.

Email: [email protected]
Twitter: @PeterSchorschFL
Phone: (727) 642-3162
Address: 204 37th Avenue North #182
St. Petersburg, Florida 33704

Sign up for Sunburn