by Steve Lemongello
A federal court in Tallahassee struck down a Florida law that listed the governor’s party first on all ballots, which Democrats argued gave Republicans a significant advantage in a state where the two biggest races in 2018 were both within 0.4 percentage points.
In his ruling, District Court Judge Mark Walker issued a permanent injunction against the law, stating it violates both the First and 14th amendments of the Constitution.
“Florida’s ballot order statute is not neutral; instead, it affects Plaintiffs’ rights in a politically discriminatory way,” Walker wrote. “… It is difficult to imagine what other purpose it could possibly serve than as a thumb on the scale in favor of the party in power.”
The plaintiffs, which included the Democratic National Committee and its campaign committees, cited research showing the statistical advantage of being listed first was estimated to be as high as 5.4 percentage points when Republican Party candidates are listed first and 3.92 points when Democrats are on top.
The 2018 U.S. Senate race in which then-Gov. Rick Scott, a Republican, defeated former Democratic U.S. Sen. Bill Nelson was decided by 0.13 points. The governor’s race won by Republican Ron DeSantis over Democrat Andrew Gillum was decided by 0.4 points. Scott won his two races for governor by less than 1.2 points each.
While 3 to 5 points wasn’t “in and of itself a large proportion of the total vote, it is often a decisive proportion in terms of the spread between the candidates in a Florida election,” Walker ruled.
Walker concluded voters could also lose confidence in the integrity of Florida’s election system from knowing the order of candidates’ names was determined on a partisan basis.
He ordered Florida Secretary of State Laurel Lee and all county elections supervisors to immediately stop listing candidates first based on the last gubernatorial election.
As a replacement, Walker wrote the state could adopt a county-by-county rotation, precinct-by-precinct rotation, listing names alphabetically, or any other method besides what Florida was doing.
Lee has the option of appealing to a federal appellate court. The Department of State did not return requests for comment Friday.
In a statement, state Democratic Chair Terrie RIzzo called the decision “A huge victory for Florida voters. ... In a state where elections are decided by less than half a percentage point - this is a monumental ruling.”
Democratic attorney Marc Elias, who represented Nelson during his recount with Scott last year, wrote on Twitter that the court victory will help the party in identical lawsuits in Arizona, Georgia and Texas.
In response to people questioning that ballot order had a statistical advantage, Elias wrote, “The social science on this is quite settled. It is why pollsters rotate names when conducting polls. Florida's defense rested primarily on procedural issues and the constitutional standard – not on whether a primacy effect exists.”
Walker himself noted that the Republican Governors Association and National Republican Senatorial Committee, which joined the lawsuit on behalf of the state, has included as part of their argument that Republicans “stand to be most directly harmed by a change” in the state’s ballot order.
“In other words, [Republicans’] whole interest in this lawsuit rests upon the idea that a change in Florida’s ballot order scheme would worsen their position by depriving them of an existing advantage,” Walker wrote.
State GOP Chair Joe Gruters said Friday that the law has stood for almost 70 years, "but today, less than a year before the all-important 2020 election, that statute has now suddenly been declared unconstitutional by a federal judge. This is judicial activism at its worst.”
Gruters also referenced that it was Democratic officials who originally passed the law in 1951, when the party was at its peak in pre-Civil Rights Florida and was trying to hold onto its power against an emerging southern Republican Party.
But while the Democrats mostly stayed in power in the governor’s mansion throughout the 20th century, with only two Republicans winning before 1998, Republican Jeb Bush’s victory that year marked the first of six straight elections won by Republicans.
Perhaps, most famously, Republican George W. Bush was listed first on the infamous “butterfly ballot” in Palm Beach County in 2000. He won the state, and the presidency, over Democrat Al Gore by just 537 votes.