Federal appeals court OKs law giving Republicans top spots on FL’s election ballots

Voting booths in Leon County
Voting booths in Leon County, in Florida's state capital. Credit: Mitch Perry.

A federal appeals court has overturned a trial judge who struck down Florida’s system of naming members of the governor’s party first on the ballot, citing insufficient evidence that voters and political organizations suffered any injury that the courts can repair.

A three-judge panel of the U.S. Court of Appeals for the 11th Circuit lifted an injunction imposed in November by U.S. District Judge Mark Walker blocking the state from continuing to use the system, which is mandated under a state law enacted in 1951, when Democrats controlled state government. Republicans now control the governor’s office and Legislature.

The plaintiffs, including private citizens and Democratic and progressive political organizations, had cited evidence that voters favor the top name on a ballot by as much as five points. They called it the “primacy effect” and said it amounted to an unfair windfall for candidates belonging to the governor’s party.

In Florida, where statewide elections can hang on a razor’s edge, the effect theoretically could prove significant. The 2018 margin between Republican Ron DeSantis and Democrat Andrew Gillum was 0.4 percent.

In Wednesday’s appellate ruling, Judge William Pryor wrote for the majority that there was no evidence individual voters were harmed by the system.

“[W]e conclude that absent any evidence of vote dilution or nullification, a citizen is not injured by the simple fact that a candidate for whom she votes loses or stands to lose an election,” he wrote.

The opinion also notes that the plaintiffs’ experts were unable to firmly establish the extent of any primacy effect. “[W[e cannot know how often the primacy effect is zero and how often it is much greater than 5 percent. Any estimates we might make about the variance in the primacy effect across races would be pure speculation.”

Finally, the opinion says the plaintiffs were wrong to name Secretary of State Laurel Lee, on the ground that she lacks control over local supervisors of elections who draft ballots.

In a separate, concurring opinion, Pryor cited the U.S. Supreme Court’s ruling last year rejecting a challenge to political gerrymandering as a political question the courts aren’t competent to decide.

“No judicially discernable and manageable standards exist to determine what constitutes a ‘fair’ allocation of the top ballot position, and picking among the competing visions of fairness poses basic questions that are political, not legal,” he wrote.

Judge Jill Pryor agreed with the majority that the plaintiffs had failed to establish any specific injury that the courts are capable of redressing. She disagreed that Florida’s secretary of state lacks authority over local supervisors of elections.

She wrote that the court should have avoided that question as best left to Florida’s state courts to settle.

Also serving on the panel was Judge Robert Luck, a former DeSantis appointee to the Florida Supreme Court.