Judge Mark Walker, a federal judge in the Northern District of Florida, recently issued an opinion in Jacobson v. Lee, and in it he concluded that Florida’s law that lists the candidates of the governor’s political party first in all down-ballot cases was unconstitutional.
(Judge Walker is known both for his aggressive hostility to existing Florida statutory election law—he’s found several statutes unconstitutional in recent years, many of which were never challenged on appeal—and his flamboyant-meets-cringeworthy legal opinions. Consider this line with a mixed metaphor and a formulaic construction, which goes on to quote himself using the same formula: “Hogwash. The legislative power is not a Midas touch that gilds a matter on contact and insulates it from judicial review, and a decision does not become a political question merely because it is made by a political branch of government. See Fla. Democratic Party II, (“It has been suggested that the issue of extending the voter registration deadline is about politics. Poppycock. This case is about the right of aspiring eligible voters to register and have their votes counted.”).”).
The basis for the court’s determination is that under the Anderson-Burdick balancing test, the right to vote has been sufficiently burdened, and Florida lacked a justification for the law.
It’s true, I think, that ballot order can influence voter behavior. First-listed candidates receive some modest advantage—the political science literature I’ve seen said it may be pretty marginal in high-salience elections and something as high as 5-10% of the vote in low-salience elections (Judge Walker credits expert testimony saying it’s 5% in Florida, apparently in all races).
We might randomly rotate names, which might be harder for voters to find the candidates they want. We might go in alphabetical order, which gives an advantage based upon the happenstance of the name.
One reason to give certain political parties first-name advantage is that the major parties are probably more popular—the governor’s party the most popular last time—and placing them adopt the ballot eases voter selection. True, it gives that party an advantage (again, in high-salience elections, maybe not so much). So we should consider the tradeoffs of this system against other systems.
All good political judgments. But… is Florida’s system unconstitutional?
Here’s the Supreme Court’s articulation of the (fairly malleable) test in Anderson v. Celebrezze: a court “must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It must then identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must determine not only the legitimacy and strength of each of those interests; it must also consider the extent to which those interests make it necessary to burden the plaintiff’s rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.”
In a situation where a candidate is not allowed to appear on the ballot for failing to gather sufficient signatures, then, we look at how serious that burden is (given the steps a candidate must take, and that the voter can’t vote for that candidate whose name doesn’t appear on the ballot). For a voter identification law, we examine the steps a voter has to go through to obtain a ballot, a voter who’d otherwise be unable to vote without it.
On the first step, here’s how Judge Walker explains how his analysis will proceed: “To apply the Anderson/Burdick standard, this Court will first examine whether and to what extent Plaintiffs’ rights have been burdened by Florida’s ballot order scheme. This entails investigating whether the primacy effect exists, how large it is, and the character of its effects on Plaintiffs’ rights.” He explains that the statute “imposes a discriminatory burden on Plaintiffs’ voting rights which is not of the same magnitude as entirely denying Plaintiffs the franchise, but is not negligible either”
The court, however, makes an important elision: what is the burden on the right to vote? The candidate’s names are on the ballot. Voters have full opportunity to cast a vote for those candidates. Alternative systems may not guarantee a voter’s preferred candidate listed first. So what’s the burden?
Is there a “primacy effect,” a benefit to first-listed candidates? Yes the court finds. How large? 5%-ish. So what?
Ah, here’s the court’s take:
[G]iven Florida’s history of election results in which the margin of victory or defeat is less than three to five percentage points, this Court finds section 101.151(3)(a) has impacted Plaintiffs’ First and Fourteenth Amendment rights by systematically allocating that small but statistically significant advantage to Republican candidates in elections where the last-elected governor was a Republican, just as it awarded that advantage to Democrats in elections when Florida’s last-elected governor was a Democrat.This Court need not find a precise percentage attributable to every election uniquely to determine whether Florida’s ballot order scheme violates Plaintiffs’ rights, particularly because Plaintiffs seek declaratory and injunctive relief. Rather, this Court need only find—and does hereby find—that Florida’s ballot order statute systematically awards a material advantage to candidates affiliated with the political party of Florida’s last-elected governor solely on the basis of their party affiliation, and therefore systematically disadvantages other candidates on the basis of their party affiliation.
This is a remarkable holding. For several reasons.
First, how does it “impact” voters’ “rights”? Are voters unable to cast the vote for their preferred candidate of choice? Or that their votes will be inconsistently tabulated? Of course not.
Now, might it advantage particular candidates at the expense of others? To the extent a “primacy effect” exists, yes.
So here’s actually a fairly novel holding: even in the event you are still able to cast a vote for whomever you want, your right to vote may be “burdened.” I’m aware of few contexts where courts have said this, much less then found for the plaintiffs.
In the partisan gerrymandering cases, some district courts (like in Rucho v. Common Cause, the North Carolina case that the Supreme Court ended up determining was non-justiciable in the end) veered into examining the right to vote as burdened by the ability to elect the preferred candidate of choice. In other contexts relating to vote dilution claims, the focus has never been this “burden” on the right to vote. In the racial gerrymandering cases, for instance, even if one is able to vote, but less effectively able to translate that vote into choosing a winning candidate, courts have focused on the intentional racial classification that must survive strict scrutiny under the Equal Protection Clause. Section 2 of the Voting Rights Act gives minority voters the opportunity to elect the preferred candidate of their choice if they meet certain threshold considerations, but this is not a constitutional violation.
In other cases, courts find such burdens slight. Consider Libertarian Party of Virginia v. Alcorn, a 4th Circuit ballot order case in 2016: “What is denied, therefore, is not ballot access, but rather access to a preferred method of ballot ordering. But mere ballot order denies neither the right to vote, nor the right to appear on the ballot, nor the right to form or associate in a political organization.”
It’s hard to find other examples that don’t involve vote denial. In Washington State Grange v. Washington State Republican Party, the Supreme Court found no severe burden on associational rights of the political party in a top-two primary, referring at times to Burdick-style balancing.
In short, this is a far-reaching conclusion that, I think, is inconsistent with how other associational-right-to-vote claims have been adjudicated.
Indeed, the court never really identifies how voters’ right to vote is affected (but more on that in a bit). For instance, the court explains that “first-listed candidates in Florida have historically gained an average advantage of five percentage points due to their position within their office block on the ballot.” Candidate advantage? Sure. Voter burden? What’s the burden?
Second, there are many advantages that holding the governor’s mansion offers, being an incumbent offers, that name recognition offers, that the franking privilege offers, and so on. It’s unclear the impact that other practices that “advantage” one party over another may be deemed to “burden” the right to vote.
Third, the court seems to find that the margin of victory in recent elections being tied to the potential “primacy effect” is what makes it determinative. He says so elsewhere, too: “[A]lthough a donkey vote of three or even five percent is not, 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. This suggests that, although the quantitative burden on Plaintiffs’ rights is small, the practical burden is severe indeed.” This seems unusual. Most of the time, the right to vote does not turn on the likelihood of success—if the right to vote has been burdened, regardless of your likelihood to vote for a winner, it’s simply been burdened. We don’t ratchet the right to vote in closer elections and watch it recede in landslides.
Fourth, the court finds that the decision to list the governor’s party first fails even rational basis! The court goes on, “As Defendants correctly contend, it does not prevent any individual from voting, nor does it prevent their votes from being counted. Under similar circumstances, other courts have found it appropriate to apply a rational-basis standard.” The court then says (1) that it ought to review under a “higher than rational-basis review” standard, but (2) the statute “cannot even clear the lowest available bar” of “extremely deferential rational basis.”
There are a lot of problems here. But I want to return to the earlier point. First-listed candidates have an advantage. But how? In what way?
The Court explains that “voters are more likely to make errors in favor of first-listed candidates and are alos less likely to make errors which disadvantage first-listed candidates.” But that, of course, always extends to all listed candidates, regardless of the reason. Is the right to vote “burdened” simply because errors can happen more in some cases than others?
If the problem is that party-preferred candidates are listed first, that seems untethered from the error rate—that is, there is going to be an error rate regardless of the first listing. The court, however, seems to believe that the burden is less on voters if the errors are based on criterion other than partisan listings—even though the voters would still be casting a vote in error!
This is really a fundamental problem with a lot of federal election law jurisprudence under rather malleable tests like Anderson-Burdick. Terms like “burden” are omitted in a catch-all federal review of election laws. Election laws that feel “wrong” in some way, like a law that lists the incumbent party’s candidate’s first and offers that party a modest advantage in the ballot listing, are shoehorned into these causes of action. Aggressive federal judges then elide the language of the jurisprudence to identified the “wrong”-ness of the statute.
In short (ed.: too late!), the court never identifies the burden on voters, except an error rate that will always occur regardless of the method used. As the case heads to appeal, it would be useful for the Eleventh Circuit (or maybe ultimately the Supreme Court) to provide greater precision to how these election law disputes are to be handled. And it might be time to reconsider whether Anderson-Burdick are really consistent with what the Constitution requires, anyway—as it increasingly appears to be a roving invitation for federal courts to patrol state election laws.