The 9th Circuit Court of Appeals has agreed to hear a lawsuit from multiple Democratic groups challenging an Arizona law which requires candidates from the party which won the last gubernatorial election to be placed first on ballots. Since Republicans win more Arizona gubernatorial races, their candidates end up at the top of the ballot more often.
The Democratic Senatorial Campaign Committee, which is behind the lawsuits, pointed out how the law worked out in Arizona’s 2020 election, since Republican Doug Ducey won the previous gubernatorial election.
“In Arizona, the Republican candidate will be listed first in 11 of the state’s 15 counties, where that 80 percent of the state’s population lives,” the committee said.
Democrats claim the “ballot order effect,” also known as “position bias,” causes some voters to choose the first candidate listed in a race solely because of their placement. Some courts have struck down various types of ballot placement laws, including where the incumbent is listed first.
However, according to a study done by three professors that was published in the Election Law Journal, the results are muddled and inconclusive whether ballot order affects the outcome of races. “[N]o ballot placement produces a systematic positive increase in vote share,” they found.
A lower court threw the case out last year, ruling that the plaintiffs have no standing since they were not injured; they can still vote for any candidate. U.S. District Court Judge Diane Humetewa pointed out that they failed to provide any evidence that the order of candidates influenced elections; Democrat Kyrsten Sinema won the Senate race in 2018, then Democrat Mark Kelly won the other Senate seat in 2020. She also cited the results of the presidential race in Arizona.
Even if there is an advantage, Humetawa, who was appointed by President Barack Obama, didn’t care. “Plaintiffs will not be injured simply because other voters may act ‘irrationally’ in the ballot box by exercising their right to choose the first-listed candidate,’’ she wrote.
Similar challenges are taking place around the country, since 12 states have these laws. The 11th Circuit Court of Appeals ruled against the Democrats last April in a Florida lawsuit over ballot order. Like Humetawa, the justices said the plaintiffs had not been injured. A lawsuit in Texas went nowhere, dismissed by a federal district court judge in July 2020.
In September, the 4th Circuit Court of Appeals also ruled against the Democrats in a challenge to Virginia’s ballot order law. The two-majority justices who wrote the opinion, both Obama appointees, wrote, “We emphasized that when a statute is neutral in its application, ‘[a]ccess to a preferred position on the ballot so that one has an equal chance of attracting the windfall vote is not a constitutional concern.”
Arizona’s law doesn’t apply to primaries, where the names are rotated around in the precincts. Oral arguments are set for January 14. If the 9th circuit rules for the Democrats, causing a split in circuit court decisions, it increases the likelihood that the U.S. Supreme Court will ultimately take and decide the case.
– – –