411 F.Supp.3d 1249
N.D. Fla.2019Background
- Florida statute (§101.151(3)(a)) orders candidates in general elections by the party that received the most votes for Governor in the last gubernatorial election, placing that party’s candidates first statewide in every partisan office block.
- Plaintiffs challenged the statute as a First and Fourteenth Amendment violation, arguing it awards the psychological "primacy" or "donkey" vote to the governor’s party and thus advantages that party across races.
- The court held a bench trial with expert testimony (Plaintiffs’ experts Drs. Krosnick, Rodden, Herrnson; Intervenors’ expert Dr. Barber) focused on whether a primacy effect exists and its magnitude in Florida elections.
- The court found the primacy effect real and material: first-listed major-party candidates receive about a 5% advantage on average (about 3.5% under conservative adjustments), an amount often larger than many Florida election margins.
- Defendants’ preliminary defenses (justiciability, standing, statute of limitations, laches, constitutional estoppel) were rejected; the court declared §101.151(3)(a) unconstitutional and entered a permanent injunction barring its enforcement, leaving the state free to adopt a neutral alternative ballot-order scheme.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Justiciability (political question) | Ballot order claims are judicially reviewable under precedent (Mann, Cook) and implicate equal protection/First Amendment rights | Rucho limits federal review of partisan election claims; ballot-order is a political question | Justiciable; Rucho is limited to partisan gerrymandering and does not bar ballot-order review |
| Standing | Organizations and individual voters suffer concrete, redressable injury from systematic partisan allocation of primacy votes | No concrete individualized injury; harms are generalized | Standing satisfied for both organizational and individual plaintiffs |
| Statute of limitations | Continued enforcement produces recurring injuries each election; claims timely for prospective relief | Statute enacted in 1951 so claims time-barred | Claims not time-barred; continuing violations accrue at each election |
| Laches / Constitutional estoppel | Equitable defenses inapplicable to prospective relief from ongoing constitutional violations | Plaintiffs delayed and have in past benefited from statute so estoppel applies | Laches and estoppel do not bar the claims; defenses fail |
| Existence & magnitude of primacy effect | Experts show consistent name-order effects; ~5% advantage for first-listed candidates in Florida | Attack methodology and magnitude; propose adjustments that lower effect size | Court credits Plaintiffs’ experts; finds ~5% advantage (≈3.5% under conservative adjustments) |
| Level of scrutiny / constitutionality | Statute discriminates on partisan basis and imposes a significant burden; Anderson/Burdick balancing requires heightened review | Burden is minimal; rational-basis review should apply | Statute imposes politically discriminatory burden; fails Anderson/Burdick and even rational-basis review; violates First and Fourteenth Amendments |
| Remedy / injunction | Seek permanent injunction and county-by-county rotation until state adopts replacement | Practical/administrative burdens and recertification concerns | Permanent injunction issued prohibiting enforcement of §101.151(3)(a); court declines to mandate a specific replacement but bars partisan ordering and allows neutral alternatives (rotation, alphabetical, order-of-qualification, random lottery) |
Key Cases Cited
- Mann v. Powell, 314 F. Supp. 677 (N.D. Ill. 1969) (district court ballot-order decision later summarily affirmed by the Supreme Court)
- Cook v. Gralike, 531 U.S. 510 (2001) (ballot labeling that penalizes candidates held justiciable and unconstitutional)
- Rucho v. Common Cause, 139 S. Ct. 2484 (2019) (partisan gerrymandering claims present non-justiciable political questions; limited scope)
- Anderson v. Celebrezze, 460 U.S. 780 (1983) (Anderson balancing test for burdens on voting and First Amendment rights)
- Burdick v. Takushi, 504 U.S. 428 (1992) (framework refining scrutiny for election regulations)
- Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (Article III standing principles)
- Crawford v. Marion County Election Board, 553 U.S. 181 (2008) (assessment of election regulations under Anderson/Burdick)
- Williams v. Rhodes, 393 U.S. 23 (1968) (ballot access and justiciability)
- Democratic Executive Committee of Florida v. Lee, 915 F.3d 1312 (11th Cir. 2019) (Secretary of State is proper defendant for prospective election-relief claims)
- McLain v. Meier, 637 F.2d 1159 (8th Cir. 1980) (recognition that ballot position can confer electoral advantage)
- Moore v. Ogilvie, 394 U.S. 814 (1969) (election statute that controls future elections is not moot)
- Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999) (application of Anderson/Burdick to election regulations)