Pointing to the “exceptional importance” of issues in the case, Democratic Party organizations want a full federal appeals court to take up a challenge to a Florida law that determines how candidates are listed on election ballots.
The organizations are seeking a rehearing after a panel of the 11th U.S. Circuit Court of Appeals this month rejected the challenge, finding, in part, that the case involves “political questions” that cannot be resolved by judges. A petition filed Thursday asks the full Atlanta-based appeals court to hear the case, a request known as seeking an “en banc” hearing.
Lawyers for the Democratic organizations argued in the petition that the U.S. Supreme Court has found on only “exceedingly rare occasions” that issues are political questions outside the realm of federal judges. They contended that a majority of the three-judge panel this month erred when it decided the ballot-order issue is such as question.
“For decades, federal courts have considered ballot order challenges without expressing any concerns about their ability to adjudicate them,” said the petition filed for the plaintiffs, which include the Democratic National Committee, the Democratic Congressional Campaign Committee, the Democratic Senatorial Campaign Committee and the progressive-advocacy group Priorities USA.
The petition was the latest move in a legal battle about a state law, initially passed in 1951, that requires candidates who are in the same party as the governor to appear first on the ballot. While the law was passed during a time of Democratic dominance of Florida politics, the state has elected Republican governors since 1998 — leading to GOP candidates appearing first on the ballot.
The Democratic organizations contend that the law is unconstitutional and point to what is known as the “primacy effect,” which indicates that being listed first on the ballot gives an advantage to candidates. U.S. District Judge Mark Walker ruled in favor of the plaintiffs, writing, in part, that the U.S. Constitution does not allow “a state to put its thumb on the scale and award an electoral advantage to the party in power.”
But Gov. Ron DeSantis’ administration and national Republican groups, which intervened in the case, appealed Walker’s ruling. The three-judge panel on April 29 vacated Walker’s ruling and ordered that he dismiss the case, based on issues about whether plaintiffs had proper legal standing and whether Florida Secretary of State Laurel Lee was a proper defendant.
After that ruling, the plaintiffs asked for a rehearing by the full appeals court. But with the rehearing request pending, the three-judge panel on Sept. 3 made a somewhat-unusual move of substituting a revised opinion that added the issue of whether the case involved political questions.
The panel’s majority, Chief Judge William Pryor and Judge Robert Luck, relied heavily on a U.S. Supreme Court decision last year in redistricting legal disputes from North Carolina and Maryland, a decision known as the Rucho case. That case concluded that disputes about partisan gerrymandering involved political questions outside the reach of federal courts.
“Their (the plaintiffs in the Florida ballot-order case) complaint is that some voters who are neither Democrats nor Republicans will vote for the Republican candidate solely because the Republican is listed first, giving Republicans an advantage beyond their actual number of supporters,” Pryor wrote in the Sept. 3 opinion. “But the Supreme Court has never accepted that baseline as providing a justiciable standard in any context. It has instead emphatically rejected the idea that federal courts are ‘responsible for vindicating generalized partisan preferences.’”
The majority opinion drew a sharp dissent from Judge Jill Pryor, who wrote that the majority opinion renders “unreviewable constitutional claims that can and should be resolved by federal courts.”
“These are grave mistakes that portend dark days for the Constitution and the fundamental rights it guarantees,” she wrote. “I hope that our en banc court or the Supreme Court will step in to correct the majority’s mistakes and preserve the federal judiciary’s vital role in protecting constitutional rights in the context of elections.”
In their petition last week, lawyers for the Democratic organizations tried to draw a distinction between the Florida ballot-order issue and the Supreme Court’s conclusion about redistricting cases being political questions.
“This case does not involve partisan gerrymandering,” the petition said. “It asks whether Florida’s ballot order statute, which mandates that all candidates who share their political party with the last-elected governor be listed first on the ballot, giving those candidates a proven electoral advantage, violates the First and Fourteenth Amendments by systemically advantaging one type of candidate over others similarly situated.”
–Jim Saunders, News Service of Florida
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Richard says
Who really cares except those that have nothing to do with their lives except to complain. Doesn’t matter what the subject of their complaint is as long as it is against something. Do something useful people to make everyone’s live better. Get a REAL LIFE!
Trailer Bob says
A totally ridiculous thought pattern. When I lived up north, the party of the governor dictated which party was listed first…but no Democrats complained about that system then. Hell, the Governor is almost always a Democrat there.
More “do as I say, not as I do”.
So tired of the Democrats crying and protesting when they don’t get their way.
What a silly and ridiculous commentary.
I mean Really…grow up and stop crying…You won’t be happy until you have the upper hand, via swaying the benefit to your beliefs and moral ways.
My God!
Childish.
C’mon man says
Democrats always gotta have a problem with something Just put them first that way we don’t have to listen to them complain.
Jimbo99 says
I always thought who was listed first was a matter of the incumbent and then they listed the party affiliated & NPA last for order. Flagler County has always been Republican/Conservative. Dems are fooling themselves if they think what order matters in whether they win or lose. They’d basically have to get rid of the Rep/Dem/NPA designations that tip off party line voters. Maybe alphabetical order to make the ballot less informative with just names of those running for power/office. In the end, on wins, the rest lose, there’s one job available. And if the area is more or less progressive determines the winner. Democrats would have to overtake the county for population and positions on the issues. I don’t think the D’s are even close to having the votes in Flagler County to challenge R’s here for any position.
Shelly says
Who cares? Any other concerns that the Democrats want to nit pick about? This Country has bigger fish to fry. Why is the sky blue? Why is grass green? Why do these Democratic tree huggers complain about fossil fuel, but yet they are still flying around the Country in their jets which I highly doubt are electric and neither are the Suburbans and or Escalades that they drive around in.
Dennis C Rathsam says
POPPYCOCK…. There are bigger fish to fry, than worry about who’s listed first Nov 3 Are you all going insane? Some folks just have to complain about everthing! GET A LIFE……
Retired Flagler County Election Worker says
The ballot layout order is based on the sitting Florida Governor’s Party. The layout is actually a Democrat requirement dating back to 1951, when Democrats dominated the state. While the law was passed during a time of Democratic dominance of Florida politics, the state has elected Republican governors since 1998 — leading to GOP candidates appearing first on the ballot. Dems are challenging this as recently as May 2020.
A Concerned Observer says
Here’s a thought; why do we need party affiliations at all? Take a step back folks, and analyze why we need political parties to sway the way we vote. Political parties were created during a time when communication to the voting public was not what we have today and because the voter’s back then likely had a limited understanding of just what they were voting on. Do they exist just because “That is the way it has always been done?”
If each new bill, proposed new law, referendums, and the political candidates themselves had to stand on their own merits, I honestly believe “We The People” would be far better off. Why would anyone vote “the straight party ticket” automatically without considering each choice individually? Anyone doing so is strictly supporting the bloated organization itself, and has no real contribution beyond enabling political cronyism. Political parties are nothing but self-serving, power hungry entities that do little to improve our way of life and are only concerned with their own political power. The antagonism between the parties has always been there, but recently it has risen to a crippling level. Absolutely nothing one party proposes is accepted by the other unless back-door deals are agreed upon, which are agreed upon solely to gain influence over the other party’s candidate to slip one of their political plums by the public at some later date. Party funding for a candidate, not always clearly transparent, is not helping our citizens obtain honest, up front representation to the public. Political parties enable lobbyist to influence passage of one bill over another based solely on the financial gain of the corporations owning the lobbyist and not on the merits of question at hand. Gerrymandering by local and state politicians is only a way to camouflage their chance to be elected over the honest benefit they provide to their constitutes.
Political parties have total control over how they wield power and therefore, they have no interest whatsoever in changing the status quo. They have outlived their usefulness and have become the problem rather than providing any benefit. We don’t need them. They can only be dissolved. It would be a good start.
Steve says
Excellent comment and makes alot of sense. I always thought a 3rd Party but your idea would force Voters to understand the issues more thoroughly. WTG
Steve says
Who cares. Vote them out and wont have to worry about it.
Dennis says
Seems like the democrats now dislike the law they put in effect. Pretty sad. They seem to dislike the constitution also.
Uup115 says
Stop with the bickering ! Life is “short” and according to some high ranking Pentagon officials who will not go “live”, the earth is about to have an encounter of the FOURTH KIND very very soon…….. Start making your life worth something before its over. The extinction of the human race is about to happen once again. GOD (if it exist), will start another race. One with a higher brain capacity for more data input and telepathy learning.
BQ says
Just got my ballot in the mail and that was my first question.
I’m voting straight Democratic, with one exception. We need more Democratic voices at the table in Florida.
Eric says
I just got my Ballot and Democrats are listed first for every category here in Michigan. I was curious as to why and found this article. Clearly the group challenging this are partisan hacks or else they would be challenging this in every state where the Governor’s party is listed first. Instead they are selectively targeting Florida which happens to have a Republican Governor.