Democrats ask full court to hear ballot order fight

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FILE – This May 26, 2020 file photo shows an Official Democratic General Primary mail-in ballot and secrecy envelope, for the Pennsylvania primary in Pittsburgh. Democrats are launching a digital ad targeting Pennsylvanians voting by mail to explain how to correctly fill out and return the ballots, hoping to avert worried predictions that 100,000 votes or more could be invalidated because the ballots aren’t put in the proper envelope. (AP Photo/Gene J. Puskar, File)

TALLAHASSEE, Fla. (The News Service of Florida) — 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.”

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