A federal appeals court has dismissed a lawsuit aimed at overturning a Florida law that puts President Donald Trump and other Republicans in the top positions in November’s ballot. Democrats have argued the law gives Republican candidates an unfair advantage in the closely contested swing state.
Last year, U.S. District Court Judge Mark Walker ruled that the 1951 law, which says a candidate’s position on the ballot is determined by the party of the governor in office, is unconstitutional because it allows “a state to put its thumb on the scale and award an electoral advantage to the party in power.”
Walker said the law violates the First and Fourteenth Amendments and issued a permanent injunction prohibiting Florida election officials from designing the ballot according to the existing statute.
“Florida’s ballot order statute ensures one party’s candidates receive that advantage in every race, all down the ballot, in every election,” Walker wrote.
But on Wednesday a three-judge panel for the 11th Circuit Court of Appeals vacated Walker’s ruling and dismissed the lawsuit. The appeals court said the voters and six organizations – which includes the Democratic National Committee – that brought the suit against the Florida secretary of state lacked standing because “none of them proved an injury in fact.”
“A citizen is not injured by the simple fact that a candidate for whom she votes loses or stands to lose an election,” Judge William Pryor wrote for the majority.
Florida has not had a Democratic governor since January 1999, which means for 20 years GOP candidates have come first on the ballot for each race in the state. The plaintiffs said that gave Republicans an edge in those races because of “position bias” or “primacy effect.”
According to the primacy effect theory, a small number of people tend to vote for whoever appears first on the ballot. Sometimes referred to as a “donkey vote,” that phenomenon swayed Florida elections from 1978 to 2016 by an average of 5%, according to a study by Stanford University professor Jon Krosnick, who testified for the plaintiffs.
The primacy effect is more pronounced in down-ballot races, where voters tend to know less about the candidates. A 2019 study by Sam Houston State University associate economics professor Darren Grant found the primacy effect in Texas elections was small for high-profile races, but could exceed 10% in down-ballot races.
In a report he submitted to the court, Krosnick said there were two main explanations for the behavior. The first is that some voters feel compelled to cast their ballots in every race, even when they do not know much about the candidates, because they see it as a civic duty.
In those cases, “If people simply settle for the first listed contender when they have no information at all about a race, primacy effects will occur,” Krosnick said.
And in cases where voters do know about the candidates, such as in a presidential race, ambivalence about their choices can lead voters to go with the first option.
“Consider a voter who has devoted great effort to learning about candidates competing for President of the United States and has discovered an array of reasons to vote for and against each one,” Krosnick wrote. “When he or she finally walks into a voting booth, making a choice between the candidates might be very difficult, because their pros and cons nearly balance out.
“As a result, when under pressure to make a choice and move on with life, the voter again might seek to choose arbitrarily, and in such situations, name order might again constitute a nudge, yielding a bias toward the first-listed name.”
In Florida, the margin of victory has been less than 3% in four of the last five presidential elections. If the primacy effect plays out as studied, the ballot positioning could mean the difference in Trump’s quest to win the state a second time. And, as the most valuable battleground state with 29 electoral votes, the election outcome could hinge on the result in the Sunshine State, as it famously did in 2000.
George W. Bush appeared first on the ballots in Florida that year. Krosnick’s analysis found that if Florida had rotated the order of the candidates on the ballots as states such as Ohio do, “the nation would have had a different President in 2001.”
And Krosnick found a similar result when he looked at the 2016 election in Florida, which Trump won by 1.2%.
If Trump, Hillary Clinton and the four other presidential candidates had been rotated in order that year, so that each would be first on one-sixth of the ballots, “Secretary Clinton would have won Florida by 1.48 percentage points,” Krosnick predicted.
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