TALLAHASSEE, Fla. – A federal appeals court has refused to reconsider a ruling that upheld a decades-old Florida law that determines how candidates are listed on election ballots, nailing down a win for Gov. Ron DeSantis' administration and Republican groups.
The 11th U.S. Circuit Court of Appeals on Wednesday issued a one-page order denying a request by Democratic organizations and other plaintiffs for a hearing by the full court, known as an “en banc” hearing, in a challenge to the constitutionality of the law.
The plaintiffs, including the Democratic National Committee, the Democratic Congressional Campaign Committee, the Democratic Senatorial Campaign Committee and the progressive-advocacy group Priorities USA, sought the rehearing after a three-judge panel of the Atlanta-based appeals court backed the state.
The challenge centered on 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, including in next week’s elections.
In arguing that the law is unconstitutional, the Democratic organizations pointed 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 the 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 an issue about whether the case involved political questions that should not be resolved by courts.
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 it 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.”
The plaintiffs on Sept. 24 filed a new petition for a rehearing by the full court. They contended, in part, that the panel erred when it decided the ballot-order issue was a political question outside the realm of federal judges.
“For decades, federal courts have considered ballot order challenges without expressing any concerns about their ability to adjudicate them,” the petition said.