In a decision that could have implications for the 2020 election, a federal judge on Friday struck down a Florida law that for the last two decades placed Republican candidates first on ballots.
U.S. District Judge Mark Walker wrote that being placed first on the ballot has given Republicans over the last two decades a roughly 5 percentage-point advantage at the polls, a significant amount in a state where the last several elections for governor were won by razor-thin margins.
State law requires the party that most recently won the governor’s race be placed first on the ballot. The law has been on the books since 1951 — when Democrats controlled state government.
But Republicans have been in the governor’s mansion since 1999, placing them and other GOP candidates first on all statewide, legislative, congressional and local races.
“The implication is obvious,” Walker wrote. “Florida’s ballot order statute ensures one party’s candidates receive that advantage in every race, all down the ballot, in every election."
The governor’s office said they would appeal the decision. Democrats, who filed the lawsuit, called it a “major legal victory.”
“An unbiased ballot is one of the cornerstones of our democratic system and Democrats are taking every action possible to protect the integrity of our democratic process," Democratic National Committee Chair Tom Perez said in a statement. "This victory is an important step in ensuring every Floridian can participate in a fair election.”
If it’s not overturned on appeal, Walker’s ruling means that President Donald Trump will not automatically appear first on Florida ballots for the 2020 presidential race.
In 2016, Trump won Florida, a crucial swing state, by 1.2 percentage points. Republicans won the races for governor and U.S. Senate that year by even slimmer margins, less that half of a percentage point in both.
Walker prohibited state and county officials from organizing their ballots by who’s in the governor’s mansion, but he did not tell state officials how the ballots should be organized.
He did suggest two options: that ballots be organized alphabetically or that they be ordered on a county-by-county or precinct-by-precinct rotation.
The case hinged on a phenomenon called the “primacy effect,” which is the tendency to choose the first item in a list of options, Walker wrote.
The only question was how big the effect has been on elections in Florida and other states. The plaintiffs hired experts who analyzed races nationally and in Florida from 1978 to 2016. One expert determined that candidates listed first have an average advantage of five percentage points simply by being first.
North Carolina used to have a system like Florida’s, but recently dropped it for a random ordering. One expert found that from 2016, when Republicans there were listed first, to 2018, when Republicans and Democrats appeared first equally, Democrats obtained about 1.5 percent more of the votes cast in precincts where Republicans were no longer listed first.
“Candidate name order effects are not the only reason elections are won and lost, but they do contribute substantially to candidates’ successes or failures at the polls,” Walker wrote.
An expert for Secretary of State Laurel Lee did not dispute that the primacy effect exists, but did dispute some of the experts’ methodologies.
Experts said the effect can happen because of fatigue, haste or inattention. But the effect is more harmful to candidates listed in the second spot, since anyone intending to vote for them could inadvertently vote for the first- or third-spot candidate, Walker wrote.
Over the last two decades, Democrats have been in the second spot. Florida law requires candidates by how many votes the party receives in races for governor, and Democrats have come in second to Republicans.
Walker questioned why the system was adopted in Florida in the first place.
“In light of the almost total absence of any legitimate state interest favoring this system over the multiple alternatives available," he wrote, "it is difficult to imagine what other purpose it could possibly serve than as a thumb on the scale in favor of the party in power.”