Marc Elias is an attorney who represents the Democratic Party and progressive organizations on voting rights issues.

It’s a political truism: The candidate whose name appears first on the ballot has an advantage over the competitors listed below. That’s not just folklore — numerous studies around the country have shown that candidates who are listed first receive more votes. The advantage is so marked that in Illinois, one of several states where ballot position is based on the order of filing, candidates wait in line overnight to gain the top spot.

Elsewhere, the way ballot order is determined varies widely from state to state. In November, a federal court blocked Florida’s ballot order law, which automatically gave the top position in every race to the candidate of the party of the last-elected governor.

As a result of that law, Republican candidates have been listed first in every race on every ballot in the state for the last two decades. In 2016, Donald Trump’s name appeared before Hillary Clinton’s. In 2018, Ron DeSantis was listed above Andrew Gillum in the gubernatorial race, and Rick Scott was listed above Bill Nelson in the election for U.S. Senate. 

The federal court in Florida struck down the ballot order statute because it unconstitutionally gave candidates of the governor’s party — in this case Republican candidates — an unfair advantage over their Democratic opponents. The court found the advantage to Republican candidates to be, on average, five percentage points. Trump defeated Clinton by just over one percentage point. DeSantis won his election for governor by four-tenths of a point. And Scott beat Nelson by just one-tenth of a point. 

You would think that in an era of close elections, we could all agree that Republican candidates in Florida should not start with a five-percentage-point advantage simply because a different candidate for a different office in a different year, who happens to share the same political party, won his seat by four-tenths of a percentage point. Yet last month Florida’s Republican secretary of state and the Republican Party sought to block this ruling from taking effect. While the U.S. Court of Appeals for the 11th Circuit denied their motion for a stay, it set an expedited schedule to hear the appeal in February.

According to the state of Florida and the Republican Party, while there may well be a benefit to being listed first, courts simply have no way of knowing how big an electoral advantage to first-listed candidates is necessary to render the statute unconstitutional. If this argument sounds familiar, that is because it attempts to copy and paste into this case the U.S. Supreme Court’s recent partisan gerrymandering ruling. In Rucho v. Common Cause, the court held that since, in its view, there was no agreed-upon standard for how much partisan gerrymandering made a map unconstitutional, federal courts had to resist considering such cases at all. As many have noted, the Rucho case was a disaster for fair districting and democracy. So far, however, the court’s reasoning in that case has been limited to the unique circumstances of partisan gerrymandering claims and no other aspects of election administration. 

If the reasoning of Rucho is extended into other areas of election and voting law, it will inevitably lead to similarly extreme partisan results. Just as states manipulate district lines to insulate politicians from competitive elections and advance partisan interests, unconstrained from judicial review, states will put a similarly heavy thumb on the scale when designing their balloting rules.  

Without any judicial check, changing election rules for partisan advantage will become a tool for both parties. For example, the newly elected Democratic majority in Virginia could provide that Democratic candidates are listed first and Republican candidates are listed third. New Jersey could pass a law allowing Democratic candidates to be listed first with their party affiliation but limiting all other candidates to an alphabetical order without any party identification. New York could retain straight-ticket voting for Democrats but not for Republicans. Massachusetts could allow longer voting hours for registered Democrats than Republicans.

We count on the courts to prevent partisan mischief from overtaking fair elections. Giving one party a five-percentage-point advantage in every election is not a fair election. This is not a time for courts to shrink from their responsibility to protect democracy in elections. In this case, democracy itself is literally on the ballot.

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