Jacobson v. Fla. Sec'y of State, No. 19-14552

• Decision Date: 29 April 2020
• Docket Number: No. 19-14552
• Parties: Nancy Carola JACOBSON, Terence Fleming, et al., Plaintiffs-Appellees, v. FLORIDA SECRETARY OF STATE, National Republican Senatorial Committee, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

957 F.3d 1193

Nancy Carola JACOBSON, Terence Fleming, et al., Plaintiffs-Appellees,

v.FLORIDA SECRETARY OF STATE, National Republican Senatorial Committee, et al., Defendants-Appellants.

No. 19-14552

United States Court of Appeals, Eleventh Circuit.

April 29, 2020

Abha Khanna, Perkins Coie, LLP, SEATTLE, WA, Amanda Rebecca Callais, Perkins Coie, LLP, ANCHORAGE, AK, Jacki L. Anderson, Marc Erik Elias, Elisabeth Frost, John Michael Geise, Alexi M. Velez, Perkins Coie, LLP, WASHINGTON, DC, for Plaintiffs - Appellees

Ashley E. Davis, Bradley Robert McVay, Florida Department of State, TALLAHASSEE, FL, Joseph A. Brown, Mohammad O. Jazil, Gary V. Perko, Attorney, Edward Mark Wenger, Hopping Green & Sams, PA, TALLAHASSEE, FL, Joseph W. Jacquot, Attorney General's Office, TALLAHASSEE, FL, Joshua Pratt, Nicholas Primrose, Executive Office of the Governor, TALLAHASSEE, FL, for Defendant - Appellant FLORIDA SECRETARY OF STATE

Jason Brett Torchinsky, Shawn Sheehy, Holtzman Vogel Josefiak Torchinsky, PLLC, WARRENTON, VA, for Defendants - Appellants NATIONAL REPUBLICAN SENATORIAL COMMITTEE, REPUBLICAN GOVERNORS ASSOCIATION

Trevor W. Ezell, Attorney General's Office, AUSTIN, TX, Kyle D. Hawkins, Texas Attorney General's Office, AUSTIN, TX, Attorney General, State of Texas, Jeffrey Carl Mateer, Ken Paxton, Office of the Attorney General of Texas, AUSTIN, TX, for Amici Curiae

Before WILLIAM PRYOR, JILL PRYOR, and LUCK, Circuit Judges.

WILLIAM PRYOR, Circuit Judge:

This appeal requires us to decide whether several voters and organizations have standing to challenge a law that governs the order in which candidates appear on the ballot in Florida’s general elections. The law provides that candidates of the party that won the last gubernatorial election shall appear first for each office on the ballot and that candidates of the second-place party shall appear second. Several Democratic voters and organizations sued the Florida Secretary of State to enjoin enforcement of the law. They alleged that the law violates their rights under the First and Fourteenth Amendments because candidates who appear first on the ballot—in recent years, Republicans—enjoy a "windfall vote" from a small number of voters who select the first candidate on a ballot solely because of that candidate’s position of primacy. After a bench trial, the district court permanently enjoined the Secretary—and the 67 county Supervisors of Elections, none of whom were made parties to this lawsuit—from preparing ballots in accordance with the law.

We hold that the voters and organizations lack standing to sue the Secretary. None of them proved an injury in fact. And any injury they might suffer is neither fairly traceable to the Secretary nor redressable by a judgment against her because she does not enforce the challenged law. Instead, the Supervisors—county officials independent of the Secretary—are responsible for placing candidates on the ballot in the order the law prescribes. The district court lacked authority to enjoin those officials in this suit, so it was powerless to provide redress. Because the voters and organizations lack standing, we vacate and remand with instructions to dismiss for lack of justiciability.

I. BACKGROUND

As part of a comprehensive revision to the election code, the Florida Legislature enacted a statute in 1951 that governs the order in which candidates appear on the ballot in general elections. 1951 Fla. Laws 871 (originally codified at Fla. Stat. § 101.151(4) (1951) ). The statute requires the candidate of the party that won the last gubernatorial election to appear first beneath each office listed on the ballot, with the candidate of the second-place party appearing second. Fla. Stat. § 101.151(3)(a). In the nearly 70 years since its enactment, the statute has placed Democrats first on the ballot in 20 general elections and Republicans first in 14, including the 10 most recent general elections.

In 2018, three voters and six organizations that support the Democratic Party filed a complaint against the Florida Secretary of State to enjoin enforcement of the statute. They alleged that, because of "position bias," the statute confers "an unfair electoral advantage" on Republicans, who have held the Governorship for the past 20 years and whose candidates have appeared first on the ballot during that time. Position bias, or the "primacy effect," refers to the phenomenon that a small number of voters select the candidate who is listed first for an office on the ballot solely because of the candidate’s position. In close elections, the complaint alleged, the primacy effect can give Republican candidates the "bump" needed to secure victory. By awarding the benefits of the primacy effect entirely to Republican candidates in recent years, the voters and organizations argued that the statute violates their rights under the First and Fourteenth Amendments as interpreted in Anderson v. Celebrezze , 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), and Burdick v. Takushi , 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992).

Shortly after the voters and organizations filed their complaint, the National Republican Senatorial Committee and Republican Governors Association moved to intervene as defendants. See Fed. R. Civ. P. 24(b). The district court granted the motion. The Republican intervenors joined the Secretary in defending the challenged law as constitutional and opposing the relief the voters and organizations sought.

At a bench trial, the voters and organizations presented the testimony of three expert witnesses. Jon Krosnick, a professor at Stanford University, reviewed the academic literature and testified that the existence of the primacy effect is well-established by academic studies of elections. Based on his regression analyses of past Florida elections, Krosnick testified that candidates listed first on Florida ballots have historically gained an average advantage of about five percentage points. Jonathan Rodden, also a professor at Stanford University, testified about the primacy effect in down-ballot races. Rodden testified that the primacy effect is more pronounced in down-ballot races, where voters often have less information about the candidates, than in top-of-ticket races. And Paul Herrnson, a professor at the University of Connecticut, testified about how ballot order contributes to "proximity error." Herrnson testified that when voters make proximity errors—that is, accidentally select the candidate listed before or after the one they mean to select—the second-listed candidate is especially disadvantaged in races with more than two candidates. The reason for this disadvantage, Herrnson explained, is that voters who intend to select the first or last candidate in a list can err in only one direction, but voters who intend to select the second candidate can err in either direction.

The Secretary and the Republican intervenors presented the testimony of an expert witness, several election officials, and a corporate representative for one of Florida’s election machine vendors. Michael Barber, a professor at Brigham Young University, critiqued Krosnick’s methods and testified that Krosnick’s estimate of an average five-percent primacy effect was not valid. Maria Matthews, Director of the Florida Division of Elections, and several county Supervisors of Elections testified about the state interests the challenged law serves. They explained that the statute helps prevent voter confusion, allows voters to more quickly find their preferred candidate or party for a particular office, promotes uniformity in administering elections across Florida’s 67 counties and over 6,000 precincts, and helps limit errors in ballot layout. Matthews and the Supervisors also testified about the logistical difficulties of implementing the voters’ and organizations’ requested relief, such as rotating the names of Democratic and Republican candidates between counties or between voting precincts within a county. And a corporate representative for an election machine vendor testified that he did not know whether the election machines could rotate Democratic and Republican candidates between the top two ballot positions and that it could take up to a year for the company to take the steps necessary for rotating candidate names.

After trial, the district court entered a final order. It rejected the Secretary’s and intervenors’ arguments that the lawsuit presented a nonjusticiable political question and that the voters and organizations lacked standing. And on the merits, it ruled that Florida’s method of ordering candidates on the ballot is unconstitutional.

The district court ruled that both the voters and the organizations proved Article III standing. It reasoned that an "impact on the right to vote" is "common to all election laws," so the voters necessarily had an injury in fact. It also concluded that the organizations were injured because they spent resources to combat the primacy effect and because some unidentified voters who were members of the organizations would be harmed by the primacy effect. The district court did not squarely address whether any injury from ballot order is traceable to the Secretary, but it reasoned that the Secretary is responsible for ballot order because she is Florida’s "chief election officer." And although Florida law tasks the nonparty Supervisors with placing candidates on the ballot in the correct order, Fla. Stat. § 99.121, the district court ruled that relief against the Secretary could redress the voters’ and organizations’ injuries.

On the merits, the district court ruled that the law is unconstitutional under the approach established in Anderson , which requires courts to weigh the burdens imposed by an election regulation against the state interests justifying the measure. See 460 U.S. at 789, 103 S.Ct. 1564. The district court found that "candidates of the major parties in Florida receive an average primacy effect vote of...