Jacobson v. Lee

• Citation: 411 F.Supp.3d 1249
• Decision Date: 15 November 2019
• Docket Number: CASE NO.: 4:18cv262-MW/CAS
• Parties: Nancy Carola JACOBSON, et al., Plaintiffs, v. Laurel M. LEE, et al., Defendant/Intervenors.
• Court: U.S. District Court — Northern District of Florida

411 F.Supp.3d 1249

Nancy Carola JACOBSON, et al., Plaintiffs,

v.Laurel M. LEE, et al., Defendant/Intervenors.

CASE NO.: 4:18cv262-MW/CAS

United States District Court, N.D. Florida.

Signed November 15, 2019

Abha Khanna, Perkins Coie LLP, Seattle, WA, Alexi Machek Velez, Amanda R. Callais, Elisabeth C. Frost, Jacki L Anderson, John Michael Geise, Marc E. Elias, Perkins Coie LLP, Washington, DC, Frederick Stanton Wermuth, King Blackwell Zehnder etc. PA, Orlando, FL for Plaintiffs.

Ashley E. Davis, Florida Department of State, Bradley Robert McVay, Florida Department of State Office of General Counsel, Gary Vergil Perko, Malcolm Noble Means, Mohammad Omar Jazil, Hopping Green & Sams PA, Jesse Craig Dyer, Department of State-S Bronough St.-Tallahassee FL, Tallahassee, FL, Jason Brett Torchinsky, Jonathan Philip Lienhard, Phillip Michael Gordon, Holtzman Vogel Josefiak PLLC-Warrenton VA, Shawn T. Sheehy, Warrenton, VA, for Defendant/Intervenors.

FINAL ORDER FOLLOWING BENCH TRIAL

Mark E. Walker, Chief United States District Judge

In political circles, it is widely believed that the candidate who is listed first on the ballot has an advantage in the election—an advantage which can be decisive.¹ This advantage supposedly comes from a phenomenon called the primacy effect, which is the human tendency to choose the first item in a list of options. The portion of the vote a candidate supposedly gains this way is called the "primacy effect" vote, the "windfall vote," or the "donkey vote."² See Sarvis v. Judd , 80 F. Supp. 3d 692, 699 (E.D. Va. 2015).

In Florida, the order in which candidates appear on the ballot is determined by the previous election for governor. The party in control of the Governor's Mansion has its candidates listed first in every race, all along the ballot. The party that came in second has its candidates listed in the second position in each race. So, if the Governor of Florida is a Democrat, then Democrats will be listed first in every race on every ballot for the next four years, just because they are also Democrats.

The implication is obvious. Assuming the so-called "donkey vote" exists, Florida's ballot order statute ensures one party's candidates receive that advantage in every race, all down the ballot, in every election. In practical terms, when the governor is a Democrat, this means every Democratic candidate has a small but significant advantage in every election over the Republican candidate, and that they have this advantage solely because they are Democrats. When a Republican is governor, Republicans have the advantage, solely because they are Republicans.

The first issue in this case is whether Plaintiffs have proven the primacy effect exists and affects Florida's elections. This Court finds they have done so. The second issue is whether the Constitution allows a state to put its thumb on the scale and award an electoral advantage to the party in power. The answer is simple. It does not.

The Florida Statute at Issue

Florida's ballots are arranged in an office block pattern, meaning that all the candidates for a given office are listed together in a section of the ballot labelled with the title of the office they are running for. § 101.151(2)(a), Fla. Stat. (2019). Within each office block, the candidates' names are arranged according to the following scheme:

The names of the candidates of the party that received the highest number of votes for Governor in the last election in which a Governor was elected shall be placed first for each office on the general election ballot, together with an appropriate abbreviation of the party name; the names of the candidates of the party that received the second highest vote for Governor shall be placed second for each office, together with an appropriate abbreviation of the party name.

Id. § 101.151(3)(a).³ For all partisan races in the general election, therefore, the candidates affiliated with the political party of the last-elected governor will be listed first within each office block.

Preliminary Miscellanea

In what has become a familiar exercise for this Court in cases concerning voting rights and procedure, Defendants⁴ throw a hodgepodge of preliminary issues at the wall, hoping one will stick and prevent this Court from considering this case on the merits. See, e.g. , Rivera Madera v. Detzner , 325 F. Supp. 3d 1269, 1275–78 (N.D. Fla. 2018) ; League of Women Voters of Fla., Inc. v. Detzner , 314 F. Supp. 3d 1205, 1212–14 (N.D. Fla. 2018) ; Fla. Democratic Party v. Detzner (Fla. Democratic Party I ), Case No. 4:16cv607-MW/CAS, 2016 WL 6090943, at *4–*5 (N.D. Fla. Oct. 16, 2016) ; Fla. Democratic Party v. Scott (Fla. Democratic Party II ), 215 F. Supp. 3d 1250, 1254–55 (N.D. Fla. 2016). In the present case, Defendants claim Plaintiffs lack standing; that Plaintiffs' claims are barred by the applicable statute of limitations, estoppel, and laches; and that this case is not justiciable.

In a prior order, this Court summarily rejected Defendants' arguments on these preliminary matters as "unpersuasive." ECF No. 158 at 1. Defendants renewed these arguments at trial citing supplemental authority, and this Court remains unpersuaded. Although it entails a lengthy diversion to tilt at Defendants' windmills, this Court will address each preliminary matter in turn.

Justiciability

This Court need not struggle with the question of justiciability. The Supreme Court has summarily affirmed a district court's decision which held that, where applicable law required candidates to be listed on the ballot in the order in which they filed their qualification paperwork, a discretionary policy of resolving ties in favor of incumbents was "a purposeful and unlawful invasion of [the] plaintiffs' Fourteenth Amendment right to fair and evenhanded treatment." Mann v. Powell , 314 F. Supp. 677, 679 (N.D. Ill. 1969), aff'd without opinion , 398 U.S. 988 (1970). The Supreme Court's summary affirmances are binding precedent unless and until the Court specifically disclaims them. See Hicks v. Miranda , 422 U.S. 332, 344, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975) (holding "that the lower courts are bound by summary decisions by this Court until such time as this Court informs them that they are not" (internal marks and quotation omitted)); see also Hardwick v. Bowers , 760 F.2d 1202, 1207 (11th Cir. 1985), rev'd on other grounds , Bowers v. Hardwick , 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) ("A summary affirmance of the Supreme Court has binding precedential effect.").

The strength of this principle is such that summary affirmances by the Supreme Court remain binding even in the face of decades of seemingly contrary decisions. In Hand v. Scott , 285 F. Supp. 3d 1289 (N.D. Fla. 2018), this Court addressed the precedential effect of the Supreme Court's summary affirmance of Beacham v. Braterman , 300 F. Supp. 182 (S.D. Fla. 1969), aff'd without opinion , 396 U.S. 12, 90 S.Ct. 153, 24 L.Ed.2d 11 (1969). This Court concluded it was not bound by Beacham because "[u]nlike a fine wine, this summary affirmance has not aged well" in light of subsequent Supreme Court decisions which seemed to recede from, or at least contradict, that decision. 285 F. Supp. 3d at 1307. On appeal from this Court, the United States Court of Appeals for the Eleventh Circuit admonished that "we are bound to follow Supreme Court precedent in Beacham " and the Supreme Court's other "summary determinations." Hand v. Scott , 888 F.3d 1206, 1208 (11th Cir. 2018). The summary affirmance of Mann would alone compel the conclusion that Plaintiffs' claims are justiciable.

Furthermore, in Cook v. Gralike , 531 U.S. 510, 121 S.Ct. 1029, 149 L.Ed.2d 44 (2001), the Supreme Court held a provision of the Missouri Constitution which required the words "DISREGARDED VOTERS' INSTRUCTIONS ON TERM LIMITS" to appear alongside the names of certain candidates on Missouri's ballots was unconstitutional. Defendants agree Cook is binding authority—in fact, Intervenors cited it during trial of this case in response to this Court's question of whether a law could be challenged which placed a "thumbs-up" symbol next to certain candidates on the ballot, T. at 42–43, 70.⁵ Cook clearly holds that questions of what appears on the ballot and how are justiciable. Defendants' arguments make up in temerity for what they lack in merit.

Notwithstanding those binding precedents, Defendants argue that the ordering of candidates' names on the ballot is a nonjusticiable political question, relying on the Supreme Court's recent decision in Rucho v. Common Cause , ––– U.S. ––––, 139 S. Ct. 2484, 204 L.Ed.2d 931 (2019). In that case, the Court decided "that partisan gerrymandering claims present political questions beyond the reach of the federal courts" because resolving such claims would require federal courts "to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution, and no legal standards to limit and direct their decisions." Id. at 2506–07. Such claims are problematic, the Court explained, because they

inevitably ask the courts to make their own political judgment about how much representation particular political parties deserve —based on the votes of their supporters—and to rearrange the challenged districts to achieve that end.

Id. at 2499. But the Court specifically distinguished other types of voting-rights claims, such as "one-person, one-vote rule" claims which are "relatively easy to administer as a matter of math," id. at 2501 ; and even other types of gerrymandering claims, such as racial gerrymandering, id. at 2502. Unlike claims of partisan gerrymandering, the Court concluded, claims of vote dilution or racial gerrymandering "could be decided under basic equal protection principles," id. at 2496, without the need for a federal court to decide whether the legislature's decision is fair. Defendants contend that, if partisan gerrymandering claims are political questions, ballot...