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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-14552
________________________
D.C. Docket No. 4:18-cv-00262-MW-CAS
NANCY CAROLA JACOBSON,
TERENCE FLEMING, et al.,
Plaintiffs-Appellees,
versus
FLORIDA SECRETARY OF STATE,
NATIONAL REPUBLICAN SENATORIAL COMMITTEE, et al.,
Defendants-Appellants.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(September 3, 2020)
Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and LUCK, Circuit
Judges.
WILLIAM PRYOR, Chief Judge:
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We vacate our original opinion in this appeal and substitute in its place the
following opinion.
This appeal requires us to decide whether several voters and organizations
may challenge in federal court 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
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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.
We also hold alternatively that the voters and organizations’ complaint
presents a nonjusticiable political question. Complaints of unfair partisan
advantage based on the order in which candidates appear on the ballot bear all the
hallmarks of a political question outside our competence to resolve. See Rucho v.
Common Cause, 139 S. Ct. 2484 (2019). No judicially discernable and manageable
standards exist to determine what constitutes a “fair” allocation of the top ballot
position, and picking among the competing visions of fairness “poses basic
questions that are political, not legal.” Id. at 2500. And even if courts could agree
on a standard for fairly ordering ballots, no objective measures exist to identify
violations of that standard. See id. at 2501. This lawsuit asks us “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” our
decision. Id. at 2507. That kind of complaint is “outside the courts’ competence
and therefore beyond the courts’ jurisdiction.” Id. at 2494.
Because the voters and organizations lack standing and their complaint is
nonjusticiable, we vacate and remand with instructions to dismiss for lack of
jurisdiction.
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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
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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 (1983), and Burdick v.
Takushi, 504 U.S. 428 (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
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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
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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 voters and organizations lacked standing and
that their complaint presented a nonjusticiable political question. 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
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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.
The district court also ruled that this lawsuit does not present a
nonjusticiable political question. It reasoned that the Supreme Court’s summary
affirmance in Mann v. Powell, 398 U.S. 955 (1970) (mem.), established that the
voters and organizations’ complaint was justiciable. And it rejected the argument
that complaints of unfair partisan advantage from ballot order are nonjusticiable
under Rucho, 139 S. Ct. 2484. The district court concluded that it could evaluate
the voters and organizations’ complaint under the judicially manageable standards
established in Anderson, 460 U.S. 780, and Burdick, 504 U.S. 428. It decided that
Rucho was inapplicable because that decision was limited to complaints of partisan
gerrymandering.
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. The district court found that “candidates of the major parties
in Florida receive an average primacy effect vote of approximately five percent
when listed first in their office block on the ballot.” And based on “Florida’s
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history of election results in which the margin of victory or defeat is less than three
to five percentage points,” the district court found that the ballot statute “has
impacted Plaintiffs’ First and Fourteenth Amendment rights by systematically
allocating that small but statistically significant advantage to Republican
candidates” in recent years. It concluded the statute was “politically
discriminatory” because it awarded the benefits of the primacy effect to a single
political party in any given election. And it found that the State’s asserted
justifications for the statute—upholding the legislature’s policy choice, preventing
voter confusion, promoting uniformity, and promoting voter confidence in the
election administration process—were “weak,” “not particularly persuasive,” and
“not particularly strong on the specific facts of this case.”
The district court awarded declaratory and injunctive relief. It declared that
Florida’s ballot-order scheme violated the First and Fourteenth Amendments. And
it permanently enjoined the Secretary and the 67 Supervisors of Elections from
implementing the ballot-order statute. Based on the Secretary’s “responsibility for
general supervision and administration of the election laws,” the district court
ordered the Secretary to neither “enforce, nor permit enforcement of,” the statute.
The district court also ordered the Secretary to “take all practicable measures
within the scope of [her] official authority to ensure compliance with the terms of
[its] Order.” And it enjoined any “supervisor of elections of any Florida county”—
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none of whom were named as defendants or served with process as parties to this
lawsuit—from issuing “any ballot which is organized pursuant to” the statute. The
district court also ordered the Secretary to “provide written guidance to the
supervisors of elections of Florida’s counties informing them that this Court has
declared the [statute] unconstitutional” and to “include a true and correct copy of
this Court’s order in her written guidance.”
The district court did not require Florida to adopt a specific alternative
method of ordering candidates on ballots; it instead explained that two kinds of
alternative schemes would be constitutional and allowed Florida to choose an
alternative scheme. The first group of permissible schemes it identified were
“rotational schemes,” which “rotate candidates’ names within their office blocks
on a county-by-county or precinct-by-precinct basis.” The district court explained
that these schemes “equaliz[e] the burden on voting rights” by “distributing the
candidate name order effects more evenly across all candidates.” The second group
of permissible schemes the district court identified are those that “cleans[e] the
partisan taint from the process,” such as ordering candidates alphabetically by last
name, by the order in which they submit their qualifying paperwork, or by lottery.
II. STANDARD OF REVIEW
We review questions of subject-matter jurisdiction de novo. United States v.
Pavlenko, 921 F.3d 1286, 1289 (11th Cir. 2019).
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III. DISCUSSION
Federal courts have an independent obligation to ensure that subject-matter
jurisdiction exists before reaching the merits of a dispute. “For a court to
pronounce upon . . . the constitutionality of a state or federal law when it has no
jurisdiction to do so is, by very definition, for a court to act ultra vires.” Steel Co.
v. Citizens for a Better Env’t, 523 U.S. 83, 101–02 (1998). If at any point a federal
court discovers a lack of jurisdiction, it must dismiss the action. See MSP
Recovery, LLC v. Allstate Ins. Co., 835 F.3d 1351, 1357 (11th Cir. 2016).
Unfortunately, the district court took its obligation to ensure its jurisdiction
far too lightly. It dismissed weighty challenges to the voters’ and organizations’
standing under Article III and to the justiciability of their complaint as a
“hodgepodge” of “[p]reliminary [m]iscellanea.” It then proceeded to declare
Florida’s ballot statute unconstitutional and enter an injunction against both the
Secretary and the nonparty Supervisors. In doing so, the district court acted ultra
vires by ordering relief that it had no jurisdiction to award.
This lawsuit suffers from two fatal jurisdictional defects. The voters and
organizations lack standing, and their complaint presents a nonjusticiable political
question. We discuss each defect in turn.
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A. The Voters and Organizations Lack Standing.
Article III of the Constitution limits the subject-matter jurisdiction of federal
courts to “Cases” and “Controversies.” U.S. Const. art. III, § 2. “To have a case or
controversy, a litigant must establish that he has standing,” which requires proof of
three elements. United States v. Amodeo, 916 F.3d 967, 971 (11th Cir. 2019). The
litigant must prove (1) an injury in fact that (2) is fairly traceable to the challenged
action of the defendant and (3) is likely to be redressed by a favorable decision.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).
Because the elements of standing “are not mere pleading requirements but
rather an indispensable part of the plaintiff’s case, each element must be
supported . . . with the manner and degree of evidence required at the successive
stages of the litigation.” Id. at 561. If an action proceeds to trial, the facts necessary
to establish standing “must be supported adequately by the evidence adduced at
trial.” Id. (internal quotation marks omitted). And when plaintiffs seek prospective
relief to prevent future injuries, they must prove that their threatened injuries are
“certainly impending.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 401 (2013)
(internal quotation marks omitted).
We divide our discussion of why the voters and organizations lack Article
III standing in two parts. First, we explain that neither the voters nor the
organizations proved an injury in fact. Second, we explain that even if they had
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proved an injury, that injury would be neither traceable to the Secretary nor
redressable by relief against her.
1. Neither the Voters nor the Organizations Proved an Injury in Fact.
We divide our discussion of injury in two parts. We first explain that the
individual voters failed to prove an injury. We then explain that the organizations
likewise failed to prove an injury.
a. The Voters Failed to Prove an Injury.
Two of the three voters never testified at trial or in a deposition. The record
contains no evidence about any injuries those two individuals suffered in the past
or may suffer in the future. Indeed, we do not even know whether they plan to vote
in future Florida elections.
When confronted with this lack of evidence, the district court reasoned that
an “impact on the right to vote” is “common to all election laws,” so the voters
must have standing. But the Supreme Court has made clear that “a person’s right to
vote is individual and personal in nature,” so “voters who allege facts showing
disadvantage to themselves as individuals have standing to sue.” Gill v. Whitford,
138 S. Ct. 1916, 1929 (2018) (internal quotation marks omitted). And of course,
“[t]he facts necessary to establish standing . . . must not only be alleged at the
pleading stage, but also proved at trial.” Id. at 1931. Because they failed to offer
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any evidence at trial showing disadvantage to themselves as individuals, these two
voters failed to prove an injury.
The only voter who offered any evidence at trial was Nancy Jacobson.
Jacobson testified that she “always vote[s],” that she “go[es] out of [her] way to
vote in every election,” and that she consistently votes for Democratic candidates.
But Jacobson failed to identify any difficulty in voting for her preferred candidate
or otherwise participating in the political process.
Although her brief is less than clear on this point, Jacobson appears to
identify two threatened injuries from the ballot statute. The first is that some
unidentified Democratic candidates for whom she will vote in future elections will
lose those elections because of the primacy effect. The second injury is that—
regardless of the outcome of any election—the ballot statute “dilutes” the votes of
Democrats relative to Republicans by allocating the windfall vote entirely to
Republican candidates. We reject both theories of injury.
To the extent Jacobson contends that she will be injured if a Democratic
candidate for whom she votes loses an election or is at increased risk of losing, we
disagree. A candidate’s electoral loss does not, by itself, injure those who voted for
the candidate. Voters have no judicially enforceable interest in the outcome of an
election. See Raines v. Byrd, 521 U.S. 811, 819, 824, 830 (1997). Instead, they
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have an interest in their ability to vote and in their vote being given the same
weight as any other.
Raines, which involved the standing of legislators to challenge the
constitutionality of the Line Item Veto Act, is instructive. Id. at 814, 816. Several
legislators who voted against the Act sued to challenge it. Id. at 814. The Supreme
Court explained that passage of the Act did not injure the legislators who voted
against it because “their votes were given full effect,” and the disappointed
legislators “simply lost that vote.” Id. at 824. The Court made clear that legislators
have standing to challenge the defeat or enactment of legislation only if the
outcome of the vote changed because their votes were “nullified”—that is, not
counted at all. Id. at 823 & n.6. Jacobson does not argue that the ballot statute
nullifies her vote. Instead, her complaint is that less careful voters will vote for
Republican candidates solely because they appear first on the ballot, which might
cause her preferred candidates to lose. Like the legislators in Raines, the first harm
she identifies is an unfavorable electoral outcome, wholly apart from any
allegation of vote dilution or nullification.
Although the voting rights of legislators and citizens are not identical, see
Nev. Comm’n on Ethics v. Carrigan, 564 U.S. 117, 126 (2011), we conclude that
absent any evidence of vote dilution or nullification, a citizen is not injured by the
simple fact that a candidate for whom she votes loses or stands to lose an election.
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And two of our sister circuits agree. See Berg v. Obama, 586 F.3d 234, 240 (3d
Cir. 2009) (“Berg’s wish that the Democratic primary voters had chosen a different
presidential candidate . . . do[es] not state a legal harm.”); Becker v. Fed. Election
Comm’n, 230 F.3d 381, 390 (1st Cir. 2000) (holding that a candidate’s decreased
“chance of being elected” was “hardly a restriction on voters’ rights and by itself
[was] not a legally cognizable injury sufficient for standing”). Jacobson’s first
alleged injury is legally insufficient to establish Article III standing.
Insofar as Jacobson argues that the ballot statute will injure her by diluting
her vote relative to the votes of Republicans, she failed to prove any such injury.
Her theory of vote dilution appears to be that, because of Florida’s ballot order and
the primacy effect, it takes a greater number of careful Democratic voters than
careful Republican voters to elect their preferred candidates. The reason for this
disparity is that some less careful voters will select Republican candidates solely
because they happen to appear first on the ballot, thereby diluting the votes of
careful Democratic voters. Even assuming that this kind of “vote dilution” counts
as an Article III injury, the evidence Jacobson offered is insufficient to prove it.
In Gill, the Supreme Court addressed whether voters had standing to
challenge a partisan gerrymander based on the dilution of their votes. 138 S. Ct. at
1929–31. Partisan gerrymandering operates by placing voters of one party “in
legislative districts deliberately designed to ‘waste’ their votes in elections where
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their chosen candidates will win in landslides (packing) or are destined to lose by
closer margins (cracking).” Id. at 1930. The voters’ theory of injury was that the
partisan gerrymander caused their votes to “carry less weight” than they would “in
another, hypothetical district” that had not been packed or cracked. Id. at 1931. But
instead of offering evidence that they lived in a packed or cracked district, which
could have shown “disadvantage to themselves as individuals,” id. at 1930
(internal quotation marks omitted), the voters rested their case on a “theory of
statewide injury to Wisconsin Democrats,” id. at 1932.
To prove partisan vote dilution, the voters in Gill relied on an “average
measure” of “partisan asymmetry” that compared the “statewide sum of one
party’s wasted votes” to “the statewide sum of the other party’s wasted votes.” Id.
at 1933. The Supreme Court held that this average measure of the partisan effects
of a gerrymander was insufficient to establish the voters’ standing because it did
not “address the effect that a gerrymander has on the votes of particular citizens.”
Id. It instead “measure[d] something else entirely: the effect that a gerrymander has
on the fortunes of political parties.” Id.
Jacobson similarly relies on a statewide average measure of the primacy
effect in Florida elections to prove the injury of partisan vote dilution. Her experts
testified, and the district court found, that candidates who appear first on the ballot
in Florida receive an average primacy effect vote of about five percent. But the
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experts acknowledged that this average measure tells us nothing about the
existence or size of the primacy effect in any given election. Dr. Krosnick agreed
that his analysis did not “mean that every Republican candidate receive[s] a
[five] percent advantage by being listed first.” As he explained, the primacy effect
will be larger in some races and smaller in others. Indeed, because Jacobson relies
solely on an average measure of the primacy effect, we cannot know how often the
primacy effect is zero and how often it is much greater than five percent. Any
estimates we might make about the variance in the primacy effect across races
would be pure speculation.
As in Gill, the average measure of partisan advantage on which Jacobson
relies is insufficient to prove that her individual vote will be diluted. “We need not
doubt [Jacobson’s] math” to reach this conclusion. Id. The reason her calculations
cannot establish standing is that they “are an average measure.” Id. “They do not
address the effect” that ballot order and the primacy effect have “on the votes of
particular citizens” in any given election. Id. (emphasis added). Instead, like the
average measures at issue in Gill, Jacobson’s calculations “measure something else
entirely: the effect that [ballot order and the primacy effect have] on the fortunes of
political parties” across many elections. Id. And complaints about that effect are
based on nothing more than “generalized partisan preferences,” which federal
courts are “not responsible for vindicating.” Id.
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Much like the average measure of wasted votes in Gill, the average measure
of the primacy effect treats all elections “as indistinguishable, even though their
individual situations are quite different.” Id. In low-information races between
Democrats and Republicans, the primacy effect may be quite pronounced. But in
an especially competitive, high-information race, the primacy effect may be
negligible or nonexistent. Likewise, some races in noncompetitive districts may
have no Republican candidates on the ballot at all and, hence, no primacy effect.
An average measure of the primacy effect across all elections cannot tell us
whether ballot order has diluted or will dilute Jacobson’s or any other citizen’s
vote in any particular election. See id. (explaining that statewide average measures
of partisan advantage were incapable of distinguishing between the effects of a
gerrymander on one citizen as opposed to another).
Jacobson and the other voters failed to prove that they have suffered or will
suffer partisan vote dilution in any particular election. As in Gill, this lawsuit
presents a dispute “about group political interests, not individual legal rights.” Id.
The “generalized partisan preferences” on which the voters rely cannot provide an
injury in fact sufficient for Article III standing. Id.
b. The Organizations Failed to Prove an Injury.
For their part, the organizations rely on two theories of injury. They seek to
establish associational standing based on the injuries of their members, see
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Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009), and organizational
standing based on their own injuries, see Common Cause/Ga. v. Billups, 554 F.3d
1340, 1350–51 (11th Cir. 2009). But they failed to prove an injury under either
theory.
To establish associational standing, an organization must prove that its
members “would otherwise have standing to sue in their own right.” Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). The
organizations contend that they have standing based on injuries suffered by
Democratic voters and candidates who are their members. But five of the six
organizations failed to even allege, much less prove, that they have any
members—voters or candidates. That failure is fatal to their associational standing.
See Summers, 555 U.S. at 498.
The only organization that describes itself as having members is the
Democratic National Committee, but it failed to identify any of its members, much
less one who will be injured by the ballot statute. See id. (requiring organizations
to establish “that at least one identified member” will suffer an injury); see also
Ga. Republican Party v. Sec. & Exch. Comm’n, 888 F.3d 1198, 1203–04 (11th Cir.
2018). And even if we accept as true the allegation of the complaint that the
Committee’s members include Democratic voters and candidates in Florida, the
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Committee still has not proved that one of those unidentified members will suffer
an injury.
Any voters and candidates in Florida face the same problem as Jacobson.
That is, because the Committee relies solely on an average measure of the primacy
effect, we have no basis to conclude that the primacy effect will impact any
particular voter or candidate in any particular election. Cf. Summers, 555 U.S. at
497 (rejecting the argument that an organization could establish standing if there
was “a statistical probability that some of [its] members are threatened with
concrete injury”). And the Committee has not proved that at least one of its
unidentified members “is certain to be injured by” the primacy effect. Ga.
Republican Party, 888 F.3d at 1204.
The organizations argue that they have suffered an injury in their own right
by diverting resources to combat the effects of the ballot statute. In Havens Realty
Corp. v. Coleman, the Supreme Court held that an organization could establish
standing to sue under the Fair Housing Act if it alleged, and later proved, that the
challenged actions of the defendants drained its resources and thereby impaired its
other operations. 455 U.S. 363, 378–79 & n.21 (1982). The housing organization
in Havens Realty alleged that the defendants’ discriminatory renting practices
required it “to devote significant resources to identify and counteract” those
practices, which “perceptibly impaired” the organization’s “ability to provide
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counseling and referral services for low- and moderate-income homeseekers.” Id.
at 379 (internal quotation marks omitted). The Court concluded that these
allegations were sufficient to establish standing at the pleading stage, but it warned
that at trial the organization would have to prove “that it has indeed suffered
impairment in its role of facilitating open housing before it will be entitled to
judicial relief.” Id. at 379 & n.21. Because statutory standing under the Fair
Housing Act “extend[s] to the full limits” of standing under Article III of the
Constitution, id. at 372, we have applied the reasoning of Havens Realty to
determine whether an organization has Article III standing based on the diversion
of its resources. See, e.g., Fla. State Conference of NAACP v. Browning, 522 F.3d
1153, 1165 & n.14 (11th Cir. 2008).
Consistent with Havens Realty, our precedent holds that “an organization
has standing to sue on its own behalf if the defendant’s illegal acts impair its ability
to engage in its projects by forcing the organization to divert resources to
counteract those illegal acts.” Id. at 1165. In Browning, we ruled that the NAACP
and another organization had standing to challenge a voting requirement because
the organizations would “divert personnel and time” from other activities “to
educating volunteers and voters on compliance with” the requirement. Id. at 1166.
In a later decision, we held that the NAACP had standing to challenge a law that
required voters to present photo identification because the organization was
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“actively involved in voting activities and would divert resources from its regular
activities to educate and assist voters in complying with” the law. Common
Cause/Ga., 554 F.3d at 1350.
To establish resource diversion, the organizations cite the testimony of
Daniel Kazin, the director of campaigns for the Democratic Congressional
Campaign Committee. When asked why he believed the ballot statute harms the
Committee, Kazin responded that “[b]ecause of the primacy effect, we need to
spend additional resources in the target districts that we have.” The organizations
also rely on similar testimony from Guy Cecil, the chair of Priorities USA, who
testified that the organization had to “invest more resources into [Florida] in order
to compensate for” the primacy effect.
Although resource diversion is a concrete injury, neither Kazin nor Cecil
explained what activities the Committee or Priorities USA would divert resources
away from in order to spend additional resources on combatting the primacy effect,
as precedent requires. See Havens Realty, 455 U.S. at 379 n.21; see also Browning,
522 F.3d at 1166 (“These resources would otherwise be spent on registration drives
and election-day education and monitoring.”); Common Cause/Ga., 554 F.3d at
1350 (explaining that resources would be diverted “from ‘getting voters to the
polls’ to helping them obtain acceptable photo identification” (alteration adopted));
Ga. Latino All. for Human Rights v. Governor of Ga., 691 F.3d 1250, 1260 (11th
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Cir. 2012) (observing that an immigration organization “cancelled citizenship
classes to focus on” increased inquiries about a new law). Based on Kazin’s
testimony, we do not know what activities, if any, might be impaired by the
Committee’s decision to allocate “additional resources” to target districts because
of the primacy effect. And Cecil’s testimony likewise fails to identify any activities
that will be impaired by Priorities USA’s decision to “invest more resources” into
Florida. Their testimony fails to establish an injury based on diversion of
resources.
The organizations also contend that the ballot statute injures them by
harming their mission of electing Democrats, but that harm is not a cognizable
injury. An organization’s general interest in its preferred candidates winning as
many elections as possible is still a “generalized partisan preference[]” that federal
courts are “not responsible for vindicating,” no less than when individual voters
assert an interest in their preferred candidates winning elections. Gill, 138 S. Ct. at
1933; see also id. at 1932 (rejecting a voter’s “hope of achieving a Democratic
majority in the legislature” as “a collective political interest” that cannot establish
standing). Harm to an organization’s generalized partisan preferences describes
only “a setback to [its] abstract social interests,” which is insufficient to establish a
concrete injury in fact. Havens Realty, 455 U.S. at 379; see also Arcia v. Fla. Sec’y
of State, 772 F.3d 1335, 1342 (11th Cir. 2014) (requiring “a concrete and
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demonstrable injury, not an abstract social interest” for organizational standing
(alteration adopted) (internal quotation marks omitted)).
We need not decide whether a political party would have standing to
challenge an electoral practice that harmed one of its candidate’s electoral
prospects in a particular election. See, e.g., Tex. Democratic Party v. Benkiser, 459
F.3d 582, 586 (5th Cir. 2006) (holding that the Texas Democratic Party had
standing to challenge action that would reduce “its congressional candidate’s
chances of victory” in upcoming election). As discussed, the average measure of
partisan advantage on which the organizations rely tells us nothing about whether
ballot order has affected or will affect any particular candidate in any particular
election. And in any event, the organizations do not argue that a particular
candidate’s prospects in a future election will be harmed. They instead contend that
they have standing based on “systemic disadvantage” to the Democratic Party
“relative to other political parties.” Because that kind of harm from ballot order is
based on nothing more than “generalized partisan preferences,” it is insufficient to
establish standing. Gill, 138 S. Ct. at 1933.
Our dissenting colleague argues that the Democratic National Committee,
the Democratic Senatorial Campaign Committee, and the Democratic
Congressional Campaign Committee were injured because Florida’s ballot order
harms the electoral prospects of Democratic candidates. Dissenting Op. at 75–76.
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We will assume the dissent is correct that a political party is injured by a practice
that harms its candidates’ electoral prospects. See, e.g., Tex. Democratic Party, 459
F.3d at 586. Even so, it is not clear that the Democratic National Committee—
much less the Democratic Senatorial Campaign Committee or the Democratic
Congressional Campaign Committee—is identical to the Democratic Party of the
United States for purposes of standing. And even if an injury to the Party is an
injury to the Democratic National Committee, the Committee never proved that
electoral harm to one of the Party’s candidates is “certainly impending,” so it lacks
standing to seek prospective relief. Clapper, 568 U.S. at 401 (internal quotation
marks omitted).
To begin, it is not obvious that the Democratic National Committee is
identical to the Democratic Party of the United States for purposes of standing,
such that any injury to the Party is necessarily an injury to the Committee. To be
sure, the Committee “is responsible for the day-to-day operation” of the Party “at
the national level.” 52 U.S.C. § 30101(14). But the Supreme Court has held that
the Party and the Committee are distinct entities that are not interchangeable for all
purposes. Fed. Election Comm’n v. Nat’l Conservative Political Action Comm.,
470 U.S. 480, 486 (1985) (holding that a federal statute empowered the
Democratic National Committee to file a lawsuit but not the Democratic Party of
the United States). The Party is not a plaintiff in this suit. Cf. id. at 482.
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But even if we assume that an injury to the Democratic Party is an injury to
the Democratic National Committee, the Committee never proved that one of its
candidates is likely to lose a future election because of ballot order. The
Democratic Party of the United States “[n]ominate[s] . . . Democratic candidates
for the offices of President and Vice President of the United States.” The Charter
of the Democratic Party of the United States art. I, § 1 (as amended August 25,
2018), https://democrats.org/wp-content/uploads/2018/10/DNC-Charter-Bylaws-
8.25.18-with-Amendments.pdf. But it does not nominate candidates for any other
offices. Instead, the Florida Democratic Party, which is not a party to this suit,
nominates candidates for other federal, state, and local offices. The Charter of the
Florida Democratic Party art. I, §§ 7, 10 (as amended October 13, 2019),
https://nmcdn.io/e186d21f8c7946a19faed23c3da2f0da/b1b96861a2534eba8191fd2
315c6a596/files/FDP-BYLAWS---10-013-2019-Updated.pdf.
So even if we assume that the Democratic National Committee is
indistinguishable from the Democratic Party of the United States, the Committee
still would have to prove that the Democratic candidates for President and Vice
President—its candidates—would likely lose a future election because of ballot
order. And it has not done so. The average measure of the primacy effect on which
the Committee relies cannot tell us what impact, if any, ballot order might have on
a future presidential election. In fact, the evidence at trial suggested that the
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primacy effect is least pronounced in high-information races at the top of the
ballot, like presidential elections.
The only argument the dissent can muster for why the electoral harm to the
candidates for President and Vice President is “certainly impending,” Clapper, 568
U.S. at 401 (internal quotation marks omitted), is that the next general election is
“two months away,” Dissenting Op. at 89. That assertion does not prove that the
Democratic candidates for President and Vice President will likely lose the next
election because of ballot order. As for whether the Democratic National
Committee has standing based on past injuries, the dissent argues that the ballot
order and the primacy effect have put Florida Democratic candidates at an electoral
disadvantage of about five percentage points over the past twenty years. Id. at 81–
82. The dissent would hold that the Committee is injured because Florida’s ballot
order “has frustrated the [Committee’s] goal of electing Democrats up and down
the ballot across the country.” Id. at 82 (internal quotation marks omitted).
This expansive theory of standing would allow any organization that favors
the election of certain candidates to claim an injury based on harm to those
candidates’ electoral prospects. Although the dissent purports to limit its rule to “a
political party and its committees,” id. at 77, nothing in its reasoning supports that
limit. Like the Committee, the other organizational plaintiffs in this lawsuit have
the “goal” of electing Democrats and support Democratic candidates. Id. at 82.
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And neither the Committee nor these other organizations nominated the vast
majority of Democratic candidates that appear on Florida ballots. The only sense in
which Democratic candidates other than those for President and Vice President are
the Committee’s candidates is that the Committee supports their candidacy and
desires that they be elected. But the same is true of the other organizational
plaintiffs, such as Priorities USA, and indeed countless organizations across
America.
If a voter is not injured by his preferred candidate’s loss of an election—and
even the dissent does not dispute that proposition—it is hard to see how
organizations other than the political party that nominated the candidate are
injured. In either case, the asserted harm to a voter or an organization is based on
“generalized partisan preferences,” which are insufficient to establish standing.
Gill, 138 S. Ct. at 1933 (rejecting a theory of standing based on “group political
interests, not individual legal rights”). We conclude that no plaintiff proved an
injury in fact.
2. Any Injury from Ballot Order Is Neither Traceable to the Secretary nor
Redressable by Relief Against Her.
Even if the voters and organizations had proved an injury in fact, they would
still lack standing because any injury would be neither traceable to the Secretary
nor redressable by relief against her. Instead, any injury would be traceable only to
67 Supervisors of Elections and redressable only by relief against them. The voters
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and organizations’ failure to join the Supervisors as defendants is an independent
reason that they lack standing to maintain this action.
To satisfy the causation requirement of standing, a plaintiff’s injury must be
“fairly traceable to the challenged action of the defendant, and not the result of the
independent action of some third party not before the court.” Lujan, 504 U.S. at
560 (alterations adopted) (internal quotation marks omitted). The voters and
organizations contend that they are injured because Republicans, not Democrats,
appear first on the ballot in Florida’s general elections. So for them to have
standing, the order in which candidates appear on the ballot must be traceable to
the Secretary—the only defendant in this action. The problem for the voters and
organizations is that Florida law tasks the Supervisors, independently of the
Secretary, with printing the names of candidates on ballots in the order prescribed
by the ballot statute. Fla. Stat. § 99.121 (“The names of [candidates] shall be
printed by the supervisor of elections upon the ballot in their proper place as
provided by law.”). The Secretary is responsible only for “certify[ing] to the
supervisor of elections of each county . . . the names of persons nominated.” Id.
The voters and organizations have offered no contrary evidence to establish that
the Secretary plays any role in determining the order in which candidates appear on
ballots. “Because the [Secretary] didn’t do (or fail to do) anything that contributed
to [their] harm,” the voters and organizations “cannot meet Article III’s traceability
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requirement.” Lewis v. Governor of Ala., 944 F.3d 1287, 1301 (11th Cir. 2019) (en
banc).
Our conclusion that any injury from ballot order is not traceable to the
Secretary rests on the reality that the Supervisors are independent officials under
Florida law who are not subject to the Secretary’s control. The Supervisors are
constitutional officers who are elected at the county level by the people of Florida;
they are not appointed by the Secretary. Fla. Const. art. VIII, § 1(d); Fla. Stat.
§ 98.015(1). The Florida Department of State’s organic statute does not list the
Supervisors among its divisions, Fla. Stat. § 20.10(2), and the Board of County
Commissioners, not the Department, compensates the Supervisors. Id. § 98.015(2).
Only the Governor of Florida, not the Secretary, may suspend county officials such
as the Supervisors, and only the state senate may remove them from office. Fla.
Const. art. IV, § 7; see also, e.g., Fla. Exec. Order No. 19-19 (executive order
suspending the Supervisor of Elections for Palm Beach County); Fla. Exec. Order
No. 18-342 (executive order suspending the Supervisor of Elections for Broward
County). Indeed, the only means of control the Secretary has over the Supervisors
is through coercive judicial process: she may bring “actions at law or in equity by
mandamus or injunction to enforce the performance of any duties of a county
supervisor of elections.” Fla. Stat. § 97.012(14). That the Secretary must resort to
judicial process if the Supervisors fail to perform their duties underscores her lack
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of authority over them. Because the Supervisors are independent officials not
subject to the Secretary’s control, their actions to implement the ballot statute may
not be imputed to the Secretary for purposes of establishing traceability.
Contrary to the reasoning of the district court, the Secretary’s position as
“the chief election officer of the state,” id. § 97.012, with “general supervision and
administration of the election laws,” id. § 15.13, does not make the order in which
candidates appear on the ballot traceable to her. We recently rejected a similar
argument en banc. See Lewis, 944 F.3d at 1300. In Lewis, two workers sued the
Attorney General of Alabama to challenge a state law that preempted a local
ordinance requiring employers to pay higher wages. Id. at 1293–94. We explained
that the workers’ injury—receiving lower wages because of the state law—was not
traceable to the Attorney General because he had never enforced or threatened to
enforce the law, and the law itself contemplated no role for the Attorney General.
Id. at 1296, 1298–99. And of particular relevance to this appeal, we rejected the
workers’ reliance upon “a host of provisions of the Alabama Code that generally
describe the Attorney General’s [enforcement] authority” to establish traceability.
Id. at 1300. In the absence of any evidence that the Secretary controls ballot order,
the voters and organizations likewise cannot rely on the Secretary’s general
election authority to establish traceability. See id. at 1298–1300. Florida law
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expressly gives a different, independent official control over the order in which
candidates appear on the ballot. See Fla. Stat. § 99.121.
Because the Secretary will not cause any injury the voters and organizations
might suffer, relief against her will not redress that injury—either “directly or
indirectly.” See Lewis, 944 F.3d at 1301 (internal quotation marks omitted). An
injunction ordering the Secretary not to follow the ballot statute’s instructions for
ordering candidates cannot provide redress, for neither she nor her agents control
the order in which candidates appear on the ballot. Nor can declaratory relief
against the Secretary directly redress any injury to the voters and organizations. A
declaratory judgment against the Secretary does not bind the Supervisors, “who are
not parties” to this action. Id. at 1302 (internal quotation marks omitted). As
nonparties, the Supervisors are not “obliged . . . in any binding sense . . . to honor
an incidental legal determination [this] suit produce[s].” Id. (internal quotation
marks omitted). They remain lawfully entitled to print candidates’ names on the
ballot in the order prescribed by Florida law unless and until they are made parties
to a judicial proceeding that determines otherwise. See id. at 1302–03.
To be sure, the district court ordered the Secretary to “provide written
guidance to the supervisors of elections of Florida’s counties informing them that
this Court has declared the [statute] unconstitutional” and to include “a true and
correct copy of this Court’s order in her written guidance.” But this “notice” theory
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of redressability contravenes the “settled principle[]” that “it must be the effect of
the court’s judgment on the defendant—not an absent third party—that redresses
the plaintiff’s injury.” Id. at 1301 (internal quotation marks omitted). Any
persuasive effect a judicial order might have upon the Supervisors, as absent
nonparties who are not under the Secretary’s control, cannot suffice to establish
redressability. See id. at 1305 (“If courts may simply assume that everyone
(including those who are not proper parties to an action) will honor the legal
rationales that underlie their decrees, then redressability will always exist.”
(quoting Franklin v. Massachusetts, 505 U.S. 788, 825 (1992) (Scalia, J.,
concurring in part and concurring in the judgment))). “Redressability requires that
the court be able to afford relief through the exercise of its power, not through the
persuasive or even awe-inspiring effect of the opinion explaining the exercise of its
power.” Id. (quoting Franklin, 505 U.S. at 825 (Scalia, J., concurring in part and
concurring in the judgment)). Because the voters and organizations failed to sue
the officials who will cause any future injuries, even the most persuasive of
judicial opinions would have been powerless to redress those injuries.
Even if we consider the persuasive effect of the judgment on the nonparty
Supervisors, the voters and organizations have not established that redress is likely
“as a practical matter.” Utah v. Evans, 536 U.S. 452, 461 (2002). They have not
proved that declaratory relief against the Secretary will “significantly increase the
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likelihood” that the Supervisors will ignore state law and follow a federal decree
that does not bind them. Lewis, 944 F.3d at 1301. The Supervisors are obliged
under state law to continue printing candidates’ names “upon the ballot in their
proper place as provided by law” regardless of what a federal court might say in an
action that does not involve them. Fla. Stat. § 99.121. The district court’s decision
rests on the flawed notion that by declaring the ballot statute unconstitutional, it
eliminated the legal effect of the statute in all contexts. But “federal courts have no
authority to erase a duly enacted law from the statute books.” Jonathan F.
Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 936 (2018); see also
Steffel v. Thompson, 415 U.S. 452, 469 (1974) (“Of course, a favorable declaratory
judgment . . . cannot make even an unconstitutional statute disappear.” (internal
quotation marks omitted)). Our power is more limited: we may “enjoin executive
officials from taking steps to enforce a statute.” Mitchell, supra, at 936. And we
can exercise that power only when the officials who enforce the challenged statute
are properly made parties to a suit.
The district court apparently understood that relief against the Secretary
would not redress any injury to the voters and organizations, so it enjoined the
Supervisors too. Its injunction stated, “No supervisor of elections of any Florida
county . . . shall issue any ballot which is organized pursuant to the [ballot
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statute].” And its opinion warned the Supervisors against “selectively interpret[ing]
parts of” its order “or otherwise avoid[ing] compliance.”
The district court exceeded its authority by purporting to enjoin the
Supervisors, none of whom have ever been parties to this lawsuit. Although a
district court may bind nonparties “who are in active concert” with a defendant,
Fed. R. Civ. P. 65(d)(2)(C), that rule applies only when a plaintiff validly invokes
federal jurisdiction by satisfying the traceability and redressability requirements of
standing against a defendant. See In re Infant Formula Antitrust Litig., 72 F.3d
842, 843 (11th Cir. 1995) (“The Federal Rules of Civil Procedure do not create
federal jurisdiction.”). If a plaintiff sues the wrong defendant, an order enjoining
the correct official who has not been joined as a defendant cannot suddenly make
the plaintiff’s injury redressable. The district court was without jurisdiction to
enjoin the lone defendant in this action, much less the nonparty Supervisors. See
Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969) (holding
that the district court erred when it enjoined a nonparty that was never determined
to be in active concert with a defendant).
The district court also relied on an inapposite decision, Democratic
Executive Committee of Florida v. Lee, 915 F.3d 1312, 1318 (11th Cir. 2019), to
conclude that relief against the Secretary would redress any injury to the voters and
organizations. In Lee, a motions panel of this Court ruled that the Florida Secretary
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of State was a proper defendant under Ex parte Young, 209 U.S. 123 (1908), in an
action challenging an election procedure administered by the county Supervisors of
Elections. 915 F.3d at 1316, 1318 (citing Fla. Stat. § 101.68). But Article III
standing and the proper defendant under Ex parte Young are “[s]eparate[]” issues,
Lewis, 944 F.3d at 1295, and Lee addressed only the latter. To be a proper
defendant under Ex parte Young—and so avoid an Eleventh Amendment bar to
suit—a state official need only have “some connection” with the enforcement of
the challenged law. 209 U.S. at 157. In contrast, Article III standing requires that
the plaintiff’s injury be “fairly traceable” to the defendant’s actions and redressable
by relief against that defendant. Lewis, 944 F.3d at 1298, 1301 (internal quotation
marks omitted). The district court erred by treating Lee as if it addressed—let alone
resolved—the standing issues in this suit.
Because the voters and organizations lack standing to sue the Secretary, we
have no occasion to consider whether the Secretary is a proper defendant under Ex
parte Young—the only issue Lee addressed. See id. at 1296, 1306. Nor need we
decide whether Lee—which was issued by a motions panel instead of a merits
panel—is even binding precedent. See Democratic Exec. Comm. of Fla. v. Nat’l
Republican Senatorial Comm., 950 F.3d 790, 795 (11th Cir. 2020) (declining to
vacate the opinion of the motions panel in Lee after the appeal became moot
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because “the necessarily tentative and preliminary nature of [the] stay-panel
opinion precludes the opinion from having an effect outside that case”).
Our dissenting colleague says that the Secretary never advanced in this case
the argument we adopt today, id. at 91–92, but that assertion tells only half the
story. As the Secretary mentioned at oral argument, Oral Argument at 34:40–35:08
(Feb. 12, 2020), her office has repeatedly, if unsuccessfully, argued to the district
judge who presided over this litigation that the Secretary has highly limited
authority over county election officials, including the Supervisors. See, e.g., Rivera
Madera v. Detzner, 325 F. Supp. 3d 1269, 1275 (N.D. Fla. 2018) (Walker, C.J.)
(rejecting the Secretary’s argument that “he has no relevant power over the county
supervisors of elections”); Fla. Democratic Party v. Detzner, No. 4:16-cv-607-
MW-CAS, 2016 WL 6090943, at *4–5 (N.D. Fla. Oct. 16, 2016) (Walker, J.)
(rejecting the Secretary’s arguments that “he cannot direct the [county] canvassing
boards to comply with any order issued by this Court” and that “he does not
possess the power to issue orders [to county officials] directing compliance with
Florida’s election laws”). The Secretary made clear at oral argument that her office
has not changed its position on this issue, even if in this lawsuit she elected not to
raise the argument yet again before a district court that had repeatedly rejected the
Secretary’s own understanding of her authority under state law. Oral Argument at
34:55–35:08 (Feb. 12, 2020) (“[W]e do not think we’re the right defendant. We
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have made this argument on several occasions . . . and, quite frankly, in the
Northern District of Florida we have not succeeded . . . .”). So our ruling today is
consistent with the Secretary’s longstanding view about the scope of her powers.
The dissent next contends that the Secretary’s authority to prescribe rules
about ballot layout, Fla. Stat. § 101.151(9)(a), and to provide written direction to
the Supervisors, id. § 97.012(16), makes the order in which candidates appear on
the ballot traceable to her, Dissenting Op. at 95–100, but we do not see how. That
the Secretary has the power to prescribe rules and issue directives about ballot
order, which the Supervisors might well be obliged to follow, says nothing about
whether she “possess[es] authority to enforce the complained-of provision,” as the
causation element of standing requires. Lewis, 944 F.3d at 1299 (emphasis added)
(quoting Dig. Recognition Network, Inc. v. Hutchinson, 803 F.3d 952, 958 (8th Cir.
2015)). If rulemaking authority were sufficient to establish traceability, plaintiffs
could presumably also challenge a law by suing the legislators who enacted it
instead of the officials who execute it. Although in many cases the same official
will both make and execute a challenged regulation, that arrangement is not present
here. See Fla. Stat. § 99.121.
The dissent also contends that an injunction forbidding the Secretary to
provide the Supervisors with any instructions about ballot order would likely
provide redress, Dissenting Op. at 101–102, 109–10, but we again do not see how.
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Florida law already directs the Supervisors to place candidates on the ballot in the
order “provided by law,” Fla. Stat. § 99.121—that is, in the order prescribed by the
ballot statute, see id. § 101.151(3)(a). An injunction ordering the Secretary to stay
silent would do nothing to muzzle these two sections of the Florida code, which
already bind the Supervisors to list candidates in a particular order. Indeed, one of
the Supervisors testified at trial that they “apply the [ballot] statute” because it “is
the law.” There is no contrary evidence to suggest that the Supervisors would
suddenly begin to disregard state law in the absence of instructions from the
Secretary.
Under the dissent’s theory of traceability and redressability, the only relief
that might possibly redress any injuries from ballot order would be an injunction
ordering the Secretary to promulgate a rule requiring the Supervisors to place
candidates on the ballot in an order contrary to the ballot statute. But the voters and
organizations never requested such extraordinary relief, and for good reason. Any
such relief would have raised serious federalism concerns, and it is doubtful that a
federal court would have authority to order it. See Va. Office for Prot. & Advocacy
v. Stewart, 563 U.S. 247, 255 (2011) (explaining that the Ex parte Young exception
to sovereign immunity “is limited to [the] precise situation” in which “a federal
court commands a state official to do nothing more than refrain from violating
federal law”); cf. New York v. United States, 505 U.S. 144, 177–78 (1992) (holding
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that the federal government could not commandeer States to enact or enforce a
federal regulatory scheme).
In any event, it is also far from clear that ordering the Secretary to
promulgate a rule that is contrary to the ballot statute would even make redress
likely. The voters and organizations have not argued that the Supervisors are likely
to ignore a state statute that obliges them to place candidates on the ballot in a
particular order in favor of a regulation issued by the Secretary. Again, their
hesitation is not without good reason: Florida law is clear that when a regulation
and a statute conflict, the statute prevails. See Nicholas v. Wainwright, 152 So. 2d
458, 460 (Fla. 1963). The dissent asserts that in this scenario the Supervisors
would likely follow the Secretary’s instructions over the statute. Dissenting Op. at
109–10. But “[w]e do not know what would justify” the dissent’s confidence when
Florida law is to the contrary. Lujan, 504 U.S. at 570 (plurality opinion).
It bears emphasis that even the district court understood the traceability and
redressability problems inherent in this lawsuit. In an attempt to avoid those
problems, it took the truly remarkable step of enjoining nonparties. Although the
decision to enjoin nonparties was unjustifiable, it makes clear what the dissent says
is murky: the Secretary plainly is not the cause of any alleged injuries from ballot
order, and relief against her cannot redress those injuries.
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To satisfy traceability and redressability, the voters and organizations should
have sued the Supervisors of Elections instead of the Secretary of State. That
approach would have made for more defendants, but nothing prevented the voters
and organizations from taking that course of action. See Socialist Workers Party v.
Leahy, 145 F.3d 1240, 1243 (11th Cir. 1998) (explaining that the plaintiffs filed
suit “against the Secretary of State and the sixty-seven county supervisors of
elections”). Because they failed to sue the Supervisors, the voters and
organizations lack Article III standing.
B. This Lawsuit Presents a Nonjusticiable Political Question.
In addition to the voters’ and organizations’ lack of standing, this lawsuit
suffers from another fatal jurisdictional defect: it presents a nonjusticiable political
question. We first place this dispute in context by providing a brief history of ballot
regulation in America. We then explain that a complaint of unfair partisan
advantage based on the order in which candidates appear on the ballot is a
nonjusticiable political question.
1. Ballot Regulation in America.
The history of ballot regulation in America reveals that concerns about
balloting are as old as the Republic itself, and it makes clear that the political
branches of state governments have long taken the lead in resolving those
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controversies. The States also have taken a variety of approaches to addressing
these perceived concerns.
At the Founding, Americans voted using their voices, a show of hands, or
ballots prepared by individual voters, political parties, and party organizations.
Joseph P. Harris, Election Administration in the United States 150–52 (1934);
Burson v. Freeman, 504 U.S. 191, 200 (1992) (plurality opinion). The Southern
States retained voice voting the longest; Kentucky did not abandon it until 1890.
Harris, supra, at 151 & n.8. But because of the abuses associated with voice
voting, including bribery and voter intimidation, most States began to use paper
ballots within two decades of the Founding. Burson, 504 U.S. at 200 (plurality
opinion).
As paper ballots became more widespread, some of the abuses associated
with voice voting “reinfected the election process.” Id. Political parties printed
their ballots on colorful paper, often with distinctive designs, so that the ballots
could be easily distinguished at the polls. Harris, supra, at 151. This practice
threatened ballot secrecy and made bribery and voter intimidation easier to
accomplish, so state legislatures enacted laws that required the use of white paper
or official envelopes for ballots. Id. at 151–52.
Other abuses that had not been possible with voice voting also arose. The
party organizations that printed the ballots engaged in fraudulent practices. They
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would sometimes distribute fake ballots that bore the markings of one party but
contained only a few of that party’s candidates—“just enough to fool the unwary.”
Id. at 152. And in some elections, the party organizations would decline to place
the names of some qualified candidates on their ballots, which made it impossible
for those candidates to be elected. Id.
These abuses led Americans to adopt the “Australian ballot”—an official
ballot containing the names of all qualified candidates that election officials
distribute at the polls. Id. at 152–54. As its name suggests, this kind of ballot first
appeared in Australia in the 1850s, and American States rapidly adopted it between
1887 and 1900. Id. Although a “true Australian ballot” grouped the names of all
candidates beneath the office for which they were running without identifying their
party affiliation, most American States did not adopt the original form of the
Australian ballot. Id. at 154. Instead, the States modified the Australian ballot “to
retain the strength of the political parties.” Id. Many States grouped the candidates
of each party into separate columns with a party circle at the top of each column
that enabled voters to “vote a ‘straight ticket’ with a single mark.” Id. at 155.
Others retained the Australian ballot’s grouping of candidates by office, adding
only the party designation of the candidates. Id. at 154–55.
Concerns about the order in which candidates appear on the ballot have been
with us since the adoption of the Australian ballot. By 1934, States followed
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several different practices for ordering their ballots. States that used party-column
ballots determined the parties’ position on the ballot from left to right in one of five
ways: (1) alphabetically, (2) a definite order fixed by state law, with the party in
power given the first column, (3) in order of the votes received for some office in
the last election, (4) by the election officer charged with preparing the ballot, or
(5) by lottery. Id. at 180. Among political parties, the left-most column was “most
desired,” but the advantage gained from that position was viewed as “not great.”
Id.
In States that used office-group ballots, a common view was that “the
position at the top of a list of candidates is of material help to the candidate thus
favored.” Id. at 181. States dealt with this perceived advantage for first-listed
candidates in different ways. Some rotated the names of candidates by ballot or
voting precinct, but others established a uniform ballot order based on the votes a
party received in the last general election, candidate last name, the order in which
nominating petitions were received, or lottery. Id. at 181–83.
Today, States continue to use different methods to order their ballots. Some
States, like Florida, determine ballot order based on the results of the last election
for Governor or another state office. Ariz. Rev. Stat. Ann. § 16-502(E); Conn. Gen.
Stat. § 9-249a(a); Fla. Stat. § 101.151(3)(a); Ga. Code Ann. § 21-2-285(c); Ind.
Code § 3-11-2-6(a)(1); Md. Code Ann., Elec. Law §§ 1-101(dd), 9-210(j)(2);
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Mich. Comp. Laws § 168.703; Mo. Rev. Stat. § 115.239(1); Neb. Rev. Stat. § 32-
815(1); N.Y. Elec. Law § 7-116(1); 25 Pa. Cons. Stat. § 2963(b); Tex. Elec. Code
Ann. § 52.091(b). Others determine it based on the party that currently holds a
majority in the state legislature, Tenn. Code Ann. §§ 2-1-104(a)(11)–(12), 2-5-
208(d)(1), or the number of votes each party received in the last congressional
election, Wyo. Stat. Ann. § 22-6-121(a). The Minnesota rule is similar to the NFL
draft: candidates of the major party that won the fewest votes in the preceding
election are listed first. Minn. Stat. § 204D.13(2). Delaware has the most
straightforward rule: Democrats first, then Republicans. Del. Code Ann. tit. 15,
§ 4502(a)(5). And still other States order their ballots based on nonpartisan
considerations. See, e.g., Ala. Code § 17-6-25 (alphabetical by candidate last
name); Ark. Code Ann. § 7-5-207(c)(1) (random lottery); Ky. Rev. Stat. Ann.
§ 118.225(1) (rotating candidate names in each congressional district).
2. The Voters and Organizations’ Complaint Is Nonjusticiable.
Against this wide array of state practice, voters and organizations brought
this constitutional challenge to Florida’s 70-year-old law that assigns the top ballot
position to candidates of the incumbent Governor’s party. They alleged violations
of the First Amendment and the Equal Protection Clause of the Fourteenth
Amendment as interpreted in a line of decisions beginning with Anderson, 460
U.S. 780, and Burdick, 504 U.S. 428.
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The voters and organizations’ complaint, in a nutshell, is that Florida’s ballot
statute confers an impermissible partisan advantage on Republicans by virtue of
the primacy effect. Because Republican candidates enjoy a “windfall vote” of
approximately five percentage points from disinterested voters who reflexively
pick the first candidate, the Democratic voters and organizations have a harder
time electing their preferred candidates than if Florida distributed the windfall vote
more evenly. They argue that this regime burdens their right to vote and should be
evaluated using the approach established in Anderson and Burdick.
The recent decision of the Supreme Court in Rucho compels the conclusion
that this complaint presents a nonjusticiable political question. This complaint
shares the same critical feature that led the Supreme Court to hold complaints of
partisan gerrymandering nonjusticiable in Rucho: neither this complaint of partisan
advantage from ballot order nor complaints of partisan advantage from
redistricting can be adjudicated using “judicially discernible and manageable”
standards. Rucho, 139 S. Ct. at 2502.
In Rucho, the Supreme Court held that complaints of partisan
gerrymandering are nonjusticiable for two main reasons. First, these complaints
invariably rest on a threshold determination about what a “fair” apportionment of
political power looks like. See id. at 2499–500. The Court reasoned that one
possible standard of fairness—proportional representation—might have been
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judicially manageable but had no basis in constitutional law or the history of the
Republic. See id. at 2499. And absent proportional representation, the Court
explained, “it is not even clear what fairness looks like in this context.” Id. at 2500.
Fairness could mean creating the greatest number of competitive districts,
districting to ensure that each party receives its proportional share of “safe” seats,
or adhering to traditional districting criteria. Id. (internal quotation marks omitted).
And choosing between these different visions of fairness “poses basic questions
that are political, not legal.” Id.
Second, even if courts could agree on a standard of fairness, they would
have to determine how much deviation from that standard in pursuit of partisan
interests was permissible. Id. at 2501. Some amount of partisan gerrymandering is
constitutional and inevitable. Id. at 2497. To hold that legislators could never
consider partisan interests in districting “would essentially countermand the
Framers’ decision to entrust districting to political entities.” Id. And in addition to
the problem of deciding how much partisan intent is too much, complaints of
partisan gerrymandering also present line-drawing problems concerning partisan
effect—judges must decide “how much partisan dominance is too much.” Id. at
2498 (emphasis added) (internal quotation marks omitted). For example, to police
partisan gerrymandering, courts would “have to decide the ideal number of seats
for each party and determine at what point deviation from that balance went too
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far.” Id. at 2501. Because the Constitution supplies neither an objective standard
for the fair apportionment of political power nor any principled basis for
identifying violations of that (nonexistent) standard, the Court concluded that
complaints of partisan gerrymandering present nonjusticiable political questions.
Id. at 2500–02.
Under the reasoning of Rucho, complaints of partisan advantage based on
ballot order are likewise nonjusticiable political questions. The voters and
organizations’ complaint is based on the notion that Florida’s ballot statute, by
virtue of the primacy effect, confers an unfair partisan advantage on the party that
last won the Governorship. But courts cannot rely on legal standards to adjudicate
this kind of complaint because it does not allege any burden on individual voting
rights. Instead, adjudicating this kind of complaint would require courts to pick
among various conceptions of a politically “fair” ballot order that have no basis in
the Constitution. For that reason, the complaint “poses basic questions that are
political, not legal.” Id. at 2500. And even if a judicially discernable and
manageable standard for fairly ordering a ballot existed, there are no standards for
determining how much of a departure from an ideal ballot order amounts to a
constitutional violation. See id. at 2501. As we explain, Rucho cannot be
persuasively distinguished from this appeal.
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The basic problem with the voters and organizations’ complaint is that it is
not based on the right to vote at all, so we cannot evaluate their complaint using
the legal standards that apply to laws that burden the right to vote. As the voters
and organizations correctly point out, we must evaluate laws that burden voting
rights using the approach of Anderson and Burdick, which requires us to weigh the
burden imposed by the law against the state interests justifying the law. Common
Cause/Ga., 554 F.3d at 1352. But “we have to identify a burden before we can
weigh it.” Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 205 (2008) (Scalia,
J., concurring in the judgment). And here it is impossible to identify a burden on
voting rights imposed by the ballot statute that is susceptible to the balancing test
of Anderson and Burdick.
The statute at issue here is unlike any law that this Court or the Supreme
Court has ever evaluated under Anderson and Burdick. The statute does not make it
more difficult for individuals to vote, see, e.g., Crawford, 553 U.S. at 198
(plurality opinion) (photo-identification law); Common Cause/Ga., 554 F.3d at
1354 (same), or to choose the candidate of their choice, see Burdick, 504 U.S. at
430 (prohibition on write-in voting). It does not limit any political party’s or
candidate’s access to the ballot, which would interfere with voters’ ability to vote
for and support that party or candidate. See, e.g., Timmons v. Twin Cities Area New
Party, 520 U.S. 351, 353–54, 358–59 (1997) (law forbidding individuals to appear
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on the ballot as the candidate of more than one party); Norman v. Reed, 502 U.S.
279, 288–89 (1992) (ballot-access law for new parties); Munro v. Socialist
Workers Party, 479 U.S. 189, 199 (1986) (ballot-access law for minor-party
candidates); Anderson, 460 U.S. at 782, 786 (early filing deadline for candidate
paperwork); Cowen v. Ga. Sec’y of State, 960 F.3d 1339, 1342–46 (11th Cir. 2020)
(ballot-access law for minor-party candidates); Fulani v. Krivanek, 973 F.2d 1539,
1539, 1543 (11th Cir. 1992) (same). Nor does it burden the associational rights of
political parties by interfering with their ability to freely associate with voters and
candidates of their choosing. See, e.g., Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 451–52 (2008); Clingman v. Beaver, 544 U.S.
581, 587, 593 (2005); Tashjian v. Republican Party of Conn., 479 U.S. 208, 213–
14 (1986). And to state the obvious, the statute certainly does not create the risk
that some votes will go uncounted or be improperly counted. See, e.g., Lee, 915
F.3d at 1318–20 (challenge to signature-match procedures for absentee and
provisional ballots); Wexler v. Anderson, 452 F.3d 1226, 1232 (11th Cir. 2006)
(challenge to manual-recount procedures under which some ballots might “receive
a different, and allegedly inferior, type of review in the event of a manual
recount”). All the statute does is determine the order in which candidates appear in
each office block on the ballot.
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If the statute burdened voting or associational rights even slightly, we could
apply legal standards to determine whether the burden was unconstitutional. Under
Anderson and Burdick, we would weigh the burden imposed by the law against the
state interests justifying that burden. See Common Cause/Ga., 554 F.3d at 1352.
But because the statute does not burden the right to vote, we cannot engage in that
kind of review. The voters and organizations ask us to decide not whether the
ballot statute burdens identifiable voting or associational rights, but whether it
confers an unfair partisan advantage on the Republican Party. Indeed, this is the
very theory of injury on which our dissenting colleague relies to establish the
standing of the Democratic National Committee, the Democratic Senatorial
Campaign Committee, and the Democratic Congressional Campaign Committee
under Article III. See Dissenting Op. at 74 (“Each committee experienced an injury
in fact because the ballot-order statute has placed the Democratic Party at an
enduring electoral disadvantage in Florida . . . .”).
Instead of basing their complaint on individual voting or associational rights,
the voters and organizations allege a novel complaint premised on the idea that the
extra votes that flow from top ballot position should be distributed “fairly”
between the major political parties. The “crux of [their] constitutional claim,” they
explain, “is the way in which” the ballot statute distributes the primacy vote
“between similarly-situated major parties.” In their view and the district court’s,
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fairness means distributing the primacy vote either evenly between the major
parties or on some apolitical basis, like random lottery or alphabetically by
candidate last name.
But sensible as those approaches might be, they are hardly the only ways to
conceive of a “fair” ballot order. As in Rucho, “it is not even clear what fairness
looks like in this context.” 139 S. Ct. at 2500. Instead of splitting the primacy
effect between the two major parties, perhaps Florida should ensure that each
political party on the ballot—including minor parties—has an equal number of its
candidates listed first for office. After all, parties that have qualified to be on the
ballot are similarly situated with respect to any right to be first on the ballot. Or,
because that approach might give an undue advantage to minor parties with few
supporters, perhaps Florida should distribute the primacy effect proportionately
based on the number of registered voters in each party. That is, if 20 percent of
registered voters belong to one political party, that party’s candidates should
appear first on 20 percent of the ballots, and so on. Maybe Minnesota’s approach is
fairest: award the primacy effect entirely to one party—the party that received the
fewest votes in the last election. Minn. Stat. § 204D.13(2). One could imagine
many other ballot schemes that plausibly claim to be the fairest way, or at least a
fair way, to distribute the primacy effect, including the one Florida adopted nearly
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70 years ago: giving all parties the chance to win the primacy effect at each
gubernatorial election.
As in the partisan gerrymandering context, picking among these alternatives
“poses basic questions that are political, not legal.” Rucho, 139 S. Ct. at 2500.
“There are no legal standards discernible in the Constitution for making such
judgments, let alone limited and precise standards that are clear, manageable, and
politically neutral.” Id. “Any judicial decision on what is ‘fair’ in this context
would be an ‘unmoored determination’ of the sort characteristic of a political
question beyond the competence of the federal courts.” Id. (quoting Zivotofsky v.
Clinton, 566 U.S. 189, 196 (2012)).
And even if courts could discern in the Constitution a standard of fairness
for evaluating ballot-order regimes, they would run headlong into the second
problem the Supreme Court identified in Rucho. There are no discernable and
manageable standards “to answer the determinative question”: How much partisan
advantage from ballot order is too much? See id. at 2501; see also id. at 2498
(asking “how much partisan dominance is too much” (internal quotation marks
omitted)). It is impossible to ensure that each candidate or party in a particular
election appears at the top of the ballot an equal number of times. Election officials
cannot know in advance how many ballots will be cast in a given race, let alone
how many ballots will be cast in each county or voting precinct or which counties
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and precincts have the largest numbers of disinterested voters. Relatedly, how large
must the primacy effect be to create a constitutional problem? Two percent of
voters? Five percent? Some greater share? If the standard is an “outcome
determinative” number of voters, then any disparity in allocating the primacy
effect could violate the Constitution in close races. Would awarding the primacy
effect to a single political party be constitutional in a noncompetitive State where it
would make no difference to electoral outcomes but unconstitutional in a
battleground State? As with partisan gerrymandering, even if courts “knew which
version of fairness to be looking for, there are no discernible and manageable
standards for deciding whether there has been a violation.” Id. at 2501.
At bottom, the voters and organizations’ challenge to the ballot statute rests
on the notion “that each party must be influential in proportion to its number of
supporters.” Id. Their 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. 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.”
Id. (quoting Gill, 138 S. Ct. at 1933).
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The federal judiciary’s “constitutionally prescribed role is to vindicate the
individual rights of the people appearing before it.” Id. (quoting Gill, 138 S. Ct. at
1933). Where an election law does not burden the right to vote in any way, we
cannot vindicate individual rights. And we “have no license 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 [our] decisions.” Id.
at 2507. The complaints of partisan gerrymandering in Rucho cannot be
persuasively distinguished from the voters and organizations’ complaint. A
complaint that the order in which candidates appear on a ballot confers an
impermissible partisan advantage to one party presents a nonjusticiable political
question.
One possible response to the preceding analysis is that because the voters
and organizations have not alleged any burden on voting rights, their complaint
fails on the merits though it remains justiciable. But a complaint can both fail to
state a constitutional violation and be nonjusticiable if there are no judicially
discernible and manageable standards to adjudicate it. Take complaints of partisan
gerrymandering. In the light of Rucho, we know that any complaint that a
redistricting plan is unconstitutionally partisan must be dismissed as
nonjusticiable—even if the challenged plan is so fair that it could not possibly
violate the Constitution. Nor must a particular practice even be capable of
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violating the Constitution for challenges to that practice to be nonjusticiable. Our
guide, again, is Rucho. We do not know whether partisan gerrymandering can ever
violate the Constitution; in its 46 years of attempting to adjudicate those
complaints, the Supreme Court never declared a single redistricting plan
unconstitutionally partisan. Id. at 2491, 2497–98, 2507. But even though partisan
gerrymandering may not violate the Constitution, challenges to that practice are
nonetheless nonjusticiable because they are unsuited for resolution by federal
courts. Id. at 2507–08. The same is true for complaints of partisan advantage based
on ballot order.
The voters and organizations’ arguments that their complaint is justiciable
are unconvincing. To make their case, they attempt to distinguish Rucho, invoke a
host of inapposite precedents, and posit hypothetical laws that bear no resemblance
to the challenged law in this action. None of their arguments have merit.
The voters and organizations first suggest that Rucho is distinguishable
because the Supreme Court searched for a judicially manageable standard to police
partisan gerrymandering “for decades” without success. But Rucho makes clear
that complaints of partisan gerrymandering have always been nonjusticiable; it did
not impose a requirement that courts first struggle to identify a justiciable standard
for some period of time before declaring a complaint nonjusticiable. Complaints of
partisan gerrymandering did not become nonjusticiable only after the Court tried
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and failed to develop a standard. See Lester v. United States, 921 F.3d 1306, 1312
(11th Cir. 2019) (W. Pryor, J., respecting the denial of rehearing en banc) (“[W]e
should be mindful of the difference between a change in judicial doctrine and a
change in law.” (emphasis added)). Instead, the Court’s inability to discern a
manageable standard was evidence that these complaints had always been “outside
the courts’ competence and therefore beyond the courts’ jurisdiction.” Rucho, 139
S. Ct. at 2494; see also Lester, 921 F.3d at 1313 (“Without distinguishing between
judges’ understanding of the law and the law itself, . . . the Supreme Court [could
not] meaningfully describe a past decision of its own as ‘wrong the day it was
decided.’” (quoting Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 863
(1992) (joint opinion of O’Connor, Kennedy, and Souter, JJ.))). As discussed
below, the judiciary’s experience with partisan ballot-order complaints provides
similar evidence that no judicially discernible and manageable standards exist to
adjudicate them—that is, that these complaints have always been nonjusticiable.
The voters and organizations also argue that Rucho is distinguishable
because some amount of partisan gerrymandering is constitutionally permissible in
redistricting, but partisan considerations are off limits in the realm of election
administration. And if partisan considerations are forbidden in election
administration, that reality arguably eliminates the line-drawing problem the
Supreme Court faced in Rucho—how much partisanship is too much? In the voters
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and organizations’ view, any partisanship is too much partisanship in this context.
Cf. Rucho, 139 S. Ct. at 2502 (explaining that complaints of racial gerrymandering
can rightly ask “for the elimination of a racial classification” but that complaints of
partisan gerrymandering “cannot ask for the elimination of partisanship”).
This argument has at least two problems. First, partisan considerations are
not entirely off limits in election administration. Partisan motivations do not doom
a nondiscriminatory election law if “valid neutral justifications” also support the
law. Crawford, 553 U.S. at 204 (plurality opinion); see also Common Cause/Ga.,
554 F.3d at 1355. But even if partisan motivations were entirely off limits in
election administration, that fact would not eliminate the line-drawing problems
inherent in the voters and organizations’ complaint, which is based solely on the
partisan effects of the ballot statute. The voters and organizations have never
argued that the Democrat-led legislature and Democratic governor that enacted the
statute were motivated by impermissible partisan intent. Their complaint does not
ask for the elimination of partisan intent in ballot order. It asks for a fair allocation
of the primacy vote, much like the complaints of partisan gerrymandering in Rucho
asked for “a [fair] level of political power and influence.” 139 S. Ct. at 2499.
The voters and organizations next contend that because other challenges to
election regulations are justiciable, theirs must be too. They point to Williams v.
Rhodes, 393 U.S. 23, 24, 28 (1968), which held that a challenge to laws that “made
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it virtually impossible” for certain political parties to access the ballot was
justiciable. But Williams provides no support for their position.
Laws that limit the ability of candidates or parties to access the ballot burden
“voters’ freedom of choice and freedom of association.” Anderson, 460 U.S. at 806
(emphasis added); see also Socialist Workers Party, 479 U.S. at 193 (explaining
that ballot-access restrictions “impinge upon the rights of individuals to associate
for political purposes, as well as the rights of qualified voters to cast their votes
effectively”). Standards exist to assess the burdens imposed by restrictions on
ballot access. See Socialist Workers Party, 479 U.S. at 193–99. But no standards
exist to judge challenges to the partisan advantage conferred by ballot order.
The voters and organizations contend that if we determine their complaint is
nonjusticiable, other more nefarious ballot laws will be insulated from judicial
review. They offer examples of hypothetical laws that require a “thumbs-up” or
asterisk symbol next to candidates of the Governor’s party, or that require the
names of those candidates to appear in larger font, bold print, or a different color.
Because challenges to these laws should be justiciable, they argue, so also should
challenges to laws that govern ballot order.
Our holding that this lawsuit is nonjusticiable does not mean that challenges
to these kinds of ballot laws are also nonjusticiable. The Elections Clause, which
commits the regulation of the “Times, Places and Manner of holding Elections” to
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state legislatures, U.S. Const. art. I, § 4, cl. 1, provides a judicially discernable and
manageable standard to evaluate nonprocedural laws about ballot content. The
Supreme Court has held that the Elections Clause establishes the boundaries of
state authority over elections. See Cook v. Gralike, 531 U.S. 510, 523 (2001)
(“[T]he States may regulate the incidents of such elections, including balloting,
only within the exclusive delegation of power under the Elections Clause.”). In
Cook, the Court invalidated a Missouri law that placed a pejorative designation
next to candidates who refused to support term limits because the law did not
regulate the time, place, or manner of elections but instead sought to disparage or
endorse particular candidates. Id. at 523–26. “Thumbs-up” laws could be evaluated
under that standard, as could other laws that arguably do not regulate the manner of
elections, like laws that provide favorable font choices for certain candidates. But
Cook and the Elections Clause provide no standard to evaluate laws that govern
ballot order. Unlike the law at issue in Cook or a “thumbs-up” law, laws that
govern ballot order plainly regulate the manner of elections and are within the
power of States to enact. To use an Australian ballot, Florida, like every other
State, necessarily had to decide the order in which candidates’ names appear on the
ballot. And the choice of what order to adopt cannot be evaluated using legal
standards because it “poses basic questions that are political, not legal.” Rucho,
139 S. Ct. at 2500.
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One might think that holding the voters and organizations’ complaint to be
nonjusticiable would mean that all challenges to ballot order are nonjusticiable, but
that is not so. Rucho makes clear that one kind of challenge to a law can be
justiciable and another nonjusticiable depending on whether judicially discernable
and manageable standards exist to adjudicate the complaint. The Court explained
that challenges to a redistricting plan based on racial gerrymandering or violations
of the one-person, one-vote principle are justiciable because manageable standards
exist to adjudicate those complaints, even though challenges to the same
redistricting plan based on its partisan effects are nonjusticiable. See id. at 2501–
02. Similarly, if the voters and organizations’ complaint were that Florida’s ballot
order somehow made it more difficult for Democrats to vote for their candidate of
choice, their complaint would be justiciable, and we would have to weigh the
burden imposed by the law against the State’s regulatory interests. See Burdick,
504 U.S. at 434; Common Cause/Ga., 554 F.3d at 1352. But that is not the kind of
complaint the voters and organizations brought. They instead ask us to fairly
apportion the primacy vote among the political parties, and that complaint falls
squarely within Rucho’s definition of a political question.
The voters and organizations also argue that the decisions of other courts
adjudicating complaints of partisan advantage based on ballot order prove that their
complaint is justiciable. But the relevant decisions all predate Rucho. See, e.g.,
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Libertarian Party of Va. v. Alcorn, 826 F.3d 708, 717 (4th Cir. 2016); Green Party
of Tenn. v. Hargett, 767 F.3d 533, 550–51 (6th Cir. 2014); Koppell v. N.Y. State
Bd. of Elections, 153 F.3d 95, 96 (2d Cir. 1998); McLain v. Meier, 637 F.2d 1159,
1167 (8th Cir. 1980); Sangmeister v. Woodard, 565 F.2d 460, 465 (7th Cir. 1977).
And none of the decisions addressed whether complaints of partisan advantage
based on ballot order are justiciable. More fundamentally, that courts have
attempted to adjudicate a complaint does not mean the complaint is justiciable.
Indeed, before Rucho, numerous lower courts had crafted some standard to
adjudicate complaints of partisan gerrymandering. See Rucho, 139 S. Ct. at 2502–
06.
Even taken on their own terms, these decisions support, rather than
undermine, the conclusion that the voters and organizations’ complaint is
nonjusticiable. They provide evidence that the voters and organizations’ complaint
is inherently standardless, much as the many prior decisions attempting to
adjudicate complaints of partisan gerrymandering did in Rucho. See id. at 2497–98.
Because complaints of partisan advantage based on ballot order are not based on
the right to vote at all, the courts in each of these decisions were forced to decide
what constituted a fair method of allocating of the top ballot position and then
determine whether the challenged law so departed from that standard of fairness
that it violated the Constitution.
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Unsurprisingly, the courts settled on different and sometimes contradictory
standards. The Fourth Circuit, for example, concluded that “facially neutral and
nondiscriminatory” ballot-order laws “impose[] only the most modest burdens” on
voting and associational rights and for that reason survive scrutiny under Anderson
and Burdick. Libertarian Party of Va., 826 F.3d at 717. The Eighth Circuit, in
contrast, held that “position advantage must be eliminated as much as is possible”
and decided that the “fairest remedy” was “some form of ballot rotation whereby
‘first position’ votes are shared equitably by all candidates.” McLain, 637 F.2d at
1169 (emphasis added). The Seventh Circuit did not require rotation of the top
ballot spot among all candidates; instead, it held that laws governing ballot order
pose no constitutional problem so long as they are “neutral” in character and do not
intentionally favor one class of candidates over another. Sangmeister, 565 F.2d at
465–68. And at least one court has concluded that even a “neutral” method of
assigning ballot position—alphabetically by candidate last name—violated the
state constitutional rights of a candidate whose name would never allow him to
appear at the top of the ballot. Kautenburger v. Jackson, 333 P.2d 293, 294–95
(Ariz. 1958). These decisions strengthen the conclusion that there are no judicially
discernable and manageable standards for adjudicating complaints of partisan
advantage based on ballot order. Such complaints present competing visions of
fairness that are “unguided and ill suited to the development of judicial standards.”
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Rucho, 139 S. Ct. at 2501 (internal quotation marks omitted). Federal judges have
no business deciding them.
The voters and organizations contend that the Supreme Court’s summary
affirmance in Mann v. Powell, 398 U.S. 955 (1970) (mem.), establishes that their
complaint is justiciable, but that is plainly wrong. The law at issue in Mann placed
candidates on the ballot in the order they submitted their nominating petitions and
gave the Illinois Secretary of State unfettered discretion to break ties if he received
multiple petitions simultaneously. 314 F. Supp. 677, 678–79 (N.D. Ill. 1969), aff’d,
398 U.S. 955. When the Secretary received two or more petitions simultaneously,
he chose to break the tie in favor of incumbents. Id. A three-judge district court
enjoined that practice id. at 679, and the Supreme Court summarily affirmed,
Mann, 398 U.S. at 955. But the Court has cautioned that we must not overread its
summary affirmances: “the precedential effect of a summary affirmance extends
no further than the precise issues presented and necessarily decided by those
actions. A summary disposition affirms only the judgment of the court below, and
no more may be read into our action than was essential to sustain that judgment.”
Anderson, 460 U.S. at 784–85 n.5 (internal quotation marks omitted); see also
Mandel v. Bradley, 432 U.S. 173, 176 (1977) (“Because a summary affirmance is
an affirmance of the judgment only, the rationale of the affirmance may not be
gleaned solely from the opinion below. When we summarily affirm, without
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opinion, we affirm the judgment but not necessarily the reasoning by which it was
reached.” (alteration adopted) (internal quotation marks omitted)). Mann provides
no basis to conclude that the Supreme Court has ever adjudicated a complaint
based on the partisan effects of ballot order.
The dissent contends that our analysis of Mann must take into account the
jurisdictional statement filed in that case. Dissenting Op. at 117–21. When a
jurisdictional issue is “neither challenged nor discussed,” the Supreme Court’s
exercise of its jurisdiction carries no precedential weight. Lewis v. Casey, 518 U.S.
343, 352 n.2 (1996). But, the dissent argues, when a party raises an issue in a
jurisdictional statement, the Court’s summary affirmance rejects that specific
challenge. Dissenting Op. at 117 (citing Mandel, 432 U.S. at 176). The dissent
insists that although the jurisdictional issue in Mann was not discussed in the
Supreme Court’s summary affirmance, it was still challenged by the Illinois
Secretary of State. Id. at 118–19 (citing Jurisdictional Statement, Powell v. Mann,
1970 WL 155703 at *6 (1970)). As a result, the dissent says, we must treat Mann
as precedent.
But “the precedential effect of a summary affirmance extends no further than
the precise issues presented,” Anderson, 460 U.S. at 784–85 n.5 (internal quotation
marks omitted), and this case presents a question different from the one in Mann.
The law at issue in Mann gave the Illinois Secretary of State unfettered discretion
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to break ties, whereas the law here gives no such discretion. Because of this key
distinction, we cannot say that the Court’s apparent conclusion in Mann—that a
challenge to a discretionary ballot-ordering law that created no alleged partisan
advantage is justiciable—has any bearing on a challenge to a non-discretionary
ballot-ordering law that allegedly creates an unfair partisan advantage. In short, the
dissent’s reliance on Mann is misplaced.
Besides misreading the precedential value of Mann, the dissent also invents
a threshold inquiry for evaluating potential political questions and contends that we
have ignored this previously unrevealed test. Dissenting Op. at 122–23, 133. The
Court held in Baker v. Carr that a challenge to a state reapportionment plan based
on population inequality did not present a nonjusticiable political question because
there was a “well developed and familiar” standard to evaluate such challenges—
the Equal Protection Clause. 369 U.S. 186, 226 (1962). According to the dissent,
Baker’s test is more lenient than the one used in Rucho, which requires there to be
a judicial standard that rests on a “limited and precise rationale” and that is “clear,
manageable, and politically neutral.” Dissenting Op. at 126 (quoting Rucho, 139 S.
Ct. at 2498). The dissent distinguishes Baker and Rucho by asserting that Baker is
the general test for political questions, whereas the heightened Rucho test should
be used “when judicial review of the particular claim at issue would create
separation of powers concerns.” Id. at 133.
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The dissent’s attempt to create a new framework for choosing between
different tests for political questions is misguided. Although it is true that Rucho
did not overrule Baker, nothing in Rucho suggests that the Supreme Court’s test for
the justiciability of challenges to partisan gerrymandering was an exception to a
general test for other political questions. See Rucho, 139 S. Ct. at 2498–99. The
reason the Court directed its analysis in Rucho toward partisan gerrymandering is
that the claim in Rucho was about partisan gerrymandering. The dissent is trying to
create a solution in search of a problem.
The voters and organizations’ attempts to escape the reasoning of Rucho are
all unavailing. Despite their many protests, Rucho compels the conclusion that
complaints of unfair partisan advantage based on ballot order present
nonjusticiable political questions. Although Rucho may seem counterintuitive to
federal judges who are used to usurping the authority of state legislatures to
regulate elections, it should not. The Constitution commits the “Times, Places and
Manner” of holding congressional elections to legislatures—the state legislatures
in the first instance, subject to any regulations Congress prescribes. U.S. Const. art.
I, § 4, cl. 1. Our founding charter never contemplated that federal courts would
dictate the manner of conducting elections—in this lawsuit, down to the order in
which candidates appear on a ballot.
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Alexander Hamilton explained in Federalist 59 that “a discretionary power
over elections ought to exist somewhere,” but that somewhere was not the federal
judiciary. The Federalist No. 59, at 306 (Alexander Hamilton) (George W. Carey
& James McClellan eds., 2001). Instead, Hamilton identified “only three ways in
which this power could have been reasonably organized.” Id. It could be “lodged
wholly in the national legislature, or wholly in the state legislatures, or primarily,
in the latter, and ultimately in the former.” Id. The Constitution, of course, adopted
the third option. But the district court in this action assumed for itself the
“discretionary power over elections” that the Constitution assigns to the state and
federal legislatures, in contravention of clear Supreme Court precedent that should
have prevented it from reaching the merits of this dispute. Its decision to do so was
error.
We offer one final word about the dissenting opinion. Although it purports
to dissent from our judgment vacating the injunction for lack of jurisdiction, the
dissenting opinion never says whether it would affirm the injunction or on what
grounds. So although the dissent argues this dispute is justiciable, it offers no clues
about how to resolve the appeal.
IV. CONCLUSION
By entering a judgment on the merits when it had no justiciable case or
controversy before it, the district court offered “no more than an expression of
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opinion upon the validity of the [law] in question.” Muskrat v. United States, 219
U.S. 346, 362 (1911). That kind of advisory opinion is beyond the power of federal
courts. The district court should have dismissed the action because the voters and
organizations lack standing and their complaint is nonjusticiable. It erred by
reaching the merits and entering an injunction against nonparties whom it had no
authority to enjoin. We VACATE the judgment against the Secretary and
REMAND with instructions to dismiss for lack of jurisdiction.
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JILL PRYOR, Circuit Judge, dissenting:
For the past 20 years, the Republican candidate’s name has been listed first
on every general election ballot in every race in every contested partisan election in
the state of Florida. In this case, individuals and organizations sued Florida’s
Secretary of State to challenge as unconstitutional the state statute governing ballot
ordering in general elections. Florida law requires the names of candidates from
the governor’s party to be listed first for each office on the general election ballot.
See Fla. Stat. § 101.151(3)(a). The district court found after a bench trial that this
ballot-ordering scheme has awarded Republican candidates a “small but
statistically significant advantage” due to the tendency of some voters to select a
candidate simply because his name is listed first (a phenomenon known as the
“primacy effect” or “candidate name order effect”). Doc. 202 at 2. 1 As a result,
the court concluded, the scheme violated the First and Fourteenth Amendments.
The merits question in this appeal is whether Florida’s ballot-order law
violates the Constitution by awarding the advantage created by the primacy effect
to candidates based on their affiliation with the governor’s political party, with a
corresponding disadvantage to the opposing party. But before we can address the
merits, we must be sure that we have jurisdiction to hear the appeal. See MSP
Recovery, LLC v. Allstate Ins. Co., 835 F.3d 1351, 1357 (11th Cir. 2016).
1
Citations in the form “Doc. #” refer to the district court’s docket entries.
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The majority opinion never reaches the merits of the plaintiffs’ claims
because it concludes that the case should have been dismissed for lack of
jurisdiction. According to the majority, the district court should have dismissed
the complaint because the plaintiffs failed to establish any of the three required
elements of standing and their complaint raises a nonjusticiable political question
based on the United States Supreme Court’s decision in Rucho v. Common Cause,
139 S. Ct. 2484 (2019).
I disagree. I would conclude that at least three plaintiffs—the Democratic
National Committee (“DNC”), the Democratic Senatorial Campaign Committee
(“DSCC”), and the Democratic Congressional Campaign Committee (“DCCC”)
(together, the “Committees”)—have standing. I would also conclude that their
challenge to the ballot-order statute does not raise a political question. In holding
that the district court lacked jurisdiction to hear any of the plaintiffs’ claims, the
majority opinion contorts beyond recognition Supreme Court precedent addressing
the injury-in-fact, traceability, and redressability requirements for standing, as well
as the scope of the political question doctrine. As a result, the majority opinion
ends up imposing entirely new or substantially heavier burdens on plaintiffs who
seek to challenge state election laws, burdens that the Supreme Court has never
recognized.
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I. The Committees Have Standing to Challenge the Ballot-Order Statute.
I begin with standing. Plaintiffs the DNC, DSCC, and DCCC are the
national committees of the Democratic Party and thus “responsible for the day-to-
day operation of [the] party at the national level.” 52 U.S.C. § 30101(14). We
have previously explained that the national committees are the “embodiment and
manager[s] of the affairs” of the national party. Wymbs v. Republican State Exec.
Comm. of Fla., 719 F.2d 1072, 1074 n.4 (11th Cir. 1983). I would conclude that
the Committees have standing to sue the Secretary of State to challenge the ballot-
order law.
The Constitution limits the power of the judiciary to deciding “Cases” and
“Controversies.” U.S. Const. art. III, § 2, cl. 1. To satisfy the case-or-controversy
requirement, a plaintiff must have standing to sue. See Spokeo, Inc. v. Robins,
136 S. Ct. 1540, 1547 (2016). To establish standing, a plaintiff must show (1) an
injury in fact; (2) a causal connection between the injury and the causal conduct,
meaning that the injury is fairly traceable to the defendant’s conduct; and (3) a
likelihood that the injury will be redressed by a favorable decision. Id.; MSP
Recovery, 835 F.3d at 1357. Failure to demonstrate any one of these three
elements defeats a plaintiff’s standing. The majority opinion concludes that the
plaintiffs lack standing to sue the Secretary of State because at trial they failed to
prove all three: (1) that any plaintiff suffered an injury in fact; (2) that any injury a
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plaintiff suffered, if one existed, was fairly traceable to the Secretary’s conduct;
and (3) that any injury a plaintiff suffered, if one existed, could be redressed by a
judgment against the Secretary.
The Committees met all three elements. Each committee experienced an
injury in fact because the ballot-order statute has placed the Democratic Party at an
enduring electoral disadvantage in Florida by diminishing the electoral prospects
of Democratic candidates throughout the state. As a result, the Democratic Party
and the national committees that are the “embodiment[s]” of the party were injured
by the ballot-order scheme. Wymbs, 719 F.2d at 1074 n.4. The Committees were
injured because the ballot-order law made it—continues to make it—more difficult
for them to raise funds, register voters, attract volunteers, generate support from
independent voters, and recruit candidates to run for office. In addition, the
Committees’ injuries were traceable to the Secretary of State and redressable in
litigation against her given her role under Florida law in implementing and
overseeing how local election officials prepare ballots.
In holding that the Committees failed to establish each element of standing,
the majority unveils a new understanding of these concepts, imposes a heavier
burden on the plaintiffs than Supreme Court precedent and our precedent supports,
and creates a split with authority from other circuits. Because the Committees
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cleared the threshold hurdle of standing, we should reach the merits of their
challenge to the ballot-order statute.
A. The Committees Suffered Injury in Fact.
First, the plaintiffs demonstrated that the Committees experienced an injury
in fact. To establish an injury in fact, each committee had to prove that it suffered
“an invasion of a legally protected interest that is concrete and particularized and
actual or imminent, not conjectural or hypothetical.” Spokeo, 136 S. Ct. at 1548
(internal quotation marks omitted). For an injury to be concrete, it “must be de
facto; that is, it must actually exist.” Id. (internal quotation marks omitted). The
Supreme Court has explained that the injury must be “real, and not
abstract.” Id. (internal quotation marks omitted).
The Committees experienced an injury in fact because Florida’s ballot-order
statute over time has disadvantaged Democratic candidates in Florida elections.2
By damaging the electoral prospects of Democratic candidates, the statute has
2
As organizational plaintiffs, each Committee alternatively could sue “on behalf of its
members” if (1) “its members would otherwise have standing to sue in their own right,” (2) “the
interests at stake are germane to the organization’s purpose,” and (3) “neither the claim asserted
nor the relief requested requires the participation of individual members in the lawsuit.” Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). To establish
standing under this theory, an organization must show that at least one of its members has
suffered or will suffer harm. Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009). Because
I conclude that each Committee itself experienced harm, I do not address standing based on harm
to its members.
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weakened the strength of the Democratic Party in Florida and necessarily harmed
the Committees.
Let me briefly explain how the statute harmed the electoral prospects of
Democratic candidates in Florida. By design, the ballot-order statute awarded (and
continues to award) an advantage to one major political party over the other,
ensuring that when a party secures the governor’s office in Florida, candidates
from the governor’s political party receive a windfall by virtue of being placed first
on the ballot. See Fla. Stat. § 101.151(3)(a). The district court’s factual findings
established that this advantage has been and continues to be significant. As the
district court found, “[C]andidates of the major parties in Florida receive an
average primacy effect vote of approximately five percent when listed first in their
office block on the ballot,” and “this advantage accrues to a candidate because of
the candidates’ name order.” Doc. 202 at 45.
The majority argues that this evidence was insufficient to show that any
particular candidate has been harmed because it “tells us nothing about whether
ballot order has affected or will affect any particular candidate in any particular
election.” Maj. Op. at 25. Although it is true that the district court did not identify
the candidate(s) in particular race(s) who would have won but for the ballot-order
statute’s allocation of the primacy effect windfall to the governor’s party, the
district court found that some Democratic candidates lost elections because of that
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allocation. As the district court explained, “a vast number of Florida’s elections
have been decided by less than three to five percent of the votes cast—in other
words, by a smaller margin than the advantage Florida’s ballot-order scheme
awards to the candidates affiliated with the party of Florida’s last-elected
governor.” Doc. 202 at 46. Based on this evidence, the court concluded that the
ballot-order statute did “indeed make a difference to the outcome of elections in
Florida.”3 Id. at 48.
By placing Democratic candidates at a systemic disadvantage, the ballot-
order statute harmed the Democratic Party as well as its national committees. I
begin with the premise that a political party and its committees enjoy First
Amendment rights of association. “The First Amendment protects the right of
citizens to associate and to form political parties for the advancement of common
political goals and ideas.” Timmons v. Twin Cities Area New Party, 520 U.S. 351,
357 (1997). Just as individuals enjoy a right to associate, political parties do, too.
See id. at 358; see Tashjian v. Republican Party of Conn., 479 U.S. 208, 217
(1986) (concluding that state election law imposed a burden “upon the
3
On appeal, the appellants have not challenged the district court’s findings of fact as
clearly erroneous. See Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 74 n.19
(1978); Wooden v. Bd. of Regents of Univ. Sys. of Ga., 247 F.3d 1262, 1271 n.9 (11th Cir. 2001).
(explaining that although we review a district court’s determination that a plaintiff has standing
de novo, we “generally review[] a district court’s underlying factual findings only for clear
error”).
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associational rights of the Party”). This First Amendment right also extends to
“political committees” like the Committees in this case. Colo. Republican Fed.
Campaign Comm. v. Fed. Elec. Comm’n, 518 U.S. 604, 616 (1996).
When a law harms the electoral prospects of a political party’s candidates,
the party experiences an associational injury. The majority does not seriously
challenge this principle. And with good reason—an electoral victory enables the
winning party “to better direct the machinery of government toward the party’s
interests.” Tex. Democratic Party v. Benkiser, 459 F.3d 582, 587 (5th Cir. 2006).
By awarding an advantage to the candidates from the governor’s political party, the
ballot-order statute necessarily disadvantages the other major political party in
elections and thus weakens its strength and ability to carry out its mission and
objectives. When deprived of political strength, the party and its committees
experience an “associational harm” because they “may face difficulties
fundraising, registering voters, attracting volunteers, generating support from
independents, and recruiting candidates to run for office (not to mention eventually
accomplishing their policy objectives).” Gill v. Whitford, 138 S. Ct. 1916, 1938
(2018) (Kagan, J., concurring).
The majority claims that the Committees failed to establish injury in fact
because any harm they experienced was “based on nothing more than generalized
partisan preferences” and thus was insufficient to establish standing under the
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Supreme Court’s decision in Gill. See Maj. Op. at 25 (internal quotation marks
omitted). But nothing in Gill forecloses political parties from establishing
associational harm based on systemic electoral disadvantage. In Gill, the Supreme
Court rejected the claims of individual voters who challenged a Wisconsin
redistricting plan as an unconstitutional partisan gerrymander on the ground that
the plan unfairly favored Republican voters and their candidates. 138 S. Ct. at
1923–24. The voters argued that they were injured because the gerrymander
diluted their votes. See id. at 1930–31. The Supreme Court accepted that a voter
was harmed if the composition of the voter’s own district caused her vote to carry
less weight than it would carry in another, hypothetical district. Id. at 1931. But
because the plaintiffs had introduced no evidence addressing whether such dilution
had occurred in their districts, the Court remanded the case to give the plaintiffs an
opportunity to come forward with such evidence. Id. at 1932, 1934.
The Court also considered whether the voters had standing to challenge the
gerrymander throughout the state on the theory that it harmed their interests in
“collective representation in the legislature” and “in influencing the legislature’s
overall composition.” Id. at 1931 (internal quotation marks omitted). The Court
rejected the voters’ argument, concluding that a “citizen’s abstract interest in
policies adopted by the legislature . . . is a nonjusticiable general interest common
to all members of the public.” Id. (internal quotation marks omitted).
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In a separate concurring opinion, Justice Kagan, joined by three other
justices, wrote that partisan gerrymandering could inflict a constitutional injury by
infringing the rights of association held by political parties and their related
organizations. Id. at 1934 (Kagan, J., concurring). On this theory, one the voters
never directly argued, Justice Kagan would have found that individual voters
suffered an injury in fact based on the associational harm that resulted when the
gerrymander deprived their party of its “natural political strength.” Id. at 1938.
And, she emphasized, “what is true for the party members” with respect to this
associational harm “may be doubly true for party officials and triply true for the
party itself (or for related organizations).” Id. (emphasis added). As she
explained, when a state law places a party “at an enduring electoral disadvantage,”
the party is injured because the law “weakens its capacity to perform all its
functions.” Id.
Justice Kagan advanced her theory of injury to a political party in a separate
concurrence, but the majority opinion did not reject the theory. Instead, the
majority declined to address it, expressly leaving it “for another day,” because the
question was not presented; there was no political party plaintiff. See id. at 1931
(majority opinion) (stating that the majority was not deciding whether there would
be an injury in fact in a case “involving different kinds of plaintiffs and differently
alleged burdens” (citation omitted)).
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Ignoring that the Gill majority expressly did not—and could not, given the
absence of a political party plaintiff—decide whether a political party experiences
injury when the challenged conduct places it at a systemic disadvantage relative to
another party, the majority opinion here nevertheless relies on Gill to support its
conclusion that the Committees cannot establish injury under a theory of
associational harm. Because Gill expressly reserved consideration of that
argument, it offers the majority no support.
The majority opinion raises another reason why the Committees have
suffered no harm: it claims that because the Committees are not “identical” to the
Democratic Party, an injury to the Democratic Party is not “necessarily an injury to
the Committee[s].” Maj. Op. at 26. But we need not decide whether in all
circumstances harm to the Democratic Party also injures the Committees. We have
a narrower question before us: when a state’s election law harmed the Democratic
Party by systematically disadvantaging Democratic candidates in elections, were
the Committees also injured? The answer is yes. The diminished electoral
prospects of Democratic candidates made it harder for the Committees to achieve
the Party’s goals and carry out its day-to-day operations. As I explained above, the
Committees are the “embodiment and manager[s] of the affairs” of the national
Democratic Party, Wymbs, 719 F.2d at 1074 n.4, and “responsible for the day-to-
day operation of [the] party at the national level.” 52 U.S.C. § 30101(14). The
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fact that Democratic candidates running for office in Florida over the past 20 years
have faced an approximately five percentage point disadvantage has frustrated the
DNC’s goal of electing Democrats “up and down the ballot across the country.”
Doc. 195-4 at 15. It likewise has frustrated the DSCC’s goal of electing
Democrats to the United States Senate and the DCCC’s goal of electing Democrats
to the House of Representatives.4 See Pavek v. Donald J. Trump for President,
Inc., No. 20-2410, F.3d , 2020 WL 4381845, at *1 & n.2 (8th Cir. July 31,
2020) (holding that DSCC and DCCC were injured because Minnesota ballot-order
law caused Republican candidates to be listed first on ballots).
The only authority the majority opinion marshals to support its position that
an injury to the Democratic Party is not an injury to the Committees is the Supreme
Court’s decision in Federal Election Commission v. National Conservative
Political Action Committee (“NCPAC”), 470 U.S. 480 (1985). But NCPAC merely
recognized that the Democratic Party was not interchangeable as a plaintiff with its
national committee when a federal campaign finance statute expressly authorized
the committee—but not the party—to sue.
4
Because the DSCC and DCCC focus on electing Democratic candidates to the United
States Senate and House of Representatives, respectively, I accept that each has a direct interest
in a limited number of elections in Florida. Even so, both have suffered injury as a result of the
ballot-order statute, as we can see from the close margins in recent elections where they
supported candidates. For example, in Florida’s most recent Senate election, the Republican
candidate defeated the Democratic candidate 50.1 percent to 49.9 percent. And in a recent
congressional race in Florida, the Republican candidate defeated the Democratic candidate by
less than five percent.
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In NCPAC, two political action committees (“PACs”) announced they would
be spending large amounts of money to support President Ronald Reagan’s
reelection campaign. But President Reagan had accepted public funding, and a
federal campaign finance law barred the PACs from spending more than $1,000 to
further the election of a presidential candidate who received public financing. Id.
at 482–83 (citing 26 U.S.C. § 9012(f)). The Democratic Party sued the two PACs
under a federal statute that permitted the Federal Election Commission (“FEC”), a
“national committee of any political party,” or any individual eligible to vote for
President to bring an action to “implement or construe any provision of” the
campaign finance law. 26 U.S.C. § 9011(b)(1).
The Supreme Court concluded that the Democratic Party lacked a right of
action to sue under the statute. NCPAC, 470 U.S. at 485–86. The party had no
right of action under the statute, the Court explained, because Congress had
expressly authorized only a “national committee of any political party” to sue to
enforce the statute; the party itself was “[c]learly” not included in the list of entities
and individuals who could sue. Id. Certainly, NCPAC tells us that a political party
is not interchangeable with its national committee when Congress expressly gave
the committee but not the party a right of action to enforce the law. But NCPAC
did not address the entirely separate and different question of whether a political
party’s national committee experiences an injury when a challenged practice harms
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the electoral prospects of the party’s candidates. NCPAC lends no support to the
majority’s position that only the party, not its committees, were injured here.
The majority contends that I make other errors in concluding that the
Committees were injured. First, the majority opinion argues that my analysis
establishes only that the Florida Democratic Party has been injured and says
nothing about whether the Democratic Party of the United States or its committees
were injured. Second, the majority opinion argues that my analysis is incomplete
because to have standing in this case the Committees had to show that they faced
an imminent injury. In raising both arguments, the majority oversimplifies the
facts and misapplies the law, resulting in a flawed analysis.
First, the majority opinion asserts that the Committees were not injured
because for each Committee there was no evidence that “one of its candidates is
likely to lose a future election because of ballot order.” Maj. Op. at 27. According
to the majority opinion, the national Democratic Party and its committees could be
injured only when Democratic candidates for the offices of President and Vice
President of the United States suffer electoral disadvantage because these are the
only two offices for which the Party itself nominates candidates. For every other
race in Florida, the majority argues, the candidates are nominated by the Florida
Democratic Party and therefore the national party and committees can suffer no
injury from ballot order in those races.
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Even though the state party formally nominates the candidates for races
other than President and Vice President, I am not persuaded that we can so neatly
unwind the roles of the Democratic Party of the United States and the Florida
Democratic Party when it comes to elections. The charters of the national
Democratic Party and the state Democratic Party reflect that each organization
“assist[s]” the other in the election of Democratic candidates in Florida. See
Charter of the Democratic Party of the United States art. I, § 3, available at
https://democrats.org/wp-content/uploads/2018/10/DNC-Charter-Bylaws-8.25.18-
with-Amendments.pdf; Charter of the Florida Democratic Party art. I, § 9,
available at https://nmcdn.io/e186d21f8c7946a19faed23c3da2f0da/b1b9
6861a2534eba8191fd2 315c6a596/files/FDP-BYLAWS---10-013-2019-
Updated.pdf. DNC members from Florida are members ex officio of the Florida
Democratic Party’s State Executive Committee, which is responsible for managing
the party’s affairs within the state, and of the Florida Democratic Party’s Central
Committee, which operates and manages the State Executive Committee. The
State Executive Committee, in turn, elects Florida’s representatives to the DNC. In
addition, the DNC exercises at least some oversight over the Florida Democratic
Party because the state party must conduct its affairs according to the DNC’s
charter and any resolutions the DNC passes.
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The majority opinion’s attempt to draw a rigid divide between the roles of
the Democratic Party of the United States and the Florida Democratic Party in
nominating candidates also ignores that the state of Florida presents the candidates
to voters as belonging to a single party. Ballots in Florida do not identify the
candidates for President and Vice President of the United States as belonging to the
national Democratic Party and all other Democratic candidates as belonging to the
Florida Democratic Party. Instead, ballots identify all Democratic candidates,
whether running for President or any other office, by the three-letter identifier
“DEM.”5 See Fla. Stat. § 101.151(3)(A) (requiring that a candidate’s party be
listed on the ballot “with an appropriate abbreviation of the party name”); Fla.
Admin. Code Ann. r. 1S-2.032(9)(c) (2020) (directing that the party identifier on a
ballot must be the abbreviation assigned by the Secretary of State’s office).
The majority’s rigid distinction between the national and state parties also
ignores the Committees’ theory of associational harm. Under that theory, all
Democratic candidates in Florida (whether nominated by the national or the state
Democratic Party) for the past 20 years have faced an enduring electoral
disadvantage. So the ballot-order statute has negatively impacted efforts in Florida
by both the state party and the national party to raise funds, register voters, attract
5
Similarly, Florida ballots identify all Republican candidates, whether running for
President or any other office, by the three-letter identifier “REP.”
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volunteers, generate support from independents, recruit candidates to run for
office, and ultimately achieve Democratic policy objectives. Even if the majority
is correct that the only candidates directly associated with the national Democratic
Party are the candidates for President and Vice President, the national party,
represented by the DNC, nevertheless suffered an injury in fact as a result of the
ballot-order scheme.
The majority opinion argues that, applying my logic, “any organization that
favors the election of certain candidates” would be able “to claim an injury based
on harm to those candidates’ electoral prospects.” Maj. Op. at 28. Again, the
majority ignores the specific context before us. Florida ballots show only a
candidate’s political party affiliation; they do not name any other organization that
happens to support the candidate. See Fla. Stat. § 101.151(3)(a). The ballot-order
statute sets the order of candidates by, and thus awards an electoral advantage
based solely on, party affiliation. I do not see how recognizing that the ballot-
order statute has injured the Committees, the day-to-day operational bodies of the
Democratic Party, would create a slippery slope and dictate the outcome of a future
case involving some other organization that is neither a political party nor a party’s
national committee.
The majority opinion’s second argument is that the Committees have shown
no injury in fact because they failed to prove that their injuries were “certainly
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impending.” Maj. Op. at 26 (internal quotation marks omitted). The majority
opinion cites the Supreme Court’s decision in Clapper v. Amnesty International
USA, 568 U.S. 398 (2013), as establishing the requirement that a plaintiff must
face a certainly impending injury to have suffered an injury in fact. But Clapper
presented unique circumstances that do not inform our inquiry here.
On the day that amendments to the Foreign Intelligence Service Act
(“FISA”) went into effect, authorizing the government to conduct certain foreign
surveillance, several individuals and organizations filed a lawsuit challenging the
amendments. Id. at 406–07. The Court concluded the plaintiffs lacked standing to
challenge the new law because they failed to establish injury. The Court explained
that to establish standing a plaintiff’s injury had to be “actual or imminent.” Id. at
409 (emphasis added) (internal quotation marks omitted). Because the plaintiffs
were challenging new provisions of FISA that had just gone into effect, no plaintiff
claimed or could have claimed that the government had previously surveilled his
communications under the amendments. See id. at 411. Instead, each plaintiff
claimed that he had standing to challenge the new law because it was “imminent[]”
that the government would target his foreign contacts for surveillance and thus
intercept his communications. Id. at 411.
The Court rejected the plaintiffs’ argument. Because the plaintiffs had “no
actual knowledge” of the communications the government would target, they were
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“speculat[ing]” that the government would acquire their communications and had
not shown that any injury was “certainly impending.” Id. at 410–11. Clapper
addressed a singular situation in which the plaintiffs could not yet have suffered
any harm because the statute they were challenging went into effect on the very
day they sued.
According to the majority, under Clapper, the Committees have standing
only if their injuries were certainly impending. Not only were the circumstances in
Clapper entirely different, but the Court noted in that case that a plaintiff can
establish standing based on either an actual or an imminent injury. See id. at 409.
Clapper does not require the Committees—which, the district court found, suffered
a past disadvantage due to the ballot-order statute—to prove that they also face a
certainly impending injury. See Wikimedia Found. v. Nat’l Sec. Agency, 857 F.3d
193, 211 (4th Cir. 2017) (explaining that when a plaintiff establishes an “an actual
and ongoing injury . . . Clapper’s certainly-impending analysis [is] inapposite”).
Because the Committees suffered actual injuries, they have standing regardless of
whether they face certainly impending harm.
Even if the Committees were required to satisfy the certainly impending
standard, however, at least two of the committees—the DNC and DCCC—satisfied
the standard. We are two months away from a general election in which all
Democratic candidates appearing on the ballot in Florida will be placed at a
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systemic disadvantage by the ballot-order law. Given its interest in supporting
candidates up and down the ballot, including for the offices of President and Vice
President, the DNC faces an injury that is certainly impending and not speculative.
And because the DCCC supports candidates throughout Florida running as
Democrats for Congressional seats, including in two districts where the Republican
incumbent is not running for reelection, it faces certainly impending injury as well.
Both of these committees satisfied Clapper’s standard.
To recap, the district court’s findings of fact established that the ballot-order
law placed Democratic candidates in Florida at a significant electoral disadvantage
in the past and continuing into the future. Because this systemic disadvantage has
weakened the Committees’ ability to perform their functions in Florida, I would
conclude that each Committee suffered an associational injury.
B. The Committees’ Injuries are Traceable to the Secretary of State and
Redressable in Litigation Against Her.
After concluding that the plaintiffs suffered no injury in fact, the majority
opinion goes on to offer alternative holdings on traceability and redressability. To
establish that their injuries were traceable to the Secretary of State’s conduct, the
Committees had to prove a “causal connection” between their injuries and the
conduct they complained of. Focus on the Family v. Pinellas Suncoast Transit
Auth., 344 F.3d 1263, 1273 (11th Cir. 2003). To establish that their injuries were
redressable by suing the Secretary, the Committees had to prove that it was “likely,
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as opposed to merely speculative” that their injuries would “be redressed by a
favorable decision” against the Secretary. Loggerhead Turtle v. Cnty. Council of
Volusia Cnty., 148 F.3d 1231, 1253 (11th Cir. 1998) (internal quotation marks
omitted). As the majority opinion reflects, the issues of traceability and
redressability turn on our interpretation of Florida law. In deciding whether the
Committees satisfied the traceability and redressability requirements, then, we
must consider the extent of the Secretary of State’s authority under Florida state
law when it comes to ballot order.
According to the majority opinion, the plaintiffs failed to establish
redressability or traceability because Florida law tasks county election supervisors,
“independently of the Secretary, with printing the names of candidates on ballots in
the order prescribed by the ballot statute.” Maj. Op. at 30. The majority opinion
interprets Florida law as (1) placing all responsibility for the ordering of candidates
on the ballots with the county election supervisors, thus giving the Secretary no
“role in determining the order in which candidates appear on ballots,” and
(2) giving the Secretary no control over the county election supervisors. Id. I note
that no Florida court has ever held that the Secretary of State’s authority is so
limited. Perhaps even more remarkable, the majority’s argument about the
Secretary of State’s authority is one that she herself never raised in this case, even
though, as the majority opinion demonstrates, it would have been to her
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advantage.6 And yet the majority opinion concludes that this case presents a
straightforward question about the proper interpretation of Florida’s Election Code.
The questions of traceability and redressability present embedded questions
of Florida law about how the state of Florida has structured its government to
divide power between state and local officials in the crucial function of holding
elections. The plain language of Florida’s Election Code reveals that the Secretary
of State played a sufficient role in setting ballot order and exercised adequate
control over the county election supervisors to support standing. In this section, I
review the provisions in Florida’s Election Code defining the scope of the
Secretary of State’s authority, with emphasis on three provisions that the majority
opinion seems to misapprehend. Because the majority opinion’s understanding of
Florida law is wrong, so are its holdings on traceability and redressability.
1. Under Florida Law, the Secretary of State Plays a Role in Setting
Ballot Order and Controls How County Election Supervisors
Organize Ballots.
To understand the scope of the Secretary of State’s authority, we must
interpret Florida’s Election Code, following Florida’s rules of statutory
6
The majority opinion downplays the significance of the Secretary of State’s decision not
to argue traceability or redressability in this case by suggesting that it was simply a strategic call
not to raise these arguments before a district court judge who had repeatedly rejected them in
other cases. But this supposition fails to account for the Secretary’s decision not to argue
traceability and redressability in her briefing on appeal. See Ouachita Watch League v. Jacobs,
463 F.3d 1163, 1169–70 (11th Cir. 2006) (recognizing that a party may raise a jurisdictional
issue for the first time on appeal).
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construction. See Robbins v. Garrison Prop. & Cas. Ins. Co., 809 F.3d 583, 586
(11th Cir. 2015). Those rules provide that “legislative intent is the most important
factor that informs our analysis.” Quarantello v. Leroy, 977 So. 2d 648, 651 (Fla.
Dist. Ct. App. 2008). Legislative intent must be gleaned “primarily from the text
of the statute,” focusing on “the actual language used by the Legislature.” Id.
(internal quotation marks omitted). In examining statutory text, courts in Florida
“will not look merely to a particular clause in which general words may be used,
but will take in connection with it the whole statute.” Id. (internal quotation marks
omitted); see also Orange Cnty. v. Singh, 268 So. 3d 668, 671 n.4 (Fla. 2019) (“In
construing the Florida Election Code, it is necessary to read all provisions in pari
materia.”).
In the Election Code, the Florida Legislature has divided responsibility for
administering elections among state and local officials. The Secretary of State,
appointed by the governor, serves as the head of the Department of State, oversees
its Division of Elections, and is charged with “general supervision and
administration of the election laws.” See Fla. Stat. §§ 15.13; 20.10(1), (2)(a). The
Secretary is the “chief election officer of the state” responsible for “[o]btain[ing]
and maintain[ing] uniformity in the interpretation and implementation of the
election laws.” Id. § 97.012(1). To maintain this uniformity, the Department of
State may “adopt by rule uniform standards for the proper and equitable
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interpretation and implementation of the requirements of chapter 97 through 102
and 105 of the Election Code.” Id.7 The ballot-order statute is found in chapter
101.
Although the Secretary of State plays a role in overseeing elections across
the state, most of the work in administering elections occurs at the county level.
Each of Florida’s 67 counties elects its own election supervisor who oversees how
elections in her county are conducted. See id. § 98.015(1). Each supervisor is
responsible for appointing an election board, comprised of poll workers for each
precinct in the county, that conducts the voting in each precinct on election day.
See id. § 102.012(1), (4). The supervisor’s responsibilities also include “updat[ing]
voter registration, enter[ing] new voter registrations into the statewide voter
system, and act[ing] as the official custodian of documents” related to elector
registration “and changes in voter registration status.” Id. § 98.015(3).
Most relevant here, county election supervisors print the ballots that voters
use. Before a general election, the Department of State certifies to each county
election supervisor the names of the candidates running for office that are to appear
7
This provision excludes two chapters of the Election Code, 103 and 104, from the
Department of State’s power to adopt uniform standards for the interpretation and
implementation of the requirements of the other chapters. Chapter 103 primarily addresses the
procedures that govern the electors who cast Florida’s votes for President of the United States in
the electoral college, Fla. Stat. §§ 103.011–103.141, and Chapter 104 sets forth criminal
penalties for violating Election Code provisions, id. §§ 104.011–104.43. Neither chapter is
relevant to the issues before us.
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on ballots in that county. Id. § 99.121. The Election Code then directs that the
“names of such persons shall be printed by the supervisor of elections upon the
ballot in their proper place as provided by law.” Id. Based solely on this language,
the majority opinion concludes that election supervisors set the order of the
candidate’s names on the ballot. From there, the majority opinion concludes that
the Secretary of State exercises no control over how Florida election supervisors
carry out their duty to order ballots because under Florida’s state constitution and
the Election Code the county officials are elected by the voters, and the Secretary
of State does not appoint them, does not compensate them, may not suspend them,
and may not remove them from office.
My concern is that the majority opinion’s analysis of Florida law is
incomplete because it reads provisions of Florida’s Election Code in isolation,
contrary to Florida’s rules of statutory construction. In particular, the majority’s
interpretation fails to appreciate the effect of three relevant provisions of the Code,
which suggest that the Florida Legislature intended for the Secretary of State to
play a substantive role in setting the ballot order and overseeing how election
supervisors carry out their duties in this regard.
The first provision the majority opinion largely overlooks is the one in
which the Florida Legislature charges the Department of State with “adopt[ing]
rules prescribing a uniform primary and general election ballot.” See id.
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§ 101.151(9)(a). These rules must incorporate the requirements of § 101.151—
which includes the ballot-order scheme in subsection (3)(a)—and may “prescribe
additional matters” including rules governing “[i]ndividual race layout.” See id.
§ 101.151(9)(a). Among other things, the Department’s “rules must graphically
depict a sample . . . general election ballot form.” Id. § 101.151(9)(b). The
Department’s form ballots incorporate the ballot-ordering scheme. See, e.g., Form
Official General Election Ballot, DS-DE 207 (eff. Sep. 12, 2018), available at
https://www.flrules.org/Gateway/reference.asp?No=Ref-06441 (last accessed
September 2, 2020); see also Fla. Admin. Code Ann. r. 1S-2.032(15)(b) (2020)
(stating that the ballot form is incorporated by reference into the Secretary’s rules).
This is consistent with the Secretary of State’s explanation at oral argument that
after the primary elections, “we have a ballot order that the [Secretary of] State
provides to the [county election] supervisors . . . then they design and set the ballot
per the order that is provided by the State.” Oral Argument Recording at 36:10–
36:46.8
8
A fuller quotation provides insight into the division of responsibility between the
Secretary of State and county election supervisors:
[A]fter the primary we have a ballot order that the [Secretary of] State provides to
the supervisors. And they set their ballots choosing their preferred printer, their
preferred software, their preferred machines that have all been approved. And then
they design and set the ballot per the order that is provided by the state.
Oral Argument Recording at 36:10–36:46.
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Indeed, the Elections Code’s use of the terms “prescribing” and “prescribe”
when describing the Secretary of State’s power to make rules governing general
election ballots and individual race layout confirms that the Florida Legislature
granted the Secretary of State authority to direct election supervisors when they
perform the task of preparing ballots, including the ordering of candidates. The
plain meaning of “prescribe” is “[t]o make an authoritative ruling.” Prescribe, The
Oxford English Dictionary (online ed.) (last accessed April 27, 2020); see Nehme
v. Smithkline Beecham Clinical Labs., Inc., 863 So. 2d 201, 205 (Fla. 2003)
(explaining that under Florida law, “[w]hen necessary, the plain and ordinary
meaning of words can be ascertained by reference to a dictionary” (internal
quotation marks omitted)). In trying to discover what the Florida Legislature
intended when it adopted the Election Code, I cannot imagine that when it directed
the Secretary to adopt rules incorporating the requirements of the ballot-order
statute in “prescribing” general election ballots, it contemplated that county
supervisors administering those elections would not be required to follow them.
This should have been enough to give the majority pause, but there is a
second provision that the majority opinion misapprehends. Section 97.012(16)
authorizes the Secretary of State to “[p]rovide written direction and opinions to the
supervisors of elections on the performance of their official duties with respect to
the Florida Election Code or rules adopted by the Department of State.” Fla. Stat.
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§ 97.012(16). This provision appears to flatly contradict the majority’s opinion
that the Secretary plays no role in and has no authority over the election
supervisors’ “performance of their official duties with respect to the Florida
Election Code” when it comes to the Code’s ballot-order provision. Id.
The power to issue written “direction” to election supervisors, according to
the term’s plain and ordinary meaning, is the power to “instruct[]” the election
supervisors on “how to proceed or act” in carrying out their official duties and to
give them “authoritative guidance.” Direction, The Oxford English Dictionary
(online ed.) (last accessed April 27, 2020).9 Again, why would the legislature
9
As an example, the Secretary of State recently issued a directive instructing how county
election supervisors are to carry out their statutory duties under Fla. Stat. § 101.657 to select sites
for early voting. See Fla. Dep’t of State, Directive 2020-01—Early Voting Sites on College &
University Campuses and Fla. Stat. 101.657(1)(a) (Apr. 2, 2020),
https://dos.myflorida.com/media/702989/directive-2020-01.pdf. Under Florida law, election
supervisors must operate early voting sites. See Fla. Stat. § 101.657(1)(a). An election
supervisor may conduct early voting only at certain locations, such as a main or branch office of
the election supervisor, a city hall, a permanent public library facility, a fairground, a civic
center, or a courthouse. Id. In selecting early voting sites, the election supervisor must “provide
all voters in the county an equal opportunity to cast a ballot, insofar as is practicable” and ensure
that there is “sufficient nonpermitted parking to accommodate the anticipated amount of
voters.” Id.
In Directive 2020-01, the Secretary of State instructed election supervisors how to
perform these duties. She explained to election supervisors that they were not required to limit
early voting sites to locations that “have a certain number of nonpermitted parking” spots but
must ensure that the “early voting sites collectively within a county” provide sufficient
nonpermitted parking spots to accommodate the anticipated number of early voters. Directive
2020-01 at ¶¶ 7–8. She then listed factors for election supervisors to consider when determining
whether the early voting sites offered sufficient parking. Id. at ¶ 8. Although the county election
supervisors are elected county officials who operate outside the Department of State, this
directive demonstrates that the Secretary of State issues binding written directions to instruct
them on the performance of their official duties under the Election Code.
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include such a provision if it intended that the election supervisors had no
obligation to follow the Secretary’s directions and opinions?
This brings me to the third provision of the Florida Election Code that the
majority opinion neglects to afford the significance I believe is due. As the
majority opinion points out, § 97.012(14) gives the Secretary of State the power to
bring an action at law or in equity by mandamus or injunction to coerce a county
supervisor of elections to perform any duties with respect to the Election Code or
to comply with any rule adopted by the Department of State. See Fla. Stat.
§ 97.012(14). The majority opinion views this provision as evidence that the
Secretary of State lacks authority over the election supervisors because she must
rely on the judicial process to coerce an election supervisor to comply.
I lack the majority’s confidence that this provision signals the Secretary’s
lack of authority over the election supervisors. I find it significant that the Florida
Legislature expressly gave the Secretary of State a cause of action, particularly a
mandamus action—an “extraordinary remedy”—to compel an election supervisor
to follow the Department of State’s rules. State ex rel. Perkins v. Lee, 194 So. 315,
317 (Fla. 1940). After all, it is well-established under Florida law that a writ of
mandamus is available only when the duty sought to be coerced is “ministerial in
nature” and the “respondent is under a clear legal duty to act.” State ex rel.
Cherry v. Stone, 265 So. 2d 56, 57 (Fla. Dist. Ct. App. 1972) (emphasis added). If
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county election supervisors are under a clear legal duty to follow her Department’s
rules, then it cannot be true that the Secretary lacks the authority to direct them.
Rather than supporting the majority opinion’s conclusion, § 97.012(14) appears to
undercut it by showing that the Secretary of State possesses the authority to compel
election supervisors to perform their duties in accord with her rules and
directives.10
Reading all of these provisions as a unified whole, I would conclude that the
Code gives the Secretary of State the power to set ballot-order rules and control
how election supervisors organize ballots.
2. Given the Secretary of State’s Role in Setting Ballot Order, Any
Injuries Arising from the Ballot-Order Scheme Are Traceable to,
and Redressable in Litigation Against, the Secretary.
If the majority opinion is wrong about the scope of the Secretary of State’s
authority under Florida law, that would mean that the Committees’ injuries were
traceable to the Secretary and redressable in litigation against her. Let me explain.
First, traceability: If as I have shown the Secretary plays a role in ordering
10
It is true that the Secretary of State does not appoint county election supervisors and
has no power to suspend them or remove them from office, but I think the majority infers too
much from these facts. The Florida Legislature designed a system of government in which the
Secretary of State lacks these particular powers but nonetheless possesses the authority to
oversee and direct how local officials carry out their duties, to ensure compliance with state
election law and maintain uniformity of election procedures throughout the state.
Furthermore, although mandamus may seem like an indirect and inefficient remedy, after
a more fulsome look at the Secretary’s authority, I think it is reasonable to assume that the
mandamus power would need to be exercised only rarely.
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candidates’ names on general election ballots following the ballot-order statute,
any injury the Committees suffered as a result of Florida’s ballot-order law would,
at a minimum, “flow indirectly from” the Secretary’s actions. Focus on the
Family, 344 F.3d at 1273 (recognizing that the traceability inquiry is “concerned
with something less than the concept of proximate cause” (internal quotation marks
omitted)).
The fact that the Committees’ injuries also could be fairly traced to the
county election supervisors does not change the analysis. An injury cannot be “the
result of the independent action of some third party not before the court.” Lujan v.
Defs. of Wildlife, 504 U.S. 555, 560 (1992) (emphasis added) (alterations adopted)
(internal quotation marks omitted). But standing “is not defeated merely because
the alleged injury can be fairly traced to the actions of both parties and non-
parties.” Loggerhead Turtle, 148 F.3d at 1247.
Now, redressability: Any injury arising from the challenged law would have
been redressed by the district court’s injunction, which, among other things,
directed the Secretary of State not to “enforce . . . the ballot order scheme
described in section 101.151(3)(a).” Doc. 202 at 72. Under this injunction, the
Secretary would have to cease providing county election supervisors with form
ballots and promulgating rules and regulations that effectuated the Election Code’s
ballot-order scheme—meaning that when preparing ballot forms the Secretary
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would have to use a different method for ordering the candidates for each office.
She could have selected any method other than putting candidates from the
governor’s political party first in every race. As the Secretary has explained, her
department provides each county election supervisor with a list of candidates in the
order required by the ballot-order statute. Given that the Secretary provides the
lists and oversees and directs how the county election supervisors carry out their
duties, it seems “likely, as opposed to merely speculative” that any injury the
committees suffered as a result of enforcement of the ballot-order statute would be
redressed by the district court’s relief. Loggerhead Turtle, 148 F.3d at 1253
(quoting Lujan, 504 U.S. at 561).
The majority opinion’s primary argument about traceability and
redressability is that the Secretary of State lacks a sufficient connection to
Florida’s ballot-order scheme because she plays no role in setting ballot order and
exercises no control over county election supervisors who set ballot order. As I
explained above, the majority opinion reaches this conclusion only by ignoring, for
the most part, three key provisions of Florida’s Election Code. When the majority
opinion finally gets around to acknowledging these three provisions, it shifts gears
and raises an entirely new argument—that when a state official exercises authority
conferred on her by state law to promulgate rules and regulations under a statute,
the official does not “enforce” the statute. Maj. Op. at 39 (emphasis omitted)
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(internal quotation marks omitted). The majority opinion warns that if we were to
conclude that the Secretary’s rule-making power gives her the authority to enforce
the Election Code, “plaintiffs could presumably also challenge a law by suing the
legislators who enacted it instead of the officials who execute it.” Id.
I disagree that the statutory scheme reveals that the Secretary of State does
not enforce the ballot-order statute. To me, the Secretary of State’s role in
elections, specifically ballot ordering, points more clearly to the conclusion that
she enforces the statute. The Secretary prepares and provides to county election
supervisors uniform ballot forms that incorporate the ballot-order scheme,
promulgates rules under the Election Code including the ballot-order statute, and
oversees how county election supervisors carry out their duties, all in fulfilling her
responsibility (hers alone) to maintain uniformity in the interpretation and
implementation of the Code throughout the state. See Fla. Stat. §§ 97.012(1), (14),
(16); 101.151(9). The majority opinion accepts that the Secretary “instruct[s]”
supervisors about ballot order. Maj. Op. at 40–41. Yet it cites no authority
supporting its conclusion that a state official afforded these sorts of responsibilities
does not enforce the statute. Nor does it cite any authority suggesting that an
executive-branch state official who carries out such responsibilities has a similar
relationship to the enforcement of the statute as a state legislator who voted to
enact it.
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Given all of this, I think the better conclusion is that the Secretary of State’s
enforcement connection with the ballot-order statute is sufficient to establish that
any injury the Committees suffered “flow[ed]” at least “indirectly” from her
actions and that it is “likely” that any such injury would be redressed by injunctive
relief against the Secretary. Focus on the Family, 344 F.3d at 1273. I recognize
that in this case the issues of traceability and redressability both turn on the
Secretary’s role in enforcing the ballot-order statute. But this is hardly surprising
because often “redressability and traceability overlap as two sides of a causation
coin.” Nova Health Sys. v. Gandy, 416 F.3d 1149, 1159 (10th Cir. 2005) (internal
quotation marks omitted); see also Dynalantic Corp. v. Dep’t of Def., 115 F.3d
1012, 1017 (D.C. Cir. 1997) (same).
To support its argument that the Secretary of State lacks a sufficient
connection to the statute’s enforcement, the majority opinion relies on our recent
en banc decision in Lewis v. Governor of Alabama, 944 F.3d 1287 (11th Cir. 2019)
(en banc). Lewis concerned the Birmingham city council’s passage of an
ordinance raising the minimum wage for workers in the city. Id. at 1292. In
response, the Alabama Legislature adopted a statewide minimum-wage law,
effectively nullifying Birmingham’s ordinance. Id. at 1292–93. Employees who
worked in Birmingham, along with several public interest groups, sued the
Attorney General of Alabama, claiming racial discrimination under multiple
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theories. The plaintiffs sought as relief a declaration that the state statute was
unconstitutional and an injunction ordering the Attorney General to notify the
legislature and the public of the statute’s invalidity. Id. at 1294–95. In considering
traceability, we concluded that the Attorney General did not enforce the statute
because it “envision[ed] no role for the Attorney General.” Id. at 1299. And in
reviewing redressability, we reasoned that because the “Attorney General played
no enforcement role whatsoever” with respect to the minimum wage law, a
judgment against the Attorney General would not “directly redress” the plaintiffs’
injury. Id. at 1301–02 (internal quotation marks omitted).
The majority opinion argues that our reasoning in Lewis shows that the
Secretary of State does not enforce the ballot-order statute. But this case is not
Lewis because here the Secretary of State plays a substantial role in the statutory
scheme at issue. Lewis does not help the majority in going further; once we
concluded that the Alabama Attorney General had no role in enforcing the statute,
we did not address the type of enforcement role a state official must have to satisfy
traceability or redressability.
The majority opinion seeks to fill this silence by making new rules about the
role a state official must have with respect to a challenged statute to establish
traceability and redressability. But neither Supreme Court nor this Circuit’s
precedent imposes such a heavy burden on plaintiffs challenging state laws. I note
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further that when confronted with cases in which defendant state officials carried
out similar responsibilities with respect to challenged laws, our sister circuits have
concluded that the officials were enforcing the law sufficiently to confer standing.
See OCA-Greater Houston v. Texas, 867 F.3d 604 (5th Cir. 2017); Calzone v.
Hawley, 866 F.3d 866 (8th Cir. 2017).
In a case strikingly similar to this one, the Fifth Circuit considered whether
the plaintiff established traceability and redressability for standing purposes in a
lawsuit against Texas’s secretary of state. The court resolved both issues by
concluding that the secretary had a sufficient “enforcement connection with” a
challenged state statute regarding the administration of elections. 11 See OCA-
Greater Houston, 867 F.3d at 613-14 (internal quotation marks omitted). When a
citizen with a limited ability to communicate in English sought to have her son
serve as an interpreter for her while she voted, local officials refused, citing a
Texas statute allowing an interpreter to assist a voter only if the interpreter was
registered to vote in the voter’s county of residence. Id. at 607–09. In a lawsuit
against the secretary of state challenging the Texas statute on federal preemption
grounds, id. at 609, the secretary argued that the voter’s injury was neither fairly
11
In an amicus brief filed in this case, Texas emphasized the similarities in how Florida
and Texas have chosen to administer elections. In both states local officials, who operate outside
the department of state and may not be removed from office by the secretary of state, prepare
ballots, while the secretary of state is tasked with obtaining and maintaining uniformity in the
application of the state’s election laws.
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traceable to him nor redressable in a lawsuit against him and instead was the result
of actions by county officials who applied the statute to prohibit her son from
serving as an interpreter. Id. at 612–13. The Fifth Circuit rejected his argument.
To determine whether the plaintiff’s injury was fairly traceable to the
secretary and redressable in litigation against the secretary, the court considered
whether under Texas law the secretary had a role in enforcing the challenged
statute. See id. at 613–14. The court explained that a state official had “no
enforcement connection with the challenged statute” when he had no “duty or
ability to do anything” with respect to the challenged law. Id. (emphasis omitted)
(internal quotation marks omitted). Because by Texas law the secretary of state
was the “chief election officer of the state” and was “instructed by statute to obtain
and maintain uniformity in the application, operation, and interpretation” of
Texas’s election code, the court concluded, he had a sufficient “enforcement
connection with the challenged statute” in the election code to establish traceability
and redressability. Id. at 613–14 (internal quotation marks omitted).
Florida’s Secretary of State enjoys the same powers and responsibilities as
the Texas secretary. At the risk of beating a dead horse, I reiterate that she serves
as Florida’s “chief election officer,” Fla. Stat. § 97.012; is instructed by statute to
“obtain and maintain uniformity in the interpretation and implementation” of
Florida’s Election Code, id. § 97.012(1); and is empowered by statute to
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promulgate rules to implement the statute in questions, id. § 101.151(9). The
majority opinion’s holding that she lacks a sufficient enforcement connection with
the ballot-order statute to satisfy traceability and redressability is directly contrary
to the Fifth Circuit’s holding in OCA-Greater Houston.
The majority opinion’s determination that the Secretary of State does not
enforce the ballot-order statute also is in tension with a decision from the Eighth
Circuit, albeit one outside of the election context. The Eighth Circuit held that for
the purpose of standing a state official played a sufficient role in enforcing a
challenged statute when state law authorized her to promulgate rules and
regulations to implement the statute. See Calzone, 866 F.3d at 870. In Calzone, a
truck driver sued, among others, the superintendent of Missouri’s state highway
patrol after the driver was cited for refusing to permit a state highway patrol officer
to inspect his vehicle under a Missouri law that authorized officers to stop any
commercial vehicle to police its compliance with size and weight restrictions. Id.
at 869. The driver challenged the state statute as unconstitutional. Id.
On appeal, the Eighth Circuit held that the driver had standing to sue the
superintendent. Id. at 870. Although the superintendent was not involved in the
stop or citation, the court held that the driver’s injuries were traceable to her and
redressable in a lawsuit against her because the driver was stopped under the state
statute that authorized patrol officers to stop commercial vehicles, and the
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superintendent had adopted rules and regulations to implement the statute. Id.
(citing Mo. Rev. Stat. § 304.230.1). The court accepted that the superintendent’s
adoption of rules and regulations led the officer to “implement the statute by
conducting vehicle inspections,” which caused the driver’s injury. The driver’s
injuries thus were traceable to her and redressable against her.12 Id. Under
Calzone’s reasoning, the fact that Florida law authorizes the Secretary of State to
promulgate rules and regulations to implement the ballot-order statute is sufficient
to establish that she enforces the law.
The majority opinion raises an additional argument regarding redressability:
that an injunction directed to the Secretary of State would not redress any injuries
because the relief would not alter the conduct of the county election supervisors
who print the ballots. But this argument is flawed and creates yet another circuit
split. According to the majority opinion, there is nothing to suggest that any relief
directed to the Secretary would change how county election supervisors prepare
their ballots. I disagree. If the district court directed the Secretary of State to cease
providing ballot forms that list candidates from the governor’s party first for every
12
The Eighth Circuit drew the conclusion that the superintendent’s promulgation of rules
and regulations led the highway patrol officer to conduct the stop, even though another provision
of the state statute separately authorized the officers to conduct suspicionless stops, meaning that
the officer could have conducted the stop regardless of any rules or regulations the
superintendent adopted. See Calzone, 866 F.3d at 870–71 (citing Mo. Rev. Stat. § 340.230.2).
Despite the highway patrol officers’ independent statutory authorization to perform suspicionless
stops, the court concluded that the driver’s injury bore a sufficient causal connection to the
superintendent’s actions to be traceable to and redressable against her. See id. at 870.
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office, it is likely that county election supervisors would follow the Secretary’s
official guidance under the authority granted her by state law. True, I cannot
definitely say that when faced with a conflict between the Secretary of State’s
directions and the statute, the county election supervisors would not reverse their
customary course, stop relying on form ballots or lists from the Secretary, ignore
the Department of State’s rules and directives, and follow the statute instead.
Maybe in practice some would. But that does not make redress from the court’s
order “speculative” as a legal matter. 13
In reaching the opposite conclusion, the majority opinion splits from the
Fourth Circuit, which—when faced with analogous facts—found a sufficient
likelihood that local officials would follow the state official’s instructions,
regardless of the statute. Bostic v. Schaefer, 760 F.3d 352, 370–71 (4th Cir. 2014).
In Bostic, two same-sex couples brought a constitutional challenge to Virginia’s
state statutes and state constitutional amendment that prohibited same-sex
marriage. Id. at 367–68. The couples sued two defendants: the clerk of a circuit
13
To bolster its opinion, the majority opinion cites to the trial testimony of a single
former county election supervisor that he applied the ballot statute because it is the law. The
former election supervisor gave this testimony while recounting that voters occasionally asked
him why Republican candidates appeared at the top of their ballots. He would respond to the
voter that the order was set by the statute and he was applying the statute. No testimony at trial
addressed what this or any other county election supervisor would do if the ballot order from the
Secretary of State did not follow the statute. Regardless, such testimony is irrelevant to the legal
question of whether state law gives the Secretary enforcement authority over county election
supervisors sufficient to meet the standards for traceability and redressability.
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court, who had denied one of the couples a marriage license, and the state registrar
for vital records, who was responsible for developing a marriage license
application form and distributing it to circuit court clerks throughout Virginia. Id.
at 369, 371.
On appeal, the Fourth Circuit held that the couples had standing to sue the
state registrar for vital records because the registrar’s “promulgation of a marriage
license application form that does not allow same-sex couples to obtain marriage
licenses” resulted in the couples being denied marriage licenses. 14 Id. at 371–72.
The Fourth Circuit determined that the registrar was “enforc[ing]” Virginia’s
marriage laws by developing and circulating license forms that did not allow same-
sex couples to obtain marriage licenses. Id. at 372. The court explained that the
registrar’s actions “resulted in” local officials denying marriage license requests
from same-sex couples, id.—despite the fact that if the registrar had distributed
forms that permitted same sex-couples to apply for marriage licenses, Virginia law
still would have prohibited local officials from issuing marriage licenses to same-
sex couples, see id. at 367–68 (cataloguing Virginia laws prohibiting same-sex
marriage).
14
The Fourth Circuit also concluded that the plaintiffs had standing to sue the clerk who
had denied one of the couples a marriage license. But the court made clear that the inclusion of
the clerk as a defendant did not establish that the couples had standing to sue the registrar,
because the standing requirements had to be satisfied as “to each defendant.” Bostic, 760 F.3d at
370–71.
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Applying the majority opinion’s logic, even if a federal court ordered the
Virginia registrar to cease issuing marriage application forms that barred same sex
marriage, a local clerk who issued marriage licenses could have refused to issue a
same-sex couple a marriage license on the ground that Virginia law continued to
bar same-sex marriages. See id. at 368. But the Fourth Circuit did not see it that
way. To state the obvious, the Secretary of State plays a similar role in issuing
sample ballots and lists of candidates as the Virginia registrar did in issuing
marriage license forms.
I disagree with the majority opinion’s interpretation of Florida law and
resulting conclusions about the role the Secretary of State plays in implementing
Florida’s ballot-order statute. Because in fulfilling her duties the Secretary of State
enforces the ballot-order statute, she has a sufficient connection to the statutory
scheme to satisfy traceability and redressability. The majority opinion’s argument
that a state official who performs these duties does not “enforce” the law lacks any
support in our precedent and conflicts with decisions from several other circuits.
To wrap up, the Committees suffered actual injury that can be traced to the
Secretary of State and are redressable in litigation against her. I thus would
conclude that they have standing to sue.
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II. The Committees’ Challenge to the Ballot-Order Statute Does Not Raise
a Nonjusticiable Political Question.
The majority opinion also announces a fourth reason why the district court
should have dismissed the case for lack of jurisdiction: the case presents a non-
justiciable political question. This holding cannot be squared with the Supreme
Court precedent on which the majority relies.
We often discuss Article III’s case-or-controversy requirement in the context
of deciding whether a plaintiff has standing or whether her claims are ripe or moot.
But another aspect of the requirement is that a federal court lacks the authority to
decide a claim that involves a “political question.” Rucho, 139 S. Ct. at 2494.
In general, a federal court must “decide cases properly before it.” Zivotofsky
ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 194 (2012); see Cohens v. Virginia,
19 U.S. (6 Wheat) 264, 404 (1821) (“We have no more right to decline the exercise
of jurisdiction which is given, than to usurp that which is not given.”); Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 177 (1803) (stating it is “the province and duty of
the judicial department to say what the law is”). The Supreme Court has
recognized a “narrow exception” to this rule, known as the political question
doctrine. Zivotofsky, 566 U.S. at 195.
A controversy involves a “political question” when (1) “there is a textually
demonstratable constitutional commitment of the issue to a coordinate political
department;” or (2) “a lack of judicially discoverable and manageable standards for
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resolving it.” Id. (internal quotation marks omitted). When a controversy presents
a political question, it is said to be “outside the courts’ competence and therefore
beyond the courts’ jurisdiction.” Rucho, 139 S. Ct. at 2494; see also Zivotofsky,
566 U.S. at 195 (stating that “a court lacks the authority” to decide a dispute
involving a political question). The doctrine is “essentially a function of the
separation of powers.” Baker v. Carr, 369 U.S. 186, 217 (1962).
We focus today on the second category of cases that present a political
question: those for which a judicially discoverable or manageable standard to
resolve the controversy is lacking. I would hold that there exists a well-established
judicially discernible and manageable standard to review the Committees’
challenge to the ballot-order statute; the majority merely rejects it without good
reason. I reach this conclusion for two independent reasons.
First, the Supreme Court’s decision in Mann v. Powell, 398 U.S. 955 (1970),
compels the conclusion that there is a judicially discernible and manageable
standard available to review a challenge to a ballot-order law or practice. In
issuing a summary affirmance in Mann, the Court necessarily rejected the
argument that a challenge to a ballot-order scheme raised a nonjusticiable political
question because there was no judicially discernible and manageable standard for
reviewing the claim. Mann controls, and it requires us to reach the same
conclusion in this case.
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Second, even if we were free to ignore Mann—which, I emphasize, we are
not—I still would conclude that a judicially manageable standard is available to
review the Committees’ challenge to the ballot-order statute. We can (and should)
review the Committees’ claim by weighing the character and magnitude of the
asserted constitutional injury against the state’s justification for the burden
imposed by the challenged law. See Burdick v. Takushi, 504 U.S. 428, 434 (1992);
Anderson v. Celebrezze, 460 U.S. 780, 789 (1983). Because there exists a “well
developed and familiar” standard to review a claim like this one, I would conclude
that the judicially-manageable-standard requirement is met here. See Baker,
369 U.S. at 226. Given the availability of a judicially manageable standard, we
have a “responsibility to decide” the case before us. Zivotofsky, 566 U.S. at 194. I
would not dodge our constitutional duty.
A. The Supreme Court’s Summary Affirmance in Mann Compels the
Conclusion That There Is a Judicially Manageable Standard Available
to Resolve a Challenge to a Ballot-Order Scheme.
The Supreme Court’s summary affirmance in Mann establishes that the
political question doctrine does not bar the Committees’ challenge. In Mann,
several Illinois candidates and voters filed a lawsuit in district court to challenge
the secretary of state’s practice for ordering candidates’ names on election ballots.
Mann v. Powell, 314 F. Supp. 677 (N.D. Ill. 1969), aff’d, 398 U.S. 955 (1970).
Illinois law directed the secretary of state to place candidates on the primary ballot
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in the order in which their nominating petitions were received. Id. at 678. When
candidates submitted petitions simultaneously—say, when the registration period
opened—Illinois law was silent about how the secretary should break the tie. Id. at
678. The secretary adopted a practice of breaking ties in favor of incumbents. Id.
at 678–79. The plaintiffs’ lawsuit challenged this practice. Id. at 677–78.
A three-judge district court determined that the secretary’s method of
breaking ties was unconstitutional because it was a “purposeful and unlawful
invasion of plaintiffs’ Fourteenth Amendment right to fair and evenhanded
treatment.” Id. at 679. The district court entered a temporary injunction
prohibiting the secretary from breaking ties by using “any means other than a
drawing of candidates’ names by lot or other nondiscriminatory means by which
each” candidate would “have an equal opportunity to be placed first on the ballot.”
Id. The court followed the temporary injunction with a permanent one. See Mann
v. Powell, 333 F. Supp. 1261, 1267 (N.D. Ill. 1969). The secretary appealed
directly to the United States Supreme Court. See 28 U.S.C. § 1253 (permitting
direct appeal to Supreme Court from a three-judge district court’s order granting an
interlocutory or permanent injunction). The Supreme Court summarily affirmed
the district court, leaving the permanent injunction in place. See Mann, 398 U.S.
955.
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The Supreme Court’s precedential summary affirmance in Mann binds us to
conclude that the Committees’ challenge to Florida’s ballot-order statute does not
raise a political question. The Supreme Court has cautioned that “lower courts are
bound by summary decisions by this Court until such time as the Court informs
them that they are not.” Hicks v. Miranda, 422 U.S. 332, 344–45 (1975)
(alterations adopted) (internal quotation marks omitted); accord Bryan A. Garner
et al., The Law of Judicial Precedent § 21, at 219 (2016) (“[T]he one-line orders
embodied in summary affirmances bind lower courts . . . .”). We therefore must
tread carefully when we decide that a summary affirmance is not binding. It is true
that a summary affirmance does not necessarily mean that the Court adopted the
rationale of the district court’s order. See Mandel v. Bradley, 432 U.S. 173, 176
(1976). But it does bind lower courts, the Supreme Court has said, “from coming
to opposite conclusions on the precise issues presented and necessarily decided by”
the Court in the action that resulted in the summary affirmance. Id.
The majority opinion does not argue with my account of how we are to
review a Supreme Court summary affirmance. See Maj. Op. at 65 (conceding that,
according to the Supreme Court’s directions, we must read into the summary
affirmance that which was “necessarily decided” in the earlier action (internal
quotation marks omitted)). And the majority agrees that we look to the
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jurisdictional statement 15 filed in the case to determine the issues that were
presented and necessarily decided in a case that was summarily affirmed. See
Mandel, 432 U.S. at 176; see also Ill. State Bd. of Elections v. Socialist Workers
Party, 440 U.S. 173, 182 (1979) (explaining that Supreme Court’s summary
affirmance did not necessarily decide an issue that was only “alluded” to and not
“directly address[ed]” in the jurisdictional statement).16
Based on the jurisdictional statement filed in Mann, there can be no doubt
that the Supreme Court necessarily decided the question of whether a challenge to
a ballot-order scheme raises a political question. The political question issue was
squarely presented in the jurisdictional statement. The Illinois secretary of state
framed the threshold question on appeal as whether “the action presents a dispute
within the judicial power” and raised specifically whether the “political question
doctrine” barred federal courts from reviewing the plaintiffs’ challenge to the
15
When a party brings a “direct appeal” from a United States district court, it must first
file a “jurisdictional statement” with the Supreme Court. Rules of the Supreme Court of the
United States, Rule 18(3). After reviewing the jurisdictional statement and any filings from the
appellee, the Court decides whether to dispose of the case summarily or submit it for briefing
and oral argument. Id. Rule 18(12).
16
Above I discuss how a Supreme Court summary affirmance binds lower courts. A
summary affirmance does not bind the Supreme Court itself in the same way. The Court may in
a later case revisit an issue necessarily decided in a summary affirmance. See Lunding v. N.Y.
Tax Appeals Tribunal, 522 U.S. 287, 307 (1998). But the fact that the Supreme Court retains the
right to revisit in a future case an issue necessarily decided by an earlier summary affirmance
does not release us, a lower court, from the binding effect of the summary affirmance. See
United States v. Blaine Cnty., 363 F.3d 897, 904 (9th Cir. 2004) (rejecting argument that
Supreme Court’s summary affirmance was not binding on a federal appellate court).
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ballot-order practice. Jurisdictional Statement, Powell v. Mann, 1970 WL 155703,
at *6, 21 (1970) (internal quotation marks omitted). The secretary argued that
there was no “judicially manageable” standard to review a challenge to how he
ordered ballots because the question turned on “subjective . . . notions of political
fairness.” Id. at *21, 32. And he warned that allowing a federal court to review
how a state organized its ballots would create “an unprecedented over-extension of
federal judicial Power into the internal political affairs of a State.” Id. at *18. The
secretary thus “presented” the “precise issue”—and relied on essentially the same
reasons17—as the majority opinion does in concluding that the ballot-order case
before us presents a non-justiciable political question. Mandel, 432 U.S. at 176.
So not only was the applicability of the political question doctrine presented in
Mann, but the secretary also explicitly presented the sub-issues of whether there
exists a judicially discernible and manageable standard for reviewing a ballot-order
challenge and whether deciding such a challenge would present an unprecedented
extension of federal power into an area traditionally reserved to the states.18
17
Of course, Rucho was decades in the future when the jurisdictional statement was filed,
but the reasons the secretary advanced for applying the political question doctrine were
remarkably similar to the ones the Court relied on in Rucho.
18
The majority tries to distinguish Mann on the ground that the Illinois law gave the
secretary of state “unfettered discretion” to set the order of candidates’ names on ballots,
whereas Florida’s ballot-order law mandates a particular order. Maj. Op. at 66–67. But the
Illinois secretary of state’s argument that the political question doctrine barred judicial review of
the ballot-order challenge did not turn on the fact that the Illinois law afforded him discretion to
determine ballot order. See Jurisdictional Statement, Mann, 1970 WL 155703, at *6 (framing
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And we know that the Supreme Court necessarily decided the issue because
justiciability is a question of jurisdiction that the Court had to address before
reaching the merits. When the Supreme Court summarily affirmed the district
court’s order granting injunctive relief, the Court necessarily rejected the secretary
of state’s argument that federal courts lacked jurisdiction to review a challenge to a
ballot-order practice because it presented a nonjusticiable political question. If the
Court had agreed with the secretary on this issue, the Court would have had to
vacate the injunction. See, e.g., Rucho, 139 S. Ct. at 2508 (reflecting that when the
Supreme Court decides that a case presents a political question, the appropriate
disposition is to vacate the district court’s judgment granting relief and remand
with instructions to the district court to dismiss for lack of jurisdiction).
The Supreme Court’s summary affirmance in Mann necessarily tells us,
then, that the Court rejected the secretary’s argument, squarely presented to the
Court in the jurisdictional statement, that a challenge to a ballot-order scheme
raises a nonjusticiable political question.19 See Mandel, 432 U.S. at 176
question as whether “the political question doctrine permit[s] federal judicial cognizance of
political cases, involving inter- or intra-party election disputes”).
19
I am not saying that a decision about jurisdiction is essential to every Supreme Court
summary affirmance. For example, say a three-judge district court dismissed a plaintiff’s
challenge to an election law on the ground that it presented a political question, the plaintiff
appealed, and in her jurisdictional statement she argued both that the court had jurisdiction and
that she should prevail on the merits. If the Supreme Court issued a summary affirmance, a
lower court could not assume that the court decided the political question issue against the
plaintiff because the Court could have affirmed the dismissal either because the plaintiff’s claim
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(explaining that a summary affirmance rejects “the specific challenges presented in
the statement of jurisdiction”). The unescapable conclusion is that the Supreme
Court rejected the very position that the majority opinion takes here. We therefore
are bound by Mann to hold that a challenge to a ballot-order scheme does not
present a nonjusticiable political question. See Garner et al., The Law of Judicial
Precedent § 6, at 86 (“[I]f tacitly assumed rules or principles are so essentially
involved in the decision that the particular judgment couldn’t logically have been
given without recognizing and applying them, they do become authoritative.”).
B. Even if Mann Does Not Control the Question, a Judicially Manageable
Standard Is Available to Resolve this Ballot-Order Challenge.
Our analysis of the political question doctrine should start and end with
Mann. But even if Mann did not bind us, I would still conclude that there is a
judicially manageable standard available to review the Committees’ challenge to
the ballot-order law. I would apply the test from Baker, that there is a judicially
discernible and manageable standard available if there is a well-developed and
familiar legal framework we can use to decide whether the challenged scheme is
unconstitutional. Baker’s test is met here because we can use the well-established
Anderson-Burdick framework to determine whether the ballot-order statute is
unconstitutional. Under the Anderson-Burdick framework, we would weigh the
presented a political question and thus the court lacked jurisdiction or the court had jurisdiction
but the plaintiff’s claim failed on the merits.
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character and magnitude of the injury to the Committees’ associational rights
against Florida’s proffered justifications for the burdens imposed by the law. See
Anderson, 460 U.S. at 789; Burdick, 504 U.S. at 434. Anderson-Burdick provides
a judicially manageable standard for reviewing the Committees’ challenge.
1. The Supreme Court Has Applied Two Distinct Tests to Determine
Whether a Judicially Manageable Standard Is Available to
Review an Election Law Challenge.
To determine whether a judicially manageable standard is available to
review the Committees’ challenge to the ballot-order statute, the first step is to
identify the test that the Court should use to answer that question. The Supreme
Court in Baker and Rucho used two very different tests to determine whether a
judicially manageable standard was available to review the plaintiffs’ claims. In
Baker the Court applied an expansive standard that treated the question of whether
there was a judicially manageable standard as a low hurdle that was cleared
because there was a generally available standard to review claims, like the
plaintiffs’, arising under the Equal Protection Clause. In Rucho, the Court used a
more searching inquiry in concluding that there was no judicially manageable
standard available to review a constitutional challenge to partisan gerrymandering.
Importantly, the Court did not overrule Baker in Rucho. The two decisions are not
inconsistent; a careful reading of both reveals that the Baker test applies generally
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and the Rucho test applies only when particularly weighty separation-of-powers
concerns demand a tighter standard.
The Court first considered the test for deciding whether there was a
judicially manageable standard in Baker. The plaintiffs challenged Tennessee’s
legislative apportionment plan under which district lines had not been redrawn for
more than 60 years. See 369 U.S. at 191–92. Tennessee’s legislature refused to
adopt a new districting plan even though its outdated districting map created
substantial disparities in the population size of each state representative’s district.
See id. at 254 (Clark, J., concurring). The plaintiffs alleged that the plan denied
them equal protection “by virtue of the debasement of their votes.” Id. at 187
(majority opinion) (internal quotation marks omitted). The district court dismissed
the action, concluding that it presented a political question about the “distribution
of political strength for legislative purposes.” Id. at 197 (internal quotation marks
omitted).
The Supreme Court reversed, holding that the equal protection claim did not
raise a political question because there was a judicially manageable standard
available to resolve the plaintiffs’ challenge to the state’s apportionment plan. Id.
at 209, 217. The Court concluded that a judicially manageable standard was
available because “[j]udicial standards under the Equal Protection Clause” were
“well developed and familiar.” Id.; see also Zivotofsky, 566 U.S. at 201 (holding a
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judicially manageable standard was available when the parties’ arguments about
the plaintiff’s claim “sound[ed] in familiar principles of constitutional
interpretation”).
In reaching its conclusion, the Court in Baker referred only to the framework
generally applied in deciding equal protection claims. Notably, the Court reached
this conclusion without identifying the more specific standards that later would
come to be used to review one-person, one-vote claims. The Court would not
announce the standards used to review those claims for more than two years, in
Wesberry v. Sanders, 376 U.S. 1, 7–8 (1964), and Reynolds v. Sims, 377 U.S. 533,
577 (1964). See Vieth v. Jubelirer, 541 U.S. 267, 310 (2004) (Kennedy, J.,
concurring) (observing that the Court held in Baker that there was a judicially
manageable standard available “before the more specific standard with which we
are now familiar emerged to measure the burden of nonequipopulous districting
causes on representational rights”).
Last year, in Rucho, the Court took a different approach to decide whether
there was a judicially manageable standard available to review a partisan-
gerrymandering claim. In Rucho, plaintiffs challenged North Carolina and
Maryland’s congressional districting maps as unconstitutional partisan
gerrymanders. 139 S. Ct. at 2491. State legislators in North Carolina had redrawn
the state’s congressional districts to maximize Republican representation while
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Maryland state legislators had redrawn their state’s congressional districts to
maximize Democratic representation.20 Id. at 2491–93. The plaintiffs alleged that
the gerrymandered districts violated, among other constitutional provisions, the
First Amendment and the Equal Protection Clause of the Fourteenth Amendment.
Id. at 2491. In each case, after a three-judge district court concluded that the
redistricting plan was an unconstitutional partisan gerrymander, the defendants
appealed directly to the Supreme Court. See id. at 2493. The Supreme Court
vacated the judgments in both cases, holding that the federal courts lacked
jurisdiction to decide claims of excessive partisanship in redistricting because
reviewing the claims would require federal courts to decide political questions. 21
The Court characterized the question before it as “whether there is an
appropriate role for the Federal Judiciary in remedying the problem of partisan
gerrymandering.” Id. at 2494 (internal quotation marks omitted). The Court did
20
State legislators effectuate partisan gerrymanders by drawing “cracked” and “packed”
districts. See Rucho, 139 S. Ct. at 2492. In a cracked district, a party’s supporters are divided
among multiple districts so that they fall short of a majority in each district. Id. In a “packed
district,” a party’s supporters are highly concentrated in a single district so that the party’s
candidate wins in that district by a large margin, “wasting” votes that could have improved the
party’s chances in other districts. Id. (internal quotation marks omitted).
21
Rucho was decided by a narrow majority. Four justices strongly dissented, criticizing
the majority’s decision for barring judicial review of challenges to unconstitutional partisan
gerrymanders, which “violated the constitutional rights of hundreds of thousands of American
citizens.” Rucho, 139 S. Ct. at 2524 (Kagan, J., dissenting). The dissenters would have held that
a partisan gerrymandering claim did not present a political question because federal courts had,
in fact, developed standards to review these claims that allowed for “neutral and manageable
oversight.” Id.
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not use Baker’s straightforward inquiry to determine whether there was a judicially
manageable standard by asking whether there were existing standards for
evaluating the plaintiffs’ claims under the First Amendment and Equal Protection
Clause. Instead, the Court applied a different test to determine whether there was a
judicially manageable standard available to review partisan gerrymandering
claims. Looking to Justice Kennedy’s earlier concurrence in Vieth, the Court
declared that to be judicially manageable, any standard had to rest on a “limited
and precise rationale’” and be “clear, manageable, and politically neutral.” Id. at
2498 (quoting Vieth, 541 U.S. at 306–08 (opinion of Kennedy, J.)).
The Court gave no indication that this test would apply any time a court was
deciding whether there was a judicially manageable standard. Instead, the Court
cautioned that these “careful constraints” applied to partisan gerrymandering
claims due to their significant implications for the separation of powers. Id. The
Court advanced two reasons why the separation of powers was uniquely implicated
in the partisan gerrymandering context.
First, the Court reasoned, “the opportunity to control the drawing of electoral
boundaries through the legislative process of apportionment is a critical and
traditional part of politics in the United States.” Id. (alteration adopted) (internal
quotation marks omitted). The Court offered a lengthy history of the practice of
partisan gerrymandering in America, which showed that the process “was known
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in the Colonies prior to Independence, and the Framers were familiar with it at the
time of the drafting and ratification of the Constitution.” Id. at 2494. Aware of the
problems associated with partisan gerrymandering, in drafting the Constitution, the
Court said, the Framers “assign[ed] the issue to the state legislatures, expressly
checked and balanced by the Federal Congress” and never suggested that the
“federal courts had a role to play” in reviewing legislative decisions regarding
partisan gerrymandering. Id. at 2496.
Again drawing from Justice Kennedy’s concurrence in Vieth that discussed
Baker, the Court advanced a second reason for declining to apply a more
“expansive standard” to determine whether there was a judicially manageable
standard available to review partisan gerrymandering claims. The Court said that
“the correction of all election district lines drawn for partisan reasons would
commit federal and state courts to an unprecedented intervention in the American
political process.” Id. at 2498 (quoting Vieth, 541 U.S. at 306 (opinion of
Kennedy, J)). Allowing courts to review partisan gerrymandering claims would
work an unprecedented intervention, the Court explained, because although the
Court had heard several partisan gerrymandering cases, it had “not previously
struck down a districting plan as an unconstitutional partisan gerrymander.” Id. at
2491. In these cases, the Court had “struggled without success” to identify a
standard by which to review partisan gerrymandering claims. Id. Because there
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was no precedent for courts reviewing the inherently legislative process of partisan
gerrymandering, the Court emphasized that “in such circumstances” it was
“vital . . . that the Court act only in accord with especially clear standards.” Id. at
2498 (emphasis added). And allowing judicial review of the legislature’s process
of drawing district lines would result in judicial intervention that “would recur over
and over again around the country with each new round of districting, for state as
well as federal representatives.” Id. at 2507.
Applying this heightened test, the Court concluded that there was no
standard grounded in a limited and precise rationale that was clear, manageable,
and political neutral. To decide a partisan gerrymandering claim, a court would
have to make judgments “about how much representation political parties deserve”
and then “rearrange the challenged districts to achieve that end.” Id. at 2499
(emphasis in original). The Court said that “federal courts [we]re not equipped” to
make these types of decisions, which required courts “to apportion political power
as a matter of fairness.” Id.22 The Court thus concluded that there was no
judicially manageable standard available.
Taking a step back, we see that in Baker and Rucho the Supreme Court has
applied two distinct tests to determine whether there was a judicially manageable
22
The Court addressed in detail why there was no standard grounded in a limited and
precise rationale that was clear, manageable, and political neutral to determine whether a
redistricting plan was “fair.” I discuss this portion of the Rucho opinion in Part II-B-3 below.
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standard available to review constitutional challenges in the election context. In
Baker, the Court asked whether only there was a “well developed and familiar”
framework to review the claim. 369 U.S. at 226. In contrast, the Court in Rucho
engaged in a much more robust inquiry by asking whether the particular standard
to be applied to review the claim was grounded in a “limited and precise rationale”
and was “clear, manageable, and politically neutral.” 139 S. Ct. at 2498 (internal
quotation marks omitted).
Rucho gives us clues for how to harmonize these two tests. Rucho did not
overrule Baker’s standard; instead, it distinguished Baker because the claims in
that case could be “decided under basic equal protection principles,” whereas
partisan gerrymandering claims could not. See id. at 2496. Instead of following
Baker, the Court applied a more demanding test because committing the political
process of drawing districting lines to the legislative branch has been a “critical
and traditional part of politics in the United States” and having federal courts
review this legislative process “would commit federal and state courts to an
unprecedented intervention in the American political process.” Id. at 2498
(alteration adopted) (internal quotation marks omitted). Consistent with the
Supreme Court’s reasoning, we should apply Rucho’s more demanding test for
deciding whether a judicially manageable standard is available only when
(1) committing the challenged procedure to the legislative branch has been a
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“critical and traditional part of politics in the United States” and (2) permitting
judicial review of the procedure would result in the courts working an
“unprecedented intervention in the American political process.”
2. We Should Apply Baker’s Test to Decide Whether There Is a
Judicially Manageable Standard Available to Review a Challenge
to a Ballot-Order Scheme.
The majority opinion errs in applying Rucho rather than Baker to determine
whether there is a judicially manageable standard available to review a challenge
to a ballot-order scheme. Allowing a federal court to review a state legislature’s
direction about how candidates should be ordered on the ballot does not give rise
to the separation of powers concerns that led the Supreme Court in Rucho to apply
a more rigorous test to determine whether there was a judicially manageable
standard.
The Court’s first justification for applying a more exacting standard in
Rucho was that committing the drawing of electoral boundaries to the legislative
process was a “critical and traditional part” of American politics. Rucho,
139 S. Ct. at 2498 (internal quotation marks omitted). In contrast, nothing in our
country’s history shows that committing the process of setting ballot order to the
legislature is a critical and traditional part of American politics. The majority
opinion recites a detailed history of the use of ballots in America. As this history
shows, when paper ballots first came into use, individuals or organizations outside
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the government, such as political parties, created the ballots. See Joseph P. Harris,
Election Administration in the United States 151 (1934). It was only in the late
nineteenth century, when states began adopting “Australian ballots,” which
grouped the names of candidates beneath the office they were seeking, that state
legislatures took on the role of determining the order in which candidates should
appear on the ballot. Id. at 152–55.
Comparing the majority opinion’s history of determining ballot order to the
history of drawing congressional districts as recounted by the Supreme Court in
Rucho makes the differences readily apparent. Unlike the drawing of political
districting lines, the setting of ballot order by state legislatures was not a practice
that existed in the colonies prior to American independence or was familiar to the
Framers. See Rucho, 139 S. Ct. at 2494–95. In modern American politics, of
course state legislatures play a role in determining ballot order through the passage
of statutes that dictate the procedures for ordering candidates’ names on ballots.
Rucho tells us, though, that it is not enough that today state legislatures play a role;
rather, we must look back to see whether state legislatures have historically taken
on this role. The historical justification for applying Rucho’s stricter test is simply
absent here.
The Court’s second justification for applying a more exacting standard in
Rucho was that allowing judicial review of partisan gerrymandering claims would
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result in an “unprecedented intervention in the American political process” by the
courts. Id. at 2498 (internal quotation marks omitted). But we have precedent for
allowing judicial review of ballot-ordering practices because in Mann the Court
left in place injunctive relief limiting a state official’s power to determine ballot
order. 398 U.S. at 955. And there has been no decades-long unsuccessful struggle
by the Supreme Court or other federal courts to review ballot-ordering schemes.
See Rucho 139 S. Ct. at 2497–98. To the contrary, courts have done just that. See
McLain v. Meier, 637 F.2d 1159, 1167, 1170 (8th Cir. 1980) (striking down North
Dakota’s ballot-order statute as unconstitutional). Given the history of ballot-order
litigation in the federal courts, I see no indication that federal court review of
challenges to ballot-order laws would result in a never-before-seen extension of
judicial authority.
Additionally, allowing courts to review challenges to state ballot-ordering
schemes would not leave courts forever entangled and regularly reviewing how
every state organizes its ballot. Allowing judicial review of state ballot-order laws
means that courts likely would review a state’s ballot-ordering scheme only when
the state legislature chose to adopt a new method,23 and I see no indication that that
happens frequently, in contrast to the necessity of redistricting as populations
23
I note that in the decades since Mann affirmed a federal court injunction limiting a state
official’s practice for organizing candidate’s names on ballots, there has been no deluge of cases
challenging (and then re-challenging) how states order their ballots.
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change. The scope of federal judicial intervention thus would be vastly more
limited than what the Supreme Court confronted in Rucho, where allowing federal
courts to review partisan gerrymandering claims had the potential to create judicial
intervention that “would be unlimited in scope and duration” whenever
redistricting occurred. Rucho, 139 S. Ct. at 2507.
According to the majority, “nothing in Rucho suggests” that its test for
determining whether a judicially manageable standard is available should be
applied narrowly. Maj. Op. at 68. But by not overruling Baker and explaining its
reasons for adopting a more stringent test specifically in the partisan
gerrymandering context, Rucho teaches that its heightened test for determining
whether there is a judicially manageable standard should be used only when
judicial review of the particular claim at issue would create separation of powers
concerns akin to allowing courts to review the inherently and necessarily
legislative process of drawing district lines. We are not free to ignore the portion
of Rucho where the Court explained why it applied a heightened standard.
Because the separation-of-powers concerns that led the Court to apply a
heightened standard to determine whether was a judicially manageable standard in
Rucho are simply not present here, Baker, not Rucho, establishes the proper test for
deciding whether there is a judicially manageable standard available in this case.
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3. Under Baker, There Is a Judicially Manageable Standard
Available to Review a Challenge to a Ballot-Order Statute.
Applying the test from Baker, I would conclude that there is a judicially
manageable standard available to review the Committees’ challenge to the ballot-
order statute as unconstitutionally burdening their First Amendment right of
association. As I explained in Part I-A above, both the Democratic Party and the
Committees enjoy rights to associate under the First Amendment. Yet, the
Supreme Court has explained, these rights are not “absolute.” Burdick, 504 U.S. at
433. Because the Constitution expressly permits states to set “[t]he Times, Places,
and Manner of holding Elections for Senators and Representatives,” U.S. Const.
art. I, § 4, cl. 1, the Supreme Court has recognized that states “retain the power to
regulate their own elections.” Burdick, 504 U.S. at 433.
When faced with a challenge to a state election law as impermissibly
burdening First and Fourteenth Amendment rights, the Supreme Court has used the
Anderson-Burdick framework to assess whether the law is unconstitutional. Under
the Anderson-Burdick framework, a court identifies the “character and magnitude
of the asserted injury to the rights protected by the First and Fourteenth
Amendments that the plaintiff seeks to vindicate” and weighs this burden “against
the precise interests put forward by the State as justifications for the burden
imposed by its rule.” Burdick, 504 U.S. at 434; see Anderson, 460 U.S. at 789.
The “rigorousness” of a court’s review “depends upon the extent to which” the
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challenged law “burdens First and Fourteenth Amendment rights.” Burdick,
504 U.S. at 434. If the rights “are subjected to severe restrictions,” the law “must
be narrowly drawn to advance a state interest of compelling importance.” Id.
(internal quotation marks omitted). But if the state election law imposes “only
reasonable, nondiscriminatory restrictions” upon the plaintiff’s constitutional
rights, “the State’s important regulatory interests are generally sufficient to justify
the restrictions.” Id. (internal quotation marks omitted).
A judicially manageable standard is available here because a court can use
the Anderson-Burdick framework to review the Committees’ right-of-association
claim. We know this because the Supreme Court has in the past used the
Anderson-Burdick framework to review claims that state election laws
unconstitutionally burdened a political party’s freedom of association. For
example, in Timmons, the Court applied the Anderson-Burdick framework to
review a political party’s claim that Minnesota’s anti-fusion law, which prohibited
a candidate from being listed as the nominee for more than one political party,
violated the party’s First Amendment associational rights. See Timmons, 520 U.S.
at 357–64. And in Tashjian, the Court used the Anderson-Burdick framework to
review a political party’s claim that a state law requiring voters to be registered
members of a political party to vote in the party’s primary violated the plaintiff’s
associational rights. See Tashjian, 479 U.S. at 213–17. Although these cases
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considered First Amendment claims brought by political parties themselves, not
their committees, their logic applies with equal force to the Committees in this
case, for the reasons I explained above.
The majority opinion nonetheless contends that the Anderson-Burdick
framework cannot be used to evaluate the Committees’ claims because the
framework can be used to review the constitutionality of “laws that burden voting
rights” only. Maj. Op. at 50 (arguing that the Anderson-Burdick framework is used
to evaluate “laws that burden voting rights”). This is simply not so. The Supreme
Court recognized in Timmons and Tashjian, as well as other decisions, that courts
can use the Anderson-Burdick framework to review constitutional challenges to
election-related laws that burden the First Amendment right of association.
In one sentence, seemingly made in passing, the majority opinion
surprisingly asserts that the ballot-order statute imposed no burden on any
“associational rights.” Id. at 51. I have already explained why I disagree with the
majority’s unreasoned assessment. The majority opinion’s assertion is contrary to
the district court’s findings of fact, that as a result of the ballot-order statute,
candidates from the governor’s political party have received the top position on the
ballot and been awarded a windfall associated with the primacy effect based solely
on their party affiliation. Thus, Democratic candidates in Florida have been placed
at an electoral disadvantage for the past 20 years. The majority’s assertion is also
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contrary to the legal principle—which has never been rejected by the Supreme
Court or any other federal court of appeals—that such a disadvantage burdens the
associational rights of a political party and the national committees through which
it operates by making it difficult for the party and its committees to raise funds,
register voters, attract volunteers, generate support from independent voters, recruit
candidates, and accomplish their policy objectives. See Gill, 138 S. Ct. at 1938
(Kagan, J., concurring); Cal. Democratic Party v. Jones, 530 U.S. 567, 586 (2000).
In concluding that the ballot-order statute burdened no associational rights,
the majority opinion conflicts with decisions from other circuits that have reviewed
similar challenges to ballot-order statutes. Although these courts came out
differently on the ultimate question of the constitutionality of the ballot order
schemes they were considering, their decisions uniformly concluded that ballot-
order statutes impose at least some burden on constitutional rights. And that they
used the Anderson-Burdick framework to review such claims demonstrates that it
is available to review the claims in this case. See Pavek, 2020 WL 4381845, at *1-
3 (concluding that a judicially manageable standard was available to review a
challenge to a ballot-order law and that it imposed some, albeit “minimal,” burden
on the DSCC and DCCC’s constitutional rights); Libertarian Party of Va. v.
Alcorn, 826 F.3d 708, 717 (4th Cir. 2016) (concluding that Virginia’s ballot-order
statute imposed some burden, albeit a “minimal” one, on the First and Fourteenth
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Amendment rights of members of the Libertarian Party).24 As far I can tell, the
majority opinion cites no case holding that such a law imposed no burden
whatsoever on the right to vote or freedom to associate. Unlike the majority, I
would follow the decisions of our sister circuits and conclude that the Anderson-
Burdick framework is available to review the Committees’ challenge. 25
The majority tries to justify its outlier position by claiming that a ballot-
order law is a unique type of law “unlike any law that this Court or the Supreme
Court has ever evaluated under Anderson and Burdick.” Maj. Op. at 50. It is true
that the Supreme Court has not yet applied the Anderson-Burdick framework to
review a challenge to a ballot-order law. But the majority performs a sleight of
hand when it takes the fact that the Supreme Court has not yet decided a case about
24
Several of our sister circuits considered challenges to ballot-order laws before the
Supreme Court’s decisions in Anderson and Burdick. These decisions nevertheless recognized
that ballot-order schemes imposed some burden on constitutional rights. See McClain, 637 F.2d
at 1167 (concluding that North Dakota’s ballot-order law, which ordered candidates on the ballot
based on how many votes their party received in the most recent congressional election,
burdened constitutional rights); Sangmeister v. Woodard, 565 F.2d 460, 466 (7th Cir. 1977)
(holding that practice of Illinois officials to give candidates from their party the top ballot
position “worked a substantial disadvantage” to candidates from the opposing party, in violation
of the Fourteenth Amendment); see also Gould v. Grubb, 536 P.2d 1337, 1343 (Cal. 1975)
(recognizing that state law that awards top ballot order to a particular class of candidates
“inevitably” burdens the rights of voters whose candidates are outside the class).
25
For purposes of this dissent, I do not reach the merits of the Committees’ challenge and
take no position on whether the ballot-order statute is unconstitutional under the Anderson-
Burdick framework. My point here is more modest: regardless of what the outcome of applying
the Anderson-Burdick framework might be, we have a justiciable controversy because we can
use that framework to review the Committees’ challenge to the ballot-order statute.
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whether the Anderson-Burdick framework applies to a challenge to a ballot order
law to mean that the framework cannot apply to such a challenge.
Because the Committees established that they suffered some associational
harm, the Anderson-Burdick framework is available to review their challenge to
the ballot-order statute. Under the Supreme Court’s decision in Baker, the fact that
the Anderson-Burdick framework is available to review this type of constitutional
claim is sufficient to establish the availability of a judicially manageable standard.
See Baker, 369 U.S. at 226 (concluding that a judicially manageable standard was
available to review a challenge to a state redistricting plan on the ground that the
plan denied proportional representation because “[j]udicial standards under the
Equal Protection Clause are well developed and familiar”).
The majority opinion, relying on Rucho, also suggests that there is no
judicially manageable standard because reviewing ballot-order schemes would
require courts to decide questions of fairness and draw a line about how much
partisan ballot-ordering is too much. The problem for the majority is that in Rucho
the Supreme Court discussed these concerns in the context of applying a more
exacting test to determine whether there was a judicially manageable standard.
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The Court gave no indication that a court must look to these factors when Rucho’s
heightened test does not apply. 26
In any event, even if these concerns were relevant to the questions before us,
I do not see how judicial review of a ballot-order scheme would pose the same
difficulty with defining fairness or line-drawing that the Court faced in Rucho. I
reach this conclusion based on a close reading of the portion of Rucho discussing
fairness. There, the Court made clear that the problem with formulating a
judicially manageable standard to evaluate a partisan gerrymandering claim was
that there was no way for a court to review whether election boundaries were
unconstitutional or to impose a remedy without making a political judgments about
what interests should be prioritized in setting district boundaries. See Rucho,
139 S. Ct. at 2499–2500.
Let me explain in more detail. In Rucho, the Court observed that there were
infinite ways district lines could be drawn and many priorities and interests to be
26
Here, again, there is significant tension between the majority’s application of Rucho’s
test and Mann. Relying on Rucho, the majority argues that reviewing a ballot-order scheme
requires a court to determine what “constitutes a fair allocation of the top ballot position” and
that “picking among the competing visions of fairness” raises questions that are inherently
political, not legal. Maj. Op. at 3. These are precisely the types of arguments that the Illinois
secretary of state raised in Mann when he argued that the question of how a state organized its
ballots did not “present[] a dispute within the judicial power” because it turned on “subjective
. . . notions of political fairness.” Jurisdictional Statement, Mann, 1970 WL 155703, at *21.
Even assuming I am wrong that the Court’s summary affirmance in Mann is binding, the fact
that the Court was not persuaded by these arguments when it previously considered an appeal in
a case challenging a ballot-order statute suggests that we should be skeptical of the arguments
here.
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weighed. Id. at 2500. The Court focused on three potential rubrics that courts
could apply to decide whether a redistricting plan was “fair,” explaining that a
court could look to whether the districting map: maximized the number of
competitive districts, awarded each party an appropriate proportion of safe seats, or
adhered to traditional districting criteria. Under the first rubric, the Court
explained, fairness would mean creating a “greater number of competitive
districts.” Id. This approach would seek “to undo packing and cracking so that
supporters of the disadvantaged party have a better shot at electing their preferred
candidates.” Id. But an approach that maximized the number of competitive
districts could be criticized as unfair because “making as many districts as possible
more competitive could be a recipe for disaster for the disadvantaged party,” as
“even a narrow statewide preference for either party” could “produce an
overwhelming majority for the winning party” in the legislature. Id. (internal
quotation marks omitted).
Under the second rubric, fairness would mean drawing district lines to
“ensure each party its appropriate share of safe seats.” Id. (internal quotation
marks omitted). Under this approach, courts would prioritize drawing cracked and
packed districts “to ensure each party its appropriate share of safe seats.” Id.
(internal quotation marks omitted). But an approach awarding each party a certain
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share of safe seats “comes at the expense of competitive districts,” so it, too, could
be attacked as unfair. Id.
The Court addressed a third potential rubric for measuring fairness—
considering “adherence to traditional districting criteria, such as maintaining
political subdivisions, keeping communities of interest together, and protecting
incumbents.” Id. (internal quotation marks omitted). But even focusing on
adherence to traditional criteria would not be politically neutral. After all,
protecting incumbents would “enshrine a particular partisan distribution.” Id. And
keeping communities of interest together or maintaining political subdivisions
could mean respecting the fact that “urban electoral districts are often dominated
by one political party.” Id. Such an approach could “lead to inherently packed
districts.” Id. Another traditional districting criterion would be seeking to
preserve “compactness or contiguity” in political districts. Id. But a decision
under this standard “would unavoidably have significant political effect, whether
intended or not.” Id. (internal quotation marks omitted).
After exploring the problems inherent in deciding what would be fair in this
context, the Court explained that to review a partisan gerrymandering claim, a
court would need to decide among “different visions of fairness.” Id. But this
decision was necessarily “political, not legal.” Id. There was no “limited and
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precise standard[]” available that was “clear, manageable, and politically neutral”
to guide a Court in selecting among them. Id.
The Court went on to say that even if a court was able to select among these
competing versions of fairness, it then would have to answer an even more difficult
question: “[h]ow much is too much?” Id. at 2501. To answer this question, the
Court would have to identify the point at which “permissible partisanship
become[s] unconstitutional.” Id. In drawing this line, the Court explained, it
would again be making a political, not legal, decision.
The Court referred back to the three different conceptions of fairness to
show that a hypothetical court applying any of the rubrics would have to engage in
line-drawing untethered to any legal standard to determine whether a particular
districting plan was an unconstitutional partisan gerrymander. If a court used the
first rubric and sought to maximize the number of competitive districts, it would
need to determine how close the split between parties needed to be for a district to
be competitive. And if it were impossible to draw boundaries to make every
district competitive, how would a court decide which districts to make
competitive? Id.
If a court applying the second rubric and focused on guaranteeing each party
a certain proportion of safe seats, it would face similar line-drawing problems. If
an allocation of five seats to one party and three seats to the other corresponded
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most closely to statewide voting totals, the Court asked, would a six to two
allocation be permissible? And to ensure this distribution of seats, how would a
court determine “[w]hich seats should be packed and which cracked?” Id.
Likewise, the Court identified difficulties with applying the third rubric,
which prioritized “traditional” redistricting concerns. Say a redistricting plan
“protected half of the incumbents but redistricted the rest into head to head races,
would that be constitutional?” Id. Because voters concentrated in urban areas
tended to be aligned with the Democratic Party, the Court asked whether a court
considering traditional redistricting concerns would have to “reverse gerrymander
other parts of the State” to “counteract natural gerrymandering” that resulted from
the urban concentration of Democratic voters? Id. (internal quotation marks
omitted). If a court tried to adhere to traditional criteria, it would have to “rank the
relative importance of [the] traditional criteria and weigh how much deviation from
each to allow.” Id. The Court concluded that there was no test available that
provided a “solid grounding for judges to take the extraordinary step of
reallocating power and influence between political parties.” Id. at 2502.
A court does not face the same difficulties in reviewing a challenge to a
ballot-order law or granting relief in such a case. It is easy to organize a ballot by
ordering the candidates on a basis other than political affiliation. When the
candidates’ names appear on the ballot in alphabetical order or based on drawing
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lots, the windfall associated with the primary effect is allocated to no candidate
based on political affiliation. See Mann, 314 F. Supp. at 679. Any system that
orders candidates on a basis other than party affiliation remedies the constitutional
concern. Period—end of story.
After identifying four potential ways 27 of ordering candidates’ names on
ballots, the majority opinion says that deciding among these methods would
require a court to make political judgments. But the majority discusses only
potential ballot-organization methods that establish ballot order with reference to
candidates’ political affiliation. By failing to consider methods such as listing
names in alphabetical order or by random draw, the majority blinds itself to the
possibility that a state can organize its ballots without any reference to political
affiliation whatsoever, thus removing party politics from the ballot-ordering
equation entirely. 28
27
The four methods for ordering ballots that the majority discusses are: (1) alternating
the name of the candidate appearing first for each office so that the Democratic candidate’s name
appears first on half the ballots and the Republican candidate’s name appears first on the other
half; (2) alternating the name of the candidate appearing first for each office so that each
candidate running for office, regardless of political party, appears first on an equal number of
ballots; (3) alternating the name of the candidate appearing first for each office so that each
candidate appears first on a share of ballots equivalent to the proportion of voters in the state
who belong to her political party; or (4) listing first the candidate for each office whose political
party received the fewest number of votes in the last election.
28
The only time that the majority mentions a “neutral” method for assigning ballot
position—setting ballot order randomly or alphabetically by last name—is to point out that the
Arizona Supreme Court held these methods of ordering unconstitutional under Arizona’s state
constitution. See Maj. Op. at 64 (citing Kautenburger v. Jackson, 333 P.2d 293, 294–95 (Ariz.
1958). But the Arizona Supreme Court’s recognition that a unique provision of Arizona’s
constitution required the state to organize its ballots so that all candidates appeared first on an
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Because it is possible to organize ballots without basing the organization on
a candidate’s political party, the question of how to order a ballot is nothing like
deciding which values to elevate other others in making districts more “fair,”
whether to draw a boundary around this neighborhood or that one, or making the
thousands of tiny judgment calls that drawing political districts requires. And
unlike drawing districts, ordering ballots is not a zero-sum game: with a system
that is not based on party affiliation, one party’s associational rights do not have to
lose out to another party’s.
The majority opinion also insists that there can be no judicially manageable
standard unless we can know now—before evaluating the merits of the plaintiffs’
claims—the precise point at which allocating the primacy effect based on party
affiliation crosses a constitutional line. See Maj. Op. at 55 (“[H]ow large must the
primacy effect be to create a constitutional problem? Two percent of voters? Five
percent? Some greater share?”). The only case that arguably supports requiring a
plaintiff to answer these questions as a part of establishing that there is a judicially
manageable standard is Rucho. If I am correct that Rucho’s exacting standard does
not apply here, then we need not make those decisions at this stage.
equal number of ballots in no way suggests that in reviewing a federal constitutional claim we
can ignore the fact that Florida could order candidates based on alphabetical order or random
draw.
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Baker instead makes clear that the answer to this question is not necessary to
find a judicially manageable standard. In Baker, the Court concluded that there
was a judicially manageable standard without articulating the precise degree of
population variation in districts that would give rise to a constitutional violation.
Instead, the Court left the question of identifying that threshold for future cases,
when the Court reached the merits of claims challenging particular apportionment
plans. See, e.g., Karcher v. Daggett, 462 U.S. 725, 727 (1983) (concluding that
reappointment plan for congressional districts was unconstitutional where
population of largest district was less than one percent greater than population of
smallest district because the population deviations were not the result of a good-
faith effort to achieve population equality); Gaffney v. Cummings, 412 U.S. 735,
751 (1973) (concluding that there was no prima facie case of invidious
discrimination where districting map for state legislature created districts that
varied in population by a maximum of less than eight percent for state house and
less than two percent for state senate).29
29
The majority opinion advances one final argument that is so weak it hardly merits any
discussion. The majority opinion points out that in the absence of a Supreme Court case
explaining how to review challenges to ballot-order laws, lower courts have applied “different
and sometimes contradictory standards.” Maj. Op. at 64. The majority opinion treats the tension
among these decisions as evidence that there is no judicially discernible or manageable standard
for reviewing a challenge to a ballot-order scheme. These two things are apples and oranges.
Under the majority’s reasoning, any time lower courts were divided about how to review
an election law claim a court would have to throw up its hands and conclude that there was no
judicially manageable standard and so the claim presented a nonjusticiable political question.
Unsurprisingly, the majority opinion cites no authority holding that a judicially manageable
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To sum up, we have a constitutional “responsibility to decide cases properly
before” us. Zivofotsky, 566 U.S. at 194; see Cohens, 19 U.S. (6 Wheat) at 404. It
is true that the political question doctrine creates an exception to this general rule.
But the Committees’ challenge does not pose a political question. As an initial
matter, the Supreme Court’s decision in Mann established that there is no political
question before us because in that case the Illinois secretary of state raised—and
the Court necessarily rejected—the argument that a challenge to a ballot-order
statute raises a nonjusticiable political question. By refusing to follow Mann, the
majority opinion also refuses to adhere to Supreme Court precedent telling us how
to treat its summary decisions.
Even if Mann did not answer the question before us, I still would not join the
majority opinion. I am far from persuaded that the more exacting standard the
Supreme Court applied in Rucho to determine whether there was a judicially
manageable standard should be applied in the case before us, given two things.
First, the role of state legislatures role in setting the order of candidates’ names on
ballots is not a critical and traditional part of politics in the United States because
there is no history dating back to the nation’s founding, as there is with partisan
gerrymandering. Second, not only has the Supreme Court previously struck down
standard is unavailable because lower courts have not uniformly agreed on how to resolve the
claim.
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a ballot-order scheme as unconstitutional, but it also has no cases suggesting a
challenge to a ballot-order scheme is nonjusticiable. Because allowing courts to
review challenges to ballot-order laws does not implicate the separation of powers
in the same way that partisan gerrymandering claims do, Rucho’s test does not
apply here. By applying Rucho’s test to determine whether there is a judicially
manageable standard in this case, the majority stretches the political question
doctrine dangerously beyond the boundaries set by the Supreme Court and ignores
the factors the Court used to distinguish partisan gerrymandering claims from other
types of election-related challenges.
Looking to the test from Baker, I would conclude that a judicially
manageable standard is available here because we can use the well-established
Anderson-Burdick framework to review the Committees’ challenge to the ballot-
order statute. Because the Committees’ challenge does not raise a political
question, I would hold that we have jurisdiction and, indeed, an obligation to
address the merits of the Committees’ claims.
III.
The committee plaintiffs have standing, and their claims are justiciable.
Because we have jurisdiction to review their claims, we should address the merits
of this case. In its four alternative holdings, the majority opinion (unnecessarily, I
might add) announces new law about when a political party and its committees
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suffer (and do not suffer) injuries, when an injury related to the enforcement of an
election statute is traceable to a secretary of state who serves as the top elections
official in the state, when an injury related to the enforcement of an election statute
is redressable against a secretary of state, and finally when a challenge to an
election law raises a political question that the courts cannot even review. Because
the majority opinion’s analysis as to each issue is flawed, the opinion introduces
error upon error upon error into our precedent and makes us an outlier among the
federal circuits.
The issues that the Court decides today are not merely academic questions.
Today’s decision will make it harder for future plaintiffs subjected to
unconstitutional election-related laws to have their claims heard in federal court. If
a national political party or its committee sues to challenge an election-related
statute claiming an associational injury, today’s decision likely will compel the
court to dismiss the case because the party and its committee experienced no injury
in fact—even when the challenged practice harmed the prospects of the party’s
candidates; weakened the strength of the party; and made it more difficult for the
committee to fundraise, register voters, attract volunteers, generate support from
independents, recruit candidates for office, and accomplish its policy objectives.
But the majority opinion does not stop there. The majority errs not only in
limiting who can sue to challenge an election law but also limiting when a
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secretary of state can be named as a defendant in a suit challenging an election law.
Even when a future litigant can establish that she experienced an injury in fact, the
majority opinion may make it impossible for her to prove that her injuries were
traceable to a secretary of state or redressable in litigation against the secretary.
Under the majority’s decision today, if a local elections official also plays a role in
implementing the statutory scheme, the secretary of state may be able to argue that
she lacks a sufficient connection to the challenged policy and avoid suit, even
when she plays a significant role in enforcing the law.
Yet the majority opinion does not stop there. Even if a plaintiff sues only
local elections officials and not the secretary of state, a federal court may refuse to
address the merits of her claim on the basis that she has raised a nonjusticiable
political question. The majority’s unwarranted extension of the political question
doctrine causes it to abdicate without justification our constitutional duty to decide
cases and controversies that are properly before us.
It is true that in Rucho the Supreme Court held that partisan-gerrymandering
claims raised a nonjusticiable political question. But the Court reached this
conclusion by applying a more exacting test to determine whether there was a
judicially manageable standard specifically to review partisan gerrymandering
claims. The Court’s decision to apply the heightened standard was based on its
concern over the particular separation of power issues that would arise from
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federal court review of the legislative process of drawing district lines for partisan
reasons. By applying Rucho’s searching standard when these same separation of
powers concerns are absent, the majority opinion broadens the reach of the
political question doctrine, rendering 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. 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.
I dissent.
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