The Democratic National Committee and its allies are asking an appeals court to void an Arizona ballot-order system they say gives a built-in, recurring advantage to Republicans.
Legal papers filed with the 9th U.S. Circuit Court of Appeals contend it is both unfair and illegal to require candidates be listed on the ballot based on how well the gubernatorial hopeful from their party performed in the last election.
“For the past 40 years, the result has been the systemic favoritism of Republicans on the vast majority of general election ballots,” wrote Democrats’ attorney Sarah Gonski.
In the last election, that meant 82% of all voters got ballots that listed GOP contenders first in every partisan race.
Research shows, everything else being equal, people will choose the first name listed, she said.
“Unless enjoined, the statute will result in the same arbitrary advantage to Republican candidates in 2022,” Gonski said.
She made the same legal arguments in federal district court in Phoenix last year to Judge Diane Humetewa.
The judge, however, said the DNC and the Democratic Senatorial Campaign Committee lacked standing to bring the case.
Humetewa also said there was no proof the current system frustrates their ability to get Democrats elected to statewide offices. Exhibit No. 1, she said, was the 2018 election of Democrat Kyrsten Sinema to the U.S. Senate.
Finally, the judge said even if they did have a right to sue, it is not within the legal authority of courts in cases like this to come up with a “fairer” alternative.
Gonski told the appellate judges that ruling was off the mark.
Under the current system, candidates in primary elections have names rotated among various precincts, so no one person gets a built-in advantage.
But when the general election comes around, candidates are listed on ballots in each county in order based on how well each party’s gubernatorial candidate did in that county in the last general election.
What that means in 2022 is that Republicans will be listed ahead of Democrats in all races in 11 of the state’s 15 counties where Republican Gov. Doug Ducey outpolled Democrat David Garcia in 2018.
Those include Maricopa County, which has more voters than the other 14 combined.
“As a result, Arizona puts its thumb on the scale in favor of one political party in all partisan races in each county,” Gonski said.
Tying ballot order to party performance in the last gubernatorial election sets the order for the following four years.
“That advantage, moreover, makes it more likely that the first-listed party will maintain political dominance in the county and, given the lopsided distribution of voters across counties, statewide,” Gonski said.
She cited data from Jonathan Rodden, a political-science professor, who estimates that first-listed candidates get an average advantage of 2.2 percentage points. The advantage can reach 5.6 percentage points, he said.
Gonski wants Arizona law requiring rotation of names on primary election ballots to be extended to general elections.
But first, she has to get the appellate court to order the case returned to Humetewa with specific instructions to hear that evidence rather than toss the case on other grounds.
On the question of who has standing to sue, “Political parties suffer a cognizable injury when laws harm or threaten their electoral prospects,” Gonski wrote.
She also pointed out that Humetewa said candidates themselves would be able to make the legal arguments. Gonski said there is no reason to say the same right doesn’t exist for the political parties under whose banner those candidates run.
She also brushed aside Humetewa’s conclusion that courts cannot determine what is a “fair” ballot order system.
“The question is not whether the system is ‘fair,’ but whether it violates constitutional protections,” she said. No date has been set for the appellate judges to review the case.
