PHOENIX — Democrats will get another chance to try to overturn an Arizona law they contend gives Republicans an edge in future elections.
The 9th Circuit Court of Appeals has scheduled a January hearing on a challenge by the Democratic National Committee and the Democratic Senatorial Campaign Committee to the law.
The law says the party whose gubernatorial hopeful did the best in the last election gets to list all of its candidates for all of the races first.
That meant, in the 2020 election, 82% of all Arizona voters got ballots that listed GOP contenders first in every partisan race. The same will be true in 2022 unless the federal appellate court voids the law.
The 9th Circuit Court has agreed to hear the question of whether the Democratic committees have the right to sue, which a federal judge in Phoenix said they do not. The hearing is set for Jan. 14 at the federal appellate courthouse in Pasadena, California.
But Democrats could have an uphill fight.
Last year U.S. District Court Judge Diane Humetewa tossed out the original lawsuit.
She said the individual plaintiffs named in the complaint have no legal standing to sue because they are not injured in any way. The judge said they still have the right to vote for any candidate.
Potentially more significant, Humetewa said the claims by the two Democratic committees were flawed because they failed to show that the current system frustrates their bid to get Democrats elected to statewide office. Exhibit No. 1, Humetewa said, was the 2018 election of Democrat Kyrsten Sinema to the U.S. Senate.
And, since that initial ruling, Democrats gained the state’s second Senate seat for Mark Kelly. And Joe Biden outpolled Donald Trump in the presidential race.
But attorneys for the Democrats contend the system still is rigged and should be scrapped.
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 based on how well each party’s gubernatorial hopefuls did in that county in the last general election.
In 2022, then, the 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. That includes Maricopa County, which has more voters than the other 14 counties combined.
The Democrats contend a certain number of voters are more likely to mark their ballots for the first name they see.
Attorneys for the party cited data from Jonathan Rodden, a political science professor at Stanford University.
He estimated that first-listed candidates get an average advantage of 2.2 percentage points. The advantage can reach 5.6 percentage points, he said.
Of note is that Kelly’s margin of victory in 2020 over Republican Martha McSally was 2.3%. There was a difference of just 0.3% between Biden and Trump in Arizona.
But even if the math is as the Democrats claim, that does not give them a right to sue.
Humetewa, in her 2020 ruling, said anyone seeking federal court intervention must demonstrate “a personal stake in the outcome.’’ That means showing that they would be injured “in a personal and individual way,’’ she said.
That is not the case here.
“The harm that plaintiffs allege is not harm to themselves, but rather an alleged harm to the Democratic candidates whom they intend, at this juncture, to support,’’ Humetewa wrote. She said a candidate’s failure to get elected does not injure those who voted for that person.
“Plaintiffs will not be injured simply because other voters may act ‘irrationally’ in the ballot box by exercising their right to choose the first-listed candidate,’’ Humetewa said.
Humetewa, in throwing out the case, told the Democrats that 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.
Even if the 9th Circuit sides with the Democrats, that does not void the law. All that would do is send the case back to Humetewa to hear all the evidence the challengers have, rather than simply toss the case out on other grounds as she did in 2020.
