Arizona law dictates candidate order on ballots

PHOENIX — That early ballot you just got in the mail? Odds are it lists Republicans first.

And it’s all because of a 43-year-old Arizona law.

It’s being challenged by Democrats. They contend it’s not fair based on research that they say shows a subtle tendency of people to pick whatever is first on any list.

But the lawsuit, filed two years ago, is far from being resolved.

It even involves Attorney General Mark Brnovich, a Republican, now asking the U.S. Supreme Court to let him defend the statute and the claimed GOP advantage. His lawyer is telling the justices that Secretary of State Katie Hobbs, who initially had defended the ballot-order statute, acted in a way to keep the attorney general from picking up the case after she decided not to pursue an appeal.

There also are claims by Brnovich that politics played a role in all that, noting that Hobbs became a Democratic candidate for governor in the midst of the legal maneuvers.

And all that means that the law putting Republican candidates in place on ballots received by most Arizona voters remains in place this year — along with the possible edge that gives to GOP contenders.

Under the current system, candidates in primary elections have the position of their names on the ballot 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 election.

That means that this year the Republicans for all offices are listed ahead of Democrats in all races in 11 of Arizona’s 15 counties where Republican Gov. Doug Ducey outpolled Democrat David Garcia four years ago.

That includes Maricopa County which has more voters than the other 15 counties combined. Only in Apache, Coconino, Pima and Santa Cruz counties, where Garcia got more votes than Ducey, have Democrats listed first.

Democrats sued, arguing that, all else being equal, there is a tendency of voters to choose the first candidate on a list. As proof, attorneys for the party cited data from Jonathan Rodden, a political science professor at Stanford University.

He estimated that first-listed candidates get an advantage average of 2.2 percentage points. And Rodden said that can reach 5.6 percentage points.

Those kind of numbers can make all the difference in close races.

In the 2020 Senate race, the margin of victory for Democrat Mark Kelly over Republican Martha McSally was 2.3%. And there was a difference of just 0.3% in the presidential race between Joe Biden and Donald Trump.

The lawsuit drew objections from Secretary of State Katie Hobbs who, as the state’s chief election officer, was named as a defendant.

Her attorney, Mary O’Grady, argued that even if people tend to choose the first person on the ballot, that doesn’t make the system illegal. And she said that nothing in the law precludes those who have sued — Democrats and Democrat organizations — from voting for the candidates of their choice.

U.S. District Court Judge Diane Humetewa agreed. And she brushed aside arguments that some people were having their votes for their candidates diluted because others were simply picking the first name they saw.

“Plaintiffs will not be injured because other voters may act ‘irrationally’ in the ballot box by exercising their right to choose the first-listed candidate,” Humetewa wrote.

Her decision to dismiss the case, however, was overturned by the 9th Circuit Court of Appeals. Judge Jed Rakoff, writing for the three-judge panel said there is a legitimate reason for federal courts to look at such regulations.

Rakoff also said the idea of rotating the names of candidates is hardly a radical idea. He said as far back as 1958 the Arizona Supreme Court, considering the question of how to list the names of candidates when machines are used, found that it was a “well-known fact” that “where there are a number of candidates for the same office, the names appearing at the head of the list have a distinct advantage.”

Hobbs chose not to appeal. And that should have sent the case back to Humetewa for a trial.

Only thing is, Brnovich, who had not been a party to the case to that point, sought to intervene on behalf of the state to pursue further appeals. That bid, however, was rejected.

Now the attorney general is asking the nation’s high court to let him defend the ballot-order statute.

In his petition to the justices, Brnovich, represented by outside counsel, said they need to recognize what changed between the time the lawsuit was filed and the 9th Circuit decision that the secretary of state agreed to accept.

“Hobbs was running for governor as a Democrat,’’ wrote attorney Mark Dangerfield. And that, he said, put the objectives of Hobbs “in conflict’’ with those of Brnovich.

“The attorney general wanted to seek further review of the 9th Circuit’s opinion,” Dangerfield told the justices. “But Secretary Hobbs — in the midst of a very public dispute with the attorney general — had decided not to further pursue the case.”

That “public dispute” includes a complaint filed by Hobbs with the State Bar of Arizona against Brnovich contending he violated ethical rules by acting on one hand as the agency’s legal counsel while also taking action contrary to its interest. That included the attorney general’s office receiving confidential attorney-client information and providing advice — and then withdrawing from representing Hobbs and taking a legal position “materially adverse to the secretary of state.”

The attorney general escaped sanctions by entering into a “diversion agreement’’ that required him to adopt new rules to spell out when he can sue state agencies that are his clients.

In a separate action, Hobbs accused Brnovich of “an attempted coup d’etat” in demanding that she adopt changes he wanted to the Election Procedures Manual. But Yavapai County Superior Court Judge John Napper ruled that Brnovich was wrong, saying that Hobbs “properly exercised her discretion” in coming up with rules for this year’s election.

Got your ballot? Here's your guide to Arizona's 2022 election

The Star put together a set of tools to make it easier to learn more about the candidates as you fill out your ballot.

In the guide below, you can find videos of interviews with candidates for Congress, the state Legislature, and local school boards. You can read written responses, unedited and as submitted to the Star, to a questionnaire we sent to candidates. If you want to see the company each candidate keeps, we compiled a lengthy list of endorsements.

We also included links to relevant news articles, as well as guest opinions that candidates wrote for the Star's opinion pages.

We will update the guide regularly. If you have any questions, please email staropinions@tucson.com.