AZ Ballot Order Challenged in Court - Is there a bias toward the name listed first?
By Howard Fischer - Capitol Media Services
PHOENIX -- The Bible may say that the last shall be first and the first shall be last.
But an expert on election law told a federal judge Thursday that studies have shown that is not the case, at least when it comes to picking candidates.In fact, John Krosnick testified that, everything else being equal, there is a bias of voters to choose the first name on the ballot.
It's not much, he said. Perhaps anywhere from 2 to 6 percent. And some of it depends on how familiar voters are with particular candidates.
But it's enough for national Democratic groups to argue to U.S. District Court Judge Diane Humetewa that she she void an Arizona law that results in Republicans being listed first on general election ballots in 11 of the state's 15 counties, including the most populous.
Attorneys for Secretary of State Katie Hobbs, who is defending the law, had their own witness who questioned the reliability of such studies, not just be Krosnick but by others. They hopes to convince Humetewa there is no built-in bias and the current system is both manageable and legal.
The legal fight comes just ahead of what could be some extremely close races.
Most notably, Republican Martha McSally is seeking to hold on to the U.S. Senate seat to which she was appointed by Gov. Doug Ducey despite losing her own 2018 Senate bid. That seat used to belong to Republican John McCain until he died in 2018.
She is expected to get stiff opposition from Democrat Mark Kelly.
The problem, according to challengers, is a law that says ballot order is determined by how well the party's candidate for governor did in that county in the last election. And since Republican Ducey prevailed over Democrat David Garcia in 11 counties, the law would put McSally ahead of Kelly on the ballot in those counties.
That, however, isn't the only election that could be affected.
All nine seats in the U.S. House also are up for grabs, as are the 30 slots in the state Senate and 60 in the state House as well as three of the five seats on the Arizona Corporation Commission, all currently held by Republicans.
Krosnick, a Stanford University professor, testified that the concept of "order effects'' is not unique to ballots. The reason, he said, is that people take in information in a certain order.
Consider a menu.
"We typically start reading at the top of the menu and move down,'' he told the judge, getting information sequentially rather than all at once.
"When we encounter objects, usually there is a tendency to lean to the first thing we see,'' Krosnick testified, called it the "primary effect.''
He said there is evidence that if people are presented with four random glasses of beer, there is a bias toward saying they like the first one the best. Similarly, Krosnick said, someone driving into a parking lot to look for a space is more likely to turn down the first aisle available.
And he said that shows up in polls: If people are asked to rank the importance of issues, like education, crime, environment and so on, there is a tendency of people to rank the first one they hear as the most important. Krosnick said that's why pollsters asking such questions routinely rotate the order of options.
John Geise, one of the attorneys for challengers, asked if the same patterns apply to candidates.
"It would be surprising if they didn't show up in elections,'' Krosnick responded.
"It's not a huge number,'' he continued. "But it is reliably a couple of percentage points.''
There are things, Krosnick said, that can affect the numbers.
He said that the bias is stronger in situations where voters lack information about candidates. And he said that "ambivalence'' to candidates also has an effect.
Part of the defense involved calling Sean Trende, the senior elections analyst for Real Clear Politics. He questioned the reliability of studies showing any correlation between ballot order and voter choices.
But the defense also has another theory for why Humetewa should throw out the challenge brought by the Democratic National Committee, the Democratic Senatorial Campaign Committee and Priorities USA, a political action committee that backs Democrats.
In her own legal filings, attorney Mary O'Grady said even if people do tend to choose the first person on the ballot, that doesn't make the system illegal.
"Arizona's ballot order statute establishes logical, efficient, and manageable rules that determine the order in which candidates' names appear on the general election ballot,'' she wrote. And she argued that nothing in the law precludes the challengers from voting for the candidates of their choice.
Lauren Passalacqua, a spokeswoman for the DSCC, said there are other options.
One would be to have a precinct-by-precinct rotations, meaning that in some voting precincts the Democrats for each race would be listed first and in others it would be the GOP contenders on top.
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