By Howard Fischer
Capitol Media Services
PHOENIX -- The Democratic National Committee and its allies are asking a federal appeals court to void a ballot-order system they say gives a built-in -- and they contend recurring -- advantage for Republicans.
Legal papers filed with the 9th 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 attorney Sarah Gonski. In the last election, that has meant that 82% of all voters got ballots that listed GOP contenders first in each and every partisan race.
What makes that important, she said, is research that shows, everything else being equal, people will choose the first name listed.
"Unless enjoined, the statute will result in the same arbitrary advantage to Republican candidates in 2022,'' Gonski said.
She actually had made the same legal arguments in federal district court here.
Gonski made the same arguments last year to U.S. District Court Judge Diane Humetewa.
The judge, however, never reached the merits of the argument. She said the DNC and the Democratic Senatorial Campaign Committee lack standing to bring the case.
Anyway, Humetewa said, there was no proof that the current system frustrates their ability to get Democrats elected to statewide offices. And Exhibit No. 1, she said, was the 2018 election of 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 the governor 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 Doug Ducey outpolled Democrat David Garcia. That includes Maricopa 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.
It's worse than that, she said. By tying ballot order to party performance in the last gubernatorial election, that 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.
It all comes down to statistics.
Gonski cited data from Jonathan Rodden, a political science professor, who estimates that first-listed candidates get an average advantage of 2.2 percentage points. And the margin, he said, can reach 5.6 percentage points.
All that, she said, explains why Arizona law requires rotation of names on primary election ballots. Now she wants that extended to general elections.
But first, Gonski has to get the appellate court to order the case returned to Humetewa with specific instructions to actually hear that evidence rather than toss the case on other grounds.
It starts with that question of who has standing to sue.
"Political parties suffer a cognizable injury when laws harm or threaten their electoral prospects,'' she wrote.
Gonski also pointed out that even Humetewa acknowledged that candidates themselves would be able to make the legal arguments. She said there is no reason to say that same right doesn't exist for the political parties under whose banner those candidates run.
"Political parties exist to win elections,'' Gonski said. "Laws that threaten their and their candidates' electoral prospects impose a direct injury-in-fact on the political parties themselves that is sufficient for (legal) standing.''
Gonski 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,'' the attorney said. And Gonski said courts across the country regularly rule on these kinds of cases when a statute selectively gives preferential treatment to one party.
No date has been set for the appellate judges to review the case.
