JACOBSON v. LEE

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

NANCY CAROLA JACOBSON,

et al.,

Plaintiffs,

v. CASE NO.: 4:18cv262-MW/CAS

LAUREL M. LEE, et al.,

Defendant/Intervenors.

_______________________________/

FINAL ORDER FOLLOWING BENCH TRIAL

In political circles, it is widely believed that the candidate who is listed first

on the ballot has an advantage in the election—an advantage which can be decisive.1

This advantage supposedly comes from a phenomenon called the primacy effect,

which is the human tendency to choose the first item in a list of options. The portion

of the vote a candidate supposedly gains this way is called the “primacy effect” vote,

the “windfall vote,” or the “donkey vote.”2 See Sarvis v. Judd, 80 F. Supp. 3d 692,

699 (E.D. Va. 2015).

1 It bears noting that Intervenors—a group of Republican organizations—originally sought

to intervene in this case on the basis that Republican candidates and organizations “stand to be

most directly harmed by a change” in Florida’s ballot order scheme, although they now argue it

awards no significant advantage to any candidate or party. ECF No. 23 at 16.

2 Here, “donkey” probably substitutes for a more colorful term. See Richard Leighton,

Don’t be a smartass and confuse donkeys, mules, The Ellsworth American (July 12, 2019)

In Florida, the order in which candidates appear on the ballot is determined

by the previous election for governor. The party in control of the Governor’s

Mansion has its candidates listed first in every race, all along the ballot. The party

that came in second has its candidates listed in the second position in each race. So,

if the Governor of Florida is a Democrat, then Democrats will be listed first in every

race on every ballot for the next four years, just because they are also Democrats.

The implication is obvious. Assuming the so-called “donkey vote” exists,

Florida’s ballot order statute ensures one party’s candidates receive that advantage

in every race, all down the ballot, in every election. In practical terms, when the

governor is a Democrat, this means every Democratic candidate has a small but

significant advantage in every election over the Republican candidate, and that they

have this advantage solely because they are Democrats. When a Republican is

governor, Republicans have the advantage, solely because they are Republicans.

The first issue in this case is whether Plaintiffs have proven the primacy effect

exists and affects Florida’s elections. This Court finds they have done so. The

second issue is whether the Constitution allows a state to put its thumb on the scale

and award an electoral advantage to the party in power. The answer is simple. It

does not.

https://www.ellsworthamerican.com/living/arts-a-living/dont-be-a-smartass-and-confuse-

donkeys-mules/ (explaining the history of the term “jackass,” meaning a male donkey).

The Florida Statute at Issue

Florida’s ballots are arranged in an office block pattern, meaning that all the

candidates for a given office are listed together in a section of the ballot labelled with

the title of the office they are running for. § 101.151(2)(a), Fla. Stat. (2019). Within

each office block, the candidates’ names are arranged according to the following

scheme:

The names of the candidates of the party that received the highest

number of votes for Governor in the last election in which a Governor

was elected shall be placed first for each office on the general election

ballot, together with an appropriate abbreviation of the party name; the

names of the candidates of the party that received the second highest

vote for Governor shall be placed second for each office, together with

an appropriate abbreviation of the party name.

Id. § 101.151(3)(a).3 For all partisan races in the general election, therefore, the

candidates affiliated with the political party of the last-elected governor will be listed

first within each office block.

3 Florida law further provides that names of “[m]inor political party candidates” appear on

the ballot after the names of candidates of “recognized political parties” in the order they were

qualified to appear on the ballot. § 101.151(3)(b), Fla. Stat. (2019). Candidates with no party

affiliation appear last, in the order in which they were qualified. Id. Minor political parties are

those parties which have fewer than five percent of the total registered electorate as members.

§ 97.021(19), Fla. Stat. (2019). The statute does not explain what would result if a candidate from

a “minor political party” were elected governor or won the second-largest number of votes, or if

more than two parties were able to cross the five-percent threshold. The Florida Statutes do not

define “recognized political party.” Additionally, this ordering procedure applies only to general

elections. In primary elections, candidates are listed alphabetically within office blocks.

§ 101.151(4)(a), Fla. Stat. (2019).

Preliminary Miscellanea

In what has become a familiar exercise for this Court in cases concerning

voting rights and procedure, Defendants4 throw a hodgepodge of preliminary issues

at the wall, hoping one will stick and prevent this Court from considering this case

on the merits. See, e.g., Rivera Madera v. Detzner, 325 F. Supp. 3d 1269, 1275–78

(N.D. Fla. 2018); League of Women Voters of Fla., Inc. v. Detzner, 314 F. Supp. 3d

1205, 1212–14 (N.D. Fla. 2018); Fla. Democratic Party v. Detzner (Fla. Democratic

Party I), Case No. 4:16cv607-MW/CAS, 2016 WL 6090943, at *4–*5 (N.D. Fla.

Oct. 16, 2016); Fla. Democratic Party v. Scott (Fla. Democratic Party II), 215 F.

Supp. 3d 1250, 1254–55 (N.D. Fla. 2016). In the present case, Defendants claim

Plaintiffs lack standing; that Plaintiffs’ claims are barred by the applicable statute of

limitations, estoppel, and laches; and that this case is not justiciable.

In a prior order, this Court summarily rejected Defendants’ arguments on

these preliminary matters as “unpersuasive.” ECF No. 158 at 1. Defendants

renewed these arguments at trial citing supplemental authority, and this Court

remains unpersuaded. Although it entails a lengthy diversion to tilt at Defendants’

windmills, this Court will address each preliminary matter in turn.

4 For rhetorical convenience, this Court will refer to Defendant Lee and Intervenors

collectively as “Defendants.”

Justiciability

This Court need not struggle with the question of justiciability. The Supreme

Court has summarily affirmed a district court’s decision which held that, where

applicable law required candidates to be listed on the ballot in the order in which

they filed their qualification paperwork, a discretionary policy of resolving ties in

favor of incumbents was “a purposeful and unlawful invasion of [the] plaintiffs’

Fourteenth Amendment right to fair and evenhanded treatment.” Mann v. Powell,

314 F. Supp. 677, 679 (N.D. Ill. 1969), aff’d without opinion, 398 U.S. 988 (1970).

The Supreme Court’s summary affirmances are binding precedent unless and until

the Court specifically disclaims them. See Hicks v. Miranda, 422 U.S. 332, 344

(1975) (holding “that the lower courts are bound by summary decisions by this Court

until such time as this Court informs them that they are not” (internal marks and

quotation omitted)); see also Hardwick v. Bowers, 760 F.2d 1202, 1207 (11th Cir.

1985), rev’d on other grounds, Bowers v. Hardwick, 478 U.S. 186 (1986) (“A

summary affirmance of the Supreme Court has binding precedential effect.”).

The strength of this principle is such that summary affirmances by the

Supreme Court remain binding even in the face of decades of seemingly contrary

decisions. In Hand v. Scott, 285 F. Supp. 3d 1289 (N.D. Fla. 2018), this Court

addressed the precedential effect of the Supreme Court’s summary affirmance of

Beacham v. Braterman, 300 F. Supp. 182 (S.D. Fla. 1969), aff’d without opinion,

369 U.S. 12 (1969). This Court concluded it was not bound by Beacham because

“[u]nlike a fine wine, this summary affirmance has not aged well” in light of

subsequent Supreme Court decisions which seemed to recede from, or at least

contradict, that decision. 285 F. Supp. 3d at 1307. On appeal from this Court, the

United States Court of Appeals for the Eleventh Circuit admonished that “we are

bound to follow Supreme Court precedent in Beacham” and the Supreme Court’s

other “summary determinations.” Hand v. Scott, 888 F.3d 1206, 1208 (11th Cir.

2018). The summary affirmance of Mann would alone compel the conclusion that

Plaintiffs’ claims are justiciable.

Furthermore, in Cook v. Gralike, 531 U.S. 510 (2001), the Supreme Court

held a provision of the Missouri Constitution which required the words

“DISREGARDED VOTERS’ INSTRUCTIONS ON TERM LIMITS” to appear

alongside the names of certain candidates on Missouri’s ballots was

unconstitutional. Defendants agree Cook is binding authority—in fact, Intervenors

cited it during trial of this case in response to this Court’s question of whether a law

could be challenged which placed a “thumbs-up” symbol next to certain candidates

on the ballot, T. at 42–43, 70.5 Cook clearly holds that questions of what appears

5 Citations to the trial transcript will be formatted “T. at ___” followed by the transcript

page number.

on the ballot and how are justiciable. Defendants’ arguments make up in temerity

for what they lack in merit.

Notwithstanding those binding precedents, Defendants argue that the ordering

of candidates’ names on the ballot is a nonjusticiable political question, relying on

the Supreme Court’s recent decision in Rucho v. Common Cause, 139 S. Ct. 2484

(2019). In that case, the Court decided “that partisan gerrymandering claims present

political questions beyond the reach of the federal courts” because resolving such

claims would require federal courts “to reallocate political power between the two

major political parties, with no plausible grant of authority in the Constitution, and

no legal standards to limit and direct their decisions.” Id. at 2506–07. Such claims

are problematic, the Court explained, because they

inevitably ask the courts to make their own political judgment about

how much representation particular political parties deserve—based on

the votes of their supporters—and to rearrange the challenged districts

to achieve that end.

Id. at 2499. But the Court specifically distinguished other types of voting-rights

claims, such as “one-person, one-vote rule” claims which are “relatively easy to

administer as a matter of math,” id. at 2501; and even other types of gerrymandering

claims, such as racial gerrymandering, id. at 2502. Unlike claims of partisan

gerrymandering, the Court concluded, claims of vote dilution or racial

gerrymandering “could be decided under basic equal protection principles,” id. at

2496, without the need for a federal court to decide whether the legislature’s decision

is fair. Defendants contend that, if partisan gerrymandering claims are political

questions, ballot order claims must be too.

Hogwash. The legislative power is not a Midas touch that gilds a matter on

contact and insulates it from judicial review, and a decision does not become a

political question merely because it is made by a political branch of government.

See Fla. Democratic Party II, 215 F. Supp. 3d at 1258–59 (“It has been suggested

that the issue of extending the voter registration deadline is about politics.

Poppycock. This case is about the right of aspiring eligible voters to register and

have their votes counted.”). If this were so, federal courts would be unable to review

legislative enactments of any kind and would instead be bound to slavishly defer to

legislative enactments without respect to the dictates of the Constitution. This

plainly is not the case.6 See also Williams v. Rhodes, 393 U.S. 23, 28 (1968)

(explaining the argument that ballot access claims were nonjusticiable political

questions had been “squarely rejected” and “requires little discussion”). And by its

plain terms, Rucho is an extremely narrow decision. The Court in Rucho explained

in no uncertain terms that its reasoning was limited to claims of partisan

gerrymandering, and did not even extend it to other types of gerrymandering claims,

6 The federal courts’ ability to review the constitutionality of legislative acts was not always

taken for granted but is now a well-established pillar of constitutional doctrine. See Marbury v.

Madison, 1 Cranch 137, 177–80 (1803) (elucidating the constitutional basis for judicial review of

legislative enactments and the supremacy of the Constitution); U.S. Const., art. VI, cl. 2

(establishing the Constitution as “the supreme Law of the Land”).

let alone other species of election law claims such as the one this case presents.

Rucho, 139 S. Ct. at 2501–02.7

This case asks this Court to apply nothing more than “basic equal protection

principles,” id. at 2496, and is therefore justiciable under any fair reading of Rucho.

Plaintiffs do not ask this Court to determine whether section 101.151(3)(a) treats all

candidates fairly in light of their partisan affiliation; rather, they ask this Court to

determine whether it treats all candidates equally without regard to their partisan

affiliation. This question does not implicate issues of political “fairness,” and to

contend otherwise “is worse than solemn mockery.” See Marbury, 1 Cranch at 180.

As explained in more detail below, the issues presented in this case are not

novel. In a jurisprudential sense, they are not even particularly challenging. They

are “grounded in ‘a limited and precise rationale’ and [are] ‘clear, manageable, and

politically neutral,’ ” because they are “basic equal protection principles,” nothing

more. Rucho, 139 S. Ct. at 2496–98 (quoting Vieth v. Jubelirer, 541 U.S. 267, 306–

08 (2004) (Kennedy, J., concurring in the judgment)). The fact that this Court must

determine which level of scrutiny to apply in the context of an equal protection claim

also is not a new idea; in point of fact, Disney World, the states of Alaska and

7 Additionally, the Supreme Court “does not normally overturn, or so dramatically limit,

earlier authority sub silentio.” Shalala v. Ill. Council on Long Term Care, Inc., 529 U.S. 1, 18

(2000). Defendants’ arguments on justiciability ask this Court to conclude the Supreme Court in

Rucho did just that, and in dramatic fashion, receding from decades of decisions without even the

smallest explicit signal of that intention. This Court declines Defendants’ invitation to ignore this

foundational principle of stare decisis.

Hawaii, and the undersigned himself are newer additions to the world than this

concept.8 See, e.g., United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4

(1938) (noting the possibility of “a correspondingly more searching judicial inquiry”

and “more exacting judicial scrutiny under the general prohibitions of the Fourteenth

Amendment” when legislation impacts fundamental rights or protected classes). As

detailed below, the analytical framework this Court applies today has been applied

numerous times by this Court and other federal courts, without difficulty or

confusion. Cf. Rucho, 139 S. Ct. at 2491 (holding a claim was not justiciable

because, in part, courts had “struggled without success over the past several decades

to discern judicially manageable standards for deciding such claims”). Although

this Court must make hard judgments about the effects and justifications of the

challenged statute, there is no strange misprision in the law which might cloud this

Court’s perceptions and confuse its judgment. This Court simply does not face the

same sort of conundrum the Supreme Court did in Rucho.

In sum, therefore, Defendants claim this issue is not justiciable, but then rely

upon cases which are binding precedent on this Court and show not just that these

issues are indeed justiciable but also that the content and ordering of candidates on

8 The application of different levels of scrutiny to equal protection claims is very nearly

older than sliced bread. See Jim McCarty, Chillicothe’s Slice of History, City of Chillicothe, MO

(Sept. 2006) http://www.chillicothecity.org/bread/breadnews1.html (explaining sliced bread was

invented in 1928).

the ballot can violate voters’ constitutional rights. Defendants’ reliance on these

cases cannot be reconciled with their position that this Court cannot decide the

present case. In the alternative, Defendants ask this Court to transmogrify a recent

Supreme Court decision into a far more expansive ruling than it was, in contradiction

of clear, explicit limits announced in that decision itself and of its fundamental

rationale. Even if this Court had the power to overlook those restrictions, this Court

would nevertheless conclude this case was justiciable. No matter the trappings

Defendants try to drape it in, this donkey is a donkey, not a racehorse.

Standing

A party has standing to sue if they have suffered an injury in fact which is

fairly traceable to the defendant’s conduct and which is likely to be redressed by a

decision in their favor. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992).

Defendants claim Plaintiffs have failed to prove the first and third elements of this

rule—that is, they claim Plaintiffs have not suffered an injury in fact and have not

proven their claims are redressable. Neither of these arguments passes muster.

Defendants’ arguments concerning injury in fact fall into two basic categories.

Regarding the organizational Plaintiffs in this action, Defendants contend those

Plaintiffs have not shown they suffered any concrete and particularized injury

because they did not show Florida’s ballot order statute impacted any specific

resource allocation decision; and Defendants furthermore contend that harm to

Democratic voters generally (as Defendants characterize Plaintiffs’ claims) is not

sufficient to impart standing to the organizational Plaintiffs. Regarding the

individual Plaintiffs in this case, Defendants argue no individual Plaintiff proved

Florida’s ballot order statute impacted their individual voting rights—that is,

Florida’s ballot order statute did not prevent them from voting and having their vote

counted.

The organizational Plaintiffs have standing to sue based on injuries to

themselves or to their members, if either has been affected in a tangible way. See U.

Food & Commercial Workers Union Local 751 v. Brown Grp., Inc., 517 U.S. 544

(1996). An organization has standing to sue to

enforce the rights of its members “when its members would otherwise

have standing to sue in their own right, the interests at stake are

germane to the organization’s purpose, and neither the claim asserted

nor the relief requested requires the participation of individual members

in the lawsuit.”

Arcia v. Fla. Sec’y of State, 772 F.3d 1335, 1342 (11th Cir. 2014) (quoting Friends

of the Earth, Inc. v. Laidlaw Envt’l Servs. (TOC), Inc., 528 U.S. 167, 181 (2000)).

“[T]he rule in this Circuit is that organizational plaintiffs need only establish that ‘at

least one member faces a realistic danger’ of suffering an injury.” Id. (quoting Fla.

State Conference of the NAACP v. Browning, 522 F.3d 1153, 1163 (11th Cir. 2008)).

As this Court has previously explained, “political parties have standing to assert, at

least, the rights of [their] members who will vote in an upcoming election.” Fla.

Democratic Party II, 215 F. Supp. 3d. at 1254 (citing Fla. Democratic Party v. Hood,

342 F. Supp. 2d 1073, 1078–79 (N.D. Fla. 2004) (Hinkle, J.)). In that case, which

concerned extension of Florida’s voter registration period, this Court concluded the

plaintiff had standing to sue on its members’ behalf, reasoning the plaintiff “need

not identify specific aspiring eligible voters who intend to register as Democrats and

who will be barred from voting; it is sufficient that some inevitably will.” Id.

Plaintiffs in the present case go one step further. Not only do the

organizational Plaintiffs provide evidence of how Florida’s ballot order statute

impacts their own interests and the interests of their numerous members, they are

also joined in this suit by individual Plaintiffs whose individual interests are affected

by Florida’s ballot order statute independent of their membership in an organization.

The organizational Plaintiffs represent their members, many of whom are voters, and

their common mission in one form or another is to support Democratic candidates

for elected office. Contrary to Defendants’ theory, an injury is not converted into a

“generalized grievance” solely because a large number of people are aggrieved by

it. Furthermore, “[e]ach provision of a[n election] code, ‘whether it governs the

registration and qualifications of voters, the selection and eligibility of candidates,

or the voting process itself, inevitably affects—at least to some degree—the

individual’s right to vote and his right to associate with others for political ends.’ ”

Burdick v. Takushi, 504 U.S. 428, 433 (1992) (quoting Anderson v. Celebrezze, 460

U.S. 780, 788 (1983)); see also id. at 434 (“There is no doubt that the Hawaii election

laws, like all election regulations, have an impact on the right to vote.” (emphasis

added)). In contrast to Defendants’ hyper-formalistic approach to voting rights, “the

rights of voters and the rights of candidates do not lend themselves to neat

separation; laws that affect candidates always have at least some theoretical,

correlative effect on voters.” Bullock v. Carter, 405 U.S. 134, 143 (1972) (emphasis

added). It is thus no answer to Plaintiffs’ claims for Defendants to argue that

individual Plaintiffs have been able to vote and have their vote counted, or that

organizational Plaintiffs do not vote but instead attempt to support and elect

Democratic candidates.9 This Court declines to adopt Defendants’ cramped (and

jurisprudentially anomalous) interpretation of the scope of the right to vote.10

It is worth noting again that, in seeking to intervene in this case, Intervenors

claimed Republican candidates and the organizations which support them—as

organizational Plaintiffs support Democratic candidates—“stand to be most directly

9 Furthermore, drain on resources has long been recognized as sufficient grounds for

organizational standing. Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). The

testimony presented during trial was more than sufficient to establish that organizational Plaintiffs

have standing under this theory as well.

10 Intervenors note that Plaintiffs Bottcher and Fleming did not testify at trial and were not

produced for de bene esse depositions. Therefore, Intervenors claim, Plaintiffs Bottcher and

Fleming lack standing. This Court disagrees. The cases cited in this paragraph—precedent this

Court is bound to follow—do not limit the “impact on the right to vote” common to all election

laws, Burdick, 504 U.S. at 433, to a discrete group or subclass of voters. Plaintiffs Bottcher and

Fleming introduced sufficient evidence to establish their individual standing, although they

themselves did not testify.

harmed by a change” in Florida’s ballot order scheme. ECF No. 23 at 16. In other

words, Intervenors’ whole interest in this lawsuit rests upon the idea that a change

in Florida’s ballot order scheme would worsen their position by depriving them of

an existing advantage. But they now claim that Florida’s ballot order scheme does

not injure Plaintiffs, or in other words that Democratic candidates suffer no

cognizable disadvantage, and that Plaintiffs therefore lack standing. Because the

electorate is finite, elections are a zero-sum game, and this Court is at a loss to see

how awarding an advantage to one group of candidates would not also disadvantage

a competing group. See Green Party of Tenn. v. Hargett, 791 F.3d 684, 695 (6th

Cir. 2015) (holding that requiring minor political parties to pass same electoral

threshold as major parties in less time violates the Equal Protection Clause); Nat.

Law Party of U.S. v. Fed. Election Comm’n, 111 F. Supp. 2d 33, 44 (D.D.C. 2000)

(explaining that, in the context of Equal Protection Clause claims, injury arises from

denial of the opportunity to compete on an equal footing). Intervenors cannot

contend both that their interests are implicated but Plaintiffs have not been injured

without doing violence to basic logic. Plaintiffs have satisfied the first element of

Article III standing.

Defendants also claim Plaintiffs have not satisfied the redressability prong of

standing; first, because Plaintiffs’ requested solution will not remove the influence

vel non of the primacy effect on elections, and second, because this Court lacks the

power to order a specific remedy. These two distinct arguments share a common

flaw in that they misconstrue Plaintiffs’ claims. Plaintiffs’ alleged injury in this case

is not based on the mere existence of the primacy effect vote and its impact on

elections. Rather, their claims concern the fact that Florida’s ballot order statute

allocates the primacy effect vote to groups of candidates on the sole basis of partisan

affiliation. If the remedy (or remedies) Plaintiffs seek would cure this alleged injury

on either basis—that is, by eliminating the primacy effect vote altogether, or by

removing the alleged partisan basis for its allocation—then Plaintiffs have shown

redressability. In addition, “[t]o have Article III standing, a plaintiff “need not

demonstrate anything ‘more than . . . a substantial likelihood’ of redressability.”

Wilding v. DNC Servs. Corp., No. 17-14194, 2019 WL 5539021, at *5 (11th Cir.

Oct. 28, 2019) (quoting Duke Power Co. v. Carolina Envt’l Study Grp., Inc., 438

U.S. 59, 79 (1978)) (alteration in original); see also id. (noting “even partial relief

suffices for redressability” and citing Made in the USA Found. v. United States, 242

F.3d 1300, 1310–11 (11th Cir. 2001)). Defendants’ contention that Plaintiffs have

failed to identify a complete solution to the claimed injury is therefore inapposite.

Furthermore, this Court need not have the ability to order a specific remedy

for Plaintiffs to satisfy the redressability element of standing, so long as this Court

has the power to order a remedy which will to some extent cure Plaintiffs’ injury.

If, as Plaintiffs allege, there are multiple means of arranging the candidates on

Florida’s ballots which would satisfy the Constitution and prevent Plaintiffs’ alleged

injuries from continuing forward, all that is required for Plaintiffs to have standing

is for this Court to be empowered—as it is empowered—to say what the Constitution

does and does not permit, even if this Court cannot order the Florida Legislature to

adopt a specific ballot order scheme from among the available options. Indeed, as

explained below, this is precisely what this Court will do. As a practical matter,

there must be some sort of ballot order scheme, and as this Court will explain, the

choice of which ballot order scheme Florida shall use is in this case a question for

the Florida Legislature to resolve. But this Court has the power to determine whether

Florida’s existing ballot order scheme comports with the Constitution and to explain

what the Constitution does and does not allow, i.e., “to say what the law is,”

Marbury, 1 Cranch at 177, and thus to decide whether there are certain ballot order

schemes Florida cannot use. “This is of the very essence of judicial duty.” Id. at

178.

Finally, Intervenors claim this Court cannot redress Plaintiffs’ injuries

because any new ballot order scheme would have to be implemented by third parties

not before this Court; i.e., by county supervisors of elections and not Defendant Lee.

If this argument sounds familiar to readers well versed in this Court’s voting rights

jurisprudence, there is a good reason for that. We have been here before.

As this Court notes with tiresome regularity, Defendant [Lee] is

Florida’s “chief election officer.” This statutory job description is not

window dressing. The Secretary of State must “obtain and maintain

uniformity in the interpretation and implementation of the election

laws” and promulgate rules for the “proper and equitable interpretation

and implementation of election laws. Additionally, the Department of

State “shall have general supervision and administration of the election

laws, corporation laws and such other laws as are placed under it by the

Legislature.” . . . Defendant [Lee] has the responsibility to enforce the

Department of State’s rules on each county supervisor of elections.

[She] also has the responsibility to “provide written directions and

opinions to the supervisors of elections on the performance of their

official duties with respect to . . . rules adopted by the Department of

State.”

Rivera Madera, 325 F. Supp. 3d at 1276 (internal marks and citations omitted) (final

alteration in original). The Eleventh Circuit has agreed, denying a stay of this

Court’s ruling in a different case on the basis that, “[b]ecause the Secretary is the

state’s chief election officer with the authority to relieve the burden on Plaintiff’s

right to vote, she was appropriately sued for prospective injunctive relief.”

Democratic Exec. Comm. of Fla. v. Lee, 915 F.3d 1312, 1318 (11th Cir. 2019). This

Court, the parties, and—pursuant to the prior panel rule—even the Eleventh Circuit

itself are bound by this holding unless and until the Eleventh Circuit recedes from it

en banc. This issue is settled. It is perplexing that Intervenors would continue to

raise it. Defendant Lee is the proper defendant against whom to award the relief

Plaintiffs seek.

Plaintiffs have shown they have suffered an injury in fact and this Court has

the power to vindicate Plaintiffs’ claims. Plaintiffs therefore have standing.

Statute of Limitations

Next, Defendant Lee claims Florida’s statute of limitations bars Plaintiffs’

claims.11 Florida law provides a four-year limitation period for “action[s] founded

on statutory liability,” § 95.11(3)(f), Fla. Stat. (2019), and for “[a]ny action not

specifically provided for in these statutes,” id. § 95.11(3)(p). Florida’s statute of

limitations applies to the claims at issue in this action. See Boyd v. Warden, Holman

Corr. Facility, 856 F.3d 853, 872 (11th Cir. 2017) (“All constitutional claims

brought under § 1983 are tort actions and, thus, are subject to the statute of

limitations governing personal injury actions in the state where the § 1983 action has

been brought.”). In Florida, “[a] cause of action accrues when the last element

constituting the cause of action occurs.” § 95.031(1), Fla. Stat. (2019); see also

Hearndon v. Graham, 767 So. 2d 1179, 1184–85 (Fla. 2000). Generally, the last

element which will occur is the injury giving rise to the claim. State Farm Mut.

Auto. Ins. Co. v. Lee, 678 So. 2d 818, 821 (Fla. 1996).

The Florida Legislature adopted Florida’s ballot order scheme in 1951.

Defendant Lee claims all subsequent harms flow from this enactment and therefore

the statute of limitations began to run at that point, meaning Plaintiffs’ timely filing

11 Plaintiffs argue Defendant Lee waived this argument. Plaintiffs are mistaken. It is true

Defendant Lee raised the statute of limitations defense for the first time in her motion for summary

judgment, ECF No. 115 at 32, but Eleventh Circuit precedent allows this so long as the opposing

party has sufficient notice of the defense and a chance to rebut it. Navarro v. Santos Furniture

Custom Design, Inc., 372 F. App’x 24, 27 (11th Cir. 2010). Defendant Lee therefore did not waive

this defense.

window expired in 1955.12 Of course, the issue is more complicated than that, and

ultimately ties itself in knots. Each individual Plaintiff became aware of the alleged

existence and effects of the primacy effect vote at various times, though under

Florida law it is not clear whether this would be relevant. Compare Davis v.

Monahan, 832 So. 2d 708, 710–12 (Fla. 2002) (declining to apply the delayed

discovery doctrine absent a statutory basis or allegations that the defendant’s

conduct delayed the plaintiff’s discovery of the factual basis for the lawsuit) with

Chappell v. Rich, 340 F.3d 1279, 1283 (11th Cir. 2003) (delayed discovery doctrine

applies to section 1983 claims). And if any Plaintiff was not born (or founded) until

after that point, what of their claim’s accrual date? Assuming no other issues of

access to courts apply,13 under Defendant Lee’s theory, Plaintiffs’ individual claims

accrued either in 1951 or at whatever point thereafter their constitutional rights were

first allegedly violated, and became time-barred four years thereafter.

12 In the most technical sense, the statute of limitations applicable to Plaintiffs’ claims

under Defendant Lee’s theory of the case is not the 2018 version (current when Plaintiffs filed this

action) nor the 2019 version (current now), but rather the 1951 version. See Merkle v. Robinson,

737 So. 2d 540, 542 n.6 (Fla. 1999) (statutes of limitation “bar actions by setting a time limit within

which an action must be filed as measured from the accrual of the cause of action”); Dade Cty. v.

Rohr Inds., Inc., 826 F.2d 983, 989 (11th Cir. 1987) (ruling “that the timing of the cause of action

determines the applicable statute of limitations”). The 1951 version also provided a four-year

limitations period. See § 95.11(4), Fla. Stat. (1951). For uniformity and convenience, this Court

will cite the 2019 Florida Statutes throughout this Order, except where some relevant difference

exists between the applicable version and current version beyond the numbering of the sections

and subsections.

13 See, e.g., Cates v. Graham, 451 So. 2d 475, 476–77 (1984) (discussing the interplay

between statutes of limitation, statutes of repose, and the Florida Constitution’s right of access to

courts).

If section 101.151(3)(a), Florida Statutes, had been applied only to an election

seventy years ago, Defendant Lee’s argument might have merit. As things stand,

however, irrespective of how many times Plaintiffs allege their rights have been

violated in the past, their rights are violated anew each time an election is held and

the candidates’ names are arranged in their respective office blocks in the order

prescribed by section 101.151(3)(a). Moreover, Plaintiffs seek declaratory and

injunctive relief, not damages or other retrospective relief. By way of analogy,

assume there was a Florida Statute which required all registered Republicans to pay

$10 at their designated polling site before voting in each election. Assume this

flagrantly illegal statute was adopted in 1910, but never challenged—instead, for

more than one hundred years, all registered Republicans quietly paid the infamous

poll tax. Further assume that, in 2018, a few Republican voters—backed by

Republican political organizations—decided enough was enough, and it was time to

strike that statute from the books so as to avoid paying the $10 during the 2020

election. Each historical $10 payment would be a separate, recurring injury.

In the present case, Plaintiffs contend their rights were violated each time an

election was held and the challenged statute was enforced. The most recent election

before Plaintiffs filed their claims was in 2016, and Plaintiffs filed their claims in

2018. If Florida’s ballot order statute stands, it will be enforced during the 2020

election cycle and, Plaintiffs allege, their injuries will recur. Plaintiffs’ claims relate

to alleged violations of their rights which have occurred in the recent past and will

continue to recur in the future. See Hillcrest Prop., LLC v. Pasco Cty., 754 F.3d

1279, 1282–83 (11th Cir. 2014) (explaining that, outside the context of substantive

due process takings claims, “the harm inflicted by the statute is continuing, or does

not occur until the statute is enforced—in other words, until it is applied,” quoting

Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 688 (9th Cir. 1993)); see also

Moore v. Ogilvie, 394 U.S. 814, 816 (1969) (holding election statute unconstitutional

although the challenged election was over because the statute “remain[ed] and

control[led] future elections,” and the issue was therefore not moot). In short, the

statute of limitations does not bar Plaintiffs’ claims.

Laches and Constitutional Estoppel

Finally, Defendants each argue Plaintiffs’ claims are barred by separate

equitable doctrines. Specifically, Intervenors assert the doctrine of laches bars

Plaintiffs’ claims, and Defendant Lee asserts the doctrine of estoppel—to be precise,

constitutional estoppel—bars them. Neither argument has merit.

To succeed on a laches claim, a defendant must demonstrate the plaintiff

inexcusably delayed in bringing their claim and that such delay unduly prejudiced

the defendant. United States v. Barfield, 396 F.3d 1144, 1150 (11th Cir. 2005). It

is not clear whether laches applies at all to claims for prospective relief from

continuing constitutional violations. See Garza v. Cty. of Los Angeles, 918 F.2d 763,

772 (9th Cir. 1990); Peter Letterese & Assocs., Inc. v. World Inst. of Scientology

Enters. Int’l, 533 F.3d 1287, 1321 (11th Cir. 2008) (stating, in a copyright case, that

“laches serves as a bar only to the recovery of retrospective damage, not to

prospective relief”); see also Democratic Exec. Comm. of Fla., 915 F. 3d at 1326

(“We need not consider whether laches applies to bar prospective relief from

constitutional harms, because the NRSC cannot satisfy the laches elements.”).14

This Court would conclude laches does not apply to the kind of prospective relief at

issue in this case; but even if it does, Intervenors’ laches claim fails on the merits.

First, Plaintiffs have not inexcusably delayed bringing their claims because

the event chiefly complained of—the 2020 election—has not happened yet.

Whether Plaintiffs could have made similar claims about an earlier election is not

relevant. Plaintiffs do not seek redress for past harms, they seek prospective relief

from future ones. Furthermore, it is unclear whether Plaintiffs would have been able

to prosecute their claims without substantial data on the primacy effect collected

over time—a fact which would arguably excuse at least some delay. Second, even

assuming Plaintiffs had delayed without a valid excuse, Intervenors have not shown

they have suffered any undue prejudice. The undue prejudice cognizable in laches

14 It is also not clear that laches can bar a claim where the applicable statute of limitations

has not run. See Merck & Co. v. Reynolds, 559 U.S. 633, 652 (2010) (“Laches within the term of

the statute of limitations is no defense at law.”) (quoting United States v. Mack, 295 U.S. 480, 489

(1935)).

can be either substantive or procedural—that is, it may concern both the inability to

defend against claims because memory fades or evidence is otherwise unavailable,

and also the reliance costs of acting in conformity with what one believed the law to

be during the period of delay; but it does not embrace any delay or expenditure

whatsoever. See, e.g., Gardner v. Panama R.R. Co., 342 U.S. 29, 30 (1951) (per

curiam) (explaining laches will not bar relief “where no prejudice to the defendant

has ensued from the mere passage of time”); Black Warrior Riverkeeper, Inc. v. U.S.

Army Corps of Eng’rs, 781 F.3d 1271, 1286 (11th Cir. 2015) (“Any harm

demonstrated by the Intervenors must stem specially from Riverkeeper’s delay in

bringing suit, rather than from the consequences of an adverse decision on the merits

. . .. The paradigmatic example of prejudice is when a defendant has expended

substantial sums of money or completed a significant amount of construction by the

time the plaintiff decides to file suit.”). The only prejudice Intervenors identify is

the cost to the State of Florida in time and resources to adjust its conduct of elections

into conformity with the Constitution, if this Court finds for Plaintiffs. This is not

equivalent in kind or quantity to, say, demolishing a building. It is not a cognizable

prejudice within the doctrine of laches at all, much less an undue one—it is precisely

and exclusively a “consequence[] of an adverse decision on the merits.” Id.

Intervenors might be able to claim prejudice if Plaintiffs had sought, for instance, to

invalidate past results and hold new elections; but Plaintiffs do not. Even assuming

the doctrine of laches could bar this action, Intervenors’ argument fails on the merits.

Turning to constitutional estoppel, Defendant Lee contends Plaintiffs cannot

argue against the constitutionality of Florida’s ballot order scheme because, in the

past, Democrats have been governors of Florida and Democratic candidates have,

fittingly, benefitted from the donkey vote. In general, constitutional estoppel applies

to prevent a party from enjoying the benefits of a government action while

simultaneously challenging the constitutionality of that government action.

Robertson v. Fed. Election Comm’n, 45 F.3d 486, 489–90 (D.C. Cir. 1995). But

“[t]he doctrine of constitutional estoppel . . . has its limits. The government may not

interpose the doctrine as a defense if a party wishes to challenge an unconstitutional

condition which is imposed on the receipt of federal funds.” Id. at 490 (citing

Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450, 456–57 (1988)). And the Supreme

Court has expressed “doubt that plaintiffs are generally forbidden to challenge a

statute simply because they are deriving some benefit from it.” Kadrmas, 487 U.S.

at 456–57. Plaintiffs in this case are not seeking to, for example, retain federal funds

awarded by an agency while also challenging the existence or composition of that

agency as unconstitutional. Cf. Robertson, 45 F.3d at 488–89. And whatever the

situation was in the past, Democratic candidates certainly do not enjoy any

advantage or benefit as a result of Florida’s ballot scheme at present. The doctrine

does not apply here at all, and Plaintiffs are not constitutionally estopped from

pursuing their claims in this case.

Having disposed of those preliminary matters, this Court will now analyze the

merits of the case.

Merits of the Case

“Voting is the beating heart of democracy. It is a ‘fundamental political right,

because [it is] preservative of all rights.’ ‘It is beyond cavil that voting is of the most

fundamental significance under our constitutional structure.’ ” League of Women

Voters, 314 F. Supp. 3d at 1215 (alteration in original) (citations omitted). As the

Eleventh Circuit recently opined: “We can’t say it any better than that.” Democratic

Exec. Comm., 915 F.3d at 1315. And it is central to the civic life of our Republic

that elections shall not just be held—because “voting alone is not enough to keep

democracy’s heart beating,” id.—but that they shall be fair and free, and that the

state shall not take sides. We have neither monarch, nor nobles, nor electors palatine,

and in our democracy there are no head starts.

“It does not follow, however, that the right to vote in any manner and the right

to associate for political purposes through the ballot are absolute.” Burdick, 504

U.S. at 433. “[A]s a practical matter, there must be substantial regulation of elections

if they are to be fair and honest and if some sort of order, rather than chaos, is to

accompany the democratic processes.” Storer v. Brown, 415 U.S. 724, 730 (1974).

That said, “these granted powers are always subject to the limitation that they may

not be exercised in a way that violates other specific provisions of the Constitution.”

Williams, 393 U.S. at 29. To evaluate First and Fourteenth Amendment voting

claims, a federal court

must first consider the character and magnitude of the asserted injury

to the rights protected by the First and Fourteenth Amendments that the

plaintiff seeks to vindicate. It must then identify and evaluate the

precise interests put forward by the State as justifications for the burden

imposed by its rule. In passing judgment, the Court must determine not

only the legitimacy and strength of each of those interests; it must also

consider the extent to which those interests make it necessary to burden

the plaintiff’s rights. Only after weighing all these factors is the

reviewing court in a position to decide whether the challenged

provision is unconstitutional.

Anderson, 460 U.S. at 789. “Under this standard, the rigorousness of [a reviewing

court’s] inquiry into the propriety of a state election law depends upon the extent to

which a challenged regulation burdens First and Fourteenth Amendment rights.”

Burdick, 504 U.S. at 434. If a law imposes a mild or minor burden on these rights,

it can usually be justified by showing the law in question serves a legitimate state

interest. See Anderson, 460 U.S. at 788 (“Nevertheless, the state’s important

regulatory interests are generally sufficient to justify reasonable, nondiscriminatory

restrictions.”). Although that level of scrutiny presents a low bar, it is not a

meaningless one, and “[h]owever slight that burden may appear, . . . it must be

justified by relevant and legitimate state interests ‘sufficiently weighty to justify the

limitation.’ ” Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 191 (2008)

(quoting Norman v. Reed, 502 U.S. 279, 288–89 (1992)). “Laws imposing ‘severe’

burdens, on the other hand, ‘must be narrowly drawn to advance a state interest of

compelling importance.’ ” Libertarian Party of Va. v. Alcorn, 826 F.3d 708, 717

(4th Cir. 2016) (quoting Burdick, 504 U.S. at 434). In all cases, courts conduct a

“realistic appraisal” of the challenged law, Anderson, 460 U.S. at 806, and examine

whether the state’s asserted interests “justify the specific restriction . . . at issue,” id.

at 796.

As this Court has explained above, there is nothing novel about this

framework, at any level. This Court and other courts have applied the

Anderson/Burdick interest-balancing framework to a wide variety of voting-related

issues, including claims relating to ballots. See Buckley v. Am. Constitutional Law

Found., Inc., 525 U.S. 182, 197–200 (1999) (evaluating Colorado statute requiring

those circulating initiative petitions to wear identification badges); Democratic Exec.

Comm., 915 F.3d at 1319 (evaluating Florida’s voter signature-matching scheme).

Courts have also applied it to cases involving ballot order. See Alcorn, 826 F.3d at

714–21; Graves v. McElderry, 946 F. Supp. 1569, 1579–82 (W.D. Okla. 1996). The

only thing distinguishing the present case from those cases is, the present case

represents the first time there has been a fully developed evidentiary record upon

which to evaluate a ballot order claim. And as this Court earlier explained, the

Supreme Court’s summary affirmance in Mann indicates ballot order claims

implicate the Equal Protection Clause, see 314 F. Supp. at 679, and that summary

affirmance is binding on this Court. There is nothing new about the

Anderson/Burdick standard, nor its application to this type of claim.

To apply the Anderson/Burdick standard, this Court will first examine whether

and to what extent Plaintiffs’ rights have been burdened by Florida’s ballot order

scheme. This entails investigating whether the primacy effect exists, how large it is,

and the character of its effects on Plaintiffs’ rights. Next, this Court will consider

the justifications Defendants advance for Florida’s current ballot order scheme and

determine the strength and legitimacy of those justifications. Finally, this Court will

weigh the burden on Plaintiffs’ rights against Defendants’ justifications to determine

whether Florida’s current ballot order scheme violates Plaintiffs’ First and

Fourteenth Amendment rights.

The existence and magnitude of the primacy effect vote have been the central

questions of fact in this case. This Court denied the cross-motions for summary

judgment in this case because there were “material issues of disputed fact regarding

‘position bias’ and its purported effects on Florida elections as well as the viability

of alternatives to the current [ballot order] scheme.” ECF No. 158 at 1. Following

the contours of the Anderson/Burdick standard, the bench trial held in this case

focused on whether Florida’s ballot order scheme awarded candidates affiliated with

the party of the last-elected governor a systematic advantage on the basis of their

political affiliation. Defendants elected to center their defense on disputing whether

Plaintiffs have proven the quantum of the primacy effect, not on whether it exists at

all. Defendants did not call an expert to dispute the existence of the primacy effect.15

Instead, as will shortly be seen, their expert only disputed Plaintiffs’ experts’

calculations concerning the magnitude of the primacy effect.

This proceeding was a bench trial, and this Court therefore sits as the

factfinder. This Court must consider all the evidence presented, but it need not

accept all the evidence as true or accurate. This Court must decide whether it

believes what each witness had to say, and how important that testimony was. This

Court may believe or disbelieve any witness, in whole or in part, just as a jury would

be free to do. This includes expert witnesses: as with any other witness, this Court

must weigh the testimony of an expert witness and decide whether to rely upon that

expert’s opinion. Furthermore, this Court may use reasoning and common sense to

make deductions and reach conclusions, just as a jury would.

As explained below, this Court concludes section 101.151(3)(a) imposes a

discriminatory burden on Plaintiffs’ voting rights which is not of the same magnitude

as entirely denying Plaintiffs the franchise, but is not negligible either. This Court

15 The parties offered numerous studies on the primacy effect into evidence, and only one

of those—a study concerning elections in Afghanistan—found no statistically significant evidence

of a primacy effect. Pls. Ex. 1 at 29–32 (citing B.T. Hansen and A.L. Olsen, Order in chaos:

Ballot order effects in a post-conflict election?, Research and Politics 1–4 (Oct.-Dec. 2014)). This

lone exception, however, does not disprove the rule.

further finds many of the justifications Defendants offered are not justifications for

Florida’s specific ballot order scheme, but rather justifications for not changing an

existing ballot order scheme irrespective of what that scheme happens to be. To the

extent Defendants’ justifications pertain to Florida’s specific ballot order scheme,

this Court finds they are weak and entitled to little weight. Weighing the

discriminatory burden on Plaintiffs’ rights against Defendants’ meager

justifications, this Court concludes Florida’s current ballot order scheme violates

Plaintiffs’ First and Fourteenth Amendment rights.

Character and Magnitude of Injury

The first step in this Court’s analysis is to “consider the character and

magnitude of the asserted injury to the rights protected by the First and Fourteenth

Amendments that the plaintiff seeks to vindicate.” Anderson, 460 U.S. at 789. The

character and magnitude of Plaintiffs’ injuries are functions of the primacy effect

itself—of whether it exists, how large it is, and what effect it has under Florida’s

current ballot order scheme. Consideration of these items determines the weight this

Court will accord to the burden on Plaintiffs’ rights, and it also calibrates the scales

upon which that weighing is done by determining the appropriate level of scrutiny

to which this Court will subject the challenged law. See Anderson, 460 U.S. at 788

(stating “the state’s important regulatory interests are generally sufficient to justify

reasonable, nondiscriminatory restrictions”); Burdick, 504 U.S. at 434 (explaining

laws which severely burden voting rights “must be narrowly drawn to advance a

state interest of compelling importance”).

As to magnitude, Dr. Jon Krosnick, a political scientist and a preeminent

expert on candidate name order effects,16 testified on Plaintiffs’ behalf. See T. at

279–90, 292–93. Although Dr. Krosnick’s extensive qualifications and status as the

preeminent expert in his field do not automatically establish his credibility, this

Court finds them probative of that issue. This Court does not blindly credit Dr.

Krosnick’s methods, analysis, and conclusions; but after close and attentive scrutiny,

this Court finds Dr. Krosnick’s methods and conclusions reasonable, reliable, and

credible.

Dr. Krosnick provided a comprehensive review of seventy years’ worth of

academic scholarship on candidate name order effects, which overwhelmingly found

primacy effects were evident in the elections studied across that time period. T. at

295–96, 302–25; Pls. Ex. 1 at 15–39. To be precise, of the 1,086 unique tests

reported in the literature, eighty-four percent manifested differences in the direction

of primacy, a result which Dr. Krosnick calculated had a less than one one-

thousandth of a percent chance (in fact, a 0.0001% chance) of occurring for some

16 Although this Court and numerous other sources refer to this phenomenon by many

names, such as the “primacy effect” or “ballot order effect,” Dr. Krosnick testified that “candidate

name order effects” is “the clearest term” to refer to “the possibility that the order in which

candidates’ names appear on a ballot might influence the behavior of voters and, therefore,

influence the outcome of an election.” T. at 290–91.

reason other than candidate name order. T. at 304. Dr. Krosnick also testified

concerning the effect of candidate name order on Florida elections from 1978

through 2016. T. at 299. Based on his study of these results, Dr. Krosnick opined

that first-listed candidates in Florida have historically gained an average advantage

of five percentage points17 due to their position within their office block on the

ballot, T. at 299–301; Pls. Ex. 1 at 3, 63–64, 83; a result which has a less than one-

percent probability of occurring by chance. T. at 343; Pls. Ex. 1 at 110. Moreover,

because votes for one candidate are necessarily votes which do not go to another,

Dr. Krosnick testified the five-percent advantage enjoyed by first-listed candidates

equates to a ten-percent difference between those candidates and their competitors

in two-candidate races. T. at 299.

To oppose Dr. Krosnick, Intervenors called Dr. Michael Barber, a political

science scholar and professor at Brigham Young University who specializes in

campaign finance and quantitative analysis. T. at 597–609. As noted above, Dr.

Barber did not dispute the central findings of the significant body of academic

literature concerning candidate name order effects, nor did he dispute that such

17 Dr. Krosnick testified Republican candidates in Florida have historically enjoyed an

average primacy effect advantage of approximately 5.35% while Democratic candidates in Florida

have historically received an average advantage of 4.57%. T. at 301. The average of these two

primacy effect advantages—and thus the approximate average for all candidates in partisan races

in Florida for the years studied (because addition and multiplication are, after all, commutative)—

is 4.96%, which Dr. Krosnick rounded up to an estimated average primacy effect in Florida of 5%.

Id. Although Dr. Krosnick’s off-the-cuff calculation of this average was 4.97%, id., this Court

does not find this minor discrepancy affects his credibility in a negative way.

effects are more pronounced in down-ballot races. T. at 711, 729. Instead, Dr.

Barber focused his testimony on speculative critiques of Dr. Krosnick’s methods

with particular relation to whether Dr. Krosnick’s estimate of a 5% average primacy

effect vote was reliable. Dr. Barber suggested Dr. Krosnick could have adjusted his

study to control for certain demographic characteristics that are linked to different

voting preferences, T. at 619–44, but clarified upon questioning by this Court that

such disaggregation was only appropriate “if you have a theoretical reason to believe

those differences are meaningful” to the hypothesis one is attempting to investigate.

T. at 624–25. But what Dr. Barber testified was that “it’s not unreasonable to

believe that it’s very possible that those differences could manifest themselves in

other ways related to elections, such as ballot order effects.” T. at 621 (emphasis

added). Indeed, this Court had sufficient opportunity to closely observe not just the

substance of Dr. Barber’s testimony, but his demeanor as a witness, and his labored

responses to questioning by counsel and this Court serve only to highlight his

unconvincing equivocations.

On cross-examination by Ms. Khanna for the Plaintiffs, Dr. Barber’s

testimony crumbled. In an artful tour de force that should be studied by law students

as a textbook demolition of an expert witness, Ms. Khanna methodically walked Dr.

Barber through his direct examination testimony and forced him to admit almost all

of it was either speculative, unsound, or both. Dr. Barber admitted that, although

Dr. Krosnick could have controlled for those demographic factors in his regression

analysis, there was no reason Dr. Krosnick should have, and none to believe doing

so would make a material difference—in other words, there was no reason to believe

those demographic variables had any meaningful impact on the validity of Dr.

Krosnick’s conclusions. T. at 713–19. In sum, Dr. Barber admitted that, although

the demographic factors he identified correlate with individuals’ preferences

expressed through voting, there is no reason to believe they are connected in any

way to voters’ susceptibility to candidate name order effects. In plain English,

although a person’s demographic characteristics can help predict how they may

consciously choose to vote, they do not predict their susceptibility to the

psychological phenomenon at issue in this case.

Dr. Barber’s testimony demonstrated that, for his analysis of this case,

statistical rigor was a matter of convenience, not principle. For example, Dr. Barber

criticized Dr. Krosnick’s analysis concerning its small sample size, but also tried to

undermine Dr. Krosnick’s conclusions by pointing to outlier results in individual

elections and attempting to generalize from them, a practice this Court finds

unreliable and nonsensical. In a further baffling inconsistency, although Dr. Barber

criticized Dr. Krosnick’s methodology and attempted to discredit his results, Dr.

Barber testified he did not dispute the numerous other studies in the record which

found and analyzed candidate name order effects. See, e.g., T. at 729. It is probative

of both Dr. Barber’s credibility and reliability, and also of Dr. Krosnick’s credibility

and reliability, that Dr. Krosnick’s analysis agrees with the overwhelming majority

of the academic literature in the record, and Dr. Barber does not dispute the

reliability of those other studies.

Ms. Khanna’s skillful evisceration of Dr. Barber’s testimony was sufficient to

undermine his conclusions, but—as Ms. Khanna also elucidated through her cross-

examination—Dr. Krosnick also performed a second regression analysis

incorporating those of Dr. Barber’s suggestions that could have affected the analysis.

This second analysis returned a slightly lower estimate of an overall average primacy

effect—about three-and-a-half percent, all told. T. at 730–31, 740–42; Pls. Ex. 1 at

73–74, 78–80; Pls. Ex. 11 at 4–5, 10. This small change did not in any way

undermine Dr. Krosnick’s conclusion that candidate name order has a statistically

significant impact on Florida’s elections. Dr. Krosnick also followed Dr. Barber’s

suggestion and weighted counties by size, but this did not significantly impact his

results either. T. at 730–31; Pls. Ex. 1 at 73–74; Pls. Ex. 11 at 10.

The same was true of Dr. Barber’s suggestion that clustering of standard errors

could improve Dr. Krosnick’s analysis: Dr. Krosnick performed a second analysis

in which he clustered standard errors as Dr. Barber suggested, and that analysis

found candidate name order effects of a similar magnitude, though at a marginally

reduced level of certainty. T. at 666–67, 736–43. For example, clustering by

governor cycle reduced the p-value to .14 for Republican candidates and .16 for

Democratic candidates, reflecting an 84% and 86% chance, respectively, that the

increased vote share was a result of candidate name order effects. Id.

This does not undermine Dr. Krosnick’s results, for two reasons. First, an

84% or 86% level of confidence in a result is sufficient, on the facts of this case, for

this Court to find it credible, especially in concert with the totality of the testimony

presented in this case.18 The burden of proof does not require Plaintiffs to establish

the existence and magnitude of candidate name order effects with absolute statistical

certainty—although in this case this Court finds they very nearly have—but rather

to establish them by a preponderance of the evidence. Second, as Dr. Krosnick

described, although clustering can be helpful, too much clustering can have the effect

of obscuring the detail of a result and making it appear less accurate than it in fact

is. T. at 354–55 (analogizing “the equivalent of too much clustering is putting dirt

on the lens of the telescope”). This Court finds Dr. Barber’s suggested level of

clustering had precisely this effect on Dr. Krosnick’s analysis; that is, in attempting

to control for the possible influence of factors not being tested, the clustering reduced

18 Despite Dr. Barber’s assertions that the .14 and .16 p-values render Dr. Krosnick’s

analysis unreliable, Dr. Barber admitted that he has reported coefficients as statistically significant

at a p-value of .15 in his own published work. T. at 733–36. This significantly impairs Dr.

Barber’s credibility on this point.

the accuracy of the investigation into the factors being tested for.19 This, Dr.

Krosnick explained, is known as “null hacking,” which “is hunting around for a way

to analyze the data to make an effect disappear,” such as by “clustering so severely

that the statistical power [of the data] is compromised in a way that an effect that’s

clearly present in the data is no longer statistically significant.” T. at 355. This is

precisely what Dr. Barber attempts to do here. His suggestions concerning clustering

are intended to muddy the water, not to clear it.

Dr. Krosnick’s analysis was further supported by testimony from Plaintiffs’

other experts. Plaintiffs also called Dr. Jonathan Rodden, a professor of political

science at Stanford University, as an expert in elections and data analysis. T. at 135–

40. Dr. Rodden testified concerning the effects of candidate name order on down-

ballot races—both statewide and local races—where voters presumably have less

information about each candidate than they do about top-of-ticket candidates and

would, therefore, theoretically be more susceptible to candidate name order effects.

Specifically, Dr. Rodden compared the performance of down-ballot candidates with

top-of-ballot candidates of the same party to determine whether candidate name

order effects were more pronounced in either case. See Pls. Ex. 5 at 2–5. Dr. Rodden

19 As Dr. Barber acknowledged, this reduced accuracy could be linked to the relatively

small number of governor cycles (eleven since 1978) by which this analysis would be clustered.

T. at 736. It is therefore not the case that clustering this data would always reduce its accuracy,

but many more gubernatorial elections will have to occur before the full effect of such clustering

would be determinable with precision.

concluded down-ballot candidates who were listed second in their respective office

block garnered an average of 3.1% to 5.6% fewer percentage points of the vote than

did their top-of-ballot co-partisans in Florida elections. T. at 161; Pls. Ex. 5 at 4–5,

22. Dr. Rodden also found that, by contrast, down-ballot candidates who were listed

first in their respective office blocks consistently outperformed their top-of-ticket

co-partisans in Florida elections. T. at 152, 158–161, 170; Pls. Ex. 5 at 17–41. Dr.

Rodden testified he knew of no theory of political science which would explain these

results other than candidate name order effects. T. at 162–63. Dr. Barber also could

not provide any convincing explanation. See T. at 748–53. Dr. Rodden further

opined that, given the “heterogeneity” of the candidates in down-ballot races and the

various other factors that affect electoral outcomes, this result was “surprisingly

strong” and consistent across time and geography. T. at 175.

Dr. Barber attempted to call Dr. Rodden’s analysis into question by disputing

whether candidates’ personal qualities which might be difficult to quantify (such as

physical attractiveness, gender, regional origin, and roots in the community) played

a significant role in their electoral success, or lack thereof, and thus confounded Dr.

Rodden’s analysis. As proof of this, Dr. Barber pointed to the 2018 election for

Florida Commissioner of Agriculture, won by Democrat Nikki Fried. T. at 677; Ints.

Ex. 3 at 3–10.

Dr. Rodden, however, explained that he accounted in his analysis for the wide

variation in candidate qualities (such as height, physical attractiveness, and regional

origin) which might be less objectively measurable but which could still have been

reflected in the result. T. at 198–200. If this “heterogeneity” had a significant effect,

Dr. Rodden explained, one would expect it to “introduce a whole lot more noise and

make it even harder to find an effect.” T. at 200. But instead, the results showing

the impact of candidate name order effects were “surprisingly strong,” T. at 175,

meaning the statistical strength of the Dr. Rodden’s study was not affected by the

heterogeneity of the candidates in the races. Put more simply, the results of Dr.

Rodden’s study reflect the impact of candidate name order effects accurately and the

hard-to-quantify personal qualities of candidates did not meaningfully interfere with

his analysis. This also strengthen’s Dr. Rodden’s conclusions with respect to his

analysis of statewide races. As to the specific example of Commissioner Fried, this

Court finds it illogical to rely upon a single outlier to disprove a general conclusion,

particularly a conclusion about an average effect across a large number of samples.20

This Court finds Dr. Rodden’s methods and analysis reasonable, reliable, and

credible, and further finds Dr. Barber’s criticisms of Dr. Rodden’s analysis are

unreasonable and incredible.

20 Dr. Barber agrees that extrapolating from his example of Commissioner Fried would be

improper. T. at 759 (“Q. And you would agree that certainly you can’t draw conclusions about

trends among voters from one datapoint? A. I agree.”).

Dr. Rodden also investigated whether changing Florida’s ballot order scheme

might have a material impact on election results in Florida by comparing Florida to

North Carolina, a state which recently changed its ballot order scheme from a system

like Florida’s, where candidates of the governor’s party were listed first, to an

alphabetical system incorporating a random drawing to determine which letter to

begin the alphabetical ordering with. T. at 175–77; see also N.C. Gen. Stat. Ann.

§ 163A-1114(c) (2018) (requiring candidates to be listed in “either alphabetical

order or reverse alphabetical order by the last name of the candidate, which order

shall be determined each election by drawing at the State Board of Elections and

Ethics Enforcement after the closing of the filing period for all offices on the ballot”).

This resulted in a roughly even split between Republican and Democratic candidates

being listed first in North Carolina’s voting precincts. T. at 178. Comparing the

results of precincts in 2016, when Republican candidates were listed first in all

partisan races, with the results from those same precincts in 2018, when Republicans

were listed first only in roughly half of the precincts, Dr. Rodden found Democrats

obtained approximately 1.5% more of the votes cast in those precincts in which

Republicans were no longer listed first in 2018, than they had in 2016 when

Republicans were listed first in those precincts. Pls. Ex. 5 at 6, 45–46. In seats

where the incumbent was not running, this effect was as large as eight percentage

points, and in races where the same candidates faced each other in 2018 that had

faced each other in 2016 the effect averaged four percentage points. Id. at 6, 47–48.

Dr. Rodden testified that these results

gave [him] a clear sense of causality associated with reform and ballot

order practices. It allowed [him] to see what happens, holding a lot of

other things constant . . . when we just compare the change in the

Democratic vote share from 2016 to 2018; we can compare that in the

so-called treatment and control precincts and get a very clean causal

inference about the impact of reform.

T. at 179. Dr. Barber not only did not offer any substantive critique of this analysis,

he has also relied upon comparisons between Florida and North Carolina in the

course of his expert testimony in a North Carolina case. T. at 706–08. This Court

finds Dr. Rodden’s methods and conclusions to be reasonable, reliable, and credible.

This Court also finds that Dr. Barber’s testimony did not in any way undercut Dr.

Rodden’s analysis, and that Dr. Rodden’s analysis buttresses Dr. Krosnick’s analysis

by reinforcing the conclusion that candidate name order effects award a statistically

significant electoral advantage to the first-listed candidate, and that these effects are

even more pronounced in down-ballot races.

Finally, Plaintiffs called Dr. Paul Herrnson, a professor of political science at

the University of Connecticut, to explain an additional aspect of the advantage

candidate name order effects award to first-listed candidates. T. at 405–11; Pls. Exs.

4–8. Dr. Hernnson testified that voters intending to vote for the first-listed candidate

make fewer “proximity errors” than do voters intending to vote for candidates listed

in lower positions within an office block. T. at 418–21. Proximity error is a simple

human error in filling out a ballot which “results in the voter being unable to

accurately translate his or her voting intention into the candidate or, in some cases,

ballot issue they hope to select.” T. at 413. Instead, they unintentionally select the

option immediately before or immediately after the option they intend to select. Id.

Dr. Herrnson testified that this sort of error primarily advantages candidates listed

first in each office block and disadvantages those listed in subsequent positions. Id.

In races with more than two candidates, the second-listed candidate is most

disadvantaged. T. at 419. The reason for this is simple. Voters will make a number

of proximity errors due to factors such as fatigue, haste, or inattention, but if a voter

intends to vote for the first- or last-listed candidate, they can only err in one direction,

while voters intending to select the second-listed candidate out of three can err in

either direction. See T. at 417–20. Dr. Herrnson also explained the empirical basis

for this effect, including an experiment he himself conducted to investigate its

effects. T. at 420–35.

Dr. Barber opined that Dr. Herrnson did not address candidate name order

effects of the type at issue in this case. T. at 698. This Court disagrees. Dr.

Herrnson’s study of proximity error helps provide an empirical explanation for a

portion of the advantage a first-listed candidate receives by virtue of being listed first

in their office block. One reason candidate name order effects favor first-listed

candidates is that, in certain elections, voters are more likely to make errors in favor

of first-listed candidates and are also less likely to make errors which disadvantage

first-listed candidates. In this way, the systematic placement of one party’s

candidates in the second position within their respective office blocks forces those

candidates to labor under the double disadvantage of the primacy effect and of a

greater likelihood of proximity error to their detriment. The effect of Florida’s ballot

order scheme, then, is to systematically place the candidates affiliated with the party

of the last-elected governor on the favorable end of these errors, solely on the basis

of their political affiliation. This Court finds Dr. Herrnson’s testimony credible, and

his methods and conclusions reasonable and reliable. This Court further finds Dr.

Herrnson’s testimony gives further support to the credibility of Dr. Krosnick’s

analysis by reinforcing the conclusion that candidate name order effects influence

the share of the vote a candidate receives, and particularly that primacy effects award

a statistically significant electoral advantage to the first-listed candidate.

After a full and careful review of the evidence in the record in this case, this

Court finds Dr. Krosnick’s testimony credible and his methods and conclusions

reasonable and reliable. Dr. Krosnick’s conclusions are supported by, and consistent

with, virtually all the decades of academic literature in the record, which is itself

almost universally consistent. Furthermore, this Court finds Dr. Krosnick’s

evaluations of his original analysis, into which he incorporated Dr. Barber’s

concerns, to be reasonable, reliable, and credible. This Court also finds Drs. Rodden

and Herrnson’s testimony credible, and their methods and conclusions reasonable

and reliable. This Court further finds Dr. Barber’s testimony emphatically not

credible and his opinions offered in this case to be unreliable. This Court finds that,

even when Dr. Krosnick indulged Dr. Barber’s speculative critiques of his initial

analysis, Dr. Krosnick’s results did not undergo a material change, which further

supports Dr. Krosnick’s credibility, as does the fact that Dr. Krosnick performed that

second analysis to investigate the validity of Dr. Barber’s suggestions. This Court

further finds Dr. Barber’s criticisms of Dr. Rodden’s testimony to be disproven to

the extent they were not wholly speculative, and illogical in their reliance on a single

outlier to disprove a general rule. Additionally, this Court finds Dr. Barber’s opinion

concerning the significance of Dr. Herrnson’s analysis to be unpersuasive.

Plaintiffs have proven—and this Court hereby finds—that candidates of the

major parties in Florida receive an average primacy effect vote of approximately five

percent when listed first in their office block on the ballot, and that this advantage

accrues to a candidate because of the candidates’ name order, which in turn is

prescribed by section 101.151(3)(a), Florida Statutes. Furthermore, given Florida’s

history of election results in which the margin of victory or defeat is less than three

to five percentage points, this Court finds section 101.151(3)(a) has impacted

Plaintiffs’ First and Fourteenth Amendment rights by systematically allocating that

small but statistically significant advantage to Republican candidates in elections

where the last-elected governor was a Republican, just as it awarded that advantage

to Democrats in elections when Florida’s last-elected governor was a Democrat.

This Court need not find a precise percentage attributable to every election uniquely

to determine whether Florida’s ballot order scheme violates Plaintiffs’ rights,

particularly because Plaintiffs seek declaratory and injunctive relief. Rather, this

Court need only find—and does hereby find—that Florida’s ballot order statute

systematically awards a material advantage to candidates affiliated with the political

party of Florida’s last-elected governor solely on the basis of their party affiliation,

and therefore systematically disadvantages other candidates on the basis of their

party affiliation. Additionally, the record reflects a vast number of Florida’s

elections have been decided by less than three to five percent of the votes cast—in

other words, by a smaller margin than the advantage Florida’s ballot order scheme

awards to the candidates affiliated with the party of Florida’s last-elected governor.

Defendants offer no reason to expect the future will be any different, or that

Floridians are any different from voters in other states or countries (with the apparent

exception of Afghanistan) with respect to their susceptibility to psychological

phenomena like candidate name order effects.

In summary, this Court finds Plaintiffs have proven the candidate listed first

in their respective office block in Florida elections receives, on average, a five-

percentage-point advantage over their competitors for that office by virtue of being

the first-listed candidate. This Court further finds that, even when Dr. Barber’s

speculative critiques are incorporated, first-listed candidates receive an advantage of

approximately three-and-a-half percent. This Court finds these amounts to be

statistically significant and the calculations which produced them to be reliable,

reasonable, and credible. This Court finds Dr. Krosnick, Dr. Rodden, and Dr.

Herrnson credible, and finds their respective analyses reinforce and add depth to one

another’s conclusions. This Court finds Dr. Barber’s critiques do not undermine

Plaintiffs’ experts’ methods, analyses, or conclusions. This Court finds Dr. Barber’s

critiques speculative, unreasonable, and not credible.

Although these findings are based exclusively on the evidence in the record

before this Court, it is worth noting that they are hardly an aberration. Other courts

confronted with this question have also discussed the influence of ballot position on

candidates’ electoral outcomes and reached similar conclusions. See, e.g., McLain

v. Meier, 637 F.2d 1159, 1166 (8th Cir. 1980) (stating “[i]n concluding that there

was no error in the district court’s finding of ballot advantage in the first position we

are not the first to so hold,” and citing numerous cases). And a majority of the States

use nonpartisan ballot order schemes that would tend to minimize the impact of

candidate name order effects, presumably to control for this widely understood

phenomenon.21 There is nothing new or surprising about the conclusion that

Florida’s ballot order scheme confers a small but statistically significant advantage

to candidates of one political party. Finally, as previously noted, Intervenors clearly

believe some advantage presently accrues to Republican candidates as a result of

Florida’s ballot order scheme. Otherwise, they would not have intervened in this

case and would not be spending such significant time and resources defending the

statute. This fact casts doubt on Intervenors’ assertion that Florida’s ballot order

scheme does not have any significant effects and changing Florida’s ballot order

scheme would not affect Republican electoral efforts. It is also entirely consistent

with Dr. Krosnick and Dr. Rodden’s conclusions—which this Court finds credible—

that Florida’s ballot order does indeed make a difference to the outcome of elections

in Florida.

The advantage conferred by the primacy effect is relatively small percentage

taken in isolation, but the records of Florida’s elections which are before this Court

demonstrate it is more than the margin of victory or defeat in a great many elections

21 See Ala. Code § 17-6-25; Alaska Stat. § 15.15.030(6); Ark. Code Ann. § 7-5-207(c)(1);

Cal. Elec. Code § 13111; Colo. Rev. Stat. § 1-5-404; Haw. Rev. Stat. § 11-115; Idaho Code Ann.

§§ 34-903(4) & 34-2419; Kan. Stat. Ann. § 25-610; Ky. Rev. Stat. Ann. § 118.225; La. Rev. Stat.

Ann. § 18:551(C); Me. Rev. Stat. Ann. tit. 21-A, § 601; Miss. Code Ann. § 23-15-367(2); Mont.

Code Ann. § 13-12-205(2); Nev. Rev. Stat. § 293.267; N.H. Rev. Stat. Ann. § 656:5(II); N.J. Stat.

Ann. § 19:14-12; N.M. Stat. § 1-10-8.1; N.C. Gen. Stat. Ann. §163A-1114; N.D. Cent. Code

§§ 16.1-11-27 & 16.1-06-05; Ohio Rev. Code Ann. § 3505.03; Okla. Stat. Ann. tit. 26, § 6-106;

Or. Rev. Stat. § 254.155; R.I. Gen. Laws § 17-19-9.1; S.D. Codified Laws § 12-16-3.1; Utah Code

Ann. § 20A-6-302(1)(b); Vt. Stat. Ann. tit. 17, § 2472; Va. Code Ann. § 24.2-613.

in Florida. Of course, many factors determine the total percentage of the vote a

candidate ultimately receives, but Plaintiffs’ experts have proven to a high degree of

probability that a small but statistically significant portion of the votes earned in any

election are attributable to the primacy effect. It would be unreasonable to contend

that candidate name order effects are the only reason a candidate wins or loses an

election. There are a multitude of factors which contribute to a candidate’s success,

or lack thereof, but as Dr. Krosnick explained, candidate name order effects have

often been outcome determinative. See T. at 358–63. But although no single

raindrop bursts a dam, and a single small transaction rarely is the sole cause of a

bankruptcy, the dam still fails and the debtor still becomes insolvent. Similarly,

candidate name order effects are not the only reason elections are won and lost, but

they do contribute substantially to candidates’ successes or failures at the polls.

As to the character of the injury, this Court concludes section 101.151(3)(a)

is discriminatory because it awards the primacy effect vote to candidates based

solely and uniquely upon their political affiliation. By listing the candidates

affiliated with the governor’s party first in each partisan race, Florida’s current ballot

order scheme ensures those candidates receive a statistically significant advantage

in that election, conferred by the primacy effect; and it does so on the explicit basis

of the candidates’ party affiliation. It is in no way politically neutral. Intervenors

argue the statute is nonpartisan because it can benefit—and historically has

benefitted—whichever party controls the Governor’s Mansion. But this does not

make the statute nonpartisan. Rather, it means the direction of the statute’s

partisanship changes depending on circumstances.22 Florida’s ballot order scheme

is a fair-weather friend to the party in power, whichever party that may be, and

although its inclination may change depending on the prevailing political breeze it

is unquestionably a partisan provision. The character of Plaintiffs’ injury, therefore,

is politically discriminatory. By systematically awarding a statistically significant

advantage to the candidates of the party in power, Florida’s ballot order scheme takes

a side in partisan elections.

Legitimacy and Strength of Justifications

Next, this Court must “identify and evaluate the precise interests put forward

by the State as justifications for the burden imposed” by section 101.151(3)(a).

Anderson, 460 U.S. at 789. This Court must consider whether those justifications

are legitimate, determine how strong the interests they support are, and examine the

extent to which those interests make it necessary to impose these specific burdens

on Plaintiffs’ rights. Id.

Defendant Lee asserts Florida’s present ballot order scheme is supported by

Florida’s interest in “upholding the policy choices of Florida’s duly-elected

22 By Defendants’ logic, because he held opposite allegiances at different times, Benedict

Arnold was a neutral party.

representatives,” preventing voter confusion, “promoting uniformity,” and

“promoting voter confidence in the integrity of the election administrations process.”

ECF No. 199 at 34.23 Some of these overlap. For example, Defendant Lee argues

Florida’s current ballot order scheme promotes voter confidence by ensuring “people

know that their ballot is being arranged consistent with the choices their elected

officials made, in a manner that makes it easy to find candidates of their choice on

the ballot, in a manner that is uniform throughout the State, and in a manner that

allows for accurate vote tabulation.” Id. Similarly, Florida’s asserted interest in

uniformity is justified in part by its tendency to “reduce voter confusion.” Id.

It is important to note at the outset that Defendant Lee’s asserted justifications

for Florida’s current ballot scheme are not quite on point with the Anderson/Burdick

standard. That framework requires this Court to consider whether the state’s

asserted interests “justify the specific restriction . . . at issue.” Anderson, 460 U.S.

at 796 (emphasis added). For the most part, Defendant Lee asserts justifications

which would tend to support any ballot order system—or, more generally, any

election law at all—and militate against changing it to another; but they are not, for

the most part, justifications for the specific ballot order scheme Florida uses as

opposed to any alternative one. In effect, Defendant Lee asks this Court to weigh

23 In their closing argument, Intervenors relied in large part on Defendant Lee’s arguments

with respect to the justifications for Florida’s current ballot order scheme. See ECF No. 200 at 27.

the burden on Plaintiffs’ rights against Florida’s general interest in having election

laws, whatever they may be, without reference to the unique necessity for those laws.

What Anderson/Burdick requires this Court to do is to compare the specific burden

imposed by a challenged law to its specific justifications and necessity, and then

determine which is weightier (with, of course, the appropriate level of scrutiny

calibrating the scale).

Take, for example, the asserted interest in “promoting uniformity to reduce

errors in ballot layout and vote tabulation, and to reduce voter confusion.” ECF No.

199 at 34. To the extent Plaintiffs suggest candidates’ names should be rotated

within office blocks to reduce any overall primacy effect, this could be interpreted

as reducing uniformity; but under that system Florida’s ballots would be organized

according to a single framework, and notwithstanding any rotation, that would

nevertheless be a uniform system of ballot order. Even more obviously, the asserted

interest in promoting voter confidence is, in plain English, an interest in ensuring

that voters know their ballot is organized as the law requires it to be. This has

nothing to do with the substance of how the law actually requires the ballot to be

organized, so long as it is organized according to some system imposed by law. It

does not militate in favor of any particular system of organization. Therefore, to the

extent they are true of any ballot order scheme and not specifically related to the

scheme laid out in section 101.151(3)(a), Florida Statutes, this Court finds Defendant

Lee’s asserted justifications to be extremely weak.

To the extent they relate specifically to Florida’s current ballot order scheme,

the justifications Defendant Lee asserts are a mixed bag. First, the interest in

“upholding the policy choices of Florida’s duly-elected representatives,” id., is not

particularly persuasive. Florida certainly has a valid and important sovereign

interest in defending the Florida Legislature’s enactments, but the undoubted

importance of this interest should not be conflated with the weight it should be

accorded under the Anderson/Burdick standard. If the Florida Legislature adopts an

unconstitutional law, Florida’s interest in having made that legislative choice will

not render that law constitutional. See Marbury, 1 Cranch at 177–80 (explaining the

foundations of judicial review of legislative action); Nat’l Foreign Trade Council v.

Natsios, 181 F.3d 38, 61 (1st Cir. 1999) (“Even where they exist, strong state

interests do not make an otherwise unconstitutional law constitutional.”). A state’s

legitimate interests may prevent a law which impacts constitutional rights from

rising to the level of a constitutional violation, see, e.g., Anderson, 460 U.S. at 789

(requiring courts to balance the burdens on individuals’ rights against state’s

interests and justifications to determine whether the challenged law violates the

Constitution); but a state has no legitimate interest in preserving and enforcing a law

which violates the Constitution.24 See Hunter v. Hamilton Cty. Bd. of Elections, 635

F.3d 219, 238 (6th Cir. 2011) (concluding disparate treatment of voters resulted “not

from a ‘narrowly drawn state interest of compelling importance,’ but instead from

local misapplication of state law” (quoting Crawford, 553 U.S. at 190)); Bishop v.

Holder, 962 F. Supp. 2d 1252, 1289–90 (N.D. Okla. 2014) (concluding that,

although a provision of the Oklahoma Constitution which discriminated against

homosexuals “rationally promoted the state’s interest in upholding one particular

moral definition of marriage, this is not a permissible justification” for the provision

under rational-basis scrutiny). Defendant Lee essentially argues Florida’s current

ballot order scheme is necessary because the Florida Legislature has decided it is.

Although legislative discretion to formulate policy is an important element

underpinning this analysis, it is not dispositive of the outcome, particularly in cases

such as the present one where the burden on voting rights is not minimal. See

Burdick, 504 U.S. at 434. This Court does not discount this justification entirely,

but accords it little weight in view of the fact it bears only tangentially upon the

merits of the issue.

24 Defendant Lee does not argue that Florida’s ballot order statute reduces confusion by

making it more convenient for Republicans to locate their preferred candidates, and Florida would

have no legitimate interest in such a goal. See McLain, 637 F.2d at 1167 (explaining that the

asserted interest in placing incumbents first “virtually admits that the state has chosen to serve the

convenience of those voters who support incumbent and major party candidates at the expense of

other voters”).

Second, Florida’s asserted interest in preventing voter confusion is legitimate,

but not particularly strong on the specific facts of this case. The only evidence

Defendants offered in favor of Florida’s current ballot order statute was speculation

that, in a county-by-county rotation scheme, some voters might be confused by

seeing sample ballots from other counties. This Court finds those suggestions are

not credible. Sample ballots state which county they pertain to, so even in areas with

multicounty media markets, voters are unlikely to become confused and are even

less likely to be more confused by county-by-county rotation than they are by the

differences between counties’ ballots in the current system. And even within a

county, ballots vary from precinct to precinct, yet voters do not find it confusing that

their precinct’s ballot does not match exactly the county-wide sample ballot

provided by their respective supervisor of elections. Finally, any minimal concerns

about increased voter confusion under a county-by-county or precinct-by-precinct

rotational system are entirely nullified in a system which arranges candidates in a

uniform manner statewide according to alphabetical order within office blocks.25

This Court finds this justification relevant, but concludes it should be accorded only

minimal weight at most.

25 As a logical matter, the same would be true of systems which order candidates’ names

in order of qualification or by random lottery.

Florida’s asserted interest in promoting uniformity is, though legitimate,

similarly weak here. At the heart of this asserted interest is the desire to minimize

tabulation errors and avoid the costs associated with modifying Florida’s election

software and hardware to facilitate different ballot order schemes. The upshot of the

testimony presented in this case is, although it may be possible for Florida to adapt

its election machinery to rotate candidates’ names from county to county or from

precinct to precinct, no one is sure precisely what that would entail or what hidden

gremlins might emerge in the process. It is apparent that Florida’s voting systems

would have to be recertified were such a rotational scheme to be employed, and

witnesses raised further concerns regarding the possible impacts on the amount of

time necessary to prepare ballots in individual counties. It is not, however, certain

that rotation would increase the danger of tabulation errors, since votes are tabulated

based on a unique candidate number assigned at the state level and not by the county,

but it was unclear what precise adjustments, if any, would be necessary to Florida’s

tabulation mechanisms to permit county-by-county or precinct-by-precinct rotation

to be used. This does not, however, translate into a necessity for Florida’s present

ballot order scheme. Rather, it is evidence of the predicted administrative burden

associated with changing that entrenched ballot order scheme to one possible

alternative.

This is not the perspective the Anderson/Burdick analysis requires this Court

to take. Instead, Anderson/Burdick requires courts to consider the necessity for, and

justifications supporting, a particular voting regulation on its own merits, not merely

because it is the status quo. That said, to the extent it relates to Florida’s present

ballot order scheme per se, this justification demonstrates that a county-by-county

or precinct-by-precinct rotational system would impose administrative burdens that

Florida’s current ballot order scheme avoids. This weighs in favor of Florida’s

current ballot order scheme as compared with those alternatives. With respect to

alphabetical ordering, ordering by date and time of qualification, and order based on

random lottery, however, there is no similar concern about administrative burdens

or tabulation errors because candidates would be listed in a uniform order on all

ballots statewide. It would not be necessary to adapt Florida’s election

administration machinery to adopt alphabetical ordering, because Florida already

uses it in certain elections. See § 101.151(4)(a), Fla. Stat. (2019).26 Therefore,

although Florida’s legitimate interest in uniformity carries moderate weight with

regard to county-by-county and precinct-by-precinct rotation, it carries none with

26 The same is true for order-of-qualification ballot ordering. Id. § 101.151(3)(b).

Although it was not specifically dealt with in depth during the trial of this cause, there is no reason

for this Court to suspect ordering candidates by date and time of qualification or by random lottery

would present any more difficulty than the current system, either.

respect to nonpartisan alternatives such as alphabetical listing of candidates within

office blocks.

Florida’s interest in uniformity also relates to testimony elicited during trial

that employing county-by-county rotation would expose both the State and the

individual county supervisors of elections to increased litigation by candidates

dissatisfied with their ballot placement. See T. at 464–68. Defendants’ concern is

that candidates for offices whose districts are entirely contained within a single

county would not benefit from any rotation of names, and would therefore

potentially sue both the State and their local supervisor of elections. This is no

justification at all for Florida’s current ballot order scheme. First, any change to an

existing statute will produce litigation concerning the meaning of the new version,

and this justification therefore does not relate to Florida’s specific ballot order

scheme as opposed to any alternative one. This Court doubts any law, no matter

how carefully drafted, will ever be so clear that a sufficiently clever attorney will

find nothing in it to be litigated. Second, even assuming it is relevant and legitimate,

this justification is particularly weak because, on its face, county-by-county rotation

could only reduce the amount of potential litigation related to Florida’s ballot order

scheme. Under Florida’s current ballot order scheme, any second-listed candidate

in any partisan race could sue both the Secretary of State and each county supervisor

of elections on whose ballots they appear. In a county-by-county rotational system,

meanwhile, only second-listed candidates contesting elections in districts

encompassing a single county or part of a single county—that is, districts whose

candidates’ names would not be rotated—would have a claim to bring. It is plain

that county-by-county rotation would in fact reduce the possibility of litigation by

significantly reducing the number of possible plaintiffs. This Court finds the witness

testimony to the contrary to be oppugnant to common sense, and not credible. It is

equally plain that, for the same reasons, an alphabetical system of candidate name

order would reduce the possibility of litigation still further. This justification is too

weak to bear even the mild scrutiny this Court employs in this Order.

Finally, a state has no legitimate interest whatsoever in promoting its citizens’

confidence in adherence to an unconstitutional law; but to the extent Florida’s

asserted interest in this case is legitimate and relevant, there is at best no reason to

believe Florida’s citizens draw more confidence from one sort of ballot order scheme

than from any other. If anything, voter confidence in the integrity of Florida’s

elections process would actually be undermined by Florida’s present ballot order

scheme. Taking Defendant Lee’s argument on this score at face value, Florida’s

ballot order would promote citizen confidence to the same degree whether it requires

candidates affiliated with the last-elected governor’s party to be listed first, as it does

now, or whether it lists them alphabetically, in order of qualification, or completely

randomly. Although some testimony was presented to suggest a county-by-county

rotation scheme would reduce voter confidence in the election system, this Court

finds that testimony not credible for two reasons. First, Defendant Lee links voter

confidence to voters knowing that the ballot is ordered as the law requires.

Therefore, even if the candidates are rotated on a county-by-county basis, voters

presumably are no less ignorant from one day to the next and will gain confidence

from knowing the ballot was organized as the law requires. Second, this Court

concludes voters could actually lose confidence in the integrity of Florida’s election

system from the knowledge that the order of candidates’ names on the ballot was

determined on a partisan political basis rather than a neutral one. With respect to the

necessity for Florida’s present ballot order scheme in terms of voter confidence,

therefore, this Court finds that, at best, Plaintiffs have shown there is no necessity

for it vis-à-vis the alternatives, and at worst Florida’s present ballot order scheme is

less effective at promoting voter confidence than several alternatives.

Scrutinizing the Statute

Taking all this together, this Court must now determine which level of

scrutiny to apply and balance the burdens on Plaintiffs’ rights against Defendants’

asserted justifications for those burdens. In the Anderson/Burdick framework, when

a court concludes a law imposes only “reasonable, nondiscriminatory restrictions”

on voting rights, Anderson, 460 U.S. at 789, the court scrutinizes the challenged law

only on a level akin to rational basis review. Id. If, however, the burden is more

severe, the level of scrutiny undergoes a concomitant increase. Burdick, 504 U.S. at

434. The Anderson/Burdick framework thus incorporates a sliding scale of scrutiny

linked expressly to the burden on the plaintiff’s rights.

As burdens on voting rights go, Florida’s ballot order scheme is not on the

same order of magnitude as a complete denial of the franchise, such as preventing

someone from registering to vote or from casting their vote. As Defendants correctly

contend, it does not prevent any individual from voting, nor does it prevent their

votes from being counted. Under similar circumstances, other courts have found it

appropriate to apply a rational-basis standard. See McLane, 637 F.3d at 1167

(reasoning that “although ballot format has an effect on the fundamental right to

vote, the effect is somewhat attenuated” and explaining that “[i]n these

circumstances, most courts have applied the rational basis test”). The present case

is different for two reasons. First, as explained above, Florida’s ballot order statute

is not neutral; instead, it affects Plaintiffs’ rights in a politically discriminatory way.

Second, although a donkey vote of three or even five percent is not, in and of itself,

a large proportion of the total vote, it is often a decisive proportion in terms of the

spread between the candidates in a Florida election. This suggests that, although the

quantitative burden on Plaintiffs’ rights is small, the practical burden is severe

indeed. Cf. Anderson, 460 U.S. at 806 (conducting a “realistic” appraisal).27

This Court concludes the appropriate standard of review in this case is higher

than rational-basis review. Florida’s ballot order scheme is not a neutral,

nondiscriminatory restriction on Plaintiffs’ voting rights, and the burden it imposes

is significant. But Florida’s ballot order scheme is not a well-nigh insuperable

burden, and Florida has legitimate regulatory interests in administering orderly

elections to which this Court owes respectful deference. This Court therefore

concludes neither mere rational-basis review nor strict scrutiny would be

appropriate. Instead, this Court will scrutinize the State’s asserted interests and

justifications in a level of detail greater than the cursory examination afforded under

the rational-basis standard, but this Court will not apply a stricter standard that

requires the State’s interest to be compelling or important—they need only be

legitimate and relevant; and (pursuant to the Anderson/Burdick framework’s inquiry

into the necessity for the challenged restriction) the challenged law must actually

serve the State’s asserted interest to at least the same degree as an available

alternative, otherwise it would not be necessary. Nor will this Court interpret the

27 In this same sense, a $1,000 medical bill might seem insignificant or insuperable

depending on one’s monthly income. Severity is an objective question but the realistic context is

important to the analysis.

“necessity” aspect of the Anderson/Burdick framework to signify an absolute

necessity in this context, as stricter shades of scrutiny would require. Finally, this

Court will not pry into the subjective motivations the State of Florida had in adopting

its current ballot order scheme, but will instead consider only the objective interests

and justifications Defendants raise and evaluate whether they are relevant,

legitimate, and of sufficient strength to justify the specific burden at issue. Under

the Anderson/Burdick framework, this is the correct analysis for this Court to apply.

Applying that level of scrutiny, this Court concludes Florida’s interests in its current

ballot order scheme do not justify the burden on Plaintiffs’ rights which Florida’s

current ballot order scheme imposes. This Court also concludes, however, that

Florida’s current ballot order scheme cannot satisfy even the extremely deferential

rational-basis standard under the Anderson/Burdick framework. Put simply,

Florida’s current ballot order scheme cannot even clear the lowest available bar.

As this Court explained above, Florida’s current ballot order scheme imposes

a burden on Plaintiffs’ First and Fourteenth Amendment rights which, although

numerically small, is significant in both the statistical sense and in qualitative terms.

Furthermore, that burden is of a politically discriminatory character. To weigh

against that burden, Defendants have offered a variety of justifications which this

Court has found vary in strength from minor to meager, to the extent they are

relevant and legitimate at all. Weighing the burden on Plaintiffs’ rights against the

strength (such as it is) of Florida’s interests in, and the necessity of, imposing that

burden, this Court concludes Florida has advanced no sufficient justification nor

combination of justifications nor a necessity, reasonable or otherwise, for employing

a ballot order scheme which systematically advantages candidates of one party and

disadvantages candidates of another party to a statistically significant (and

potentially outcome-determinative) degree. In light of the almost total absence of

any legitimate state interest favoring this system over the multiple alternatives

available, it is difficult to imagine what other purpose it could possibly serve than as

a thumb on the scale in favor of the party in power. This Court holds the burden on

Plaintiffs’ First and Fourteenth Amendment rights conclusively outweighs

Defendants’ asserted interests and justifications, which are universally weak.

Moreover, even under the rational-basis standard, Florida has not advanced relevant,

legitimate interests which the Florida Legislature could rationally conclude justify

burdening Plaintiffs’ rights as Florida’s current ballot order scheme does. Under

either standard, Florida’s current ballot order scheme violates the First and

Fourteenth Amendments.

Permanent Injunction

This Court has concluded Florida’s current ballot order scheme is

unconstitutional. The question now is, what to do about it? Plaintiffs seek a

permanent injunction to prohibit Defendant Lee from enforcing section

101.151(3)(a) as it currently stands. Plaintiffs also ask this Court to require

Defendant Lee to adopt a ballot order scheme of county-by-county rotation of

candidates’ names until such time as the State of Florida adopts a replacement ballot

order scheme. To obtain a permanent injunction, Plaintiffs must show that (1) they

have suffered an irreparable injury; (2) their remedies at law are inadequate; (3) the

balance of hardships weighs in their favor; and (4) that a permanent injunction would

not disserve the public interest. eBay, Inc. v. MercExchange, L.L.C., 547 U.S. 388,

391 (2006). Plaintiffs have satisfied each element of this standard.

“[T]he irreparable-injury requirement may be satisfied by demonstrating a

history of past misconduct, which gives rise to an inference that future injury is

imminent.” Thomas v. Bryant, 614 F.3d 1288, 1318 (11th Cir. 2010). Moreover,

“the irreparable-injury requirement cannot be met absent a real or immediate threat

that the plaintiff will be wronged again.” Id. Injuries are irreparable if they cannot

be undone through monetary remedies. Cunningham v. Adams, 808 F.2d 815, 821

(11th Cir. 1987). And irreparable injury is presumed when “[a] restriction on the

fundamental right to vote” is at issue. Obama for Am. v. Husted, 697 F.3d 423, 436

(6th Cir. 2012). This Court has elsewhere explained that injuries to fundamental

voting rights are irreparable because “[t]his isn’t golf: there are no mulligans.” Fla.

Democratic Party II, 215 F. Supp. 3d at 1258. This Court finds Plaintiffs have

conclusively demonstrated a history of injury and have established a real and

immediate threat that, absent equitable relief from this Court, they will be wronged

again. Plaintiffs satisfy the first factor.

Second, remedies at law are not sufficient to redress Plaintiffs’ injuries.

Damages would in no way remedy these violations of Plaintiffs’ rights. Cf.

Cunningham, 808 F.2d at 821. The injury Plaintiffs suffer is the result of holding

elections with ballots organized pursuant to Florida’s current ballot order scheme.

This Court finds Plaintiffs have satisfied the second factor.

Third, the balance of hardships weighs in Plaintiffs’ favor. As this Court has

explained at length, Plaintiffs suffer from a substantial burden on their First and

Fourteenth Amendment rights, and the countervailing hardship the State of Florida

would suffer ranges from minimal to nonexistent. See Laube v. Haley, 234 F. Supp.

2d 1227, 1252 (M.D. Ala. 2002) (“The threat of harm to the plaintiffs cannot be

outweighed by the risk of financial burden or administrative inconvenience to the

defendants.”). This Court finds Plaintiffs have satisfied the third factor.

Fourth and finally, a permanent injunction will not disserve the public interest.

It is beyond question that the public’s interest is served by upholding constitutional

rights. Cf. Laube, 234 F. Supp. 2d at 1252 (“[T]here is a strong public interest in

requiring that the plaintiffs’ constitutional rights no longer be violated . . ..”);

Republican Party of Minn., 416 F.3d at 753 (“It can hardly be argued that seeking to

uphold a constitutional protection . . . is not per se a compelling state interest.”); see

also League of Women Voters of Fla. v. Browning, 863 F. Supp. 2d 1155, 1167 (N.D.

Fla. 2012) (“The vindication of constitutional rights . . . serve[s] the public interest

almost by definition.”). Voting is at the heart of representative systems of

government, and dispensing with unconstitutional obstacles to free and fair elections

is unquestionably in the public interest. Cf. Fla. Democratic Party II, 215 F. Supp.

3d at 1258 (quoting Reynolds v. Sims, 377 U.S. 533, 555 (1964)). This Court finds

Plaintiffs have satisfied the fourth factor.

This Court concludes Plaintiffs are entitled to a permanent injunction, and

must next consider what the terms of that injunction will be. Courts have broad

discretion to fashion equitable relief which is appropriate to the circumstances of the

case in question. See Democratic Exec. Comm., 915 F.3d at 1327–28 (explaining

that crafting a “Goldilocks solution,” rather than approaching equitable relief as an

all-or-nothing proposition, is “well within [a court’s] discretion”). The

circumstances of the present case make this a relatively simple process. Plaintiffs

seek a permanent injunction which both prohibits enforcement of Florida’s current

ballot order scheme and requires Defendant Lee to employ a county-by-county

rotational scheme until such time as the State of Florida adopts a new ballot order

scheme on a permanent basis. See ECF No. 201-1 at 62–63. This Court concludes

a permanent injunction against enforcement or application of section 101.151(3)(a)

is warranted, but that an injunction requiring Defendant Lee to specifically adopt

county-by-county rotation until the State of Florida chooses a replacement would

not be appropriate.

The alternatives for ballot order schemes can be divided into two categories

based upon the way in which they would reduce the burden on, or altogether avoid

burdening, Plaintiffs’ rights, while also serving Florida’s legitimate regulatory

interests. The first category are the rotational schemes, which would rotate

candidates’ names within their office blocks on a county-by-county or precinct-by-

precinct basis. These schemes attempt to minimize the burden on Plaintiffs’ rights

by distributing the candidate name order effects more evenly across all candidates

rather than awarding it solely to candidates of one party. Rotational ballot order

schemes satisfy the requirements of the First and Fourteenth Amendment by

equalizing the burden on voting rights—they do not remove it, but they do burden

all persons equally to the extent reasonably possible. This is one set of ways to solve

the problem.

The second category of ballot order schemes alleviate the burden on First and

Fourteenth Amendment rights by cleansing the partisan taint from the process. If

candidates’ names are arranged in alphabetical order, or in the order in which

candidates submitted their qualifying paperwork, or in an order determined by

random lottery, the “donkey vote” would still exist and its magnitude would be

unchanged; but it would not be distributed on the basis of candidates’ political

affiliation, and no constitutional issue would arise on that basis. With respect to this

category of ballot order schemes, the balance is most favorable to Plaintiffs because

Defendants’ justifications are at their weakest.

This Court will not require that Florida adopt a particular ballot order scheme

from among the alternatives described above, nor that Florida choose only from

among the alternatives this Court and the parties have identified. If there were only

one alternative ballot order scheme which satisfied the Constitution, this Court’s

conclusion on this question might be different; but, as described above, there are

several alternatives which do not systematically award the advantage of the primacy

effect vote to candidates of one party based on their party affiliation and which do

not impose significant burdens on the State. The State of Florida is empowered, by

its sovereignty, to adopt any ballot order scheme that comports with the requirements

of the Constitution and other applicable law. Cf. Democratic Exec. Comm., 915 F.3d

at 1331 (explaining that, “rather than undermining Florida’s sovereignty,” the

narrowly tailored injunction issued in that case “actually respected it”). Moreover,

the issue in this case is not whether Florida is failing to do something it ought to do,

but rather whether the Constitution permits it to act in a particular way. Therefore,

this Court concludes a negative injunction rather than an affirmative one is

appropriate.

Florida may choose to adopt county-by-county rotation, precinct-by-precinct

rotation, alphabetical-by-surname listing, or any number of other alternative ballot

order schemes which comport with the Constitution. But Florida may not continue

to order candidates’ names on its ballots in a way that systematically awards the

statistically significant advantage conferred by candidate name order effects to

candidates of one political party on the basis of their partisan affiliation.28 As this

Court has previously noted, “[w]hile the vast majority of supervisors of election are

upstanding professionals who follow the law and court orders . . . there may be some

who selectively interpret parts of this Court’s orders or otherwise avoid compliance.”

Rivera Madera v. Lee, No. 1:18cv152-MW/GRJ, 2019 WL 2077037, at *3 (N.D.

Fla. May 10, 2019). This Court will therefore be blunt. Compliance with this Order

is not optional, and this Court will not hesitate to use every tool available to enforce

its authority and ensure compliance with its orders. See Fed. R. Civ. P. 65(d)(2)(C)

(binding “other persons who are in active concert or participation” with the parties

and their officers, agents, and employees); 28 U.S.C. § 1651(a) (2018) (endowing

courts with the authority to “issue all writs necessary or appropriate in aid of their

28 As to the immediate effect of the injunction this Court issues, concerns were expressed

during the trial of this case regarding whether Florida’s election systems could be recertified to

permit county-by-county or precinct-by-precinct rotation to be implemented in time for the 2020

general election. This Court notes that there are other options, such as alphabetical ordering or

ordering in order of qualification, that Florida already uses and therefore that Florida’s election

systems already are capable of, and thus those ballot order alternatives could be implemented

immediately. See §§ 101.151(3)(b) & 101.151(4)(a), Fla. Stat. (2019).

respective jurisdictions and agreeable to the usages and principles of law”). This

Court does not anticipate any such extraordinary measures will be necessary. It’s

not hard—the way for Florida to conduct a free and fair election is, to conduct a free

and fair election.29 Accordingly,

IT IS ORDERED:

1. The Clerk shall enter judgment stating: “This Court hereby DECLARES that

the ballot order scheme described in section 101.151(3)(a), Florida Statutes,

violates Plaintiffs’ rights under the First and Fourteenth Amendments of the

United States Constitution. This Court GRANTS Plaintiffs’ request for a

permanent injunction. Pursuant to the Secretary of State’s responsibility for

“general supervision and administration of the elections laws,” § 15.13, Fla.

Stat. (2019), and her authority to “[o]btain and maintain uniformity in the

interpretation and implementation of the elections laws,” § 97.012(1), Fla.

29 One could be forgiven for thinking otherwise, given the difficulty Florida seems to have

with the concept. See Rivera Madera, 325 F. Supp. 3d at 1283–84 (noting “[i]t is remarkable that

it takes a coalition of voting rights organizations and individuals to sue in federal court to seek

minimal compliance with the plain language of a venerable 53-year-old law,” the Voting Rights

Act); Fla. Democratic Party I, 2016 WL 6090943, at *1 (explaining some of the manifold ways

in which “the State of Florida has consistently chipped away at the right to vote”); Rivera Madera

v. Lee, 2019 WL 2077037, at *4 (explaining the Voting Rights Act “has been the law of the land

since 1965 and supervisors of elections should have been complying with the law for more than

50 years without court intervention.”); Hand, 285 F. Supp. 3d at 1310 (noting “[m]ore than one

tenth of Florida’s voting population—1.7 million as of 2016—cannot vote because they have been

decimated from the body politic” and “[m]ore than one in five of Florida’s African American

voting-age population cannot vote.” (internal marks and footnotes omitted)); Fla. Democratic

Party II, 215 F. Supp. 3d at 1257 (explaining Florida’s voter registration framework “completely

disenfranchise[d]” hundreds of thousands of potential voters by failing to include a provision

extending the registration period in the event of an emergency or natural disaster).

Stat. (2019), and pursuant to Federal Rule of Civil Procedure 65(d)(2)(C),

neither Defendant Lee, her successors in office, deputies, officers, employees,

agents, nor any other person in active participation or concert with Defendant

Lee shall enforce, nor permit enforcement of, the ballot order scheme

described in section 101.151(3)(a), Florida Statutes. Defendant Lee and her

successors in office, as well as her deputies, officers, employees, agents, and

any other person in active participation and concert with Defendant Lee shall

take all practicable measures within the scope of their official authority to

ensure compliance with the terms of this Order. From the date of this Order

forward, no ballot shall issue which is organized pursuant to the ballot order

scheme described in section 101.151(3)(a), Florida Statutes. No supervisor of

elections of any Florida county, nor their successors in office, deputies,

officers, employees, agents, nor designees, shall issue any ballot which is

organized pursuant to the ballot order scheme described in section

101.151(3)(a), Florida Statutes.”

2. Within fourteen days after the issuance of this Order, Defendant Lee shall

provide written guidance to the supervisors of elections of Florida’s counties

informing them that this Court has declared the ballot order scheme described

in section 101.151(3)(a), Florida Statutes, unconstitutional. Defendant Lee

shall include a true and correct copy of this Court’s order in her written

guidance.

3. Once Defendant Lee has provided said written guidance to the supervisors of

elections, Defendant Lee shall file a notice of compliance in this Court within

twenty-one days after issuance of this order. Defendant Lee shall make

and maintain written records of all actions taken pursuant to this Order

sufficient to document compliance with all requirements of this Order.

4. Pursuant to this Court’s authority to monitor the status of its injunction, when

the State of Florida adopts a new permanent ballot order scheme to replace

the ballot order scheme described in section 101.151(3)(a), Florida Statutes,

Defendant Lee shall file a notice in this Court informing this Court that the

State of Florida has done so, and shall append thereto a copy of the final text

of the ballot order scheme adopted. If the State of Florida, through Defendant

Lee or by any other means, adopts a temporary or interim ballot order scheme

to replace the ballot order scheme described in section 101.151(3)(a),

Defendant Lee shall file a notice in this Court informing this Court the State

of Florida has done so, and shall append thereto a copy of the temporary or

interim provision adopted.

5. The Clerk shall close the file.

SO ORDERED on November 15, 2019.

s/Mark E. Walker ____

Chief United States District Judge