# Nancy Carola Jacobsen v. Florida Secretary of State

> Court of Appeals for the Eleventh Circuit · September 3, 2020 · 974 F.3d 1236

URL: https://www.frixlaw.com/law-library/cases/4562703

## Case

- **Court:** Court of Appeals for the Eleventh Circuit
- **Decided:** September 3, 2020
- **Citations:** 974 F.3d 1236
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** NEW
- **Cited by:** 87 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4562703

## How later opinions describe it (automated extraction)

- holding that Anderson-Burdick could not be applied with respect to a challenge to Florida’s ballot order statute for general elections
- holding that plaintiffs’ requested relief wouldn’t redress their alleged injury because they hadn’t shown that non-parties “will ignore state law and follow a federal decree that does not bind them”
- emphasizing that a federal court cannot “erase a duly enacted law from the statute books” but rather has only the “more limited” power to “enjoin executive officials from taking steps to enforce a statute,” and can “exercise that power only 15 USCA11 Case: 20-12665 Date Filed:…
- rejecting the argument that the Secretary of State’s role in prescribing rules and issuing directives about ballot orders had any bearing on whether the Secretary could enforce the provision because “[i]f rulemaking authority were sufficient to establish traceability, plaintif…
- finding that the Democratic National Committee lacked associational standing where it “describe[d] itself as having members” but “failed to identify any of its members”

## Opinion text

Case: 19-14552 Date Filed: 09/03/2020 Page: 1 of 152

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 19-14552
________________________

D.C. Docket No. 4:18-cv-00262-MW-CAS

NANCY CAROLA JACOBSON,
TERENCE FLEMING, et al.,

Plaintiffs-Appellees,

versus

FLORIDA SECRETARY OF STATE,
NATIONAL REPUBLICAN SENATORIAL COMMITTEE, et al.,

Defendants-Appellants.

________________________

Appeal from the United States District Court
for the Northern District of Florida
________________________

(September 3, 2020)

Before WILLIAM PRYOR, Chief Judge, JILL PRYOR and LUCK, Circuit
Judges.

WILLIAM PRYOR, Chief Judge:
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We vacate our original opinion in this appeal and substitute in its place the

following opinion.

This appeal requires us to decide whether several voters and organizations

may challenge in federal court a law that governs the order in which candidates

appear on the ballot in Florida’s general elections. The law provides that

candidates of the party that won the last gubernatorial election shall appear first for

each office on the ballot and that candidates of the second-place party shall appear

second. Several Democratic voters and organizations sued the Florida Secretary of

State to enjoin enforcement of the law. They alleged that the law violates their

rights under the First and Fourteenth Amendments because candidates who appear

first on the ballot—in recent years, Republicans—enjoy a “windfall vote” from a

small number of voters who select the first candidate on a ballot solely because of

that candidate’s position of primacy. After a bench trial, the district court

permanently enjoined the Secretary—and the 67 county Supervisors of Elections,

none of whom were made parties to this lawsuit—from preparing ballots in

accordance with the law.

We hold that the voters and organizations lack standing to sue the Secretary.

None of them proved an injury in fact. And any injury they might suffer is neither

fairly traceable to the Secretary nor redressable by a judgment against her because

she does not enforce the challenged law. Instead, the Supervisors—county officials

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independent of the Secretary—are responsible for placing candidates on the ballot

in the order the law prescribes. The district court lacked authority to enjoin those

officials in this suit, so it was powerless to provide redress.

We also hold alternatively that the voters and organizations’ complaint

presents a nonjusticiable political question. Complaints of unfair partisan

advantage based on the order in which candidates appear on the ballot bear all the

hallmarks of a political question outside our competence to resolve. See Rucho v.

Common Cause, 139 S. Ct. 2484 (2019). No judicially discernable and manageable

standards exist to determine what constitutes a “fair” allocation of the top ballot

position, and picking among the competing visions of fairness “poses basic

questions that are political, not legal.” Id. at 2500. And even if courts could agree

on a standard for fairly ordering ballots, no objective measures exist to identify

violations of that standard. See id. at 2501. This lawsuit asks us “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” our

decision. Id. at 2507. That kind of complaint is “outside the courts’ competence

and therefore beyond the courts’ jurisdiction.” Id. at 2494.

Because the voters and organizations lack standing and their complaint is

nonjusticiable, we vacate and remand with instructions to dismiss for lack of

jurisdiction.

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I. BACKGROUND

As part of a comprehensive revision to the election code, the Florida

Legislature enacted a statute in 1951 that governs the order in which candidates

appear on the ballot in general elections. 1951 Fla. Laws 871 (originally codified at

Fla. Stat. § 101.151(4) (1951)). The statute requires the candidate of the party that

won the last gubernatorial election to appear first beneath each office listed on the

ballot, with the candidate of the second-place party appearing second. Fla. Stat.

§ 101.151(3)(a). In the nearly 70 years since its enactment, the statute has placed

Democrats first on the ballot in 20 general elections and Republicans first in 14,

including the 10 most recent general elections.

In 2018, three voters and six organizations that support the Democratic Party

filed a complaint against the Florida Secretary of State to enjoin enforcement of the

statute. They alleged that, because of “position bias,” the statute confers “an unfair

electoral advantage” on Republicans, who have held the Governorship for the past

20 years and whose candidates have appeared first on the ballot during that time.

Position bias, or the “primacy effect,” refers to the phenomenon that a small

number of voters select the candidate who is listed first for an office on the ballot

solely because of the candidate’s position. In close elections, the complaint

alleged, the primacy effect can give Republican candidates the “bump” needed to

secure victory. By awarding the benefits of the primacy effect entirely to

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Republican candidates in recent years, the voters and organizations argued that the

statute violates their rights under the First and Fourteenth Amendments as

interpreted in Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v.

Takushi, 504 U.S. 428 (1992).

Shortly after the voters and organizations filed their complaint, the National

Republican Senatorial Committee and Republican Governors Association moved

to intervene as defendants. See Fed. R. Civ. P. 24(b). The district court granted the

motion. The Republican intervenors joined the Secretary in defending the

challenged law as constitutional and opposing the relief the voters and

organizations sought.

At a bench trial, the voters and organizations presented the testimony of

three expert witnesses. Jon Krosnick, a professor at Stanford University, reviewed

the academic literature and testified that the existence of the primacy effect is well-

established by academic studies of elections. Based on his regression analyses of

past Florida elections, Krosnick testified that candidates listed first on Florida

ballots have historically gained an average advantage of about five percentage

points. Jonathan Rodden, also a professor at Stanford University, testified about

the primacy effect in down-ballot races. Rodden testified that the primacy effect is

more pronounced in down-ballot races, where voters often have less information

about the candidates, than in top-of-ticket races. And Paul Herrnson, a professor at

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the University of Connecticut, testified about how ballot order contributes to

“proximity error.” Herrnson testified that when voters make proximity errors—that

is, accidentally select the candidate listed before or after the one they mean to

select—the second-listed candidate is especially disadvantaged in races with more

than two candidates. The reason for this disadvantage, Herrnson explained, is that

voters who intend to select the first or last candidate in a list can err in only one

direction, but voters who intend to select the second candidate can err in either

direction.

The Secretary and the Republican intervenors presented the testimony of an

expert witness, several election officials, and a corporate representative for one of

Florida’s election machine vendors. Michael Barber, a professor at Brigham

Young University, critiqued Krosnick’s methods and testified that Krosnick’s

estimate of an average five-percent primacy effect was not valid. Maria Matthews,

Director of the Florida Division of Elections, and several county Supervisors of

Elections testified about the state interests the challenged law serves. They

explained that the statute helps prevent voter confusion, allows voters to more

quickly find their preferred candidate or party for a particular office, promotes

uniformity in administering elections across Florida’s 67 counties and over 6,000

precincts, and helps limit errors in ballot layout. Matthews and the Supervisors also

testified about the logistical difficulties of implementing the voters’ and

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organizations’ requested relief, such as rotating the names of Democratic and

Republican candidates between counties or between voting precincts within a

county. And a corporate representative for an election machine vendor testified

that he did not know whether the election machines could rotate Democratic and

Republican candidates between the top two ballot positions and that it could take

up to a year for the company to take the steps necessary for rotating candidate

names.

After trial, the district court entered a final order. It rejected the Secretary’s

and intervenors’ arguments that the voters and organizations lacked standing and

that their complaint presented a nonjusticiable political question. And on the

merits, it ruled that Florida’s method of ordering candidates on the ballot is

unconstitutional.

The district court ruled that both the voters and the organizations proved

Article III standing. It reasoned that an “impact on the right to vote” is “common to

all election laws,” so the voters necessarily had an injury in fact. It also concluded

that the organizations were injured because they spent resources to combat the

primacy effect and because some unidentified voters who were members of the

organizations would be harmed by the primacy effect. The district court did not

squarely address whether any injury from ballot order is traceable to the Secretary,

but it reasoned that the Secretary is responsible for ballot order because she is

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Florida’s “chief election officer.” And although Florida law tasks the nonparty

Supervisors with placing candidates on the ballot in the correct order, Fla. Stat.

§ 99.121, the district court ruled that relief against the Secretary could redress the

voters’ and organizations’ injuries.

The district court also ruled that this lawsuit does not present a

nonjusticiable political question. It reasoned that the Supreme Court’s summary

affirmance in Mann v. Powell, 398 U.S. 955 (1970) (mem.), established that the

voters and organizations’ complaint was justiciable. And it rejected the argument

that complaints of unfair partisan advantage from ballot order are nonjusticiable

under Rucho, 139 S. Ct. 2484. The district court concluded that it could evaluate

the voters and organizations’ complaint under the judicially manageable standards

established in Anderson, 460 U.S. 780, and Burdick, 504 U.S. 428. It decided that

Rucho was inapplicable because that decision was limited to complaints of partisan

gerrymandering.

On the merits, the district court ruled that the law is unconstitutional under

the approach established in Anderson, which requires courts to weigh the burdens

imposed by an election regulation against the state interests justifying the measure.

See 460 U.S. at 789. The district court found 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 based on “Florida’s

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history of election results in which the margin of victory or defeat is less than three

to five percentage points,” the district court found that the ballot statute “has

impacted Plaintiffs’ First and Fourteenth Amendment rights by systematically

allocating that small but statistically significant advantage to Republican

candidates” in recent years. It concluded the statute was “politically

discriminatory” because it awarded the benefits of the primacy effect to a single

political party in any given election. And it found that the State’s asserted

justifications for the statute—upholding the legislature’s policy choice, preventing

voter confusion, promoting uniformity, and promoting voter confidence in the

election administration process—were “weak,” “not particularly persuasive,” and

“not particularly strong on the specific facts of this case.”

The district court awarded declaratory and injunctive relief. It declared that

Florida’s ballot-order scheme violated the First and Fourteenth Amendments. And

it permanently enjoined the Secretary and the 67 Supervisors of Elections from

implementing the ballot-order statute. Based on the Secretary’s “responsibility for

general supervision and administration of the election laws,” the district court

ordered the Secretary to neither “enforce, nor permit enforcement of,” the statute.

The district court also ordered the Secretary to “take all practicable measures

within the scope of [her] official authority to ensure compliance with the terms of

[its] Order.” And it enjoined any “supervisor of elections of any Florida county”—

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none of whom were named as defendants or served with process as parties to this

lawsuit—from issuing “any ballot which is organized pursuant to” the statute. The

district court also ordered the Secretary to “provide written guidance to the

supervisors of elections of Florida’s counties informing them that this Court has

declared the [statute] unconstitutional” and to “include a true and correct copy of

this Court’s order in her written guidance.”

The district court did not require Florida to adopt a specific alternative

method of ordering candidates on ballots; it instead explained that two kinds of

alternative schemes would be constitutional and allowed Florida to choose an

alternative scheme. The first group of permissible schemes it identified were

“rotational schemes,” which “rotate candidates’ names within their office blocks

on a county-by-county or precinct-by-precinct basis.” The district court explained

that these schemes “equaliz[e] the burden on voting rights” by “distributing the

candidate name order effects more evenly across all candidates.” The second group

of permissible schemes the district court identified are those that “cleans[e] the

partisan taint from the process,” such as ordering candidates alphabetically by last

name, by the order in which they submit their qualifying paperwork, or by lottery.

II. STANDARD OF REVIEW

We review questions of subject-matter jurisdiction de novo. United States v.

Pavlenko, 921 F.3d 1286, 1289 (11th Cir. 2019).

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III. DISCUSSION

Federal courts have an independent obligation to ensure that subject-matter

jurisdiction exists before reaching the merits of a dispute. “For a court to

pronounce upon . . . the constitutionality of a state or federal law when it has no

jurisdiction to do so is, by very definition, for a court to act ultra vires.” Steel Co.

v. Citizens for a Better Env’t, 523 U.S. 83, 101–02 (1998). If at any point a federal

court discovers a lack of jurisdiction, it must dismiss the action. See MSP

Recovery, LLC v. Allstate Ins. Co., 835 F.3d 1351, 1357 (11th Cir. 2016).

Unfortunately, the district court took its obligation to ensure its jurisdiction

far too lightly. It dismissed weighty challenges to the voters’ and organizations’

standing under Article III and to the justiciability of their complaint as a

“hodgepodge” of “[p]reliminary [m]iscellanea.” It then proceeded to declare

Florida’s ballot statute unconstitutional and enter an injunction against both the

Secretary and the nonparty Supervisors. In doing so, the district court acted ultra

vires by ordering relief that it had no jurisdiction to award.

This lawsuit suffers from two fatal jurisdictional defects. The voters and

organizations lack standing, and their complaint presents a nonjusticiable political

question. We discuss each defect in turn.

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A. The Voters and Organizations Lack Standing.

Article III of the Constitution limits the subject-matter jurisdiction of federal

courts to “Cases” and “Controversies.” U.S. Const. art. III, § 2. “To have a case or

controversy, a litigant must establish that he has standing,” which requires proof of

three elements. United States v. Amodeo, 916 F.3d 967, 971 (11th Cir. 2019). The

litigant must prove (1) an injury in fact that (2) is fairly traceable to the challenged

action of the defendant and (3) is likely to be redressed by a favorable decision.

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).

Because the elements of standing “are not mere pleading requirements but

rather an indispensable part of the plaintiff’s case, each element must be

supported . . . with the manner and degree of evidence required at the successive

stages of the litigation.” Id. at 561. If an action proceeds to trial, the facts necessary

to establish standing “must be supported adequately by the evidence adduced at

trial.” Id. (internal quotation marks omitted). And when plaintiffs seek prospective

relief to prevent future injuries, they must prove that their threatened injuries are

“certainly impending.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 401 (2013)

(internal quotation marks omitted).

We divide our discussion of why the voters and organizations lack Article

III standing in two parts. First, we explain that neither the voters nor the

organizations proved an injury in fact. Second, we explain that even if they had

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proved an injury, that injury would be neither traceable to the Secretary nor

redressable by relief against her.

1. Neither the Voters nor the Organizations Proved an Injury in Fact.

We divide our discussion of injury in two parts. We first explain that the

individual voters failed to prove an injury. We then explain that the organizations

likewise failed to prove an injury.

a. The Voters Failed to Prove an Injury.
Two of the three voters never testified at trial or in a deposition. The record

contains no evidence about any injuries those two individuals suffered in the past

or may suffer in the future. Indeed, we do not even know whether they plan to vote

in future Florida elections.

When confronted with this lack of evidence, the district court reasoned that

an “impact on the right to vote” is “common to all election laws,” so the voters

must have standing. But the Supreme Court has made clear that “a person’s right to

vote is individual and personal in nature,” so “voters who allege facts showing

disadvantage to themselves as individuals have standing to sue.” Gill v. Whitford,

138 S. Ct. 1916, 1929 (2018) (internal quotation marks omitted). And of course,

“[t]he facts necessary to establish standing . . . must not only be alleged at the

pleading stage, but also proved at trial.” Id. at 1931. Because they failed to offer

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any evidence at trial showing disadvantage to themselves as individuals, these two

voters failed to prove an injury.

The only voter who offered any evidence at trial was Nancy Jacobson.

Jacobson testified that she “always vote[s],” that she “go[es] out of [her] way to

vote in every election,” and that she consistently votes for Democratic candidates.

But Jacobson failed to identify any difficulty in voting for her preferred candidate

or otherwise participating in the political process.

Although her brief is less than clear on this point, Jacobson appears to

identify two threatened injuries from the ballot statute. The first is that some

unidentified Democratic candidates for whom she will vote in future elections will

lose those elections because of the primacy effect. The second injury is that—

regardless of the outcome of any election—the ballot statute “dilutes” the votes of

Democrats relative to Republicans by allocating the windfall vote entirely to

Republican candidates. We reject both theories of injury.

To the extent Jacobson contends that she will be injured if a Democratic

candidate for whom she votes loses an election or is at increased risk of losing, we

disagree. A candidate’s electoral loss does not, by itself, injure those who voted for

the candidate. Voters have no judicially enforceable interest in the outcome of an

election. See Raines v. Byrd, 521 U.S. 811, 819, 824, 830 (1997). Instead, they

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have an interest in their ability to vote and in their vote being given the same

weight as any other.

Raines, which involved the standing of legislators to challenge the

constitutionality of the Line Item Veto Act, is instructive. Id. at 814, 816. Several

legislators who voted against the Act sued to challenge it. Id. at 814. The Supreme

Court explained that passage of the Act did not injure the legislators who voted

against it because “their votes were given full effect,” and the disappointed

legislators “simply lost that vote.” Id. at 824. The Court made clear that legislators

have standing to challenge the defeat or enactment of legislation only if the

outcome of the vote changed because their votes were “nullified”—that is, not

counted at all. Id. at 823 & n.6. Jacobson does not argue that the ballot statute

nullifies her vote. Instead, her complaint is that less careful voters will vote for

Republican candidates solely because they appear first on the ballot, which might

cause her preferred candidates to lose. Like the legislators in Raines, the first harm

she identifies is an unfavorable electoral outcome, wholly apart from any

allegation of vote dilution or nullification.

Although the voting rights of legislators and citizens are not identical, see

Nev. Comm’n on Ethics v. Carrigan, 564 U.S. 117, 126 (2011), we conclude that

absent any evidence of vote dilution or nullification, a citizen is not injured by the

simple fact that a candidate for whom she votes loses or stands to lose an election.

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And two of our sister circuits agree. See Berg v. Obama, 586 F.3d 234, 240 (3d

Cir. 2009) (“Berg’s wish that the Democratic primary voters had chosen a different

presidential candidate . . . do[es] not state a legal harm.”); Becker v. Fed. Election

Comm’n, 230 F.3d 381, 390 (1st Cir. 2000) (holding that a candidate’s decreased

“chance of being elected” was “hardly a restriction on voters’ rights and by itself

[was] not a legally cognizable injury sufficient for standing”). Jacobson’s first

alleged injury is legally insufficient to establish Article III standing.

Insofar as Jacobson argues that the ballot statute will injure her by diluting

her vote relative to the votes of Republicans, she failed to prove any such injury.

Her theory of vote dilution appears to be that, because of Florida’s ballot order and

the primacy effect, it takes a greater number of careful Democratic voters than

careful Republican voters to elect their preferred candidates. The reason for this

disparity is that some less careful voters will select Republican candidates solely

because they happen to appear first on the ballot, thereby diluting the votes of

careful Democratic voters. Even assuming that this kind of “vote dilution” counts

as an Article III injury, the evidence Jacobson offered is insufficient to prove it.

In Gill, the Supreme Court addressed whether voters had standing to

challenge a partisan gerrymander based on the dilution of their votes. 138 S. Ct. at

1929–31. Partisan gerrymandering operates by placing voters of one party “in

legislative districts deliberately designed to ‘waste’ their votes in elections where

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their chosen candidates will win in landslides (packing) or are destined to lose by

closer margins (cracking).” Id. at 1930. The voters’ theory of injury was that the

partisan gerrymander caused their votes to “carry less weight” than they would “in

another, hypothetical district” that had not been packed or cracked. Id. at 1931. But

instead of offering evidence that they lived in a packed or cracked district, which

could have shown “disadvantage to themselves as individuals,” id. at 1930

(internal quotation marks omitted), the voters rested their case on a “theory of

statewide injury to Wisconsin Democrats,” id. at 1932.

To prove partisan vote dilution, the voters in Gill relied on an “average

measure” of “partisan asymmetry” that compared the “statewide sum of one

party’s wasted votes” to “the statewide sum of the other party’s wasted votes.” Id.

at 1933. The Supreme Court held that this average measure of the partisan effects

of a gerrymander was insufficient to establish the voters’ standing because it did

not “address the effect that a gerrymander has on the votes of particular citizens.”

Id. It instead “measure[d] something else entirely: the effect that a gerrymander has

on the fortunes of political parties.” Id.

Jacobson similarly relies on a statewide average measure of the primacy

effect in Florida elections to prove the injury of partisan vote dilution. Her experts

testified, and the district court found, that candidates who appear first on the ballot

in Florida receive an average primacy effect vote of about five percent. But the

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experts acknowledged that this average measure tells us nothing about the

existence or size of the primacy effect in any given election. Dr. Krosnick agreed

that his analysis did not “mean that every Republican candidate receive[s] a

[five] percent advantage by being listed first.” As he explained, the primacy effect

will be larger in some races and smaller in others. Indeed, because Jacobson relies

solely on an average measure of the primacy effect, we cannot know how often the

primacy effect is zero and how often it is much greater than five percent. Any

estimates we might make about the variance in the primacy effect across races

would be pure speculation.

As in Gill, the average measure of partisan advantage on which Jacobson

relies is insufficient to prove that her individual vote will be diluted. “We need not

doubt [Jacobson’s] math” to reach this conclusion. Id. The reason her calculations

cannot establish standing is that they “are an average measure.” Id. “They do not

address the effect” that ballot order and the primacy effect have “on the votes of

particular citizens” in any given election. Id. (emphasis added). Instead, like the

average measures at issue in Gill, Jacobson’s calculations “measure something else

entirely: the effect that [ballot order and the primacy effect have] on the fortunes of

political parties” across many elections. Id. And complaints about that effect are

based on nothing more than “generalized partisan preferences,” which federal

courts are “not responsible for vindicating.” Id.

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Much like the average measure of wasted votes in Gill, the average measure

of the primacy effect treats all elections “as indistinguishable, even though their

individual situations are quite different.” Id. In low-information races between

Democrats and Republicans, the primacy effect may be quite pronounced. But in

an especially competitive, high-information race, the primacy effect may be

negligible or nonexistent. Likewise, some races in noncompetitive districts may

have no Republican candidates on the ballot at all and, hence, no primacy effect.

An average measure of the primacy effect across all elections cannot tell us

whether ballot order has diluted or will dilute Jacobson’s or any other citizen’s

vote in any particular election. See id. (explaining that statewide average measures

of partisan advantage were incapable of distinguishing between the effects of a

gerrymander on one citizen as opposed to another).

Jacobson and the other voters failed to prove that they have suffered or will

suffer partisan vote dilution in any particular election. As in Gill, this lawsuit

presents a dispute “about group political interests, not individual legal rights.” Id.

The “generalized partisan preferences” on which the voters rely cannot provide an

injury in fact sufficient for Article III standing. Id.

b. The Organizations Failed to Prove an Injury.

For their part, the organizations rely on two theories of injury. They seek to

establish associational standing based on the injuries of their members, see

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Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009), and organizational

standing based on their own injuries, see Common Cause/Ga. v. Billups, 554 F.3d

1340, 1350–51 (11th Cir. 2009). But they failed to prove an injury under either

theory.

To establish associational standing, an organization must prove that its

members “would otherwise have standing to sue in their own right.” Friends of the

Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). The

organizations contend that they have standing based on injuries suffered by

Democratic voters and candidates who are their members. But five of the six

organizations failed to even allege, much less prove, that they have any

members—voters or candidates. That failure is fatal to their associational standing.

See Summers, 555 U.S. at 498.

The only organization that describes itself as having members is the

Democratic National Committee, but it failed to identify any of its members, much

less one who will be injured by the ballot statute. See id. (requiring organizations

to establish “that at least one identified member” will suffer an injury); see also

Ga. Republican Party v. Sec. & Exch. Comm’n, 888 F.3d 1198, 1203–04 (11th Cir.

2018). And even if we accept as true the allegation of the complaint that the

Committee’s members include Democratic voters and candidates in Florida, the

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Committee still has not proved that one of those unidentified members will suffer

an injury.

Any voters and candidates in Florida face the same problem as Jacobson.

That is, because the Committee relies solely on an average measure of the primacy

effect, we have no basis to conclude that the primacy effect will impact any

particular voter or candidate in any particular election. Cf. Summers, 555 U.S. at

497 (rejecting the argument that an organization could establish standing if there

was “a statistical probability that some of [its] members are threatened with

concrete injury”). And the Committee has not proved that at least one of its

unidentified members “is certain to be injured by” the primacy effect. Ga.

Republican Party, 888 F.3d at 1204.

The organizations argue that they have suffered an injury in their own right

by diverting resources to combat the effects of the ballot statute. In Havens Realty

Corp. v. Coleman, the Supreme Court held that an organization could establish

standing to sue under the Fair Housing Act if it alleged, and later proved, that the

challenged actions of the defendants drained its resources and thereby impaired its

other operations. 455 U.S. 363, 378–79 & n.21 (1982). The housing organization

in Havens Realty alleged that the defendants’ discriminatory renting practices

required it “to devote significant resources to identify and counteract” those

practices, which “perceptibly impaired” the organization’s “ability to provide

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counseling and referral services for low- and moderate-income homeseekers.” Id.

at 379 (internal quotation marks omitted). The Court concluded that these

allegations were sufficient to establish standing at the pleading stage, but it warned

that at trial the organization would have to prove “that it has indeed suffered

impairment in its role of facilitating open housing before it will be entitled to

judicial relief.” Id. at 379 & n.21. Because statutory standing under the Fair

Housing Act “extend[s] to the full limits” of standing under Article III of the

Constitution, id. at 372, we have applied the reasoning of Havens Realty to

determine whether an organization has Article III standing based on the diversion

of its resources. See, e.g., Fla. State Conference of NAACP v. Browning, 522 F.3d

1153, 1165 & n.14 (11th Cir. 2008).

Consistent with Havens Realty, our precedent holds that “an organization

has standing to sue on its own behalf if the defendant’s illegal acts impair its ability

to engage in its projects by forcing the organization to divert resources to

counteract those illegal acts.” Id. at 1165. In Browning, we ruled that the NAACP

and another organization had standing to challenge a voting requirement because

the organizations would “divert personnel and time” from other activities “to

educating volunteers and voters on compliance with” the requirement. Id. at 1166.

In a later decision, we held that the NAACP had standing to challenge a law that

required voters to present photo identification because the organization was

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“actively involved in voting activities and would divert resources from its regular

activities to educate and assist voters in complying with” the law. Common

Cause/Ga., 554 F.3d at 1350.

To establish resource diversion, the organizations cite the testimony of

Daniel Kazin, the director of campaigns for the Democratic Congressional

Campaign Committee. When asked why he believed the ballot statute harms the

Committee, Kazin responded that “[b]ecause of the primacy effect, we need to

spend additional resources in the target districts that we have.” The organizations

also rely on similar testimony from Guy Cecil, the chair of Priorities USA, who

testified that the organization had to “invest more resources into [Florida] in order

to compensate for” the primacy effect.

Although resource diversion is a concrete injury, neither Kazin nor Cecil

explained what activities the Committee or Priorities USA would divert resources

away from in order to spend additional resources on combatting the primacy effect,

as precedent requires. See Havens Realty, 455 U.S. at 379 n.21; see also Browning,

522 F.3d at 1166 (“These resources would otherwise be spent on registration drives

and election-day education and monitoring.”); Common Cause/Ga., 554 F.3d at

1350 (explaining that resources would be diverted “from ‘getting voters to the

polls’ to helping them obtain acceptable photo identification” (alteration adopted));

Ga. Latino All. for Human Rights v. Governor of Ga., 691 F.3d 1250, 1260 (11th

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Cir. 2012) (observing that an immigration organization “cancelled citizenship

classes to focus on” increased inquiries about a new law). Based on Kazin’s

testimony, we do not know what activities, if any, might be impaired by the

Committee’s decision to allocate “additional resources” to target districts because

of the primacy effect. And Cecil’s testimony likewise fails to identify any activities

that will be impaired by Priorities USA’s decision to “invest more resources” into

Florida. Their testimony fails to establish an injury based on diversion of

resources.

The organizations also contend that the ballot statute injures them by

harming their mission of electing Democrats, but that harm is not a cognizable

injury. An organization’s general interest in its preferred candidates winning as

many elections as possible is still a “generalized partisan preference[]” that federal

courts are “not responsible for vindicating,” no less than when individual voters

assert an interest in their preferred candidates winning elections. Gill, 138 S. Ct. at

1933; see also id. at 1932 (rejecting a voter’s “hope of achieving a Democratic

majority in the legislature” as “a collective political interest” that cannot establish

standing). Harm to an organization’s generalized partisan preferences describes

only “a setback to [its] abstract social interests,” which is insufficient to establish a

concrete injury in fact. Havens Realty, 455 U.S. at 379; see also Arcia v. Fla. Sec’y

of State, 772 F.3d 1335, 1342 (11th Cir. 2014) (requiring “a concrete and

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demonstrable injury, not an abstract social interest” for organizational standing

(alteration adopted) (internal quotation marks omitted)).

We need not decide whether a political party would have standing to

challenge an electoral practice that harmed one of its candidate’s electoral

prospects in a particular election. See, e.g., Tex. Democratic Party v. Benkiser, 459

F.3d 582, 586 (5th Cir. 2006) (holding that the Texas Democratic Party had

standing to challenge action that would reduce “its congressional candidate’s

chances of victory” in upcoming election). As discussed, the average measure of

partisan advantage on which the organizations rely tells us nothing about whether

ballot order has affected or will affect any particular candidate in any particular

election. And in any event, the organizations do not argue that a particular

candidate’s prospects in a future election will be harmed. They instead contend that

they have standing based on “systemic disadvantage” to the Democratic Party

“relative to other political parties.” Because that kind of harm from ballot order is

based on nothing more than “generalized partisan preferences,” it is insufficient to

establish standing. Gill, 138 S. Ct. at 1933.

Our dissenting colleague argues that the Democratic National Committee,

the Democratic Senatorial Campaign Committee, and the Democratic

Congressional Campaign Committee were injured because Florida’s ballot order

harms the electoral prospects of Democratic candidates. Dissenting Op. at 75–76.

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We will assume the dissent is correct that a political party is injured by a practice

that harms its candidates’ electoral prospects. See, e.g., Tex. Democratic Party, 459

F.3d at 586. Even so, it is not clear that the Democratic National Committee—

much less the Democratic Senatorial Campaign Committee or the Democratic

Congressional Campaign Committee—is identical to the Democratic Party of the

United States for purposes of standing. And even if an injury to the Party is an

injury to the Democratic National Committee, the Committee never proved that

electoral harm to one of the Party’s candidates is “certainly impending,” so it lacks

standing to seek prospective relief. Clapper, 568 U.S. at 401 (internal quotation

marks omitted).

To begin, it is not obvious that the Democratic National Committee is

identical to the Democratic Party of the United States for purposes of standing,

such that any injury to the Party is necessarily an injury to the Committee. To be

sure, the Committee “is responsible for the day-to-day operation” of the Party “at

the national level.” 52 U.S.C. § 30101(14). But the Supreme Court has held that

the Party and the Committee are distinct entities that are not interchangeable for all

purposes. Fed. Election Comm’n v. Nat’l Conservative Political Action Comm.,

470 U.S. 480, 486 (1985) (holding that a federal statute empowered the

Democratic National Committee to file a lawsuit but not the Democratic Party of

the United States). The Party is not a plaintiff in this suit. Cf. id. at 482.

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But even if we assume that an injury to the Democratic Party is an injury to

the Democratic National Committee, the Committee never proved that one of its

candidates is likely to lose a future election because of ballot order. The

Democratic Party of the United States “[n]ominate[s] . . . Democratic candidates

for the offices of President and Vice President of the United States.” The Charter

of the Democratic Party of the United States art. I, § 1 (as amended August 25,

2018), https://democrats.org/wp-content/uploads/2018/10/DNC-Charter-Bylaws-

8.25.18-with-Amendments.pdf. But it does not nominate candidates for any other

offices. Instead, the Florida Democratic Party, which is not a party to this suit,

nominates candidates for other federal, state, and local offices. The Charter of the

Florida Democratic Party art. I, §§ 7, 10 (as amended October 13, 2019),

https://nmcdn.io/e186d21f8c7946a19faed23c3da2f0da/b1b96861a2534eba8191fd2

315c6a596/files/FDP-BYLAWS---10-013-2019-Updated.pdf.

So even if we assume that the Democratic National Committee is

indistinguishable from the Democratic Party of the United States, the Committee

still would have to prove that the Democratic candidates for President and Vice

President—its candidates—would likely lose a future election because of ballot

order. And it has not done so. The average measure of the primacy effect on which

the Committee relies cannot tell us what impact, if any, ballot order might have on

a future presidential election. In fact, the evidence at trial suggested that the

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primacy effect is least pronounced in high-information races at the top of the

ballot, like presidential elections.

The only argument the dissent can muster for why the electoral harm to the

candidates for President and Vice President is “certainly impending,” Clapper, 568

U.S. at 401 (internal quotation marks omitted), is that the next general election is

“two months away,” Dissenting Op. at 89. That assertion does not prove that the

Democratic candidates for President and Vice President will likely lose the next

election because of ballot order. As for whether the Democratic National

Committee has standing based on past injuries, the dissent argues that the ballot

order and the primacy effect have put Florida Democratic candidates at an electoral

disadvantage of about five percentage points over the past twenty years. Id. at 81–

82. The dissent would hold that the Committee is injured because Florida’s ballot

order “has frustrated the [Committee’s] goal of electing Democrats up and down

the ballot across the country.” Id. at 82 (internal quotation marks omitted).

This expansive theory of standing would allow any organization that favors

the election of certain candidates to claim an injury based on harm to those

candidates’ electoral prospects. Although the dissent purports to limit its rule to “a

political party and its committees,” id. at 77, nothing in its reasoning supports that

limit. Like the Committee, the other organizational plaintiffs in this lawsuit have

the “goal” of electing Democrats and support Democratic candidates. Id. at 82.

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And neither the Committee nor these other organizations nominated the vast

majority of Democratic candidates that appear on Florida ballots. The only sense in

which Democratic candidates other than those for President and Vice President are

the Committee’s candidates is that the Committee supports their candidacy and

desires that they be elected. But the same is true of the other organizational

plaintiffs, such as Priorities USA, and indeed countless organizations across

America.

If a voter is not injured by his preferred candidate’s loss of an election—and

even the dissent does not dispute that proposition—it is hard to see how

organizations other than the political party that nominated the candidate are

injured. In either case, the asserted harm to a voter or an organization is based on

“generalized partisan preferences,” which are insufficient to establish standing.

Gill, 138 S. Ct. at 1933 (rejecting a theory of standing based on “group political

interests, not individual legal rights”). We conclude that no plaintiff proved an

injury in fact.

2. Any Injury from Ballot Order Is Neither Traceable to the Secretary nor
Redressable by Relief Against Her.

Even if the voters and organizations had proved an injury in fact, they would

still lack standing because any injury would be neither traceable to the Secretary

nor redressable by relief against her. Instead, any injury would be traceable only to

67 Supervisors of Elections and redressable only by relief against them. The voters

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and organizations’ failure to join the Supervisors as defendants is an independent

reason that they lack standing to maintain this action.

To satisfy the causation requirement of standing, a plaintiff’s injury must be

“fairly traceable to the challenged action of the defendant, and not the result of the

independent action of some third party not before the court.” Lujan, 504 U.S. at

560 (alterations adopted) (internal quotation marks omitted). The voters and

organizations contend that they are injured because Republicans, not Democrats,

appear first on the ballot in Florida’s general elections. So for them to have

standing, the order in which candidates appear on the ballot must be traceable to

the Secretary—the only defendant in this action. The problem for the voters and

organizations is that Florida law tasks the Supervisors, independently of the

Secretary, with printing the names of candidates on ballots in the order prescribed

by the ballot statute. Fla. Stat. § 99.121 (“The names of [candidates] shall be

printed by the supervisor of elections upon the ballot in their proper place as

provided by law.”). The Secretary is responsible only for “certify[ing] to the

supervisor of elections of each county . . . the names of persons nominated.” Id.

The voters and organizations have offered no contrary evidence to establish that

the Secretary plays any role in determining the order in which candidates appear on

ballots. “Because the [Secretary] didn’t do (or fail to do) anything that contributed

to [their] harm,” the voters and organizations “cannot meet Article III’s traceability

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requirement.” Lewis v. Governor of Ala., 944 F.3d 1287, 1301 (11th Cir. 2019) (en

banc).

Our conclusion that any injury from ballot order is not traceable to the

Secretary rests on the reality that the Supervisors are independent officials under

Florida law who are not subject to the Secretary’s control. The Supervisors are

constitutional officers who are elected at the county level by the people of Florida;

they are not appointed by the Secretary. Fla. Const. art. VIII, § 1(d); Fla. Stat.

§ 98.015(1). The Florida Department of State’s organic statute does not list the

Supervisors among its divisions, Fla. Stat. § 20.10(2), and the Board of County

Commissioners, not the Department, compensates the Supervisors. Id. § 98.015(2).

Only the Governor of Florida, not the Secretary, may suspend county officials such

as the Supervisors, and only the state senate may remove them from office. Fla.

Const. art. IV, § 7; see also, e.g., Fla. Exec. Order No. 19-19 (executive order

suspending the Supervisor of Elections for Palm Beach County); Fla. Exec. Order

No. 18-342 (executive order suspending the Supervisor of Elections for Broward

County). Indeed, the only means of control the Secretary has over the Supervisors

is through coercive judicial process: she may bring “actions at law or in equity by

mandamus or injunction to enforce the performance of any duties of a county

supervisor of elections.” Fla. Stat. § 97.012(14). That the Secretary must resort to

judicial process if the Supervisors fail to perform their duties underscores her lack

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of authority over them. Because the Supervisors are independent officials not

subject to the Secretary’s control, their actions to implement the ballot statute may

not be imputed to the Secretary for purposes of establishing traceability.

Contrary to the reasoning of the district court, the Secretary’s position as

“the chief election officer of the state,” id. § 97.012, with “general supervision and

administration of the election laws,” id. § 15.13, does not make the order in which

candidates appear on the ballot traceable to her. We recently rejected a similar

argument en banc. See Lewis, 944 F.3d at 1300. In Lewis, two workers sued the

Attorney General of Alabama to challenge a state law that preempted a local

ordinance requiring employers to pay higher wages. Id. at 1293–94. We explained

that the workers’ injury—receiving lower wages because of the state law—was not

traceable to the Attorney General because he had never enforced or threatened to

enforce the law, and the law itself contemplated no role for the Attorney General.

Id. at 1296, 1298–99. And of particular relevance to this appeal, we rejected the

workers’ reliance upon “a host of provisions of the Alabama Code that generally

describe the Attorney General’s [enforcement] authority” to establish traceability.

Id. at 1300. In the absence of any evidence that the Secretary controls ballot order,

the voters and organizations likewise cannot rely on the Secretary’s general

election authority to establish traceability. See id. at 1298–1300. Florida law

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expressly gives a different, independent official control over the order in which

candidates appear on the ballot. See Fla. Stat. § 99.121.

Because the Secretary will not cause any injury the voters and organizations

might suffer, relief against her will not redress that injury—either “directly or

indirectly.” See Lewis, 944 F.3d at 1301 (internal quotation marks omitted). An

injunction ordering the Secretary not to follow the ballot statute’s instructions for

ordering candidates cannot provide redress, for neither she nor her agents control

the order in which candidates appear on the ballot. Nor can declaratory relief

against the Secretary directly redress any injury to the voters and organizations. A

declaratory judgment against the Secretary does not bind the Supervisors, “who are

not parties” to this action. Id. at 1302 (internal quotation marks omitted). As

nonparties, the Supervisors are not “obliged . . . in any binding sense . . . to honor

an incidental legal determination [this] suit produce[s].” Id. (internal quotation

marks omitted). They remain lawfully entitled to print candidates’ names on the

ballot in the order prescribed by Florida law unless and until they are made parties

to a judicial proceeding that determines otherwise. See id. at 1302–03.

To be sure, the district court ordered the Secretary to “provide written

guidance to the supervisors of elections of Florida’s counties informing them that

this Court has declared the [statute] unconstitutional” and to include “a true and

correct copy of this Court’s order in her written guidance.” But this “notice” theory

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of redressability contravenes the “settled principle[]” that “it must be the effect of

the court’s judgment on the defendant—not an absent third party—that redresses

the plaintiff’s injury.” Id. at 1301 (internal quotation marks omitted). Any

persuasive effect a judicial order might have upon the Supervisors, as absent

nonparties who are not under the Secretary’s control, cannot suffice to establish

redressability. See id. at 1305 (“If courts may simply assume that everyone

(including those who are not proper parties to an action) will honor the legal

rationales that underlie their decrees, then redressability will always exist.”

(quoting Franklin v. Massachusetts, 505 U.S. 788, 825 (1992) (Scalia, J.,

concurring in part and concurring in the judgment))). “Redressability requires that

the court be able to afford relief through the exercise of its power, not through the

persuasive or even awe-inspiring effect of the opinion explaining the exercise of its

power.” Id. (quoting Franklin, 505 U.S. at 825 (Scalia, J., concurring in part and

concurring in the judgment)). Because the voters and organizations failed to sue

the officials who will cause any future injuries, even the most persuasive of

judicial opinions would have been powerless to redress those injuries.

Even if we consider the persuasive effect of the judgment on the nonparty

Supervisors, the voters and organizations have not established that redress is likely

“as a practical matter.” Utah v. Evans, 536 U.S. 452, 461 (2002). They have not

proved that declaratory relief against the Secretary will “significantly increase the

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likelihood” that the Supervisors will ignore state law and follow a federal decree

that does not bind them. Lewis, 944 F.3d at 1301. The Supervisors are obliged

under state law to continue printing candidates’ names “upon the ballot in their

proper place as provided by law” regardless of what a federal court might say in an

action that does not involve them. Fla. Stat. § 99.121. The district court’s decision

rests on the flawed notion that by declaring the ballot statute unconstitutional, it

eliminated the legal effect of the statute in all contexts. But “federal courts have no

authority to erase a duly enacted law from the statute books.” Jonathan F.

Mitchell, The Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 936 (2018); see also

Steffel v. Thompson, 415 U.S. 452, 469 (1974) (“Of course, a favorable declaratory

judgment . . . cannot make even an unconstitutional statute disappear.” (internal

quotation marks omitted)). Our power is more limited: we may “enjoin executive

officials from taking steps to enforce a statute.” Mitchell, supra, at 936. And we

can exercise that power only when the officials who enforce the challenged statute

are properly made parties to a suit.

The district court apparently understood that relief against the Secretary

would not redress any injury to the voters and organizations, so it enjoined the

Supervisors too. Its injunction stated, “No supervisor of elections of any Florida

county . . . shall issue any ballot which is organized pursuant to the [ballot

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statute].” And its opinion warned the Supervisors against “selectively interpret[ing]

parts of” its order “or otherwise avoid[ing] compliance.”

The district court exceeded its authority by purporting to enjoin the

Supervisors, none of whom have ever been parties to this lawsuit. Although a

district court may bind nonparties “who are in active concert” with a defendant,

Fed. R. Civ. P. 65(d)(2)(C), that rule applies only when a plaintiff validly invokes

federal jurisdiction by satisfying the traceability and redressability requirements of

standing against a defendant. See In re Infant Formula Antitrust Litig., 72 F.3d

842, 843 (11th Cir. 1995) (“The Federal Rules of Civil Procedure do not create

federal jurisdiction.”). If a plaintiff sues the wrong defendant, an order enjoining

the correct official who has not been joined as a defendant cannot suddenly make

the plaintiff’s injury redressable. The district court was without jurisdiction to

enjoin the lone defendant in this action, much less the nonparty Supervisors. See

Zenith Radio Corp. v. Hazeltine Research, Inc., 395 U.S. 100, 112 (1969) (holding

that the district court erred when it enjoined a nonparty that was never determined

to be in active concert with a defendant).

The district court also relied on an inapposite decision, Democratic

Executive Committee of Florida v. Lee, 915 F.3d 1312, 1318 (11th Cir. 2019), to

conclude that relief against the Secretary would redress any injury to the voters and

organizations. In Lee, a motions panel of this Court ruled that the Florida Secretary

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of State was a proper defendant under Ex parte Young, 209 U.S. 123 (1908), in an

action challenging an election procedure administered by the county Supervisors of

Elections. 915 F.3d at 1316, 1318 (citing Fla. Stat. § 101.68). But Article III

standing and the proper defendant under Ex parte Young are “[s]eparate[]” issues,

Lewis, 944 F.3d at 1295, and Lee addressed only the latter. To be a proper

defendant under Ex parte Young—and so avoid an Eleventh Amendment bar to

suit—a state official need only have “some connection” with the enforcement of

the challenged law. 209 U.S. at 157. In contrast, Article III standing requires that

the plaintiff’s injury be “fairly traceable” to the defendant’s actions and redressable

by relief against that defendant. Lewis, 944 F.3d at 1298, 1301 (internal quotation

marks omitted). The district court erred by treating Lee as if it addressed—let alone

resolved—the standing issues in this suit.

Because the voters and organizations lack standing to sue the Secretary, we

have no occasion to consider whether the Secretary is a proper defendant under Ex

parte Young—the only issue Lee addressed. See id. at 1296, 1306. Nor need we

decide whether Lee—which was issued by a motions panel instead of a merits

panel—is even binding precedent. See Democratic Exec. Comm. of Fla. v. Nat’l

Republican Senatorial Comm., 950 F.3d 790, 795 (11th Cir. 2020) (declining to

vacate the opinion of the motions panel in Lee after the appeal became moot

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because “the necessarily tentative and preliminary nature of [the] stay-panel

opinion precludes the opinion from having an effect outside that case”).

Our dissenting colleague says that the Secretary never advanced in this case

the argument we adopt today, id. at 91–92, but that assertion tells only half the

story. As the Secretary mentioned at oral argument, Oral Argument at 34:40–35:08

(Feb. 12, 2020), her office has repeatedly, if unsuccessfully, argued to the district

judge who presided over this litigation that the Secretary has highly limited

authority over county election officials, including the Supervisors. See, e.g., Rivera

Madera v. Detzner, 325 F. Supp. 3d 1269, 1275 (N.D. Fla. 2018) (Walker, C.J.)

(rejecting the Secretary’s argument that “he has no relevant power over the county

supervisors of elections”); Fla. Democratic Party v. Detzner, No. 4:16-cv-607-

MW-CAS, 2016 WL 6090943, at *4–5 (N.D. Fla. Oct. 16, 2016) (Walker, J.)

(rejecting the Secretary’s arguments that “he cannot direct the [county] canvassing

boards to comply with any order issued by this Court” and that “he does not

possess the power to issue orders [to county officials] directing compliance with

Florida’s election laws”). The Secretary made clear at oral argument that her office

has not changed its position on this issue, even if in this lawsuit she elected not to

raise the argument yet again before a district court that had repeatedly rejected the

Secretary’s own understanding of her authority under state law. Oral Argument at

34:55–35:08 (Feb. 12, 2020) (“[W]e do not think we’re the right defendant. We

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have made this argument on several occasions . . . and, quite frankly, in the

Northern District of Florida we have not succeeded . . . .”). So our ruling today is

consistent with the Secretary’s longstanding view about the scope of her powers.

The dissent next contends that the Secretary’s authority to prescribe rules

about ballot layout, Fla. Stat. § 101.151(9)(a), and to provide written direction to

the Supervisors, id. § 97.012(16), makes the order in which candidates appear on

the ballot traceable to her, Dissenting Op. at 95–100, but we do not see how. That

the Secretary has the power to prescribe rules and issue directives about ballot

order, which the Supervisors might well be obliged to follow, says nothing about

whether she “possess[es] authority to enforce the complained-of provision,” as the

causation element of standing requires. Lewis, 944 F.3d at 1299 (emphasis added)

(quoting Dig. Recognition Network, Inc. v. Hutchinson, 803 F.3d 952, 958 (8th Cir.

2015)). If rulemaking authority were sufficient to establish traceability, plaintiffs

could presumably also challenge a law by suing the legislators who enacted it

instead of the officials who execute it. Although in many cases the same official

will both make and execute a challenged regulation, that arrangement is not present

here. See Fla. Stat. § 99.121.

The dissent also contends that an injunction forbidding the Secretary to

provide the Supervisors with any instructions about ballot order would likely

provide redress, Dissenting Op. at 101–102, 109–10, but we again do not see how.

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Florida law already directs the Supervisors to place candidates on the ballot in the

order “provided by law,” Fla. Stat. § 99.121—that is, in the order prescribed by the

ballot statute, see id. § 101.151(3)(a). An injunction ordering the Secretary to stay

silent would do nothing to muzzle these two sections of the Florida code, which

already bind the Supervisors to list candidates in a particular order. Indeed, one of

the Supervisors testified at trial that they “apply the [ballot] statute” because it “is

the law.” There is no contrary evidence to suggest that the Supervisors would

suddenly begin to disregard state law in the absence of instructions from the

Secretary.

Under the dissent’s theory of traceability and redressability, the only relief

that might possibly redress any injuries from ballot order would be an injunction

ordering the Secretary to promulgate a rule requiring the Supervisors to place

candidates on the ballot in an order contrary to the ballot statute. But the voters and

organizations never requested such extraordinary relief, and for good reason. Any

such relief would have raised serious federalism concerns, and it is doubtful that a

federal court would have authority to order it. See Va. Office for Prot. & Advocacy

v. Stewart, 563 U.S. 247, 255 (2011) (explaining that the Ex parte Young exception

to sovereign immunity “is limited to [the] precise situation” in which “a federal

court commands a state official to do nothing more than refrain from violating

federal law”); cf. New York v. United States, 505 U.S. 144, 177–78 (1992) (holding

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that the federal government could not commandeer States to enact or enforce a

federal regulatory scheme).

In any event, it is also far from clear that ordering the Secretary to

promulgate a rule that is contrary to the ballot statute would even make redress

likely. The voters and organizations have not argued that the Supervisors are likely

to ignore a state statute that obliges them to place candidates on the ballot in a

particular order in favor of a regulation issued by the Secretary. Again, their

hesitation is not without good reason: Florida law is clear that when a regulation

and a statute conflict, the statute prevails. See Nicholas v. Wainwright, 152 So. 2d

458, 460 (Fla. 1963). The dissent asserts that in this scenario the Supervisors

would likely follow the Secretary’s instructions over the statute. Dissenting Op. at

109–10. But “[w]e do not know what would justify” the dissent’s confidence when

Florida law is to the contrary. Lujan, 504 U.S. at 570 (plurality opinion).

It bears emphasis that even the district court understood the traceability and

redressability problems inherent in this lawsuit. In an attempt to avoid those

problems, it took the truly remarkable step of enjoining nonparties. Although the

decision to enjoin nonparties was unjustifiable, it makes clear what the dissent says

is murky: the Secretary plainly is not the cause of any alleged injuries from ballot

order, and relief against her cannot redress those injuries.

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To satisfy traceability and redressability, the voters and organizations should

have sued the Supervisors of Elections instead of the Secretary of State. That

approach would have made for more defendants, but nothing prevented the voters

and organizations from taking that course of action. See Socialist Workers Party v.

Leahy, 145 F.3d 1240, 1243 (11th Cir. 1998) (explaining that the plaintiffs filed

suit “against the Secretary of State and the sixty-seven county supervisors of

elections”). Because they failed to sue the Supervisors, the voters and

organizations lack Article III standing.

B. This Lawsuit Presents a Nonjusticiable Political Question.

In addition to the voters’ and organizations’ lack of standing, this lawsuit

suffers from another fatal jurisdictional defect: it presents a nonjusticiable political

question. We first place this dispute in context by providing a brief history of ballot

regulation in America. We then explain that a complaint of unfair partisan

advantage based on the order in which candidates appear on the ballot is a

nonjusticiable political question.

1. Ballot Regulation in America.
The history of ballot regulation in America reveals that concerns about

balloting are as old as the Republic itself, and it makes clear that the political

branches of state governments have long taken the lead in resolving those

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controversies. The States also have taken a variety of approaches to addressing

these perceived concerns.

At the Founding, Americans voted using their voices, a show of hands, or

ballots prepared by individual voters, political parties, and party organizations.

Joseph P. Harris, Election Administration in the United States 150–52 (1934);

Burson v. Freeman, 504 U.S. 191, 200 (1992) (plurality opinion). The Southern

States retained voice voting the longest; Kentucky did not abandon it until 1890.

Harris, supra, at 151 & n.8. But because of the abuses associated with voice

voting, including bribery and voter intimidation, most States began to use paper

ballots within two decades of the Founding. Burson, 504 U.S. at 200 (plurality

opinion).

As paper ballots became more widespread, some of the abuses associated

with voice voting “reinfected the election process.” Id. Political parties printed

their ballots on colorful paper, often with distinctive designs, so that the ballots

could be easily distinguished at the polls. Harris, supra, at 151. This practice

threatened ballot secrecy and made bribery and voter intimidation easier to

accomplish, so state legislatures enacted laws that required the use of white paper

or official envelopes for ballots. Id. at 151–52.

Other abuses that had not been possible with voice voting also arose. The

party organizations that printed the ballots engaged in fraudulent practices. They

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would sometimes distribute fake ballots that bore the markings of one party but

contained only a few of that party’s candidates—“just enough to fool the unwary.”

Id. at 152. And in some elections, the party organizations would decline to place

the names of some qualified candidates on their ballots, which made it impossible

for those candidates to be elected. Id.

These abuses led Americans to adopt the “Australian ballot”—an official

ballot containing the names of all qualified candidates that election officials

distribute at the polls. Id. at 152–54. As its name suggests, this kind of ballot first

appeared in Australia in the 1850s, and American States rapidly adopted it between

1887 and 1900. Id. Although a “true Australian ballot” grouped the names of all

candidates beneath the office for which they were running without identifying their

party affiliation, most American States did not adopt the original form of the

Australian ballot. Id. at 154. Instead, the States modified the Australian ballot “to

retain the strength of the political parties.” Id. Many States grouped the candidates

of each party into separate columns with a party circle at the top of each column

that enabled voters to “vote a ‘straight ticket’ with a single mark.” Id. at 155.

Others retained the Australian ballot’s grouping of candidates by office, adding

only the party designation of the candidates. Id. at 154–55.

Concerns about the order in which candidates appear on the ballot have been

with us since the adoption of the Australian ballot. By 1934, States followed

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several different practices for ordering their ballots. States that used party-column

ballots determined the parties’ position on the ballot from left to right in one of five

ways: (1) alphabetically, (2) a definite order fixed by state law, with the party in

power given the first column, (3) in order of the votes received for some office in

the last election, (4) by the election officer charged with preparing the ballot, or

(5) by lottery. Id. at 180. Among political parties, the left-most column was “most

desired,” but the advantage gained from that position was viewed as “not great.”

Id.

In States that used office-group ballots, a common view was that “the

position at the top of a list of candidates is of material help to the candidate thus

favored.” Id. at 181. States dealt with this perceived advantage for first-listed

candidates in different ways. Some rotated the names of candidates by ballot or

voting precinct, but others established a uniform ballot order based on the votes a

party received in the last general election, candidate last name, the order in which

nominating petitions were received, or lottery. Id. at 181–83.

Today, States continue to use different methods to order their ballots. Some

States, like Florida, determine ballot order based on the results of the last election

for Governor or another state office. Ariz. Rev. Stat. Ann. § 16-502(E); Conn. Gen.

Stat. § 9-249a(a); Fla. Stat. § 101.151(3)(a); Ga. Code Ann. § 21-2-285(c); Ind.

Code § 3-11-2-6(a)(1); Md. Code Ann., Elec. Law §§ 1-101(dd), 9-210(j)(2);

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Mich. Comp. Laws § 168.703; Mo. Rev. Stat. § 115.239(1); Neb. Rev. Stat. § 32-

815(1); N.Y. Elec. Law § 7-116(1); 25 Pa. Cons. Stat. § 2963(b); Tex. Elec. Code

Ann. § 52.091(b). Others determine it based on the party that currently holds a

majority in the state legislature, Tenn. Code Ann. §§ 2-1-104(a)(11)–(12), 2-5-

208(d)(1), or the number of votes each party received in the last congressional

election, Wyo. Stat. Ann. § 22-6-121(a). The Minnesota rule is similar to the NFL

draft: candidates of the major party that won the fewest votes in the preceding

election are listed first. Minn. Stat. § 204D.13(2). Delaware has the most

straightforward rule: Democrats first, then Republicans. Del. Code Ann. tit. 15,

§ 4502(a)(5). And still other States order their ballots based on nonpartisan

considerations. See, e.g., Ala. Code § 17-6-25 (alphabetical by candidate last

name); Ark. Code Ann. § 7-5-207(c)(1) (random lottery); Ky. Rev. Stat. Ann.

§ 118.225(1) (rotating candidate names in each congressional district).

2. The Voters and Organizations’ Complaint Is Nonjusticiable.
Against this wide array of state practice, voters and organizations brought

this constitutional challenge to Florida’s 70-year-old law that assigns the top ballot

position to candidates of the incumbent Governor’s party. They alleged violations

of the First Amendment and the Equal Protection Clause of the Fourteenth

Amendment as interpreted in a line of decisions beginning with Anderson, 460

U.S. 780, and Burdick, 504 U.S. 428.

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The voters and organizations’ complaint, in a nutshell, is that Florida’s ballot

statute confers an impermissible partisan advantage on Republicans by virtue of

the primacy effect. Because Republican candidates enjoy a “windfall vote” of

approximately five percentage points from disinterested voters who reflexively

pick the first candidate, the Democratic voters and organizations have a harder

time electing their preferred candidates than if Florida distributed the windfall vote

more evenly. They argue that this regime burdens their right to vote and should be

evaluated using the approach established in Anderson and Burdick.

The recent decision of the Supreme Court in Rucho compels the conclusion

that this complaint presents a nonjusticiable political question. This complaint

shares the same critical feature that led the Supreme Court to hold complaints of

partisan gerrymandering nonjusticiable in Rucho: neither this complaint of partisan

advantage from ballot order nor complaints of partisan advantage from

redistricting can be adjudicated using “judicially discernible and manageable”

standards. Rucho, 139 S. Ct. at 2502.

In Rucho, the Supreme Court held that complaints of partisan

gerrymandering are nonjusticiable for two main reasons. First, these complaints

invariably rest on a threshold determination about what a “fair” apportionment of

political power looks like. See id. at 2499–500. The Court reasoned that one

possible standard of fairness—proportional representation—might have been

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judicially manageable but had no basis in constitutional law or the history of the

Republic. See id. at 2499. And absent proportional representation, the Court

explained, “it is not even clear what fairness looks like in this context.” Id. at 2500.

Fairness could mean creating the greatest number of competitive districts,

districting to ensure that each party receives its proportional share of “safe” seats,

or adhering to traditional districting criteria. Id. (internal quotation marks omitted).

And choosing between these different visions of fairness “poses basic questions

that are political, not legal.” Id.

Second, even if courts could agree on a standard of fairness, they would

have to determine how much deviation from that standard in pursuit of partisan

interests was permissible. Id. at 2501. Some amount of partisan gerrymandering is

constitutional and inevitable. Id. at 2497. To hold that legislators could never

consider partisan interests in districting “would essentially countermand the

Framers’ decision to entrust districting to political entities.” Id. And in addition to

the problem of deciding how much partisan intent is too much, complaints of

partisan gerrymandering also present line-drawing problems concerning partisan

effect—judges must decide “how much partisan dominance is too much.” Id. at

2498 (emphasis added) (internal quotation marks omitted). For example, to police

partisan gerrymandering, courts would “have to decide the ideal number of seats

for each party and determine at what point deviation from that balance went too

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far.” Id. at 2501. Because the Constitution supplies neither an objective standard

for the fair apportionment of political power nor any principled basis for

identifying violations of that (nonexistent) standard, the Court concluded that

complaints of partisan gerrymandering present nonjusticiable political questions.

Id. at 2500–02.

Under the reasoning of Rucho, complaints of partisan advantage based on

ballot order are likewise nonjusticiable political questions. The voters and

organizations’ complaint is based on the notion that Florida’s ballot statute, by

virtue of the primacy effect, confers an unfair partisan advantage on the party that

last won the Governorship. But courts cannot rely on legal standards to adjudicate

this kind of complaint because it does not allege any burden on individual voting

rights. Instead, adjudicating this kind of complaint would require courts to pick

among various conceptions of a politically “fair” ballot order that have no basis in

the Constitution. For that reason, the complaint “poses basic questions that are

political, not legal.” Id. at 2500. And even if a judicially discernable and

manageable standard for fairly ordering a ballot existed, there are no standards for

determining how much of a departure from an ideal ballot order amounts to a

constitutional violation. See id. at 2501. As we explain, Rucho cannot be

persuasively distinguished from this appeal.

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The basic problem with the voters and organizations’ complaint is that it is

not based on the right to vote at all, so we cannot evaluate their complaint using

the legal standards that apply to laws that burden the right to vote. As the voters

and organizations correctly point out, we must evaluate laws that burden voting

rights using the approach of Anderson and Burdick, which requires us to weigh the

burden imposed by the law against the state interests justifying the law. Common

Cause/Ga., 554 F.3d at 1352. But “we have to identify a burden before we can

weigh it.” Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 205 (2008) (Scalia,

J., concurring in the judgment). And here it is impossible to identify a burden on

voting rights imposed by the ballot statute that is susceptible to the balancing test

of Anderson and Burdick.

The statute at issue here is unlike any law that this Court or the Supreme

Court has ever evaluated under Anderson and Burdick. The statute does not make it

more difficult for individuals to vote, see, e.g., Crawford, 553 U.S. at 198

(plurality opinion) (photo-identification law); Common Cause/Ga., 554 F.3d at

1354 (same), or to choose the candidate of their choice, see Burdick, 504 U.S. at

430 (prohibition on write-in voting). It does not limit any political party’s or

candidate’s access to the ballot, which would interfere with voters’ ability to vote

for and support that party or candidate. See, e.g., Timmons v. Twin Cities Area New

Party, 520 U.S. 351, 353–54, 358–59 (1997) (law forbidding individuals to appear

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on the ballot as the candidate of more than one party); Norman v. Reed, 502 U.S.

279, 288–89 (1992) (ballot-access law for new parties); Munro v. Socialist

Workers Party, 479 U.S. 189, 199 (1986) (ballot-access law for minor-party

candidates); Anderson, 460 U.S. at 782, 786 (early filing deadline for candidate

paperwork); Cowen v. Ga. Sec’y of State, 960 F.3d 1339, 1342–46 (11th Cir. 2020)

(ballot-access law for minor-party candidates); Fulani v. Krivanek, 973 F.2d 1539,

1539, 1543 (11th Cir. 1992) (same). Nor does it burden the associational rights of

political parties by interfering with their ability to freely associate with voters and

candidates of their choosing. See, e.g., Wash. State Grange v. Wash. State

Republican Party, 552 U.S. 442, 451–52 (2008); Clingman v. Beaver, 544 U.S.

581, 587, 593 (2005); Tashjian v. Republican Party of Conn., 479 U.S. 208, 213–

14 (1986). And to state the obvious, the statute certainly does not create the risk

that some votes will go uncounted or be improperly counted. See, e.g., Lee, 915

F.3d at 1318–20 (challenge to signature-match procedures for absentee and

provisional ballots); Wexler v. Anderson, 452 F.3d 1226, 1232 (11th Cir. 2006)

(challenge to manual-recount procedures under which some ballots might “receive

a different, and allegedly inferior, type of review in the event of a manual

recount”). All the statute does is determine the order in which candidates appear in

each office block on the ballot.

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If the statute burdened voting or associational rights even slightly, we could

apply legal standards to determine whether the burden was unconstitutional. Under

Anderson and Burdick, we would weigh the burden imposed by the law against the

state interests justifying that burden. See Common Cause/Ga., 554 F.3d at 1352.

But because the statute does not burden the right to vote, we cannot engage in that

kind of review. The voters and organizations ask us to decide not whether the

ballot statute burdens identifiable voting or associational rights, but whether it

confers an unfair partisan advantage on the Republican Party. Indeed, this is the

very theory of injury on which our dissenting colleague relies to establish the

standing of the Democratic National Committee, the Democratic Senatorial

Campaign Committee, and the Democratic Congressional Campaign Committee

under Article III. See Dissenting Op. at 74 (“Each committee experienced an injury

in fact because the ballot-order statute has placed the Democratic Party at an

enduring electoral disadvantage in Florida . . . .”).

Instead of basing their complaint on individual voting or associational rights,

the voters and organizations allege a novel complaint premised on the idea that the

extra votes that flow from top ballot position should be distributed “fairly”

between the major political parties. The “crux of [their] constitutional claim,” they

explain, “is the way in which” the ballot statute distributes the primacy vote

“between similarly-situated major parties.” In their view and the district court’s,

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fairness means distributing the primacy vote either evenly between the major

parties or on some apolitical basis, like random lottery or alphabetically by

candidate last name.

But sensible as those approaches might be, they are hardly the only ways to

conceive of a “fair” ballot order. As in Rucho, “it is not even clear what fairness

looks like in this context.” 139 S. Ct. at 2500. Instead of splitting the primacy

effect between the two major parties, perhaps Florida should ensure that each

political party on the ballot—including minor parties—has an equal number of its

candidates listed first for office. After all, parties that have qualified to be on the

ballot are similarly situated with respect to any right to be first on the ballot. Or,

because that approach might give an undue advantage to minor parties with few

supporters, perhaps Florida should distribute the primacy effect proportionately

based on the number of registered voters in each party. That is, if 20 percent of

registered voters belong to one political party, that party’s candidates should

appear first on 20 percent of the ballots, and so on. Maybe Minnesota’s approach is

fairest: award the primacy effect entirely to one party—the party that received the

fewest votes in the last election. Minn. Stat. § 204D.13(2). One could imagine

many other ballot schemes that plausibly claim to be the fairest way, or at least a

fair way, to distribute the primacy effect, including the one Florida adopted nearly

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70 years ago: giving all parties the chance to win the primacy effect at each

gubernatorial election.

As in the partisan gerrymandering context, picking among these alternatives

“poses basic questions that are political, not legal.” Rucho, 139 S. Ct. at 2500.

“There are no legal standards discernible in the Constitution for making such

judgments, let alone limited and precise standards that are clear, manageable, and

politically neutral.” Id. “Any judicial decision on what is ‘fair’ in this context

would be an ‘unmoored determination’ of the sort characteristic of a political

question beyond the competence of the federal courts.” Id. (quoting Zivotofsky v.

Clinton, 566 U.S. 189, 196 (2012)).

And even if courts could discern in the Constitution a standard of fairness

for evaluating ballot-order regimes, they would run headlong into the second

problem the Supreme Court identified in Rucho. There are no discernable and

manageable standards “to answer the determinative question”: How much partisan

advantage from ballot order is too much? See id. at 2501; see also id. at 2498

(asking “how much partisan dominance is too much” (internal quotation marks

omitted)). It is impossible to ensure that each candidate or party in a particular

election appears at the top of the ballot an equal number of times. Election officials

cannot know in advance how many ballots will be cast in a given race, let alone

how many ballots will be cast in each county or voting precinct or which counties

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and precincts have the largest numbers of disinterested voters. Relatedly, how large

must the primacy effect be to create a constitutional problem? Two percent of

voters? Five percent? Some greater share? If the standard is an “outcome

determinative” number of voters, then any disparity in allocating the primacy

effect could violate the Constitution in close races. Would awarding the primacy

effect to a single political party be constitutional in a noncompetitive State where it

would make no difference to electoral outcomes but unconstitutional in a

battleground State? As with partisan gerrymandering, even if courts “knew which

version of fairness to be looking for, there are no discernible and manageable

standards for deciding whether there has been a violation.” Id. at 2501.

At bottom, the voters and organizations’ challenge to the ballot statute rests

on the notion “that each party must be influential in proportion to its number of

supporters.” Id. Their complaint is that some voters who are neither Democrats nor

Republicans will vote for the Republican candidate solely because the Republican

is listed first, giving Republicans an advantage beyond their actual number of

supporters. But the Supreme Court has never accepted that baseline as providing a

justiciable standard in any context. It has instead emphatically rejected the idea that

federal courts are “responsible for vindicating generalized partisan preferences.”

Id. (quoting Gill, 138 S. Ct. at 1933).

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The federal judiciary’s “constitutionally prescribed role is to vindicate the

individual rights of the people appearing before it.” Id. (quoting Gill, 138 S. Ct. at

1933). Where an election law does not burden the right to vote in any way, we

cannot vindicate individual rights. And we “have no license 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 [our] decisions.” Id.

at 2507. The complaints of partisan gerrymandering in Rucho cannot be

persuasively distinguished from the voters and organizations’ complaint. A

complaint that the order in which candidates appear on a ballot confers an

impermissible partisan advantage to one party presents a nonjusticiable political

question.

One possible response to the preceding analysis is that because the voters

and organizations have not alleged any burden on voting rights, their complaint

fails on the merits though it remains justiciable. But a complaint can both fail to

state a constitutional violation and be nonjusticiable if there are no judicially

discernible and manageable standards to adjudicate it. Take complaints of partisan

gerrymandering. In the light of Rucho, we know that any complaint that a

redistricting plan is unconstitutionally partisan must be dismissed as

nonjusticiable—even if the challenged plan is so fair that it could not possibly

violate the Constitution. Nor must a particular practice even be capable of

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violating the Constitution for challenges to that practice to be nonjusticiable. Our

guide, again, is Rucho. We do not know whether partisan gerrymandering can ever

violate the Constitution; in its 46 years of attempting to adjudicate those

complaints, the Supreme Court never declared a single redistricting plan

unconstitutionally partisan. Id. at 2491, 2497–98, 2507. But even though partisan

gerrymandering may not violate the Constitution, challenges to that practice are

nonetheless nonjusticiable because they are unsuited for resolution by federal

courts. Id. at 2507–08. The same is true for complaints of partisan advantage based

on ballot order.

The voters and organizations’ arguments that their complaint is justiciable

are unconvincing. To make their case, they attempt to distinguish Rucho, invoke a

host of inapposite precedents, and posit hypothetical laws that bear no resemblance

to the challenged law in this action. None of their arguments have merit.

The voters and organizations first suggest that Rucho is distinguishable

because the Supreme Court searched for a judicially manageable standard to police

partisan gerrymandering “for decades” without success. But Rucho makes clear

that complaints of partisan gerrymandering have always been nonjusticiable; it did

not impose a requirement that courts first struggle to identify a justiciable standard

for some period of time before declaring a complaint nonjusticiable. Complaints of

partisan gerrymandering did not become nonjusticiable only after the Court tried

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and failed to develop a standard. See Lester v. United States, 921 F.3d 1306, 1312

(11th Cir. 2019) (W. Pryor, J., respecting the denial of rehearing en banc) (“[W]e

should be mindful of the difference between a change in judicial doctrine and a

change in law.” (emphasis added)). Instead, the Court’s inability to discern a

manageable standard was evidence that these complaints had always been “outside

the courts’ competence and therefore beyond the courts’ jurisdiction.” Rucho, 139

S. Ct. at 2494; see also Lester, 921 F.3d at 1313 (“Without distinguishing between

judges’ understanding of the law and the law itself, . . . the Supreme Court [could

not] meaningfully describe a past decision of its own as ‘wrong the day it was

decided.’” (quoting Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 863

(1992) (joint opinion of O’Connor, Kennedy, and Souter, JJ.))). As discussed

below, the judiciary’s experience with partisan ballot-order complaints provides

similar evidence that no judicially discernible and manageable standards exist to

adjudicate them—that is, that these complaints have always been nonjusticiable.

The voters and organizations also argue that Rucho is distinguishable

because some amount of partisan gerrymandering is constitutionally permissible in

redistricting, but partisan considerations are off limits in the realm of election

administration. And if partisan considerations are forbidden in election

administration, that reality arguably eliminates the line-drawing problem the

Supreme Court faced in Rucho—how much partisanship is too much? In the voters

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and organizations’ view, any partisanship is too much partisanship in this context.

Cf. Rucho, 139 S. Ct. at 2502 (explaining that complaints of racial gerrymandering

can rightly ask “for the elimination of a racial classification” but that complaints of

partisan gerrymandering “cannot ask for the elimination of partisanship”).

This argument has at least two problems. First, partisan considerations are

not entirely off limits in election administration. Partisan motivations do not doom

a nondiscriminatory election law if “valid neutral justifications” also support the

law. Crawford, 553 U.S. at 204 (plurality opinion); see also Common Cause/Ga.,

554 F.3d at 1355. But even if partisan motivations were entirely off limits in

election administration, that fact would not eliminate the line-drawing problems

inherent in the voters and organizations’ complaint, which is based solely on the

partisan effects of the ballot statute. The voters and organizations have never

argued that the Democrat-led legislature and Democratic governor that enacted the

statute were motivated by impermissible partisan intent. Their complaint does not

ask for the elimination of partisan intent in ballot order. It asks for a fair allocation

of the primacy vote, much like the complaints of partisan gerrymandering in Rucho

asked for “a [fair] level of political power and influence.” 139 S. Ct. at 2499.

The voters and organizations next contend that because other challenges to

election regulations are justiciable, theirs must be too. They point to Williams v.

Rhodes, 393 U.S. 23, 24, 28 (1968), which held that a challenge to laws that “made

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it virtually impossible” for certain political parties to access the ballot was

justiciable. But Williams provides no support for their position.

Laws that limit the ability of candidates or parties to access the ballot burden

“voters’ freedom of choice and freedom of association.” Anderson, 460 U.S. at 806

(emphasis added); see also Socialist Workers Party, 479 U.S. at 193 (explaining

that ballot-access restrictions “impinge upon the rights of individuals to associate

for political purposes, as well as the rights of qualified voters to cast their votes

effectively”). Standards exist to assess the burdens imposed by restrictions on

ballot access. See Socialist Workers Party, 479 U.S. at 193–99. But no standards

exist to judge challenges to the partisan advantage conferred by ballot order.

The voters and organizations contend that if we determine their complaint is

nonjusticiable, other more nefarious ballot laws will be insulated from judicial

review. They offer examples of hypothetical laws that require a “thumbs-up” or

asterisk symbol next to candidates of the Governor’s party, or that require the

names of those candidates to appear in larger font, bold print, or a different color.

Because challenges to these laws should be justiciable, they argue, so also should

challenges to laws that govern ballot order.

Our holding that this lawsuit is nonjusticiable does not mean that challenges

to these kinds of ballot laws are also nonjusticiable. The Elections Clause, which

commits the regulation of the “Times, Places and Manner of holding Elections” to

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state legislatures, U.S. Const. art. I, § 4, cl. 1, provides a judicially discernable and

manageable standard to evaluate nonprocedural laws about ballot content. The

Supreme Court has held that the Elections Clause establishes the boundaries of

state authority over elections. See Cook v. Gralike, 531 U.S. 510, 523 (2001)

(“[T]he States may regulate the incidents of such elections, including balloting,

only within the exclusive delegation of power under the Elections Clause.”). In

Cook, the Court invalidated a Missouri law that placed a pejorative designation

next to candidates who refused to support term limits because the law did not

regulate the time, place, or manner of elections but instead sought to disparage or

endorse particular candidates. Id. at 523–26. “Thumbs-up” laws could be evaluated

under that standard, as could other laws that arguably do not regulate the manner of

elections, like laws that provide favorable font choices for certain candidates. But

Cook and the Elections Clause provide no standard to evaluate laws that govern

ballot order. Unlike the law at issue in Cook or a “thumbs-up” law, laws that

govern ballot order plainly regulate the manner of elections and are within the

power of States to enact. To use an Australian ballot, Florida, like every other

State, necessarily had to decide the order in which candidates’ names appear on the

ballot. And the choice of what order to adopt cannot be evaluated using legal

standards because it “poses basic questions that are political, not legal.” Rucho,

139 S. Ct. at 2500.

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One might think that holding the voters and organizations’ complaint to be

nonjusticiable would mean that all challenges to ballot order are nonjusticiable, but

that is not so. Rucho makes clear that one kind of challenge to a law can be

justiciable and another nonjusticiable depending on whether judicially discernable

and manageable standards exist to adjudicate the complaint. The Court explained

that challenges to a redistricting plan based on racial gerrymandering or violations

of the one-person, one-vote principle are justiciable because manageable standards

exist to adjudicate those complaints, even though challenges to the same

redistricting plan based on its partisan effects are nonjusticiable. See id. at 2501–

02. Similarly, if the voters and organizations’ complaint were that Florida’s ballot

order somehow made it more difficult for Democrats to vote for their candidate of

choice, their complaint would be justiciable, and we would have to weigh the

burden imposed by the law against the State’s regulatory interests. See Burdick,

504 U.S. at 434; Common Cause/Ga., 554 F.3d at 1352. But that is not the kind of

complaint the voters and organizations brought. They instead ask us to fairly

apportion the primacy vote among the political parties, and that complaint falls

squarely within Rucho’s definition of a political question.

The voters and organizations also argue that the decisions of other courts

adjudicating complaints of partisan advantage based on ballot order prove that their

complaint is justiciable. But the relevant decisions all predate Rucho. See, e.g.,

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Libertarian Party of Va. v. Alcorn, 826 F.3d 708, 717 (4th Cir. 2016); Green Party

of Tenn. v. Hargett, 767 F.3d 533, 550–51 (6th Cir. 2014); Koppell v. N.Y. State

Bd. of Elections, 153 F.3d 95, 96 (2d Cir. 1998); McLain v. Meier, 637 F.2d 1159,

1167 (8th Cir. 1980); Sangmeister v. Woodard, 565 F.2d 460, 465 (7th Cir. 1977).

And none of the decisions addressed whether complaints of partisan advantage

based on ballot order are justiciable. More fundamentally, that courts have

attempted to adjudicate a complaint does not mean the complaint is justiciable.

Indeed, before Rucho, numerous lower courts had crafted some standard to

adjudicate complaints of partisan gerrymandering. See Rucho, 139 S. Ct. at 2502–

06.

Even taken on their own terms, these decisions support, rather than

undermine, the conclusion that the voters and organizations’ complaint is

nonjusticiable. They provide evidence that the voters and organizations’ complaint

is inherently standardless, much as the many prior decisions attempting to

adjudicate complaints of partisan gerrymandering did in Rucho. See id. at 2497–98.

Because complaints of partisan advantage based on ballot order are not based on

the right to vote at all, the courts in each of these decisions were forced to decide

what constituted a fair method of allocating of the top ballot position and then

determine whether the challenged law so departed from that standard of fairness

that it violated the Constitution.

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Unsurprisingly, the courts settled on different and sometimes contradictory

standards. The Fourth Circuit, for example, concluded that “facially neutral and

nondiscriminatory” ballot-order laws “impose[] only the most modest burdens” on

voting and associational rights and for that reason survive scrutiny under Anderson

and Burdick. Libertarian Party of Va., 826 F.3d at 717. The Eighth Circuit, in

contrast, held that “position advantage must be eliminated as much as is possible”

and decided that the “fairest remedy” was “some form of ballot rotation whereby

‘first position’ votes are shared equitably by all candidates.” McLain, 637 F.2d at

1169 (emphasis added). The Seventh Circuit did not require rotation of the top

ballot spot among all candidates; instead, it held that laws governing ballot order

pose no constitutional problem so long as they are “neutral” in character and do not

intentionally favor one class of candidates over another. Sangmeister, 565 F.2d at

465–68. And at least one court has concluded that even a “neutral” method of

assigning ballot position—alphabetically by candidate last name—violated the

state constitutional rights of a candidate whose name would never allow him to

appear at the top of the ballot. Kautenburger v. Jackson, 333 P.2d 293, 294–95

(Ariz. 1958). These decisions strengthen the conclusion that there are no judicially

discernable and manageable standards for adjudicating complaints of partisan

advantage based on ballot order. Such complaints present competing visions of

fairness that are “unguided and ill suited to the development of judicial standards.”

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Rucho, 139 S. Ct. at 2501 (internal quotation marks omitted). Federal judges have

no business deciding them.

The voters and organizations contend that the Supreme Court’s summary

affirmance in Mann v. Powell, 398 U.S. 955 (1970) (mem.), establishes that their

complaint is justiciable, but that is plainly wrong. The law at issue in Mann placed

candidates on the ballot in the order they submitted their nominating petitions and

gave the Illinois Secretary of State unfettered discretion to break ties if he received

multiple petitions simultaneously. 314 F. Supp. 677, 678–79 (N.D. Ill. 1969), aff’d,

398 U.S. 955. When the Secretary received two or more petitions simultaneously,

he chose to break the tie in favor of incumbents. Id. A three-judge district court

enjoined that practice id. at 679, and the Supreme Court summarily affirmed,

Mann, 398 U.S. at 955. But the Court has cautioned that we must not overread its

summary affirmances: “the precedential effect of a summary affirmance extends

no further than the precise issues presented and necessarily decided by those

actions. A summary disposition affirms only the judgment of the court below, and

no more may be read into our action than was essential to sustain that judgment.”

Anderson, 460 U.S. at 784–85 n.5 (internal quotation marks omitted); see also

Mandel v. Bradley, 432 U.S. 173, 176 (1977) (“Because a summary affirmance is

an affirmance of the judgment only, the rationale of the affirmance may not be

gleaned solely from the opinion below. When we summarily affirm, without

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opinion, we affirm the judgment but not necessarily the reasoning by which it was

reached.” (alteration adopted) (internal quotation marks omitted)). Mann provides

no basis to conclude that the Supreme Court has ever adjudicated a complaint

based on the partisan effects of ballot order.

The dissent contends that our analysis of Mann must take into account the

jurisdictional statement filed in that case. Dissenting Op. at 117–21. When a

jurisdictional issue is “neither challenged nor discussed,” the Supreme Court’s

exercise of its jurisdiction carries no precedential weight. Lewis v. Casey, 518 U.S.

343, 352 n.2 (1996). But, the dissent argues, when a party raises an issue in a

jurisdictional statement, the Court’s summary affirmance rejects that specific

challenge. Dissenting Op. at 117 (citing Mandel, 432 U.S. at 176). The dissent

insists that although the jurisdictional issue in Mann was not discussed in the

Supreme Court’s summary affirmance, it was still challenged by the Illinois

Secretary of State. Id. at 118–19 (citing Jurisdictional Statement, Powell v. Mann,

1970 WL 155703 at *6 (1970)). As a result, the dissent says, we must treat Mann

as precedent.

But “the precedential effect of a summary affirmance extends no further than

the precise issues presented,” Anderson, 460 U.S. at 784–85 n.5 (internal quotation

marks omitted), and this case presents a question different from the one in Mann.

The law at issue in Mann gave the Illinois Secretary of State unfettered discretion

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to break ties, whereas the law here gives no such discretion. Because of this key

distinction, we cannot say that the Court’s apparent conclusion in Mann—that a

challenge to a discretionary ballot-ordering law that created no alleged partisan

advantage is justiciable—has any bearing on a challenge to a non-discretionary

ballot-ordering law that allegedly creates an unfair partisan advantage. In short, the

dissent’s reliance on Mann is misplaced.

Besides misreading the precedential value of Mann, the dissent also invents

a threshold inquiry for evaluating potential political questions and contends that we

have ignored this previously unrevealed test. Dissenting Op. at 122–23, 133. The

Court held in Baker v. Carr that a challenge to a state reapportionment plan based

on population inequality did not present a nonjusticiable political question because

there was a “well developed and familiar” standard to evaluate such challenges—

the Equal Protection Clause. 369 U.S. 186, 226 (1962). According to the dissent,

Baker’s test is more lenient than the one used in Rucho, which requires there to be

a judicial standard that rests on a “limited and precise rationale” and that is “clear,

manageable, and politically neutral.” Dissenting Op. at 126 (quoting Rucho, 139 S.

Ct. at 2498). The dissent distinguishes Baker and Rucho by asserting that Baker is

the general test for political questions, whereas the heightened Rucho test should

be used “when judicial review of the particular claim at issue would create

separation of powers concerns.” Id. at 133.

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The dissent’s attempt to create a new framework for choosing between

different tests for political questions is misguided. Although it is true that Rucho

did not overrule Baker, nothing in Rucho suggests that the Supreme Court’s test for

the justiciability of challenges to partisan gerrymandering was an exception to a

general test for other political questions. See Rucho, 139 S. Ct. at 2498–99. The

reason the Court directed its analysis in Rucho toward partisan gerrymandering is

that the claim in Rucho was about partisan gerrymandering. The dissent is trying to

create a solution in search of a problem.

The voters and organizations’ attempts to escape the reasoning of Rucho are

all unavailing. Despite their many protests, Rucho compels the conclusion that

complaints of unfair partisan advantage based on ballot order present

nonjusticiable political questions. Although Rucho may seem counterintuitive to

federal judges who are used to usurping the authority of state legislatures to

regulate elections, it should not. The Constitution commits the “Times, Places and

Manner” of holding congressional elections to legislatures—the state legislatures

in the first instance, subject to any regulations Congress prescribes. U.S. Const. art.

I, § 4, cl. 1. Our founding charter never contemplated that federal courts would

dictate the manner of conducting elections—in this lawsuit, down to the order in

which candidates appear on a ballot.

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Alexander Hamilton explained in Federalist 59 that “a discretionary power

over elections ought to exist somewhere,” but that somewhere was not the federal

judiciary. The Federalist No. 59, at 306 (Alexander Hamilton) (George W. Carey

& James McClellan eds., 2001). Instead, Hamilton identified “only three ways in

which this power could have been reasonably organized.” Id. It could be “lodged

wholly in the national legislature, or wholly in the state legislatures, or primarily,

in the latter, and ultimately in the former.” Id. The Constitution, of course, adopted

the third option. But the district court in this action assumed for itself the

“discretionary power over elections” that the Constitution assigns to the state and

federal legislatures, in contravention of clear Supreme Court precedent that should

have prevented it from reaching the merits of this dispute. Its decision to do so was

error.

We offer one final word about the dissenting opinion. Although it purports

to dissent from our judgment vacating the injunction for lack of jurisdiction, the

dissenting opinion never says whether it would affirm the injunction or on what

grounds. So although the dissent argues this dispute is justiciable, it offers no clues

about how to resolve the appeal.

IV. CONCLUSION

By entering a judgment on the merits when it had no justiciable case or

controversy before it, the district court offered “no more than an expression of

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opinion upon the validity of the [law] in question.” Muskrat v. United States, 219

U.S. 346, 362 (1911). That kind of advisory opinion is beyond the power of federal

courts. The district court should have dismissed the action because the voters and

organizations lack standing and their complaint is nonjusticiable. It erred by

reaching the merits and entering an injunction against nonparties whom it had no

authority to enjoin. We VACATE the judgment against the Secretary and

REMAND with instructions to dismiss for lack of jurisdiction.

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JILL PRYOR, Circuit Judge, dissenting:

For the past 20 years, the Republican candidate’s name has been listed first

on every general election ballot in every race in every contested partisan election in

the state of Florida. In this case, individuals and organizations sued Florida’s

Secretary of State to challenge as unconstitutional the state statute governing ballot

ordering in general elections. Florida law requires the names of candidates from

the governor’s party to be listed first for each office on the general election ballot.

See Fla. Stat. § 101.151(3)(a). The district court found after a bench trial that this

ballot-ordering scheme has awarded Republican candidates a “small but

statistically significant advantage” due to the tendency of some voters to select a

candidate simply because his name is listed first (a phenomenon known as the

“primacy effect” or “candidate name order effect”). Doc. 202 at 2. 1 As a result,

the court concluded, the scheme violated the First and Fourteenth Amendments.

The merits question in this appeal is whether Florida’s ballot-order law

violates the Constitution by awarding the advantage created by the primacy effect

to candidates based on their affiliation with the governor’s political party, with a

corresponding disadvantage to the opposing party. But before we can address the

merits, we must be sure that we have jurisdiction to hear the appeal. See MSP

Recovery, LLC v. Allstate Ins. Co., 835 F.3d 1351, 1357 (11th Cir. 2016).

1
Citations in the form “Doc. #” refer to the district court’s docket entries.

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The majority opinion never reaches the merits of the plaintiffs’ claims

because it concludes that the case should have been dismissed for lack of

jurisdiction. According to the majority, the district court should have dismissed

the complaint because the plaintiffs failed to establish any of the three required

elements of standing and their complaint raises a nonjusticiable political question

based on the United States Supreme Court’s decision in Rucho v. Common Cause,

139 S. Ct. 2484 (2019).

I disagree. I would conclude that at least three plaintiffs—the Democratic

National Committee (“DNC”), the Democratic Senatorial Campaign Committee

(“DSCC”), and the Democratic Congressional Campaign Committee (“DCCC”)

(together, the “Committees”)—have standing. I would also conclude that their

challenge to the ballot-order statute does not raise a political question. In holding

that the district court lacked jurisdiction to hear any of the plaintiffs’ claims, the

majority opinion contorts beyond recognition Supreme Court precedent addressing

the injury-in-fact, traceability, and redressability requirements for standing, as well

as the scope of the political question doctrine. As a result, the majority opinion

ends up imposing entirely new or substantially heavier burdens on plaintiffs who

seek to challenge state election laws, burdens that the Supreme Court has never

recognized.

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I. The Committees Have Standing to Challenge the Ballot-Order Statute.

I begin with standing. Plaintiffs the DNC, DSCC, and DCCC are the

national committees of the Democratic Party and thus “responsible for the day-to-

day operation of [the] party at the national level.” 52 U.S.C. § 30101(14). We

have previously explained that the national committees are the “embodiment and

manager[s] of the affairs” of the national party. Wymbs v. Republican State Exec.

Comm. of Fla., 719 F.2d 1072, 1074 n.4 (11th Cir. 1983). I would conclude that

the Committees have standing to sue the Secretary of State to challenge the ballot-

order law.

The Constitution limits the power of the judiciary to deciding “Cases” and

“Controversies.” U.S. Const. art. III, § 2, cl. 1. To satisfy the case-or-controversy

requirement, a plaintiff must have standing to sue. See Spokeo, Inc. v. Robins,

136 S. Ct. 1540, 1547 (2016). To establish standing, a plaintiff must show (1) an

injury in fact; (2) a causal connection between the injury and the causal conduct,

meaning that the injury is fairly traceable to the defendant’s conduct; and (3) a

likelihood that the injury will be redressed by a favorable decision. Id.; MSP

Recovery, 835 F.3d at 1357. Failure to demonstrate any one of these three

elements defeats a plaintiff’s standing. The majority opinion concludes that the

plaintiffs lack standing to sue the Secretary of State because at trial they failed to

prove all three: (1) that any plaintiff suffered an injury in fact; (2) that any injury a

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plaintiff suffered, if one existed, was fairly traceable to the Secretary’s conduct;

and (3) that any injury a plaintiff suffered, if one existed, could be redressed by a

judgment against the Secretary.

The Committees met all three elements. Each committee experienced an

injury in fact because the ballot-order statute has placed the Democratic Party at an

enduring electoral disadvantage in Florida by diminishing the electoral prospects

of Democratic candidates throughout the state. As a result, the Democratic Party

and the national committees that are the “embodiment[s]” of the party were injured

by the ballot-order scheme. Wymbs, 719 F.2d at 1074 n.4. The Committees were

injured because the ballot-order law made it—continues to make it—more difficult

for them to raise funds, register voters, attract volunteers, generate support from

independent voters, and recruit candidates to run for office. In addition, the

Committees’ injuries were traceable to the Secretary of State and redressable in

litigation against her given her role under Florida law in implementing and

overseeing how local election officials prepare ballots.

In holding that the Committees failed to establish each element of standing,

the majority unveils a new understanding of these concepts, imposes a heavier

burden on the plaintiffs than Supreme Court precedent and our precedent supports,

and creates a split with authority from other circuits. Because the Committees

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cleared the threshold hurdle of standing, we should reach the merits of their

challenge to the ballot-order statute.

A. The Committees Suffered Injury in Fact.

First, the plaintiffs demonstrated that the Committees experienced an injury

in fact. To establish an injury in fact, each committee had to prove that it suffered

“an invasion of a legally protected interest that is concrete and particularized and

actual or imminent, not conjectural or hypothetical.” Spokeo, 136 S. Ct. at 1548

(internal quotation marks omitted). For an injury to be concrete, it “must be de

facto; that is, it must actually exist.” Id. (internal quotation marks omitted). The

Supreme Court has explained that the injury must be “real, and not

abstract.” Id. (internal quotation marks omitted).

The Committees experienced an injury in fact because Florida’s ballot-order

statute over time has disadvantaged Democratic candidates in Florida elections.2

By damaging the electoral prospects of Democratic candidates, the statute has

2
As organizational plaintiffs, each Committee alternatively could sue “on behalf of its
members” if (1) “its members would otherwise have standing to sue in their own right,” (2) “the
interests at stake are germane to the organization’s purpose,” and (3) “neither the claim asserted
nor the relief requested requires the participation of individual members in the lawsuit.” Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 181 (2000). To establish
standing under this theory, an organization must show that at least one of its members has
suffered or will suffer harm. Summers v. Earth Island Inst., 555 U.S. 488, 498 (2009). Because
I conclude that each Committee itself experienced harm, I do not address standing based on harm
to its members.

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weakened the strength of the Democratic Party in Florida and necessarily harmed

the Committees.

Let me briefly explain how the statute harmed the electoral prospects of

Democratic candidates in Florida. By design, the ballot-order statute awarded (and

continues to award) an advantage to one major political party over the other,

ensuring that when a party secures the governor’s office in Florida, candidates

from the governor’s political party receive a windfall by virtue of being placed first

on the ballot. See Fla. Stat. § 101.151(3)(a). The district court’s factual findings

established that this advantage has been and continues to be significant. As the

district court found, “[C]andidates 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 “this advantage accrues to a candidate because of

the candidates’ name order.” Doc. 202 at 45.

The majority argues that this evidence was insufficient to show that any

particular candidate has been harmed because it “tells us nothing about whether

ballot order has affected or will affect any particular candidate in any particular

election.” Maj. Op. at 25. Although it is true that the district court did not identify

the candidate(s) in particular race(s) who would have won but for the ballot-order

statute’s allocation of the primacy effect windfall to the governor’s party, the

district court found that some Democratic candidates lost elections because of that

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allocation. As the district court explained, “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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4562703. Public record. Not legal advice.