Democrats Sue Over Arizona Law That Gives Top Ballot Positions to Republicans

Democratic organizations in three states, including Arizona, filed lawsuits on November 1 arguing that ballot order gives Republicans an unfair advantage in the state.
Democratic organizations in three states, including Arizona, filed lawsuits on November 1 arguing that ballot order gives Republicans an unfair advantage in the state. Erik (Hash) Hersman/Flickr
Democratic organizations and two individual voters have filed a lawsuit against Arizona's secretary of state, claiming the Arizona statute that governs ballot placement offers an unfair benefit to Republican candidates.

The new filing in Arizona comes as two lawsuits on the same topic were also filed in Georgia and Texas, the Washington Post first reported on Friday. In the lead-up to 2020, several Democratic groups have sought ways to even the playing field, as they see it, filing lawsuits nationwide on access to voting and fair ballots.

The 22-page complaint filed Friday in federal court in Arizona takes issue with the statute for general election ballots, which gives the first position on every ballot to the political party that got the most votes in that county during the last gubernatorial election.

That gives Republicans an unfair advantage in Arizona, plaintiffs argue, because a majority of voters in many counties vote for Republican gubernatorial candidates, and have for years.

In 2018, for example, Governor Doug Ducey received a majority of the vote in all but four of Arizona's 15 counties. That means in 2020, all the counties Ducey won will list Republican candidates first for every partisan race, on every ballot.

The plaintiffs say a rotation of candidate names would be a fairer method. They detail how in Arizona primary elections, the state "rotates the names of candidates on a precinct-by-precinct basis" so that "each candidate's name appears in the top position on a roughly equal number of ballots."

The stakes are particularly high in Arizona, the lawsuit explains, because "Arizona is projected to have numerous highly competitive races" in 2020.

Plaintiffs in the lawsuit include the Democratic National Committee, the Democratic Senatorial Campaign Committee, and the super PAC Priorities USA, as well as two Arizona voters who support Democrats in the state's elections, Brian Mecinas and Carolyn Vasko.

Mecinas is a freshman at Arizona State University, while Vasko is a Glendale resident who will turn 18 in 2020 and plans to vote for the first time next year.

They cite "position bias," or the phenomenon that candidates who appear higher on a ballot have an electoral benefit, as evidence that Arizona's law is unfair. In the complaint, they refer to court cases that have confirmed the existence of this advantage, including one in the Arizona Supreme Court dating to 1958.

The lawsuit demands Arizona's ballot order statute be declared invalid and replaced, on the grounds that it places an undue burden on the right to vote, and treats "similarly situated political parties differently, therefore violating the First and 14th Amendments.

“Democrats are taking every action possible to protect the integrity of our democratic process and ensure every voter can participate in a fair election,” DNC Chair Tom Perez said in a statement on the three lawsuits Friday. “An unbiased ballot is one of the cornerstones of our democratic system, and this joint effort will help make sure no one political party is given an unfair advantage at voters’ expense.”

The Arizona Secretary of State's Office said it's policy is not to respond on pending litigation. Sarah Gonski, an attorney for the plaintiffs, did not respond to a request for comment.

The full complaint can be viewed below.

KEEP PHOENIX NEW TIMES FREE... Since we started Phoenix New Times, it has been defined as the free, independent voice of Phoenix, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
Ali Swenson was an editorial fellow for Phoenix New Times starting in 2019.