Opinion: Taking Bias Out of the Ballot Box

In this age of hyper-partisanship and conspiracy-minded digital echo chambers, it is more important than ever that courts and policy makers assure that our nation’s electoral process is beyond reproach. But a federal district court in Florida recently took a step in the right direction.

The court found that Florida’s failure to rotate or otherwise randomize the order in which candidate names appear on election ballots is unconstitutional. Recent research has demonstrated that a “primacy effect” – a bias favoring options at the top of a list of alternatives – can often significantly boost vote totals for candidates who appear first among the list of candidates for any given office, thereby unfairly disadvantaging candidates not awarded the top slot.

This is not an issue unique to Florida. About 38 states fail to rotate or randomize the order in which candidates are listed. Many of these states utilize a system that uses party affiliation to determine name order, giving all the candidates of one party an unfair advantage. Still others allow election officials to pick the order themselves (without restriction for any biases or preferences they may have), list incumbents first, or list candidates alphabetically.

The research was presented in June 2017 by Stanford Professor Jon Krosnick, the nation’s leading authority on candidate name order effects, at a conference of scholars and political professionals hosted by the Center for Survey Methodology and the Center for Effective Government at the University of Chicago Harris School of Public Policy. Dr. Krosnick provided a comprehensive review of seventy years’ worth of academic scholarship on the impact of candidate name order, which overwhelmingly found primacy effects in the elections studied across that time period.

Attending the conference was one of the nation’s most prominent election law attorneys, Marc Elias. Upon hearing Dr. Krosnick’s presentation, Elias filed a lawsuit in federal district court, on behalf of several Democratic voters, against the State of Florida, arguing that the failure of the state to randomize candidate names violated the 1st and 14th Amendments to the U.S. Constitution.

The Florida court agreed with the plaintiffs, finding that the state’s present system of determining ballot order does indeed violate the plaintiffs’ Constitutional rights, most notably, rights established by the 14th Amendment’s Equal Protection Clause. The court ordered the state to cease using its present system, which systematically confers the top ballot position to all the candidates affiliated with the party of Florida’s last-elected governor, and replace it with a new system that meets the requirements of the U.S. Constitution.  Since several different ballot order methods would pass constitutional muster, the court left it up to state policy makers to choose among them.

Similar lawsuits, also filed by Elias – who has made it his mission to eradicate this defect in the electoral process – are still pending in Texas, Georgia and Arizona.

To some, the Florida case deals with a minor arcane detail buried deep in Florida’s election statutes. But to those concerned about the health of our democracy and the integrity of our elections, the court’s decision is of vital importance. The court ruled that the plaintiffs convincingly demonstrated that, under Florida’s present system, the candidate listed first for an office receives, on average, a five-percentage-point advantage over competitors merely by virtue of being listed first. (Not surprisingly, down-ballot races, for which voters tend to have relatively little information, were found to be more susceptible to name order effects than races toward the top of the ballot.) But, as the judge noted in his decision, in an honest election, no candidate is entitled to “a head start.”

The issue, stated the court, “is whether the Constitution allows a state to put its thumb on the scale and award an electoral advantage to the party in power. The answer is simple. It does not.” 

Some of my Republican friends may be dismayed at the ruling in Florida, where the current ballot order system, in recent years, has benefited Republican candidates owing to the fact that, ever since 1998, Florida’s last-elected governor has been a Republican. But I hope they will find solace in two things: First, should it withstand possible appeals – Florida’s governor has already indicated an intention to appeal – the decision could be an important step toward improving the fairness of elections and strengthening confidence in America’s electoral system. 

Second, should it withstand possible appeals, I imagine Republicans might file a few lawsuits of their own – on similar grounds – challenging unfair ballot order systems in states where Democratic candidates are presently reaping the advantage. The net effect could be adoption of more equitable systems all across the country.

Our democracy cannot survive if Americans do not have confidence in the integrity of our nation’s electoral process and other crucial democratic institutions. Our political system is currently under great stress. Some people are pushing their way beyond the guardrails we must collectively observe to maintain the health of our democracy. Perhaps more commonly, others are lending cover to those violating them. And partisans on both sides are pointing fingers.

Fortunately, there are Americans across the political spectrum pushing back, seeking to eradicate both long-standing and more recent inequities in the political process, hoping to enhance confidence in democratic institutions and strengthen commitment to democratic norms and values. In light of the high stakes of recent and current partisan battles, the Florida ruling may sound like a modest or esoteric improvement. But don’t be fooled. There is nothing more important to American democracy than making sure elections are fair.   

Marc Farinella is the Senior Advisor for Strategy and External Relations for the Center for Effective Government, which is dedicated to investigating local and national reform efforts that are intended to change the way our political institutions are governed, and Executive Director of the Center for Survey Methodology, which supports research projects on the methodology of data collection and evaluation, hosts guest speakers, organizes small group meetings and conferences, and manages Harris Public Policy's Certificate in Survey Research.