BREAKING: 9th Circuit Breathes New Life Into Democratic Challenge To Arizona's Ballot Order Statute (READ Opinion)

Democrats began challenging Arizona's ballot order statute in 2019, and the effort got knocked down partly because it was bumping up too close to the 2020 election. Today's 9th Circuit's decision reversing the dismissal of the case means that it might get thwarted for being too close to the 2022 election.

A unanimous three-judge panel today reversed the dismissal, finding that Democrats had standing and had pled enough support to continue towards trial. In the words of Arizona Attorney General Mark Brnovich earlier this week,  Democrats might consider the undoing of the dismissal to be "a big win".

Arizona's ballot order statute gives the coveted top spot to the candidate(s) from the party that won that county's vote in the previous gubernatorial election. Democrats claim that that meant most Arizonans would see every Republican listed before every Democrat and that that put them at an unfair competitive disadvantage because of the primacy effect. 

The Secretary urges us to deem “any burden” imposed by the Statute as “negligible” and thus justified by the state’s interest in “establish[ing] a manageable ballot layout.” But the magnitude of the asserted injury is a function of the “primacy effect,” presenting factual questions that cannot be resolved on a motion to dismiss. For example, the complaint alleged that in the 2020 election cycle, more than “80% of Arizona’s voters [would] be presented with ballots in which the names of Republican candidates [were] listed first for every single partisan race.” And, as noted, the Arizona Supreme Court has characterized the “distinct advantage” arising from a candidate’s name appearing at the head of a ballot as a “well-known fact.”

The case will now head back to District Court Judge Diane Humetewa, who dismissed the case in 2020.

In 2020, the 9th Circuit refused to put a stay on the dismissal pending appeal, as it was getting too close to the election. Under a principle set forth by the U.S. Supreme Court in a case involving then-Maricopa County Recorder Helen Purcell, courts should be more reluctant to rule in a way that would change election procedures as it gets closer to an election. The Purcell Principle could again come into play now that this case is back in District Court.

This article was reported by AZ Law founder Paul Weich. Paul is currently running for a seat in Arizona's House of Representatives.

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