By Howard Fischer
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PHOENIX — Wondering why Kamala Harris is listed ahead of Donald Trump on your ballot? Or vice versa?

Or Ruben Gallego versus Kari Lake?

It’s not a conspiracy. It’s the lawn, and it depends on where you live.

It comes despite the fact some people claim there’s actually evidence that whichever candidate whose name is first may have a marginal advantage.

What it all comes down to is who won the last gubernatorial race in your county. A 1979 Arizona law says that determines ballot order for the next two statewide elections.

In 2022, Katie Hobbs outpolled Kari Lake in Coconino, Maricopa, Pima, Santa Cruz and Yuma counties. So every partisan race on this year’s ballot, from president on down through legislators to the county treasurer, list the Democratic contender first.

It’s just the reverse in the other nine counties, places where Lake did better than Hobbs, even though the GOP nominee ultimately lost the race statewide by 17,117 votes.

Is it fair?

The Democrats didn’t think so four years ago — just ahead of the 2020 election — when they noticed that Republicans were set to be listed ahead of Democrats in all races in 11 of the state’s 15 counties, including Maricopa County, which has more voters than the other 14 combined. That was because Republican Doug Ducey beat Democrat David Garcia in 2018.

So they filed suit in federal court.

“For the past 40 years, the result has been the systemic favoritism of Republicans on the vast majority of general election ballots,” argued Sarah Gonski on behalf of the Democratic National Committee.
And she said it does make a difference.

“It is now well established that the candidate whose name appears first on a ballot in a contested race receives an electoral benefit solely due to her first position,” Gonsky told U.S. District Court Judge Diane Humetewa. “Politicians and parties long strongly suspected as much, but this particular piece of political mythology has been confirmed by academics again and again, persuasively and, in recent years, definitively.”

Gonski’s proof?

She cited data from Jonathan Rodden, a political science professor at Stanford University. He estimated the first-listed candidates get an average advantage of 2.2 percentage points.

And that advantage, Rodden said, could reach 5.6 percentage points.
None of that swayed Humetewa. The problem, the judge said, starts with the legal ability of the challengers to raise the issue.

She said anyone seeking federal court intervention must demonstrate “a personal stake in the outcome.” And that, the judge said, means showing they would be injured “in a personal and individual way.”

That, she said, isn’t the case here.

“The harm that plaintiffs allege is not harm to themselves, but rather an alleged harm to the Democratic candidates whom they intend, at this juncture, to support,” Humetewa wrote, adding that a candidate’s failure to get elected does not injure those who voted for that person.

Nor, the judge said, can they show other harms due to the ballot-order law.

“They do not order that the ballot order statute prevents them from casting a ballot for their intended candidate, nor do they argue that their lawfully cast votes will not be counted,” she said.

Humetewa brushed aside any arguments some people were having their votes for candidates diluted because others were simply picking the first name they saw.

“Plaintiffs will not be injured simply because other voters may act ‘irrationally’ in the ballot box by exercising their right to choose the first-listed candidate,” Humetewa wrote.

She also took a slap of sorts at the Democrats for their proposed solution: rotating the position of names on the general election ballot — but only between the Democrats and Republicans.

“Their definition of ‘fairness’ does not require rotation of independent party candidates, write-in candidates from the primary election, or other third-party candidates in their ballot scheme, meaning that those candidates would never be listed first on the ballot,” the judge said.

Humetewa said in her 2020 ruling there was no actual proof that the system actually frustrated the ability of Democrats to get elected to statewide office. Exhibit No. 1, she said, was the 2018 election of Kyrsten Sinema — then a Democrat — to the U.S. Senate over Republican Martha McSally.

As it turned out, more recent history has backed Humetewa’s conclusion the law is not discriminatory and is not a handicap for Democratic candidates.

In the 2022 election Democratic candidates managed to win races not only for governor but also secretary of state and attorney general.

And there has been no further effort by the Democrats since then to overturn the system.