PHOENIX — Democrats will get another chance to try to overturn a law they contend gives Republicans an edge in future elections.
The 9th Circuit Court of Appeals has scheduled a January hearing on a challenge by the Democratic National Committee and the Democratic Senatorial Campaign Committee to statutes that says the party whose gubernatorial hopeful did the best in the last election gets to list all of its candidates for all of the races first.
What that meant is that in the 2020 election, 82% of all Arizona voters got ballots that listed GOP contenders first in every partisan race. And the same will be true in 2022 unless the federal appellate court voids the law.
But the Democrats could have an uphill fight.
Last year U.S. District Court Judge Diane Humetewa tossed out the original lawsuit.
They most immediately need to convince the appellate judges that they have a right to sue in the first place. That’s because U.S. District Court Judge Diane Humetewa tossed out the original lawsuit. So they want the 9th Circuit to overturn that ruling and force her to hear their arguments.
In dismissing the case last year, she said the individual plaintiffs named in the complaint have no legal standing to sue because they are not injured in any way. The judge said they still have the right to vote for any candidate.
Potentially more significant, Humetewa said the claims by the two Democratic committees were flawed because they failed to show that the current system frustrates their bid to get Democrats elected to statewide office.
And Exhibit No. 1, Humetewa said, was the 2018 election of Kyrsten Sinema to the U.S. Senate.
In fact, since that initial ruling, Democrats managed to gain the second Senate seat for Mark Kelly. And Joe Biden outpolled Donald Trump in the presidential race.
But attorneys for the Democrats contend that the system still is rigged and should be scrapped.
Under the current system, candidates in primary elections have named rotated among various precincts. So no one person gets a built-in advantage.
But when the general election comes around, candidates are listed on ballots in each county based on how well each party's gubernatorial hopefuls did in that county in the last general election.
What that means is that in 2022 the Republicans will be listed ahead of Democrats in all races in 11 of the state's 15 counties where Republican Gov. Doug Ducey outpolled Democrat David Garcia. That includes Maricopa County, which has more voters than the other 14 counties combined.
All that, however, is based on the Democrats’ contention that a certain number of voters are more likely to mark their ballots for the first name they see.
Attorneys for the party cited data from Jonathan Rodden, a political science professor at Stanford University.
He estimated that first-listed candidates get an advantage average of 2.2 percentage points. And that, he said can reach 5.6 percentage points.
Of note is that Kelly’s margin of victory in 2020 over Republican Martha McSally was 2.3%. And there was a difference of just 0.3% between Biden and Trump.
But even if the math is as the Democrats claim, that still doesn't give them a right to sue.
Humetewa, in her 2020 ruling, said anyone seeking federal court intervention must demonstrate “a personal stake in the outcome.” And that, the judge said, means showing that they would be injured “in a personal and individual way.”
That 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. And she said 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 by the 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. And she brushed aside any arguments about the fact that some people were having their votes for the 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 said.
Humetewa, in throwing out the case, told the Democrats that even if they did have a right to sue, it is not within the legal authority of courts in cases like this to come up with a “fairer” alternative. And she took a slap at sort at the Democrats for their proposed solution: rotating the position of Democrats and Republicans on the general election ballot.
“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,” the judge noted. And that meant that the proposal by the Democrats would mean that those candidates would never be listed first on the ballot.
Even if the 9th Circuit sides with the Democrats, that doesn’t void the law. All that would do is send the case back to Humetewa to hear all the evidence the challengers have rather than simply toss the case out on other grounds as she did in 2020.
The hearing is set for Jan. 14 at the federal appellate courthouse in Pasadena.
By 
