Three Judge Panel Rules Against Republicans In Voting Rights Case

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On Friday, a three-member panel of federal judges on the 9th Circuit Court of Appeals concluded that a Democratic challenge to an Arizona law carrying an apparently remarkable potential for voter suppression could proceed. The law requires that candidates be listed on individual counties’ general election ballots according to how well their parties did within those respective counties in Arizona’s most recent gubernatorial elections. Thus, since Republican Doug Ducey prevailed in a majority of Arizona’s counties four years ago in the state’s gubernatorial race, Republicans are set to be listed this November ahead of Democrats in all races across 11 counties, including Maricopa County, the state’s largest. Stanford University Professor Jonathan Rodden “estimated that first-listed candidates get an advantage average of 2.2 percentage points,” the Arizona Daily Star reported. The advantage could be as high as 5.6 percent.

The panel of federal judges dealing with this issue “said there is reason to believe the system, established by the Republican-controlled Legislature, is unconstitutional,” the Arizona Daily Star explained. In the 2020 general election in Arizona, over 80 percent of voters cast ballots that listed Republicans first. The panel’s conclusion returns the whole thing to U.S. District Court Judge Diane Humetewa for further proceedings; she dismissed arguments against the law last year. For now, the disputed measures remain in force in Arizona. In the meantime, Judge Jed Rakoff of the 9th Circuit Court of Appeals noted that as “a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process.” Humetewa had previously undercut the idea that the Democratic interests challenging the law had the appropriate standing to do so. Plaintiffs “do not argue 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,” that judge claimed.

In earlier conclusions, Humetewa also argued that Democratic plaintiffs would “not be injured because other voters may act ‘irrationally’ in the ballot box by exercising their right to choose the first-listed candidate” — although of course, there’s more to it than that. If the first-listed candidates are disproportionately Republicans, then Republicans have a built-in advantage that goes beyond mere procedural hurdles. For now, the matter remains one of the many voting rights issues under dispute around the nation. And in Arizona, there was another high-profile recent legal challenge launched, this time targeting the eligibility for office of Republicans including Rep. Paul Gosar (Ariz.). Those challenges, like similar challenges against Reps. Marjorie Taylor Greene (R-Ga.) and Madison Cawthorn (R-N.C.), were connected to provisions of the 14th Amendment of the U.S. Constitution that restrict individuals who participated in insurrection or provided certain support to enemies of the United States from running for office. A federal judge dealing with a lawsuit Greene filed to try and stop the challenge to her candidacy recently questioned an earlier judicial conclusion in Cawthorn’s case that an 1872 law removing political restrictions associated with insurrection also covered current Congresspeople.