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In November 2019, U. S. District Court Judge Mark E. Walker declared that Florida's ballot order statute is unconstitutional. The case, which was brought by prominent Democratic elections lawyer Marc Elias, is docketed as Jacobson v. Lee. The Florida statute provides that the party that had won the last gubernatorial election was entitled to the top line of the ballot for all elected offices.

Republicans have held the Florida's governor's seat for the past twenty years, meaning that Republicans have received the top line of the ballot for the last two decades. Judge Walker found that, on average, Republican candidates for offices throughout the state had received a five-percent advantage at the polls by virtue of their consistently first ballot position. The judge explained the phenomenon of the first line ballot bump to be known as the "primacy effect vote," "the windfall vote," or "the donkey vote." Democrats in Florida challenged the constitutionality of the statute in advance of the 2020 presidential election. The federal court agreed with the Democrats that the ballot order statute gives the party in power an unfair edge that violates the First and Fourteenth Amendments.

Connecticut law for ordering parties on the ballot is the same as Florida's—the top line goes to the political party that received the most votes in most recent gubernatorial election. In 2012, Democrat Denise Merrill attempted to award the top line of the ballot to the Democratic candidates after Dan Malloy was elected governor. However, Tom Foley had actually received more votes on the Republican Party line for governor than Dan Malloy had received on the Democratic party line for governor, with votes received on Malloy's cross-endorsement Working Families party line being the difference in a tight race.

The Republican party filed a lawsuit against Merrill that reached the Connecticut Supreme Court. The court, which at the time had a healthy balance of Republican and Democratic appointees, unanimously concluded that Merrill had been wrong and ordered that the Republican Party candidates be listed first on the ballots. However, the Democratic party went on to win the next two gubernatorial elections in 2014 and 2018, giving its candidates for all state and municipal offices the top line of the ballot for the past five years.

If Judge Walker is correct about Florida's ballot order statute, Connecticut's statute also gives an unconstitutional advantage to the party in power. It has provided Connecticut Democrats with an unfair advantage in elections for the past five years. The significance of this five percent advantage is shown in the state's 2018 election results. That year, Democrats won 92 of the 151 seats in the House of Representatives. But 12 of those wins by Democrats were by five percentage points or less, and five were won by one percent or less.

Remove the five-percent advantage of the donkey vote, and the Democrats' advantage in the House could have fallen from 92-59 to 80-71. In the Senate, the result is even more significant. Democrats won 23 seats to the Republicans' 13. Five of those Democratic wins were by five percent or less, with two by one percent or less. Remove the five-percent advantage of the donkey vote and the Senate could have been tied 18-18 (as it was after the 2016 election). And, of course, in the gubernatorial election, Democrat Ned Lamont defeated Republican Bob Stefanowski by only three percentage points. Remove the donkey vote, and Republican Bob Stefanowski could have been governor.

Elias and Democratic organizations have filed lawsuits in Georgia, Arizona and Texas, arguing that Republicans are given an unfair advantage by being listed first on those states' general election ballots. In January, Elias published an op-ed in the Washington Post entitled "Democracy is Literally on the Ballot," in which he explains: "We count on the courts to prevent partisan mischief from overtaking fair elections. Giving one party a five-percentage-point advantage in every election is not a fair election. This is not a time for courts to shrink from their responsibility to protect democracy in elections. In this case, democracy itself is literally on the ballot."

Judge Walker explained that "a majority of the States use nonpartisan ballot order schemes that would tend to minimize the impact of candidate name order effects, presumably to control for this widely understood phenomenon." He then lists statutes from twenty-seven states that do not provide a donkey vote advantage to one political party. The legislature should not wait until a judicial action is brought. It should simply amend General Statutes section 9-249a (the ballot order statute) to take away the Democratic party's automatic five-point head start that it unfairly has in all Connecticut elections.

Connecticut electors and candidates are entitled to have fair elections. Now that the problem of the donkey vote has been identified, the Connecticut Legislature should act on a bipartisan basis to eliminate that unconstitutional advantage before the next election.