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.

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