On July 10, the Texas Democratic Party lost its lawsuit over the order of candidates on the general election ballot. Miller v Hughs, w.d., 1:19cv-1071. The law says the nominees of the party that won the last gubernatorial election are all listed first on the ballot. U.S. District Court Judge Lee Yeakel, a Bush Jr. appointee, said that such cases cannot be adjudicated by federal courts, because their is no objective standard for a fair system. He supported this conclusion by citing the U.S. Supreme Court decision Rucho v Common Cause, the 2019 decision that said federal courts cannot adjudicate partisan gerrymandering lawsuits because there are no objective standards for imaging a fair redistricting process.

The idea that ballot order lawsuit cannot be adjudicated because there is no method for a fair system is obviously wrong. There are two fair methods for writing a law on the order of candidates on the ballot, and approximately one-third of the states use one or the other. Either the state can hold a drawing to determine order of candidates on the ballot, or it can rotate the names of candidates so that each candidate has an equal chance to be on the top line in a share of all the precincts. For example, under rotation, if there are four candidates for a particular race, each candidate will be on the top line in one-fourth of the precincts.

There have been federal court decisions on the constitutionality of various laws on this subject since the 1960’s, and no other federal court had ever come to this conclusion. The Democratic Party asked for reconsideration, but it was denied on August 19. It seems highly likely the party will appeal.