On April 8, the Ninth Circuit issued an opinion in Mecinas v Hobbs, 20-16301. This is the lawsuit filed in 2020 by the Democratic National Committee against the Arizona law that determines the order of candidates on general election ballots. The law says the party that carried that county for Governor in the last gubernatorial election will have all its nominees listed first. The U.S. District Court had ruled that the plaintiffs lack standing, and that even if they do have standing, cases on ballot order cannot be adjudicated because they are “political”.

The Ninth Circuit rejected all the procedural objections to the lawsuit. The opinion says ballot-order cases can be adjudicated, and points out that in 1970, the U.S. Supreme Court itself summarily affirmed a 3-judge court decision from Illinois that invalidated the Illinois procedures for determining the order of candidates. The Ninth Circuit did not decide the merits, but it hinted that the law is unconstitutional. The opinion says, at the end, “Given that Arizona’s asserted interest in a manageable ballot could seemingly be effectuated through a nondiscriminatory ordering system, ‘judgment in the Secretary’s favor is premature’ at this juncture.”

The decision is by visiting U.S. District Court Judge Jed Rakoff, who is a judge in New York and who is a Clinton appointee. It is also signed by Judge Johnnie B. Rawlinson, a Clinton appointee; and Judge Paul J. Watford, an Obama appointee.

This is the first victory that the Democratic Party has had in its six ballot-order cases filed in 2020. It lost its Florida and Georgia cases because the Eleventh Circuit said that ballot-order cases can’t be adjudicated because it is impossible to come up with a fair system. This is an absurd conclusion; it is easy to design a non-discriminatory system. Either the names of candidates can be rotated from one area to the next, or the state can hold a random drawing to determine which candidate should be listed first.

If Arizona appeals this decision to the U.S. Supreme Court, that court seems likely to hear the case, because that court generally accepts election law cert petitions from state governments, especially when there is a Circuit split, which there is in this case. Thanks to Steve Kemp for the news.

UPDATE: here is a newspaper story about the ruling.