Since the 1950s, Florida law has mandated that the presidential candidate from the governor’s party occupy the top line on the ballot, as was the case in the much disputed 2000 Bush-Gore election. Democrats want a change. | Wilfredo Lee/AP Photo Florida Democrats put Florida election law on trial

TALLAHASSEE — Democrats, stinging from a succession of oh-so-close election losses in Florida, will try to convince a federal judge this week to jettison a nearly 70-year-old law guaranteeing that President Donald Trump’s name will be listed first on the 2020 ballot in one of the nation’s biggest battleground states.

Denying Republicans the perceived advantage of "position bias," as some call it, at the voting booth is part of Democrats' broader strategy to pre-emptively build up a 2020 legal bulwark in Florida, which went for Trump in 2016 and remains firmly in Republican hands after voters elected Trump's GOP ally, former Rep. Ron DeSantis, as governor last year.


And the legal challenge at issue at the U.S. District Court in Tallahassee on Monday, which was filed by the DNC and other party groups, is just one of several that will challenge Florida election laws ahead of 2020. Already, lawsuits are under way over recent laws affecting early voting on college campuses, a constitutional amendment giving felons the right to vote and Spanish-language ballots.

The long line of election-related litigation is a reminder that the “stakes are high” in 2020, says state Sen. Gary Farmer, a south Florida Democrat and attorney, who contends that "the unfortunate reality is that the party that is in control keeps passing laws that puts more hurdles and makes it harder for people to vote,” said Farmer.

Florida's 29 electoral votes are crucial to Trump’s re-election strategy; he narrowly defeated Hillary Clinton in the state by nearly 113,000 votes. Last year three statewide elections — including the races for governor and U.S. Senate — went to mandatory recounts. These close elections have put renewed scrutiny on a state best known for the infamous 2000 presidential election recount, in which George W. Bush defeated Al Gore in the state by 537 votes and thereby won the presidency.

Republicans are pushing back against Democratic criticism that they crafted recent laws on early voting and felon voting rights to give themselves an advantage in 2020. But over the next few months, both sides' arguments will be tested in a federal court located just two blocks north of the Capitol.

The case headed to court Monday may be the most unusual, as U.S. District Court Judge Mark Walker holds a four-day, non-jury trial over a quirk in state law that mandates whose name is first on the ballot.

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The 1951 statute, enacted when Democrats were in control of the Legislature and governor’s mansion, says that candidates who belong to the same party as the governor must be listed first on the ballot.

Now on the defensive in Florida, Democrats will present a bevy of experts who will argue that listing Republican candidates first helps them in a state where elections are decided by a razor-thin margins.

Republicans, they say, are getting a bump from “position bias” which tilts the end result in tight races and gives the GOP an unfair and unconstitutional advantage. The methods used to determine candidate order on ballots differs from state to state.

The lawsuit targets the state’s chief election officer, but both National Republican Senatorial Committee and Republican Governors Association have jumped in to defend existing law.

In their filings, lawyers for Republicans said Democrats are simply upset because they keep losing elections in Florida — and said the lawsuit is based on the “flawed” premise that the law benefits the GOP.

“The statute favors no one and nothing,” wrote attorney Jason Torchinsky. “Instead the statute merely organizes ballots. It is the voters, not Republicans and not Democrats, who determine both who wins gubernatorial elections — and subsequently — by way of their vote for governor — who is listed first on the ballot. The mere fact that voters may choose to vote for the first listed candidate does not change the fact the voter has still made a valid choice.”

State officials in court filings maintain that Democrats can’t prove that the approach has affected the outcome of any election, and that other court cases on ballot position have concluded that it is not “a constitutional concern.” They also maintain Florida has a legitimate interest in making sure ballots are uniform throughout the state.

Lawyers for both Secretary of State Laurel Lee and Republicans also point out that the Democratic groups have not suggested an exact fix for the problem.

Democratic attorneys, including prominent elections attorney Marc Elias — who is the general counsel for California Sen. Kamala Harris's presidential campaign — have suggested that rotating names by county, or by precinct, could result in a fairer election. The lawyers assert that state officials have not been able to refute studies that highlight the windfall that comes from listing someone first.

“This antiquated, undemocratic rule makes no sense. If this law stands, in 2020 Republican candidates will be listed first on every ballot for every race in the state of Florida," Elias told POLITICO. "We know that being listed first on the ballot gives a candidate a real advantage and was likely outcome determinative in last year’s razor-thin elections for Senate and Governor. We are fighting to ensure the right of Floridians to have fair election in 2020 and beyond.”

“This is a simple case: the statute is unconstitutional because it treats similarly situated political parties differently, to plaintiffs’ detriment, and none of the interests the state identifies are sufficient to outweigh that burden as a matter of law,” the lawyers wrote in a May filing in advance of the trial.

Walker, who last year lashed out at Florida officials for making the state a “laughingstock” when it comes to elections, has been skeptical of the arguments so far. He turned down a request to block the law last year when the lawsuit was first filed, but also has turned down requests to dismiss the case entirely.