DCCC and DSCC v. Dunlap

STATE OF MAINE SUPERIOR COURT
KENNEBEC, ss. CIVIL ACTION
DOCKET NO. CV-20-29

DCCC and DSCC,
Plaintiffs

V. DECISION ON MOTION FOR
PRELIMINARY INJUNCTION

MATTHEW DUNLAP
Maine Secretary of State,
Defendant

INTRODUCTION AND PROCEDURAL HISTORY
This matter is before the court on the Plaintiffs' Motion for a Preliminary
Injunction seeking to enjoin the Secretary of State from utilizing the provisions of
Maine's Ballot Order Statute (21-A M.R.S. §601(2)(B)), in the upcoming general
election to be held in November 2020. The Plaintiffs contend that 21-A M.R.S.
§60I(2)(B), which requires the names of candidates on the ballot to be arranged
alphabetically with the last name first, is invalid under the United States and Maine
Constitutions.
The Plaintiffs are the DCCC and the DSCC. They are, respectively, the
national congressional and senatorial committees of the Democratic Party. See 52
U.S.C. §30101(14). The missions of these Plaintiffs are the election of Democratic
candidates to the United States House of Representatives and the Unites States
Senate.
On February 21, 2020, the Plaintiffs commenced this action challenging the
constitutional validity of 21-A M.R.S. §601(2)(B) on the ground that it arbitrarily
and illegally grants ballot order preference to those candidates whose last names
begin with a letter early in the alphabet. In this particular case, the Plaintiffs allege

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that, as a result of section 601(2)(B), incumbent Senator Susan Collins has an unfair
and illegal advantage over presumed Democratic candidate Speaker of the House
Sara Gideon solely on the basis that her last name begins with a letter earlier in the
alphabet. Similarly, the Plaintiffs maintain that, as a result of the statute, incumbent
Congressman Jared Golden will suffer an unfair and illegal disadvantage solely on
the basis that his last name begins with a letter later in the alphabet than his potential
Republican opponents (Adrienne Bennet, Eric Brakey or Dale Crafts). The Plaintiffs
also contend that the ballot ordering statute unlawfully grants an advantage to those
candidates for the State House of Representatives and Senate whose names appear
earlier in the alphabet.
The complaint filed by the Plaintiffs seeks declaratory and injunctive relief
and asserts causes of action pursuant to 42 U.S .C. § 1983 and the First and Fourteenth
Amendments to the United States Constitution (Count I), and 5 M.R.S. §4682 and
Article I, section 6-A of the Maine Constitution (Count II) .1

On March 10, 2020, the Plaintiffs moved for a preliminary injunction. That
motion and incorporated memorandum of law was supported by: the affidavit of
Lucinda Guinn, Executive Director of DCCC (Exhibit A); the affidavit of Sara
Schaumburg, Director of Voter Protection and Deputy Policy Director of DSCC
(Exhibit B); the expert report of Dr. Barry C. Edwards, J.D.; Ph.D. of the University
of Central Florida (Exhibit C), and; miscellaneous articles identified as Exhibits D,
E and F.

' The Plaintiffs acknowledge that the Law Court has held that a cause of action for a violation of
the Maine Constitution must allege that the enjoyment of a state constitutional right has been
interfered with by physical force or violence or the threat thereof. See Andrews v. Dept. of Envtl.
Prat., 716 A.2d 212 (Me. 1998). Nevertheless, the Plaintiffs have asserted a cause of action under
the Maine Constitution in order to preserve their right to challenge this state law precedent on
appeal.

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The Secretary of State filed a timely answer on March 17, 2020, it which he
denied that Maine's ballot ordering statute is unconstitutional and challenged the
standing of the Plaintiffs to bring their claims. He also raised lack of ripeness as an
issue. On April 29, 2020, the Secretary of State filed his opposition to the motion
for preliminary injunction, supported by the Affidavit of Julie L. Flynn, Deputy
Secretary of State and Exhibits 1-3 and A.
On May 11, 2020, the National Republican Senatorial Committee moved for
leave to file a brief as Amieus Curiae in support of the Secretary of State's opposition
to the motion for preliminary injunction. That motion was granted, without
objection, on May 20, 2020. The focus of the Amicus brief is the contention that:
(a) Plaintiffs lack standing; (b) this case presents a non-justiciable political question,
and; (c) the court should not involve itself in potentially altering the ballot order for
an upcoming general election, resulting in voter confusion, on the basis of Purcell
v. Gonzalez, 549 U.S. 1 (2006).
The Plaintiffs submitted reply memoranda in support of its motion for
preliminary injunction and in response to the Amicus brief on May 21, 2020. The
reply memorandum was supported by the supplemental expert report of Dr. Edwards
(Exhibit A). Oral argument was held on May 27, 2020.
FACTUAL BACKGROUND AND CONTEXT
The alleged factual basis of the Plaintiffs' claim that 21-A M.R.S. §601(2)(B)
is unconstitutional is the contention that placement'of a candidate's name first on the
ballot will give that candidate an advantage because of the "primacy effect," i.e.,
"the first option is selected more often than other choices are." Edwards Report at
4. In the context of elections, this concept or phenomenon is sometimes referred to
as the "windfall vote" or the "donkey vote." The theory here is that some voters will
be influenced in casting their votes by the placement of the candidates' names on the
ballot, and the first name listed will have a "distinct advantage." Id.at 5.

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Relying on research conducted of Ohio's' elections, in which ballot positions
were rotated from precinct to precinct, Dr. Edwards has offered the opinion that the
"ballot order will increase the first listed candidate's vote share in Maine's 2020 U.S.
Senate Election by 1.5 - 2.0 percentage points." Id. at 6. Further, Dr. Edwards
states: "It is my opinion that ballot order effects will give the first listed candidate in
Maine's 2020 U.S. House races a 2 percentage point advantage." Id. at 8. Regarding
state legislative elections, Dr. Edwards opines that "ballot order effects will give the
first listed candidates in races in the Maine Senate and Maine House a 3 .0 pecentage
point advantage in vote share." Id. at JO. Dr. Edwards also maintains, based on his
own research, that "early alphabet names are overrepresented in Maine's legislature
compared to Maine's general population," and he seems to attribute this to Maine's
alphabetical ballot ordering statute. Id. at 14-15. Dr. Edwards' report concludes
with his observation that "the state's arbitrary ballot ordering method undermines
the integrity of the state's election results, distorts the voters' will, and is unfair to
minority populations." Id. at 19.
Dr. Edwards does acknowledge, however, that the magnitude of the "ballot
order effect" is highly dependent "on how much attention the race receives from
voters. In very high-profile races, the ballot order effect is slight and can be difficult
to detect with statistical certainty." Id. at 6.
The Secretary of State challenges Dr. Edwards' opinions and the certainty of
his statistical predictions as to the effect the ballot order will have in the 2020 general
elections, particularly the election for the U.S . Senate seat currently held by Senator
Collins and the House of Representatives seat held by Congressman Golden. The
Secretary of State, pointing to some of the research studies relied upon by Dr.
Edwards, also questions whether the views expressed by him actually represent the
consensus views of most social scientists who have considered the subject of ballot
ordering. Indeed, in his Supplemental Report, Dr. Edwards appears to acknowledge

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that some scholars in the field "have not detected statistically significant ballot order
effects, and they have argued that ballot order effects do not alter many election
outcomes," but he disagrees with those scholars. Supplemental Report at 3. Finally,
the Secretary of State emphasizes that, notwithstanding Dr. Edwards' professed
certainty in the effects ballot ordering will have in any of the 2020 election races,
his opinions are speculative to some extent because other research has shown that
the "primacy effect" may occur in some races and not in others.
In his Supplemental Report, Dr. Edwards contends that the Secretary of State
has misinterpreted and misunderstood both his prior research and the statistical
significance of his findings and those of other researchers who have studied ballot
order effect.
In pointing out the obvious, the court would note that in the context of this
motion for a preliminary injunction, the evidence is entirely on paper and has not
been subjected to cross-examination of any kind. At this stage, however, the court
can make some initial observations, after having reviewed both reports prepared by
Dr. Edwards, the literature he has cited that has been presented to the court by the
Secretary of State, and the well-written memoranda of the parties and Amicus.
First, for purposes of the Plaintiffs' Motion for Preliminary Injunction, the
court accepts that there is a phenomenon known as the "primacy effect" or "ballot
order effect" in elections whereby some members of the electorate may cast their
votes for a candidate for the sole reason that the name of the candidate is listed first
on the ballot.
Second, the court is hesitant to accept the proposition that the "primacy effect"
occurs in every election in any significant way because each election is unique in its
own way, and studies have purported to show that the primacy effect may occur in
some elections and not in others.

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Third, predictions that purport to quantify what the primacy effect will be in
any given election should be viewed with caution because studies seeking to measure
such an effect are attempting to uncover whether a voter cast a vote, in the privacy
of the voting booth, solely because a candidate was listed first on the ballot.
Fourth, Dr. Edwards' prediction that the November 2020 election for the U.S.
Senate in Maine will see a ballot order effect of 1.5 -2.0 percentage points is viewed
with some measure of suspicion by this court, in light of the unprecedented and
extraordinary level of political advertising that has already taken place in that race.
Fifth, based on the limited preliminary injunction record, the court is
somewhat skeptical of Dr. Edwards' apparent suggestion that the alphabetical make­
up of the Maine Legislature is attributable to the alphabetical ballot ordering statute
found in 21-A M.R.S. §601(2)(B).
Is This Controversy Ripe?
The Secretary of State has suggested that the Plaintiffs' claims are not ripe for
judicial review by this court because the primary elections have not been held and
will not be held until July 14, 2020. The Law Court has described "ripeness" in the
following way: "Ripeness is a two-pronged analysis: (1) the issues must be fit for
judicial review, and (2) hardship to the parties will result if the court withholds
review." Blanchard v. Town of Bar Harbor, 2019 ME 168,, 20,221 A.3d 554. To
be fit for judicial review, there must be a genuine controversy involving a concrete
and immediate legal dispute, as opposed to a hypothetical problem. Clark v.
Hancock Cty. Commrs., 2014 ME 33, , 19, 87 A.3d 712; Hathaway v. City of
Portland, 2004 ME 47,, 11,845 A.2d 1168.
In the court's view, the fact that the primary elections have not been held does
not mean that the Plaintiffs' claims are not ripe. At least with regard to the U.S.
Senate and House of Representatives elections, the potential candidates are known
and the order of the candidates on the general election ballot can easily be

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determined by reference to section 601(2)(B). Moreover, delaying any action on the
Plaintiffs' Motion for a Preliminary Injunction until after July 14, will likely cause
hardship to the parties because it will greatly compress the time within which they
may seek further judicial review while the general election approaches and ballots
need to be printed.
Accordingly, the court concludes that the Plaintiffs' claims are npe for
judicial review.
Do The Plaintiffs Have Standing?
In his answer to the Plaintiffs' complaint, the Secretary of State raised the
Plaintiffs' lack of standing to bring this action as a defense, but in his opposition to
the motion for preliminary injunction, the Secretary of State only addressed the
Plaintiff's alleged lack of standing with respect to state legislative elections.
Specifically, the Secretary of State asserts that the Plaintiffs, by law, are the
committees of the Democratic Party on the national level and have no mission or
purpose regarding state level races. At oral argument, the Secretary of State made it
clear that he was not conceding the Plaintiffs' standing with respect to federal
elections. Amicus Curiae National Republican Senatorial Committee, on the other
hand, has directly challenged the Plaintiffs' standing to bring this suit on the basis
of a recent decision from the Eleventh Circuit Court of Appeals involving these very
Plaintiffs. See Jacobson v. Fla. Sec'y, 2020 U.S. App. LEXIS 13714 (11 ·" Cir. 2020).
The Law Court has instructed that Maine's standing jurisprudence is
"prudential, rather than constitutional" because our state constitution does not
contain a "case or controversy" requirement. Roop v. City of Belfast, 2007 ME 32,
~ 7, 915 A.2d 966. "The gist of the question of standing is whether the party seeking
review has a sufficient personal stake in a justiciable controversy to assure the
existence of that concrete adverseness that facilitates diligent development of the

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legal issues presented." Halfway House, Inc. v. City of Portland, 670 A.2d 1377,
1380 (Me. 1996).
There is not a fixed "formula" for deciding standing in Maine and courts look
to the gravamen of the complaint to make that determination. Roy v. City ofAugusta,
414 A.2d 215,217 (Me. 1980); Walsh v. City of Brewer, 315 A.2d 200,205 (Me.
1974). Because Maine's approach to standing is somewhat flexible, it can have "a
plurality of meanings." Walsh, 315 A.2d at 205. Nevertheless, as a general
proposition a plaintiff must have a sufficient direct and personal concrete injury
distinct from that of the pubic at large. Buck v. Town of Yarmouth, 402 A.2d 860,
861 (Me. 1979). A mere generalized interest in a problem is not enough to confer
standing. The particularized injury must be sufficiently concrete and definite - not
hypothetical or speculative. Varney v. Look, 377 A.2d 81, 83 (Me. 1977).
Another form of standing, referred to as "associational standing" may apply
where an organization claims that its members or any one of them are suffering
immediate or threatened harm as a result of the challenged action, which would
allow the members to have standing. See Warth v. Seldin, 422 U.S. 490,511 (1975).
See also Conservation Law Found. v. LePage, 2018 Me. Super. LEXIS 156, *16-17
(CUM-CV-18-45, July 20, 2018) (Horton, J.).
Here, the Plaintiffs are the statutorily recognized national committees of the
Democratic Party. The overriding missions of these Plaintiffs is the election of
Democratic candidates to public office, most particularly, but not necessarily
exclusively, to the United States Senate and House of Representatives. The
complaint they have brought seeks a declaration, with injunctive relief, that Maine's
ballot order statute is unconstitutional because it systematically and arbitrarily
disadvantages candidates whose last names begin with a letter later in the alphabet.
In Jacobson v. Fla. Sec'y a three-member panel of the 11,, Circuit Court of
Appeals held that these Plaintiffs in that case lacked direct or associational standing

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to challenge Florida's ballot order statute. The Court ruled that DCCC and DSCC
had failed to identify any of its members who had or would suffer an injury and,
further, that they had not explained how it would be directly injured by a diversion
of its resources. 2020 U.S. App. LEXIS 13714* 23-28.
Utilizing Maine's more flexible standing jurisprudence, the court concludes
that the Plaintiffs have a sufficiently concrete and direct stake in this challenge to
the ballot order statute to allow them to continue with this action. Moreover, the

court is satisfied that the Plaintiffs have associational standing as well. 2

THE PRELIMINARY INJUNCTION STANDARD
A party seeking injunctive relief by a temporary restraining order or a
preliminary injunction has the burden of demonstrating to the court that four criteria
are met. The moving party must demonstrate that: (1) it has a likelihood of success
on the merits (at most, a probability; at least, a substantial possibility); (2) it will
suffer irreparable injury if the injunction is not granted; (3) such injury outweighs
any harm which granting the injunctive relief would inflict on the other party; and
(4) the public interest will not be adversely affected by granting the injunction.
Bangor Historic Track, Inc. v. Dep 't ofAgric., Food & Rural Res., 2003 ME 140, ~
9, 837 A.2d 129.
The court does not consider these criteria in isolation, but weighs them
together to determine whether injunctive relief is appropriate to the specific
circumstances of the case. Dep 't of Envtl. Prat. V. Emerson, 563 A.2d 762, 768
(Me. 1989). Nevertheless, "[f]ailure to demonstrate that any one of the criteria is
met requires that injunctive relief be denied." Bangor Historic Trtack, Inc., 2003

' The court has considered the additional arguments advanced by Amicus National Republican
Senatorial Committee that this case presents a non-justiciable pollical question and that Purcell
v. Gonzalez counsels against the court becoming involved in a matter affecting an election. The
court is not persuaded that it should refrain from addressing the Plaintiffs' claims for those
reasons.

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ME 140, ~ 10. It has been observed that "historically, the Maine courts have taken
a conservative attitude towards injunctions, holding the injunction to be 'an
extraordinary remedy only to be granted with utmost caution when justice urgently
demands it and the remedies at law fail to meet the requirements of the case."' Saga
Communs. of New England, Inc. v. Voornas, 2000 ME 156, ~ 19, 756 A.2d 954
quoting Andrew H. Horton & Peggy L. McGehee, MAINE CIVIL REMEDIES §
5.1, at 5-2 to 5-3 (1991).
Likelihood of Success on the Merits
Title 21-A M.R.S. §601 addresses the subject of the preparation of election
ballots. Among other things, it directs the Secretary of State to prepare the ballot in
a uniform and consistent manner, and requires that the ballot contain instructions to
the voter as to how to designate the voter's choice on the ballot. The ballot itself
"must contain the legal name of each candidate, without any title, and municipality
or township of residence of each candidate, arran~ed alphabetically with the last
name first, 1mder the proper office designation." 21-A M.R.S. §601(2)(B). On the
general election ballot, "the party or political designation of each candidate must be
printed with each candidate's name." Id. It is the statutory requirement that
candidate names be arranged in alphabetical order, last name first, that the Plaintiffs
assert is violative of the First and Fourteenth Amendments to the United States
Constitution.
The Plaintiffs' claim that section 601(2)(B) is unconstitutional must be
evaluated in light of the familiar principle that "all acts of the Legislature are
presumed constitutional." Bouchard v. Dep't of Pub. Safety, 2015 ME 50, ~ 8, 115
A.3d 92. One who claims that a statute is unconstitutional has a "heavy burden" of
showing that there "are no circumstances in which it would be valid." State v.
Weddle, 2020 ME 12, ~ 12,224 A.3d 1035 quoting Conlogue v. Conlogue, 2006 ME
12, ~ 5,890 A.2d 691.

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Moreover, in the particular context of this challenge to the validity of Maine's
ballot order statute, the United States Constitution expressly grants to the Legislature
the authority to prescribe the "Times, Places and Manner of holding Elections for
Senators and Representatives," subject to the power of Congress to regulate in this
area. U.S. Const. Art. I,§ 4, Cl. 1. Although the United States Supreme Court has
not directly considered the validity of a state ballot order law, the parties appear to
agree that the analysis this court must employ is articulated in Burdick v. Takushi,
504 U.S. 428 (1992) and Anderson v. Celebrezze, 460 U.S. 780 (1983), commonly
referred to as the Burdick/Anderson standard of review.
In Anderson, the Court reaffirmed that state election laws can burden two
separate, but overlapping, rights, namely, the right to associate to advance political
beliefs and the right of voters to effectively cast their votes. 460 U.S. at 783 quoting
Williams v. Rhodes, 393 U.S. 23, 30-31 (1968). While recognizing that these rights
are "fundamental," the Court also pointed out that not all restrictions imposed by
state election laws "impose constitutionally suspect burdens on voters' rights." Id.
This is so because "as a practical matter, there must be a substantial regulation of
elections if they are to be fair and honest and if some sort of order, rather than chaos,
is to accompany the democratic processes." Storer v. Brown, 415 U.S. 724, 730
(1974). Accordingly:
To achieve these necessary objectives, States have enacted
comprehensive and sometimes complex election codes. Each
provision of these schemes, whether it governs the registration
and _qualification of voters, the selection and eligibility of
candidates, or the voting process itself, inevitably affects - at
least to some degree -the individual's right to vote and his right
to associate with others for political ends. Nevertheless, the
State's important regulatory interests are generally sufficient to
justify reasonable, nondiscriminatory restrictions.
460 U.S. at 788.

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There is no "litmus paper" test to distinguish valid from invalid election law
restrictions. Rather, the Anderson Court described a process by which a court "must
first consider the character and magnitude of the asserted injury to the rights
protected by the First and Fourteenth Amendments." Next, "the precise interests put
forward by the State as justifications for the burden imposed by its rule," must be
identified and evaluated. As part of this calculus, a court must not only assess the
"legitimacy and strength" of the State's interests, but also "the extent to which those
interests make it necessary to burden the plaintiff's rights." Id. at 789.
In Burdick, the Court rejected the suggestion that every voting regulation be
subjected to a strict scrutiny analysis, requiring that the regulation be narrowly
tailored to advance a compelling governmental interest. To insist that state election
regulations meet such a high standard "would tie the hands of States seeking to
assure that elections are operated equitably and efficiently." 504 U.S. at 433.
Rather, under the standard explicated in Anderson, the level of scrutiny depends
upon the extent to which First and Fourteenth Amendment rights are burdened.
Thus, as we have recognized when those rights are subjected to
'severe' restrictions, the regulation must be 'narrowly drawn to
advance a state interest of compelling importance.' But when a
state election law provision imposes only 'reasonable
nondiscriminatory restrictions' upon the First and Fourteenth
Amendment rights of voters, 'the State's important regulatory
interests are generally sufficient to justify' the restrictions.
Id. at 434.

The parties to this litigation agree that the Burdick/Anderson standard of
review calls for a "sliding scale" analytical process. In applying this analysis to the
Plaintiffs' challenge to 21-A M.R.S .§ 601(2)(B), the court has reviewed a significant
volume of caselaw addressing the constitutional legality of various ballot ordering
statutes. For a description of the many different methods used by states to =order

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their ballots, see Jacobson v. Fla. Sec'y, 2020 U.S. App. LEXIS 13714, *49 (Pryor,
Wm, J., concurring). Some of the ballot order cases were decided before Burdick or
Anderson, others were decided after those cases, and still others were decided on
state constitutional grounds.
One of the cases relied upon by the Plaintiffs is Akins v. Sec'y of State, 904
A.2d 702 (N.H. 2006), where the New Hampshire Supreme Court analyzed that
state's ballot order law under an uncommon state constitutional provision that
guarantees to every inhabitant "an equal right to be elected into office." N.H. Const.,
pt. I, Art. 11. The court used the Burdick/Anderson sliding scale and applied it to
New Hampshire's law that required the first column on the ballot to be reserved to
the party that received the most total votes in the last general election, and the
Secretary of State's practice of listing the party's candidates within the column by
alphabetical order.
The court found that the statute, as well as the practice of alphabetical listing
of names, deprived candidates of the equal right to be elected, because it denied
minority party candidates "an equal opportunity to enjoy the advantages of the
primacy effect," and had a similar effect on candidates whose last names were not
near the beginning of the alphabet. 904 A.2d at 707. The court acknowledged that
its ruling was based on New Hampshire's special constitutional provision, which is
"one not shared by most states." Id. at 708.
Likewise, in Kautenburger v. Jackson, 333 P.2d 293, 295 (Ariz. 1958), the
Arizona Supreme Court invalidated, on state equal protection grounds, a law that
required alphabetical listing of names in primary elections when voting machines
were used, but not otherwise.
In Gould v. Grubb, 14 Cal.3d 661,536 P.2d 1337 (1975), the Supreme Court
of California found that state's "incumbent first" ballot ordering statute violative of
equal protection and also held that listing candidate names in alphabetical order was

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equally invalid. The court employed a strict scrutiny analysis and found that the
state could not demonstrate a compelling governmental interest in the alphabetical
order procedure, which granted an advantage to candidates whose names appear
earlier in the alphabet. 14 Cal. 3d at 674-75.
The Plaintiffs have also emphasized the significance of the Supreme Court's
summary affirmance in Mann v. Powell, 333 F.Supp. 1261 (N.D. Ill. 1969), aff'd,
398 U.S. 955 (1970), but this court's reading of that decision suggests that it was a
relatively narrow one. Mann v. Powell involved an Illinois law that assigned ballot
position in primary elections based on when the candidate filed nominating petitions.
Ties were broken by the secretary of state or other official. The secretary of state
for Illinois at the time (Powell) had made public statements that he intended to break
ties by doing what he had done in the past, namely, favor incumbents, those with
"seniority," or those with whom he was personally acquainted. A prior injunction
had been issued against him for doing just that. See Weisberg v. Powell, 417 F.2d
388 (7"· Cir. 1969). In Mann v. Powell, the court actually upheld the validity of the
statute but, nevertheless, issued an injunction against the secretary of state and
ordered him to break ties by drawing lots. This case appears to have more to do with
the secretary of state's continuing attempts to play favorites by awarding the top
ballot positions to friends and associates.
The court has also examined several other cases that have invalidated state
ballot order laws, although not necessarily ones that were based on the alphabet. See
McLain v. Meier, 637 F.2d 1159, 1167 (8'" Cir., 1980) (incumbent first law does not
withstand rational basis standard of review - pre-Burdick/Anderson); Graves v.
McElderry, 946 F. Supp. 1569, 1579 (W .D. Okla.,1996) (Democrat first, Republican
second ballot position law invalid because "windfall" votes cause dilution of votes
"cast by more careful or interested voters ...."); Holtzman v. Power, 313 N.Y.S.2d
904 (Sup. Ct.), aff'd, 311 N.Y .S.2d 824 (App. Div., 1970) (incumbent first followed

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by others by lot failed rational basis test - pre-Burdick/Anderson). See also
Jacobson v. Lee, 411 F.Supp.3d 1249 (N.D. Fla., 2019) (ballot order law based on
which party won the last election for governor held to be unconstitutional under
Burdick/Anderson), vacated on other grounds, Jacobson v. Sec'y., 2020

U.S.App.LEXIS 13714 (11'· Cir., 2020). 3

On the other hand, there are a variety of cases that have rejected constitutional
challenges to ballot order laws.
In Schaefer v. Lamone, the court upheld the validity of Maryland's law
requiring that candidates be listed alphabetically. Employing the rational basis
analysis, the court rejected an equal protection claim that the statute violated the
rights of "high" surname candidates. The court also analyzed the statute under the
Burdick/Anderson sliding scale standard of review to determine whether it violated
the right to vote. The court first observed that the alphabetical listing of candidates
does not prevent anyone from voting or from gaining access to the ballot. The only
harm alleged was that some percentage of undecided and/or uninterested voters
would vote for someone else based solely on ballot position. But the court found
this "harm" of no constitutional significance.
Finally, even assuming there was some constitutional harm or burden, the
court found that the state's interests outweighed that burden and was compelling
because it served the goals of presenting a manageable, easily understood ballot that
prevented voter confusion. 2006 U.S.Dist.LEXIS 96855 (D. Md., 2006) aff'd, 248
F.App'x 484 (4"· Cir. 2007), cert. denied, 552 U.S. 1313 (2008).
In Sarvis v. Alcorn, the court considered Virginia's ballot ordering law, which
structures the ballot into three tiers. Tier one is for "political parties" as defined.

' Interestingly, in Jacobson v. Lee, 411 F.Supp.3d at 1284, the District Court expressed the view
that arranging candidate names in alphabetical order would alleviate any burden on First and
Fourteenth Amendment rights because it would cleanse "the partisan taint from the process."

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Tier two is for "recognized parties," as defined. Tier three is for "independent
candidates." Within the first two tiers, the candidate order is established by lot. In
tier three, however, the candidate order is set alphabetically by surname. The
argument advanced by the plaintiff was that this ballot order scheme burdened the
rights of minority candidates based on the "windfall" vote effect.
The court applied the Burdick/Anderson standard of review, and noted that
Virginia's ballot ordering law did not deny access to the ballot, "but rather access to
a preferred method of ballot ordering. But mere ballot order denies neither the right
to vote, nor the right to appear on the ballot, nor the right to form or associate in a
political organization." 826 F.3d 708,717 (4·" Cir., 2016), cert. denied, 137 S.Ct.
1093 (2017). The court described the burden on constitutional rights as "most
modest," "minimal," and "almost inconsequential." Id.
In addressing the "windfall" vote or primacy effect theory of a constitutional
injury, the court was emphatic that even if the "windfall" vote phenomenon existed,
the ballot order law did not affect the right to ballot access or the right to vote. "This
whole windfall vote theory casts aspersions upon citizens who expressed their civic
right to participate in an election and made a choice of their own free will. Who are
we to demean their decision?" Id. at 718.
Finally, the court was satisfied that Virginia's ballot ordering law was
supported by "important regulatory interests," including the reduction or prevention
of voter confusion. Id. at 719.
Likewise, in New Alliance Party v. New York Ed. of Elections, 861
F.Supp. 282 (S.D.N.Y., 1994), the court upheld a law whereby party
candidates were positioned first on the ballot in descending order based on the
party's performance in the last gubernatorial election. Independent bodies
followed the parties and the order of those candidates was arranged by lot.
The court held that "access to a preferred position on the ballot so that one has

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an equal chance of attracting the windfall vote is not a constitutional concern.
Indeed, it should not be. The Constitution does not protect a plaintiff from
the inadequacies or the irrationality of the voting public; it only affords
protection from state deprivation of a constitutional right." Id. at 295.
Utilizing the Burdick/Anderson analysis, the court found "no" injury to
the plaintiff's constitutional rights. Moreover, the court found that the statute
rationally and reasonably served the state's "compelling need to construct and
order a manageable ballot and prevent voter confusion." Id. at 297.
Other courts have upheld state ballot ordering statutes against
constitutional attacks. See Clough v. Guzzi, 416 F.Supp. 1057 (D. Mass.,
1976) (incumbent first followed by others in alphabetical order meets rational
basis test - pre-Burdick/Anderson); Ulland v. Grawe, 262 N.W.2d 412
(Minn.), cert. denied sub nom., Berg v. Grawe, 436 U.S. 927 (1978) (party
candidates first, independents next, meets rational basis test - pre­
Burdick/Anderson).
Having considered the relevant caselaw and the written and oral
arguments of the parties, the court finds that the Plaintiffs have failed to meet
their burden of demonstrating a substantial likelihood of success on the merits.
At this stage of the proceedings, the Plaintiffs have not shown that any burden
on First and Fourteenth Amendment rights is likely to be significant. On the
contrary, Maine's ballot ordering statute does not deny the right to vote, does
not deny access to the ballot and does not deny the right to associate with or
form a political organization.
Moreover, the state's important regulatory interest in an orderly, clearly
understood ballot arrangement is strong. Listing candidates alphabetically
facilitates voter understanding and reduces voter confusion. And it does so it
a reasonable, neutral and non-discriminatory fashion. To the extent the

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Plaintiffs are suggesting that 21-A M.R.S. § 601(2)(B) discriminates against
those candidates with names later in the alphabet, the court does not believe
that alphabetizing candidates on the ballot constitutes discrimination against
a suspect class. Schaefer v. Lamone, 2006 U.S. Dist. LEXIS 96855, *5, aff'd,
248 F. App'x 484.
While rotation of ballot positions or ass1gnmg ballot positions
randomly are certainly permissible methods of arranging the ballot, they are
not the only methods permitted by the Constitution. The court also recognizes
that rotation of ballot positions on many ballots (perhaps hundreds)
throughout the State, would require a significant administrative expense and
could increase voter confusion by undermining the efficacy of sample ballots.
See Sonneman v. State, 969 P.2d 632, 639-40 (Alaska, 1998); Tsongas v.
Secretary of Commonwealth, 291 N.E.2d 149, 156 (Mass., 1972).
Ultimately, what particular ballot ordering system should be employed
in Maine is a judgment reserved by the United States Constitution to the
Legislature. Sonneman, 969 P.2d at 639; Ulland v. Crowe, 416 N.W.2d at
418; Clough v. Guzzi, 416 F.Supp. at 1067. The Plaintiffs have not met their
burden of proving that they are likely to succeed in demonstrating that the
Legislature's choice, as reflected in 21-A M.R.S. § 601(2)(B), is
unconstitutional.
Irreparable Harm
For the reasons already explained, the court finds that the Plaintiffs
have not demonstrated that they will suffer irreparable harm if the preliminary
injunction does not issue. Maine's ballot ordering law does not prevent
anyone from voting; does not prevent anyone from gaining access to the
ballot, and; does not prevent anyone from forming or joining a political
organization. It simply arranges the names of the candidates on the ballot in

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alphabetical order. In the court's view, the Plaintiffs have not shown that such
an arrangement causes them irreparable harm.
Balancing the Harms
Issuing a preliminary injunction would cause significant harm to the
State and the public by throwing into doubt and uncertainty how the
November 2020 ballot will be arranged. This is particularly true now when
the Maine Legislature, the constitutional department of state government with
the exclusive responsibility to decide the manner in which the ballot should
be ordered, is not in session and it is nuclear when it will come back into
session given the persistence of the coronavirus pandemic. The issuance of a
preliminary injunction at this stage would likely expose the State to significant
additional costs as it plans for the general election in November. Balanced
against these real harms is what the court perceives at this point to be minimal,
if any, injury to the Plaintiffs' constitutional rights.
The Public Interest
What has already been said addresses the importance of the public
interest in leaving 21-A M.R.S. § 601(2)(B) in place and not disrupting,
through a preliminary injunction, the ballot ordering procedure that has been
used in Maine for at least almost six decades.
CONCLUSION
The entry is:
The Plaintiffs' Motion for a Preliminary Injunction is DENIED.
The clerk is directed to incorporate this order into the docke
pursuant to M.R. Civ. P. 79(a).

Date: June 11, 2020 William R. Stokes
Justice, Superior Court

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