I’ve previously written about a Florida district court’s finding that a particular ballot order scheme unduly burdened the right to vote—and my skepticism about that holding. A panel of the 11th Circuit has overturned that decision, largely on justiciability grounds, finding that the plaintiffs lacked standing to bring the claim. That part, in an opinion by Judge William Pryor, was unanimous. Judge Jill Pryor partially dissented, agreeing that the plaintiffs lacked an injury in fact (sufficient to reverse the district court) but disagreeing on other issues the majority reached.

One interesting piece of note. Judge William Pryor wrote a separate concurring opinion to his own majority opinion. In it, he argued that Rucho v. Common Cause, the recent partisan gerrymandering decision from the Supreme Court, makes the plaintiffs’ claim a nonjusticiable political question. Florida’s ballot order law gives an advantage to the incumbent governor’s political party. Judge William Pryor argues that the same principles are at stake here. He notes, “partisan considerations are not entirely off limits in election administration,” there are “line-drawing problems,” and that while “standards exist to assess the burdens imposed by restrictions on ballot access,” “no standards exist to judge challenges to the partisan advantage conferred by ballot order.”

It’s interesting (to me, anyway) that the bulk of commentary after Rucho has focused on the partisan gerrymandering point and not the larger questions of judicial involvement in the political process. Judge William Pryor’s opinion suggests a depth of Rucho that could alter how federal courts approach a whole host of election law-related claims.

It would require a little more thinking from me before wading in. One point of sympathy with his concurring opinion, however. Judge William Pryor writes, “The Constitution commits the ‘Times, Places and Manner’ of holding congressional elections to legislatures—the state legislatures in the first instance, subject to any regulations Congress prescribes. U.S. Const. art. I, § 4, cl. 1. Our founding charter never contemplated that federal courts would dictate the manner of conducting elections—in this lawsuit, down to the order in which candidates appear on a ballot.” I have much regard for this structural-based thinking about the Constitution and elections. The existing regime of flabby balancing tests derived from rather vague constitutional provisions strikes me as unworkable and unsustainable. The justiciability point of discernable standards is, I think, a different but related concept. Surely more to be written on that in the years ahead!