Patrick B. McGuigan
Oklahoma City – In November, Oklahomans casting ballots on a wide range of races will see the name of the Republican candidate at the upper left corner of every ballot in which partisan affiliation is noted.
This will be the case whether votes are cast under absentee provisions or at the polling places on Election Day. (For president, voters will actually vote for a slate of Electors, the members of the Electoral College which will meet to cast the votes of the separate states for the top office.)
Once upon a time in Oklahoma, the Democratic Party held the top spot on Oklahoma’s election ballots. They were always listed first – every election, without exception – because the state Election Board was controlled by the state Senate, and Democrats won control of the Legislature’s upper chamber every single year until one decade ago.
The party of Jefferson and Jackson (is it no longer customary to call it that?) garnered the top ballot spot without exception, from 1907 until the modern era – because Democrats consistently chose one of their own to run elections. That person decided to list her/his party first out of habit – and in keeping with a long tradition of laws requiring that placement.
As Oklahoma elections becoming more competitive – including at the legislative level – in the 1980s, legislative Democrats passed, and Governor David Walters signed in 1991, a statute aiming to assure that top spot, going forward.
High-impact case bears the names of two notable Oklahomans
Before too long, state State Rep. William Graves, R-Oklahoma City, sued to end the presumption of Democratic dominance, and assert the right of the Party of Lincoln to get fairer treatment.
Because the legendary Betty McElderry was the head of the state Election Board, the case would become known as ‘Graves v. McElderry.’
The also-legendary Rep. Graves (who would later serve several terms as a district court judge) believed that constitutional language (including the U.S. Constitution) means what it says.
He challenged the statute requiring, in the words of Judge David W. Russell, “that in all Oklahoma General Elections, the election ballots are printed so that for each public office designated on the ballot form, the Democratic party candidate always appears in the top position-above any Republican party candidates, and above any Independent candidates.”
Graves asserted that the statutory mandate putting Democrats on top (in Judge Russell’s words) was “unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.” Tim W. Green was the lawyer for Graves and his fellow plaintiffs.
McElderry, in her official capacity, was represented by Gretchen G. Harris and Victor N. Bird for the Office of the Attorney General, along with Andrew J. Tevington.
Graves won, and apparently it was not a close call in Judge Russell’s mind.
He “permanently enjoined from giving any effect to that portion of” the state law “which the Court holds to be unconstitutional in this case.” (See: casetext.com/case/graves-v-mcelderry.)
The details of Graves v. McElderry
Here, distilled from Judge Russell’s analysis, are more details about the case.
Graves and his numerous Republican allies complained that the 1991 state law “violates the Equal Protection Clause of the Fourteenth Amendment, and Article III, section 5 of the Constitution of the State of Oklahoma, by mandating that the top position in each office block on every general election ballot be occupied by the candidate representing the Democratic party.” They asserted “this election ballot configuration gives the Democratic party candidate an unfair advantage in each General Election, and thus impermissibly burdens Oklahoma citizens’ right to vote.”
Of at least historic interest, a “rotating” system was already being used in primary elections.
Even before the case got a little heating, the two sides agreed on a couple of facts that the judge needed to decide: “(1) whether the top position in an office block on a General Election ballot actually affords any advantage to the candidate for public office occupying the position; and (2) whether a ballot layout which places one party’s candidate in the top position on the ballot in every General Election is capable of burdening the legal rights of other party candidates and voters.”
A former Election Board leader, Lance Ward, testified, in Russell’s narrtive, that “the legislative decision to include a provision … which would assure a top position on the ballot for Democratic party candidates was a ‘political decision.’”
Several politicians who sided with Graves had, in 1994, lost elections to Democrats “by a small percentage of votes.” Russell asserted that “the particular ballot configuration compelled” in state law “afforded Democratic party candidates for public office an advantage in the 1994 General Election.”
Had the configuration been different, “the outcome of that Election could very well have been different for some of the Plaintiffs.” States are left a lot of room to decide election procedures and processes.
‘Position Bias’ as an issue
Did ballot position really matter? Judge Russell spent time looking at political science issue, and he sketched this way: “The phenomenon of position advantage which may arise from a ballot configuration in which a candidate’s name on the ballot form is positioned above other candidates in a vertical column is called ‘position bias.’”
For Graves and his allies, Dr. Delbert E. Taebel “testified that position bias is a well documented and generally accepted phenomenon in those elections, such as common primary elections, where candidates are not distinguishable from one another due to an absence of party designation on the ballot form, or to anonymity. The more information voters possess to permit them to identify a candidate (such as party affiliation, race or sex of a candidate, and notoriety), the less likely it is that voters will be influenced by the position of the candidate’s name on the ballot.”
The “polisci” (political science) expert for the Democrats was Robert Darcy, Ph.D., (“Dr. Darcy”) and he disagreed with Taebel’s opinions. As Russell reported (good judges really are a lot like good journalists): “While Dr. Darcy admitted that position bias occurs in primary elections where candidates’ names are listed vertically on the ballot, Dr. Darcy testified there is no position bias which results from such an election ballot configuration in partisan elections, like Oklahoma’s General Elections.:
Russell went with Taebel. After looking at available evidence, Judge Russell concluded, “[T]he greater weight of the evidence suggests that while its effect may be slight, position bias is present in partisan elections where candidates for office are listed vertically on the election ballot within office blocks.”
So, why was “position bias” enough of an issue for a federal judge to compel changes in a state election?
After a review of precedents, he concluded, “the manner and means a state decides to utilize to allow citizens to cast their vote on an election form directly implicates the citizens’ rights of free speech and association under the First Amendment.”
Russell ruled that “no legitimate State interest has been articulated, or can possibly be served by the selection of one particular party’s candidates for priority position on every General Election ballot.”
Judge Russell bluntly concluded the evidence demonstrated “one (1) articulated reason for the Democratically-controlled Oklahoma Legislature’s choice to select Democratic party candidates for top billing on General Election ballots. The Legislature desired to assure that, in the event a benefit was to be obtained by ballot position, the name of the Democratic party candidate for public office was placed in a position on the ballot where the candidate could enjoy such benefit. The interest the State was seeking to serve when making the choice to classify Democratic party candidates for top position on General Election ballots was, therefore, entirely political.”
The rest of the decision flowed from there.
Russell held the existing state law “violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Court shall therefore permanently enjoin Defendants, and their official successors, from effectuating that portion of” (the law) “which the Court holds violates the Equal Protection Clause. The Court shall leave it to Defendants, and to the State of Oklahoma to fashion a scheme for choosing the order of candidates on General Election ballots which will not unconstitutionally discriminate, and will better serve the legitimate interests of the State, and its citizenry, than the scheme currently mandated by Oklahoma law.”
Eventually, the ‘scheme for choosing the order of candidates’ for particular general elections wound up being a drawing, every general election cycle. Hence, the current system.
The line-up for 2020
This year, Election Board Secretary Paul Ziriax and his staff conducted the random drawing for ballot position in the State Election Board’s meeting room at the Jim Thorpe Building in Oklahoma City. The event was also live-streamed on the Election Board’s Facebook page.
Drawings were also held to decide in what order independent candidates for president and U.S. Senator appeared on the ballot.
The presidential listings:
Republican Party: Donald Trump, vice presidential nominee Mike Pence
Libertarian Party: Presidential Nominee Jo Jorgensen, V.P. Nominee Spike Cohen
Democratic Party Joe Biden, vice presidential nominee TBA (to be announced) soon.
Jade Simmons: Independent
Kanye West: Independent
Brock Pierce: Independent
At the request of your humble servant, the Election Board provided information about party listings for the last several general election ballots. Here is the information:
2010 – Republicans first, Democrats second.
2012 – Democratis first, Republicans second.
2014 – Democrats first, Republicans second.
2016 – Republicans first, Libertarians second, Democrats third.
2018 – Libertarians first, Republicans second, Democrats third.
Members of the Libertarian Party worked for years to secure changes in Oklahoma election law. Then, in 2016, the party secured enough votes to assure ballot status through 2022.
As noted above, for 2020, the listing will be Republicans first, Libertarians second, and Democrats Third.
Who was Who in Graves v. McElderry
Listed below is the formal full name of the historic ruling issued on July 3, 1996 as ‘Graves v. McElderry, 946 F. Supp. 1569 (W.D. Okla. 1996).’
Bill GRAVES, Frank Keating, Ernest Istook, Frank Lucas, Tom Coburn, J.C. Watts, Mary Fallin, Mike Hunter, Brenda Reneau, Grover Campbell, Gerald Wright, Tom Akers, Robert Arthur, Max Shane Boothe, Steve Byas, John Chase, Eddie Hagler, Steve Hammontree, Pat Hayes, Ed Jantzen, Charles Key, Mark Liotta, Brian McKye, Tere Morrison, Rick Nagel, Wayne Pettigrew, Dan Ramsey, Jim Reese, Edna Reeves, Lyle Roggow, and John Sullivan, Plaintiffs, v. Betty McELDERRY, Chairman of the Oklahoma State Election Board, Mona Lambird, Vice Chairman of the Oklahoma State Election Board, George Krumme, Member of the Oklahoma State Election Board, and Lance Ward, Secretary of the Oklahoma State Election Board, Defendants.
Betty McElderry was a Democratic party stalwart and her name was first on the litigation because of her chairmanship of the Election Board. She was a strong supporter of Barack Obama in 2008 and 2012 (https://capitolbeatok.worldsecuresystems.com/reports/democrats-hopeful-as-early-returns-put-oklahoma-in-obama-s-column). McElderry was then a Hillary Clinton ‘super-delegate’ in the 2016 campaign . She passed away in 2019.
A conservative stalwart, Bill Graves’ long long tenure in Legislature included leadership of the litigation over ballot position. Subsequently, Graves served as a district judge, running unopposed in 2014.
In 2018 came the second stage of a “purpling” trend in Oklahoma City, and Graves was defeated for reelection. Judge Graves is the author of ‘Prudent Jurisprudence: Essays on Constitutional Liberties & Law’ (Center for Cultural Leadership, 2017).
As for Judge David Russell, he served two times as a United States Attorney in Oklahoma. He went on the the federal bench in 1981, serving until 2013, when he took senior status.
NOTE: Patrick B. McGuigan is founder of CapitolBeatOK.com, an online news service in Oklahoma City, and publisher of The City Sentinel newspaper. Author of “The Politics of Direct Democracy, 1981), he writes frequently on legal policy, politics and the judiciary.