United States: Primary Ballot Positions Announced In Berks Judicial Races: Breaking Down The Ballot Order Effect

On Tuesday, November 5, 2013, Berks County voters will elect two local attorneys to fill judicial vacancies on the Berks County Court of Common Pleas.  The candidates are varied in terms of their legal backgrounds; some boast of their experience representing clients in civil and municipal matters, while others point to their trial experience prosecuting and representing criminal defendants.  All of the candidates cross-filed and will appear on both the Republican and Democratic primary ballots.

On March 20, 2013, the candidates traveled to Bureau of Elections in Harrisburg to participate in a lottery to determine their respective ballot positions.  The candidates or their duly authorized proxies drew numbers from a hat.  Following the lottery, election officials announced the following ballot orders:

Republican

  1. Madelyn Fudeman (Essig Valeriano & Fudeman, P.C.)
  2. Peter Schiaroli (Peter S. Schiaroli, Esquire, P.C.)
  3. Jim Smith (Smith Law Group, LLC)
  4. Eleni Dimitriou Geishauser (Dimitriou Geishauser, P.C.)
  5. Theresa Johnson (Berks County District Attorney's Office)
  6. Mahlon Boyer (Bingaman Hess Coblentz & Bell, P.C.)
  7. John Muir (Roland Stock, LLC)
  8. Pat Barrett (Essig Valeriano & Fudeman, P.C.).

Democrat:

  1. Eleni Dimitriou Geishauser
  2. Pat Barrett
  3. Theresa Johnson
  4. Jim Smith
  5. John Muir
  6. Madelyn Fudeman
  7. Mahlon Boyer
  8. Peter Schiaroli

With the orders announced, the candidates are no doubt reassessing their chances of appearing in the general election in light of the perceived advantage for candidates earning the first ballot position, known commonly as the "ballot order effect."  In recent years, numerous studies have attempted to quantify this advantage. 

In 2010, the New York University School of Law published a comprehensive article on the ballot order effect, revealing "[s]ubstantial empirical evidence point[ing] to the conclusion that ballot order effects, particularly in relatively low salience elections [e.g. judicial, municipal, and primary elections], are both statistically significant and large enough in magnitude to alter the outcomes of elections."  See Laura Miller, " Election by Lottery: Ballot Order, Equal Protection, and the Irrational Voter", 13 N.Y.U. J. Legis. & Pub. Pol'y 373, 405 (2010).

In her article, Ms. Miller cites empirical data placing this advantage at approximately two to three percent for candidates with first ballot positioning.  She argues that, in this environment of "low information rationality," voters are susceptible to unknown biases when voting:

"Substantial psychological research has established the existence of a 'primacy effect,' whereby individuals, when presented with a list of items, are more likely to select the first item on the list than those listed further down. . . . As a decision-maker moves down a list, she becomes less likely to generate reasons for selecting an item due to increasing fatigue and short-term memory constraints."


These human tendencies may also benefit candidates with last ballot positioning:

"In addition to primacy effects, researchers have also identified a tendency to select the item listed last in a list.  Recency effects might occur in the ballot context if, instead of finding positive reasons to vote for a candidate, voters instead generate reasons to vote against them.  As a voter works her way down a ballot, again due to fatigue and short-term memory limitations, she might generate fewer reasons to vote against the later candidates. Additionally, voters might simply be influenced by the last name that they read on the ballot."


Ms. Miller argues that these primacy and recency effects are more likely to play out in the election context:

"A voter is hypothesized to be more susceptible to order when she has no information about a race, or when she is truly ambivalent between the candidates.  In other words, when a voter has less substance to base her decision on, she is more likely to select the candidate listed first (or last) in order.  This also means that we should expect larger ballot order effects in 'down-ballot' elections that receive far less media attention, as well as in situations when traditional voting heuristics are not present, as in primary and non-partisan elections."


In sum, Ms. Miller argues that the ballot order matters.  This is particularly so in primary and nonpartisan elections, where "the effect is larger both in magnitude and statistical significance for all types of candidates." 

A recent study of California municipal and school board elections confirmed Ms. Miller's thesis, revealing that candidates listed first on the ballot are "between four and five percentage points more likely to win office than expected absent order effects."  Putting this figure into context, the statistical advantage for an incumbent candidate in U.S. elections is approximately five to eight percent.  See Stephen Ansolabehere & Jim M. Snyder, Jr., The Incumbency Advantage In U.S. Elections: An Analysis Of State And Federal Offices, 1942–2000, 1 Election L. J. 315 (2002). 

If the empirical data is correct, Attorneys Dimitriou Geishauser and Fudeman should expect a boost in the primary due to their respective ballot positions.  The percentage advantage is somewhere between two and five percent, depending on which study results are applied.  We will see after the primary whether the ballot order effect helps them gain a spot on the November ballot.

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