Independence-Alliance Party of Minn. v. Simon

646 F.Supp.3d 1018

INDEPENDENCE-ALLIANCE PARTY OF MINNESOTA and Hugh McTavish, Plaintiffs, v. Steve SIMON, in his official capacityas the Minnesota secretary of state, or his successor, Defendant.

File No. 22-cv-01231 (ECT/JFD)

United States District Court, D. Minnesota

Signed December 19, 2022

Erick G. Kaardal, Mohrman, Kaardal & Erickson, P.A., Minneapolis, MN, for Plaintiffs Independence-Alliance Party of Minnesota and Hugh McTavish.

Allen Barr, Office of the Minnesota Attorney General, St. Paul, MN, for Defendant Steve Simon.

OPINION AND ORDER

Eric C. Tostrud, United States District Judge

In this § 1983 case, Plaintiffs Independence-Alliance Party of Minnesota and Hugh McTavish, an Independence-Alliance Party member and 2022 gubernatorial candidate, assert a First Amendment challenge to Minn. Stat. § 204B.07, subd. 4. This statute requires persons who sign a minor-party candidate's nominating petition to accept an oath attesting that they "do not intend to vote at the primary election for the office for which this nominating petition is made." Plaintiffs claim this requirement unlawfully burdens their First Amendment right to expressive association.

Defendant Steve Simon, the Minnesota Secretary of State, moves to dismiss Plaintiffs' Complaint under Federal Rule of Civil Procedure 12(b)(6). The Secretary argues essentially that the challenged statute imposes an insubstantial burden, serves Minnesota's important regulatory interests, and therefore withstands review under the controlling Anderson-Burdick framework. The Secretary also argues that the Complaint's factual allegations do not plausibly undermine these legal conclusions. Plaintiffs do not meaningfully engage with the Anderson-Burdick framework. Citing different lines of authority, Plaintiffs argue essentially that the challenged statute fails strict scrutiny and is both unconstitutionally vague and absurd.

The Complaint will be dismissed. McTavish's claim will be dismissed for lack of subject-matter jurisdiction because his claim is moot. Public records show that McTavish obtained the required signatures, submitted a nominating petition, and appeared on the November 2022 gubernatorial ballot. And the Complaint includes no allegations showing that McTavish has a reasonable expectation that he will be subject again to the challenged statute. The Party's claim will be dismissed under Rule 12(b)(6) because the Complaint's allegations do not plausibly show that the statute might fail scrutiny under the Anderson-Burdick framework.

I¹

Plaintiff Independence-Alliance Party of Minnesota is a minor political party in Minnesota as defined in Minn. Stat. § 200.02, subd. 23. Compl. [ECF No. 1] ¶¶ 4, 8-9. The Party "has run at least one candidate for partisan office in each Minnesota general election since 1994," though the Party held "major political party" status from January 1995 through December 2014. Id. ¶¶ 10, 16; see also Minn. Stat. § 200.02, subd. 7 (defining "major political party"). Philip Fuehrer is the Independence-Alliance Party's chair, and he has held this position since November 2015. Compl. ¶¶ 58-59.

Plaintiff Hugh McTavish lives in Washington County, Minnesota, and is a Party member. Id. ¶¶ 23-24. The Complaint includes the allegation that McTavish planned to run for Minnesota governor this year as the Party's nominee, and the Party planned to support McTavish's candidacy. Id. ¶¶ 20-22, 25-28. Plaintiffs acknowledge, and public records confirm, that "McTavish did eventually obtain the necessary threshold for the 2022 general election as a minor-political party Independence Party candidate for governor." Pls.' Mem. in Opp'n [ECF No. 24] at 25 n.10; see also Off. of the Minn. Sec'y of State Steve Simon, 2022 General Election Results (showing votes for governor), https://www.sos.state.mn.us/elections-voting/election-results/2022/2022-general-election-results/ (last visited December 19, 2022).

In Minnesota, the process for nominating major political party candidates differs from the process for minor political party candidates. Compl. ¶¶ 2, 43. Generally speaking, candidates of major political parties are nominated by primaries, while candidates of minor political parties, like McTavish, are "nominated by nominating petition as provided in sections 204B.07 and 204B.08." Minn. Stat. § 204B.03. The nominating-petition process involves obtaining a required minimum number of signatures on a nominating petition (the number varies depending on the office sought) and timely submitting the petition to the Minnesota Secretary of State. See id. §§ 204B.08, 204B.09. A minor-party candidate has a fourteen-day window to collect signatures on a nominating petition and to submit the petition. Id. § 204B.09, subd. 1. By statute, the fourteen-day window must occur "not more than 84 days nor less than 70 days before the state primary," and for the 2022 election, this fourteen-day period runs from May 17 to May 31, 2022. Id. § 204B.09, subd. 1(a); Compl. ¶ 53.

Among other required information (including, for example, the office sought, the candidate's name and address, and the candidate's political party), the nominating petition must include an oath accepted by persons who sign the petition. Minn. Stat. § 204B.07, subd. 1, 4. The required oath reads: "I solemnly swear (or affirm) that I know the contents and purpose of this petition, that I do not intend to vote at the primary election for the office for which this nominating petition is made, and that I signed this petition of my own free will." Id. § 204B.07, subd. 4. The governing statute also provides: "An individual who, in signing a nominating petition, makes a false oath is guilty of perjury," and perjury is punishable by of up to five years in prison, a fine of up to $10,000, or both. Id. § 204B.07, subd. 6; id. § 609.48. "This Court has interpreted the oath to refer only to a voter's present intention regarding voting in the primary and as thus not barring a voter from voting in the primary after changing their mind." Compl. ¶ 51 (citing Libertarian Party of Minn. v. Simon, 463 F. Supp. 3d 936, 941 (D. Minn. 2020), aff'd, No. 20-2244, 2021 WL 4026159 (8th Cir. Sept. 3, 2021), cert. denied, — U.S. —, 142 S. Ct. 780, 211 L.Ed.2d 486 (2022)).

At the time the Complaint was filed, the Party and McTavish planned to pursue McTavish's candidacy for Minnesota governor in the 2022 general election by nominating petition and to have Party members and other volunteers solicit the necessary signatures. Compl. ¶¶ 20-21, 28, 54, 56-57. To do this, "[t]he party recruits volunteers to solicit signatures, and the party trains candidates and volunteers on soliciting signatures. This training includes advice about how to answer questions about the oath required by Minn. Stat. § 204B.07, subd. 4." Compl. ¶ 57.

The Party has used the nominating petition procedure in the past, sometimes successfully, sometimes not. These attempts include: a special election for the Minnesota House of Representatives in 2015, when the Party "failed to obtain the necessary signatures"; elections for Minnesota State Senate, U.S. House of Representatives, and U.S. President in 2016, when the Party succeeded in placing each of these candidates on the ballot; elections for Secretary of State and U.S. House of Representatives in 2018, both of which were successful; and elections for U.S. President, U.S. House of Representatives, and U.S. Senate in 2020, when only the nomination of the presidential candidate was successful. Id. ¶¶ 18-19.

The Complaint includes some allegations about the Party's past signature-solicitation efforts vis-à-vis the challenged oath-acceptance requirement. Fuehrer has "solicited signatures for nominating petitions and [ ] answered voters' questions about the oath." Id. ¶ 60. Voters "often" ask Fuehrer or other signature-gatherers about the oath "because it is so conspicuous on the nominating petition," and "[v]oters are sometimes reluctant or even unwilling to sign a nominating petition because of the oath requirement," a problem Fuehrer has encountered when soliciting signatures. Id. ¶¶ 61-62. "Some voters are reluctant or unwilling to sign a petition because they are reluctant to give up the right to vote in the primary election." Id. ¶ 63.

Plaintiffs acknowledge that a signature-gatherer can explain "that a court has interpreted the oath to refer only to a voter's present intention regarding voting in the primary and that signing thus does not bar the voter from voting in the primary after changing their mind," but even if this explanation resolves the voter's fears, Plaintiffs allege that the need to explain "is itself a burden on" Fuehrer and other signature-gatherers. Id. ¶ 64. Plaintiffs allege that, since the window to collect signatures is short, "anything that takes up the time of the people soliciting signatures makes meeting the deadline harder." Id. ¶ 65.

"Some voters are reluctant or unwilling to sign a petition even after" having it explained that they can vote in a primary if they change their mind "because they do not trust it or still fear prosecution if they sign a petition and then vote in a primary," and some "are reluctant or unwilling to sign a petition regardless of their desire to vote in a primary because" doing so "necessarily entails some risk" of prosecution for perjury "on the theory that the voter, at the time of signing, did in fact intend to vote in the primary." Id. ¶¶ 66-67.

In the sole count of their Complaint, Plaintiffs claim that the oath requirement violates Plaintiffs' First Amendment right to expressive association because it "burdens the expressive-association rights of minor political parties, their members, and their candidates by deterring voters from signing nominating petitions and thus making it harder for candidates to obtain the requisite number of signatures for nomination." Id. ¶¶ 69-70, 75; see also id. ¶¶ 2-3, 77-78 (alleging that the oath requirement "hampers...