Madeline Pavek; Ethan Sykes; DSCC; DCCC v. Steve Simon, in his official capacity as the Minnesota Secretary of State

United States Court of Appeals
For the Eighth Circuit
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No. 20-2410
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Madeline Pavek; Ethan Sykes; DSCC; DCCC
lllllllllllllllllllllPlaintiffs - Appellees
v.
Steve Simon, in his official capacity as the Minnesota Secretary of State
lllllllllllllllllllllDefendant - Appellee
v.
Donald J. Trump for President, Inc.; Republican National Committee; National
Republican Senatorial Committee; National Republican Congressional Committee;
Republican Party of Minnesota
lllllllllllllllllllllIntervenors below - Appellants
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Honest Elections Project; State of Texas; State of Georgia; State of West Virginia
lllllllllllllllllllllAmici on Behalf of Appellants
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Appeal from United States District Court
for the District of Minnesota
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Submitted: July 24, 2020
Filed: July 31, 2020
[Published]
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Before LOKEN, SHEPHERD, and GRASZ, Circuit Judges.
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PER CURIAM.
Two Minnesota voters and two political committees challenge section
204D.13(2) of the Minnesota Statutes, which requires major party candidates be listed
on the ballot in reverse order of the parties’ electoral showing in the last general
election.1 According to the plaintiffs, the law irrationally disadvantages their preferred
political candidates and is therefore unconstitutional. The district court preliminarily
enjoined the law’s enforcement, prescribing instead a lottery-based system of ordering
candidates on Minnesota ballots. Other political committees intervened and moved to
stay the injunction.
We first address the issue of standing. The plaintiffs have put forth a showing
of Article III standing sufficient for this stage in the litigation. They allege a cognizable
and redressable injury fairly traceable to section 204D.13(2) — namely, that the statute
1The placement of major political party candidates on the ballot is determined
by the average number of votes — total votes for party candidates divided by the
number of party candidates — received by that party in the state’s last general election.
Minn. Stat. § 204D.13(2). Because Democratic candidates received more votes on
average in 2018, Republican candidates will be listed before their Democratic
counterparts in the upcoming election. Similarly, candidates of the remaining major
parties — the Grassroots-Legalize Cannabis Party and the Legal Marijuana Now Party,
each of which received fewer votes on average than Republican and Democratic
candidates — will appear higher on the ballot than both Republican and Democratic
candidates.
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violates the Fourteenth Amendment insofar as it unequally favors supporters of other
political parties. See McLain v. Meier, 637 F.2d 1159, 1167 (8th Cir. 1980)
(recognizing that a state’s ordering of candidates on a ballot implicates equal-protection
concerns).2 We have adjudicated the merits of such claims before and have
comfortably employed judicially manageable standards in doing so. See id. at
1165–67; cf. Rucho v. Common Cause, 139 S. Ct. 2484, 2507–08 (2019) (rejecting a
political gerrymandering claim as nonjusticiable for want of judicially manageable
standards).
When determining whether to issue a stay pending appeal, we must consider (1)
whether the stay applicant has strongly shown likely success on the merits; (2) whether
the applicant will be irreparably injured absent a stay; (3) whether the stay will
substantially injure other interested parties; and (4) the public’s interest. Brakebill v.
Jaeger, 905 F.3d 553, 557 (8th Cir. 2018). While a showing of irreparable injury is
required, the most important factor is likelihood of success on the merits. Id.
The intervenors have shown that, absent a stay, they would be irreparably
injured. The stay and the injunction mirror each other — if the lack of an injunction
injures the plaintiffs, the lack of a stay injures the intervenors. One party’s candidates
will necessarily appear on the ballot before the other’s.3 And absent a stay, the
2The injury-in-fact alleged by the individual-voter plaintiffs is suspect insofar as
they already plan on voting for candidates of their preferred party. Their ability to vote
for their preferred candidates seems largely unaffected by section 204D.13(2), and
general complaints about electoral outcomes are nonjusticiable. Gill v. Whitford, 138
S. Ct. 1916, 1931 (2018). But we need not determine whether the individual-voter
plaintiffs have standing because the political committees do. See Dep’t of Commerce
v. New York, 139 S. Ct. 2551, 2565 (2019) (“For a legal dispute to qualify as a genuine
case or controversy, at least one plaintiff must have standing to sue.”).
3The district court determined that intervenors showed no likelihood of
irreparable injury, since its remedy provided an equal chance of each party’s candidates
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intervenors would lack any meaningful right to appeal the preliminary injunction, given
that the ballot order decisions must be made by mid-August.
We thus turn our focus to the intervenors’ likelihood of success. Because
section 204D.13(2) implicates the right to vote, McLain, 637 F.2d at 1166, we apply
the so-called Anderson/Burdick standard when evaluating the statute’s constitutionality.
See Burdick v. Takushi, 504 U.S. 428, 433 (1992) (“Each provision of a code . . .
‘inevitably affects — at least to some degree — the individual’s right to vote and his
right to associate with others for political ends.’”) (quoting Anderson v. Celebrezze,
460 U.S. 780, 788 (1983)). Under this standard,
[a] court considering a challenge to a state election law must weigh “the
character and magnitude of the asserted injury to the rights protected by
the First and Fourteenth Amendments that the plaintiff seeks to vindicate”
against “the precise interests put forward by the State as justifications for
the burden imposed by its rule,” taking into consideration “the extent to
which those interests make it necessary to burden the plaintiff’s rights.”
Id. at 734 (quoting Anderson, 460 U.S. at 789).
Upon considering the character and magnitude of the asserted injury, we observe
that section 204D.13(2) does not in any way restrict voting or ballot access. Cf.
Anderson, 460 U.S. at 786; Harper v. Virginia Bd. of Elections, 383 U.S. 663, 664–65
(1966). The statute neither systematically advantages incumbents, see Jacobson v.
Florida Sec. of State, 957 F.3d 1193, 1198 (11th Cir. 2020) (discussing Florida’s law
placing the incumbent governor’s party first), nor advantages the state’s most popular
party, see McLain, 637 F.2d at 1166. Rather, it favors candidates from parties other
appearing first. In part because it found section 204D.13(2) unconstitutional, the
district court brushed aside the fact that the injunction injured the intervenors insofar
as their favored candidates lost their ballot placement position established by the law.
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than the one that received the most votes (on average) in the last general election.
Minn. Stat. § 204D.13(2).
The state offered several justifications for its ballot-order statute: “(1)
encouraging political diversity; (2) countering the ‘incumbent’ effect; and (3)
discouraging sustained single-party rule.” According to the district court, these
goals — however laudable — cannot be pursued by the state at the expense of
objective even-handedness. As such, the court concluded, section 204D.13(2) likely
cannot withstand any judicial scrutiny — not even rational basis review.
The district court’s decision rests on a misunderstanding of McLain. We found
a constitutional violation in McLain “because the justification offered for North
Dakota’s ballot arrangement [was] unsound.” 637 F.2d at 1167. The state said it had
“an interest in making the ballot as convenient and intelligible as possible for the great
majority of voters.” Id. But this justification simply begged the question. When asked
why it favored the popular incumbents over other candidates, the state essentially
responded, “because they are popular incumbents.” Id. Thus, North Dakota in McLain
proposed no legitimate state purpose advanced by its incumbent-first statute.
Here, however, Minnesota’s justifications are rationally related to placing
political parties in reverse order of popularity. By design, the statute cannot advantage
the state’s predominant party. If ballot primacy affects a party’s electoral chances, then
section 204D.13(2) cannot be used to tighten the predominant party’s grips on the
levers of power. Nor can incumbents count on using the statute’s operation to its
advantage (though occasionally incumbents from non-dominant parties may benefit
from the law). Cf. Jenness v. Fortson, 403 U.S. 431, 438 (1971) (upholding a law
advantaging candidates from established parties in part because it “[did] not operate
to freeze the political status quo”). And being placed first on the ballots gives less
popular parties visibility, thus promoting political diversity.
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In any case, under the Anderson/Burdick standard, we find that the burdens
imposed by section 204D.13(2) do not unconstitutionally violate the rights asserted.
We recognize that the blind ballot-ordering process prescribed by the district court
would eliminate any law-based favoritism and would thus more easily satisfy the
Constitution’s equal protection guarantee. But that is not what the law requires. See
Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358, 367 (1997) (noting that
the Constitution does not forbid all forms of political-party favoritism). The individual-
voter plaintiffs’ rights are hardly (if at all) implicated by section 204D.13(2), and the
political committees’ rights are only marginally affected by the statute.
Section 204D.13(2) articulates one of the few ways Minnesota can organize its ballots
without either favoring predominant parties or abandoning the task of ballot-organizing
to random chance. Cf. Anderson, 460 U.S. at 788 (recognizing a state’s interest in
ensuring “some sort of order, rather than chaos,” in its elections) (quoting Storer v.
Brown, 415 U.S. 724, 730 (1974)). In our preliminary review, we find
section 204D.13(2)’s ends legitimate and its burdens minimal. It is unlikely that
section 204D.13(2) violates the Fourteenth Amendment.
The district court granted the preliminary injunction, in part, because “it is
always in the public interest to protect constitutional rights.” But we find no
constitutional violation. And while the state no longer challenges the preliminary
injunction, it is in the public interest to uphold the will of the people, as expressed by
acts of the state legislature, when such acts appear harmonious with the Constitution.
See Maryland v. King, 567 U.S. 1301, 1303 (2012) (Roberts, C.J., in chambers)
(“[A]ny time a State is enjoined by a court from effectuating statutes enacted by
representatives of its people, it suffers a form of irreparable injury.”) (quoting New
Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977)
(Rehnquist, J., in chambers) (alteration in original)).
We therefore grant the motion to stay the injunction pending appeal.
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