Libertarian Party of Minnesota v. Steve Simon

United States Court of Appeals
For the Eighth Circuit
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No. 20-2244
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Libertarian Party of Minnesota; Chris Holbrook; Mason McElvain; Chris Dock;
Brian McCormick
Plaintiffs - Appellants
v.
Steve Simon, in his official capacity as the Minnesota Secretary of State, or his
successor
Defendant - Appellee
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Appeal from United States District Court
for the District of Minnesota
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Submitted: June 16, 2021
Filed: September 3, 2021
[Unpublished]
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Before GRUENDER, ARNOLD, and STRAS, Circuit Judges.
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PER CURIAM.

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The Libertarian Party alleges that Minnesota’s election laws place its
candidates and supporters at an unfair disadvantage. The district court1 dismissed
the complaint because it did not state a claim. We affirm.
I.
Different rules apply to major- and minor-party candidates in Minnesota.
Major-party candidates must win a primary election to earn a spot on the general-
election ballot. Minor-party candidates, by contrast, must navigate a nominating-
petition process that requires the collection of signatures. See Minn. Stat.
§§ 204B.03, 204B.08, subdiv. 3. In addition to satisfying a number of technical
requirements, the nominating petition must have the following oath printed on each
page: “I solemnly swear (or affirm) . . . that I do not intend to vote at the primary
election for the office for which this nominating petition is made . . . .” Id.
§ 204B.07, subdiv. 4.
All Libertarian Party candidates must meet these requirements. When some
failed to do so, the Libertarian Party and four of its supporters2 sued Minnesota
Secretary of State Steve Simon. The district court dismissed the case. See Fed. R.
Civ. P. 12(b)(6).
II.
We review the dismissal de novo, “accepting as true the allegations set forth
in the complaint and drawing all reasonable inferences in favor of” the plaintiffs.
Star City Sch. Dist. v. ACI Bldg. Sys., LLC, 844 F.3d 1011, 1016 (8th Cir. 2017). On
1 The Honorable David S. Doty, United States District Judge for the District
of Minnesota.
2 They are Chris Holbrook, Mason McElvain, Chris Dock, and Brian
McCormick.

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appeal, the plaintiffs focus on three constitutional challenges. One of them was
previously abandoned, and the other two are not viable.
The first, which is that the oath requirement is vague and unconstitutionally
burdensome, was “intentional[ly] . . . abandon[ed]” before the district court. United
States v. Olano, 507 U.S. 725, 733 (1993) (quotation marks omitted). In response
to Secretary Simon’s motion to dismiss, the plaintiffs stated: “[u]pon consideration
of the constitutional arguments regarding the minor political party petition
oath[,] . . . to the extent separately challenged in the amended complaint, the oath . . .
requirement[] [is] abandoned as [a] separate claim[].” This statement, though
arguably vague itself, “appear[s] to concede that the[] challenge to the oath is
untenable,” which is how the district court understood it too. For that reason, we
conclude that the plaintiffs have waived this issue. See United States v. Demilia,
771 F.3d 1051, 1055 (8th Cir. 2014) (“Under our waiver jurisprudence, a right—
such as the right to have recourse to a legal rule or argument—is waived when it is
intentionally relinquished or abandoned.” (quotation marks omitted)).
The plaintiffs preserved their next challenge, but in the end, it meets a similar
fate. In this one, the plaintiffs take aim at signature collection, which they claim
must be done in person, even though major-party supporters can express their
candidate preferences by casting an absentee ballot by mail. Without a comparable
alternative for minor parties, they say, Minnesota’s scheme violates the Equal
Protection Clause of the Fourteenth Amendment. See U.S. Const. amend. XIV, § 1.
Even assuming that major- and minor-party candidates are similarly situated
to one another—a question we need not decide today—nothing in Minnesota law
requires any candidate to collect signatures in person. To the contrary, nominating
petitions are freely available online, meaning that anyone can print one, sign it, and
send it to a candidate for filing. See Minn. Stat. § 204B.07. Like the district court,
we will not invent a restriction by adding language to an otherwise unambiguous

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statute. See Larson v. State, 790 N.W.2d 700, 703 (Minn. 2010) (“If a statute is
unambiguous, then we must apply the statute’s plain meaning.”).
The plaintiffs’ final challenge also alleges discriminatory treatment, but this
time the focus is squarely on supporters, not candidates. The plaintiffs believe that
minor-party supporters are treated unequally because they have to reveal their
candidate preferences in nominating petitions, even though major-party supporters
can keep their votes secret.
The central flaw in this argument is that signatures on nominating petitions
are not votes. For one thing, the eligibility requirements are different. Voters in
primary elections have to be registered to vote, Minn. Stat. § 201.018, whereas those
signing a nominating petition must only be eligible, see id. § 204B.08, subdiv. 2. In
Equal Protection parlance, what this means is that petition signers are not necessarily
similarly situated to voters. See Flowers v. City of Minneapolis, 558 F.3d 794, 798
(8th Cir. 2009) (“To establish a violation of the Equal Protection Clause, . . . [the
plaintiff] must show that he was treated differently than other persons who were in
all relevant respects similarly situated.” (quotation marks omitted)).
For another, every vote in Minnesota is secret, regardless of who casts it. To
be sure, the oath requires petition signers to have no existing intention to cast a
primary-election ballot. See Minn. Stat. § 204B.07, subdiv. 4. But, as the district
court observed, they are free to change their minds. And if they do, their votes will
be secret just like everyone else’s. See Keevan v. Smith, 100 F.3d 644, 648 (8th Cir.
1996); Klinger v. Dep’t of Corr., 31 F.3d 727, 731 (8th Cir. 1994); see also Mills v.
City of Grand Forks, 614 F.3d 495, 500 (8th Cir. 2010) (explaining why the
plaintiff’s pleadings failed to demonstrate differential treatment).

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III.
We accordingly affirm the judgment of the district court.
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