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Presidential primary process constitutional, court says

Barbara L. Jones//March 25, 2020//

Presidential primary process constitutional, court says

Barbara L. Jones//March 25, 2020//

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Last January, the Supreme Court declined to order the secretary of state to include Roque “Rocky” De La Fuente to the Republican ballot for president in the March 3 primary.

The court issued its full per curiam opinion on March 18 in De La Fuente, et al. v. Simon. The petitioners are considering filing a petition for a writ of certiorari with the U.S. Supreme Court.

The Republican Party had exercised its authority under Minn. Stat. § 207A.13 to place only President Donald Trump’s name on the ballot. But in a Feb. 24 letter it also asked the secretary to count the write-in votes for De La Fuente and then-candidate former Massachusetts Gov. William (Bill) Weld, pursuant to the same statute.

De La Fuente and James Martin, a Minnesota voter, raised constitutional claims because De La Fuente’s name was not on the ballot and voters would have to remember to write him in.

They allowed that Minn. Stat. § 207A.13 violates the Minnesota Constitution’s prohibition against special privileges, article XII, section 1; the Presidential Eligibility Clause, article II, section 1, clause 5, and the petitioners’ rights of free association under the First and Fourteenth Amendments.

The state responded that their claim was barred by laches.

The Supreme Court said that the special privileges and eligibility claims failed, as did the laches claim. Laches did not apply because voter interests in an accurate ballot outweigh any uncertainty in the election preparation process.

However, the court added, “We have said before and we reiterate here again, in the clearest terms possible: potential challengers and candidates who assert that an error or omission exists on a ballot cannot tarry.”

Petitioners argued that the party’s ability to identify candidates on a ballot was an unconstitutional special privilege The court said that under a rational basis test, the statute’s classification among political parties that do or do not use a national convention to choose a nominee is genuine and substantial and has a reasonable basis, and therefore the special privileges prohibition was not implicated.

They also contended that section 270A.13 imposed an extra eligibility requirement on a candidate, i.e., party approval. The court refused to equate procedural ballot requirements with constitutional qualification.

Power of political parties

The heart of the opinion to Erick Kaardal, the attorney for the petitioners, is Section IV where the court considers voting and associational rights claims under the First and Fourteenth Amendment. Kaardal said that the court recognized the problem raised by petitioners, which is that the road for any candidate’s access to the ballot for the primary runs only though participating political parties, who alone determine which candidates will be on the party’s ballot.

“Having allowed the parties a role in determining which candidates have access to the ballot for the presidential nomination primary, nothing in section 207A.13 suggests that the State intends to ensure the fairness of that process. When asked at oral argument what authority the Secretary of State has to inquire into a party’s candidate decisions for the ballot, counsel conceded that ‘[u]nder these statutes, none,’” the court wrote. But it then said that petitioners had not met their burden of showing an unconstitutional burden on their associational rights.

This doesn’t make sense to Kaardal. He wrote in an email to Minnesota Lawyer, “It’s difficult for me to understand how we lost the case when the Republican Party on February 25, 2020, associated with Governor Weld and De La Fuente as write-in candidates. Thus, in a $12 million taxpayer-funded primary, President Trump, Governor Weld and De La Fuente should have all been treated the same and had their names printed on the ballot.  Printing all their names on the ballot would not violate the GOP’s associational rights because the GOP associated with them.  We are looking at petitioning the U.S. Supreme Court for review because the same unconstitutional temptation will exist for Minnesota’s political party of the incumbent President in the future.” (Kaardal referred to news reports that the primary cost the state $12 million.)

The court explained its reasoning. First of all, the court said, De La Fuente does not have a constitutional right to be on the ballot. Similarly, while Martin’s right to vote is a “precious freedom,” elections, particularly presidential primaries, are not understood as a method of venting political disputes. In a footnote the court said, “Contrary to petitioners’ argument, the right to vote in a state primary on a presidential nominee is not integral to our republican form of government. The U.S. Constitution mentions neither political parties, nor the presidential nominating process.”

Furthermore, the candidates and voters experience at best a de minimis burden on their associational rights because the process provides for write-in votes.

In contrast to this de minimis burden, the associational rights of political parties to choose a candidate are well-established, the court continued. Political parties also have a First Amendment right to choose a candidate-selection process that will in its view produce the nominee who best represents the political platform. The state also has an interest, although perhaps limited, in regulating the ballot, the court said.

“When we consider the de minimis burden on petitioners’ associational rights against the legitimate associational interests of the political parties and the State’s limited regulatory interest, we conclude that petitioners have not demonstrated that Minnesota Statutes § 207A.13 unconstitutionally burdens their associational rights under the First and Fourteenth Amendments to the United States Constitution,” the court concluded. “We therefore hold that petitioners’ First Amendment claim fails as a matter of law.”

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