‘Ballot-order statute’ injunction stayed

Staying a federal judge’s injunction pending appeal, the 8th U.S. Circuit Court of Appeals has relegated DFL candidates to last place on the general-election ballot, at least among their major-party rivals.

But, then, that is Minnesota law — and it will remain in place through the next election, even if another federal judge doesn’t like it.

The 8th Circuit on July 31 issued a per curiam order, staying a temporary injunction from Minnesota’s U.S. District Court, pending appeal. The lower court had barred enforcement of the state’s “ballot-order statute.”

U.S. District Court Judge Susan Richard Nelson issued that injunction on June 15. In it, she declared that the law, Minn. Stat. Sec. 204D.13, is unconstitutional and imposed an alternative, lottery-style system for listing candidate names on the 2020 ballot.

In staying her order, 8th Circuit judges James B. Loken, Bobby Shepherd and L. Steven Grasz reached the opposite conclusion. They found the statute’s ends legitimate and its burdens minimal. The law is unlikely to violate the U.S. Constitution, they found.

“The District Court granted the preliminary injunction, in part, because ‘it is always in the public interest to protect constitutional rights,’” the panel wrote. “But we find no constitutional violation.”

Minnesota’s general election ballot must be finalized by mid-August and the first in-person absentee ballots are scheduled to be cast on Sept. 18. Peter Bartz-Gallagher, a spokesman for the Secretary of State’s office, said the 8th Circuit’s ruling means the existing ballot-order law will remain in place through the 2020 election cycle.

The July 31 ruling also gave the Trump for President campaign and the other Republican intervenors, including the Republican National Committee and the Minnesota Republican Party, time to appeal Nelson’s temporary injunction.

That appeal was filed on Aug. 3, Bartz-Gallagher said.

‘Primacy effect’

The “ballot-order statute” is meant to encourage political diversity, counter the power of incumbency and discourage single-party dominance in the state’s politics. To achieve those aims, it requires that major-party candidate names be listed in inverse order from their party’s performance in the last general election. The worst-polling party’s candidate, in other words, gets listed first.

Because Democrats out-polled their three major-party rivals in 2018, the law relegates them to the fourth spot on the list, with Republicans listed third. The Grassroots-Legalize Cannabis Party and the Legal Marijuana Now Party get the two slots above them.

In November 2019, four Democratic plaintiffs challenged the law. They include two individuals—Madeline Pavek, a young DFL voter and activist from Minneapolis and Ethan Sykes, a DFL political organizer from Butterfield. Two national groups also are named plaintiffs—the Democratic Senate Coordinating Committee and the Democratic Congressional Campaign Committee.

Citing social science research about a “primacy effect” that they say gives unfair advantage to whoever happens to be listed first, the group argued that Minnesota’s law is unconstitutional and leaves plaintiffs with irrecoverable injury.

“Far from diffusing the effect of name order,” plaintiffs said in their 2019 complaint, “Minnesota’s Ballot Order Statute systemically confers the advantages that follow from being listed first on the ballot to all candidates of one political party, based on their party affiliation.”

In moving to dismiss, Secretary of State Steve Simon argued that the claims were baseless. Though he acknowledged that many courts have struck down ballot-order statutes that favor incumbents, Minnesota’s law does the opposite—by making it more difficult for any party to become politically dominant.

To argue that the statute gives unfair advantage to the Legal Marijuana Now Party is absurd, Simon’s attorneys argued: The DFL holds most state offices in Minnesota, while the newcomer pot party has never elected anyone to state office.

Nelson sided with plaintiffs. She denied Simon’s motion to dismiss the suit’s first count, ruling that plaintiffs stated a “plausible, legally cognizable claim” that the law inflicts an undue burden on the right to vote.

She also found the statute unconstitutionally treats one major political party’s candidates differently from other, similarly situated parties’ candidates. With that, she denied Simon’s motion to dismiss the suit’s second and final count.

She also issued a temporary injunction, blocking enforcement of the law in the 2020 election and imposing a new lottery-style system for determining the order of candidates’ names on the ballot.

The Secretary of State’s office is no longer challenging her injunction, according to the 8th Circuit’s July 31 opinion. However, the Trump campaign and four other GOP groups did step in to intervene in the case.

Mirror opposites

Ruling in their favor, Loken, Shepherd and Grasz last week stayed Nelson’s order. They found the president and his Republican allies made sufficient showing that Nelson’s directive should not be implemented before they have had a meaningful chance to appeal.

“The intervenors have shown that, absent a stay, they would be irreparably injured,” the 8th Circuit opinion says.

The panel acknowledges that their stay and Nelson’s injunction essentially are mirror opposites.

“If the lack of an injunction injures the plaintiffs, the lack of a stay injures the intervenors,” their opinion says. “One party’s candidates will necessarily appear on the ballot before the other’s.”