ST. LOUIS (CN) — An Eighth Circuit panel heard from Minnesota’s Libertarian Party on Wednesday morning in the party’s effort to upend the state’s process for third-party candidates seeking inclusion on general election ballots.
At issue during oral arguments were the petitions required of candidates not affiliated with any of Minnesota’s four major parties seeking to be placed on ballots. State law requires petition signers to swear “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.”
That requirement, the party argues, places an unnecessary burden on the right to vote and freely associate by putting petition signers at risk of prosecution.
U.S. District Judge David Doty, a Ronald Reagan appointee, dismissed the suit brought by the Minnesota Libertarian Party and four of its members against Secretary of State Steve Simon, finding last year that their challenge to the oath requirement was “based on a misreading of the law” and on false premises. Contrary to the party’s claims, he said, the oath did not preclude signers from voting in primaries, and only asked them to attest that they did not intend to do so at the time of signing.
Doty also dismissed the Libertarians’ objections to the two-week window in which candidates are allowed to gather the required number of signatures and their arguments that the difference in procedure for minor parties constituted an equal protection violation and violated minor-party voters’ right to a secret ballot. None of those issues were discussed at Wednesday's virtual Eighth Circuit hearing.
Representing the Libertarians, attorney Erick Kaardal argued to the St. Louis-based appeals court that even with the assurance that nobody could be prosecuted for voting in primaries after signing a petition, the oath was still unnecessarily confusing to would-be signers and candidates and created a chilling effect.
“Minnesota does not have a statute that states whether its signer has forfeited the right to vote or not. Minnesota has a statutory oath,” he said. “It’s an unnecessary burden on [minor-party supporters] to have to explain to voters that they can change their mind and vote in a later primary without fear of prosecution.”
Representing Simon’s office, Assistant Attorney General Nathan Hartshorn argued that the Libertarians hadn’t established any injury.
“These appellants, and previous individual appellants, have gotten on the ballot nearly 30 times, and they’re here to claim that these policies freeze them off the ballot,” he said, pointing to data collected between 2000 and 2018. He said over 100 total successful petitions had been filed in that time.
“What they’re claiming is a violation of their constitutional rights is something that doesn’t exist,” Hartshorn said. “It’s akin to saying Santa Claus burdens their rights. It isn’t real.”
U.S. Circuit Judge Raymond Gruender, a George W. Bush appointee, asked Hartshorn how he could be sure the oath did not create a chilling effect. Hartshorn replied that the Libertarians hadn’t alleged that the statute chilled speech or votes, and that data still didn’t back up the possibility of chilling.
“That’s diametrically opposed from the claim actually made in the complaint, which is ‘this bans voting in August, we tell people that it bans people voting in August,’” the state's attorney said. “In substantive, empirical fact, this is not chilling people from getting on the ballot…. Between 2000 and 2018…. There have been 110 successful nominating petitions. Twenty-seven of them come from the Libertarian Party.”
Hartshorn also said that after seeking to abandon oath-related claims in proceedings before Doty, then retracting that abandonment, Kaardal had switched tacks at the last minute to argue that the oath was confusing to voters.
“Rather than arguing ‘no, this oath prevents our voters… from being able to vote in the August primary,’ they’re now arguing, for the first time, ‘oh, well, this is confusing,’” Hartshorn said.
Kaardal pushed back against Hartshorn’s Santa Claus analogy on rebuttal.
“It’s an interpretation my clients have made. My clients have listened to potential signers make that argument,” he said of the idea that the oath precludes voting in primaries. “Is it necessary for the state to have this oath, which can be interpreted differently by the public, making the nomination process difficult?”
Gruender was joined on the panel by U.S. Circuit Judges Morris Arnold and David Stras, appointed by George H. W. Bush and Donald Trump, respectively.
Speaking in an interview Wednesday afternoon, Kaardal said that the oath requirement went against the spirit of democratic governance.
“It contradicts our expectation regarding our state election officials. Our state election officials should be very clear about who has the right to vote and who doesn’t. Confusion about that harms the system,” he said.
He also said that no baby could be saved from the proverbial bathwater should the oath requirement be found unconstitutional.
“We think that the oath cannot be severed from the legislative decision that signers can either forfeit their right to vote or not forfeit their right to vote,” Kaardal said.
The Minnesota Secretary of State’s Office did not respond to a request for comment Wednesday.
The petition process sets varying signature requirements for minor parties seeking to run candidates for statewide or legislative offices. Per Minnesota statute, parties can gain “major party” status through a number of methods, the simplest of which is garnering 5% or more of the vote in a statewide election. Two independent parties, both single-issue marijuana legalization parties, hold that status. While the Libertarian Party has outpaced both the Grassroots-Legalize Marijuana Party and the Legal Marijuana Now Party in electing officials to municipal governments, it has yet to clear that threshold.
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