Pavek v. Simon, Case No. 19-cv-3000 (SRN/DTS)

• Decision Date: 15 June 2020
• Docket Number: Case No. 19-cv-3000 (SRN/DTS)
• Citation: 467 F.Supp.3d 718
• Parties: Madeline PAVEK, Ethan Sykes, DSCC, and DCCC, Plaintiffs, v. Steven SIMON, in his official capacity as the Minnesota Secretary of State, Defendant.
• Court: U.S. District Court — District of Minnesota

467 F.Supp.3d 718

Madeline PAVEK, Ethan Sykes, DSCC, and DCCC, Plaintiffs,

v.Steven SIMON, in his official capacity as the Minnesota Secretary of State, Defendant.

Case No. 19-cv-3000 (SRN/DTS)

United States District Court, D. Minnesota.

Signed June 15, 2020

Alexi Machek Velez, Jyoti Jasrasaria, and Marc E. Elias, Perkins Coie LLP, 700 13th Street, N.W., Suite 600, Washington, D.C., 20005-3960; Kevin J. Hamilton, Perkins Coie LLP, 1201 Third Avenue, Suite 4900, Seattle, WA 98101-3099; Katherine M. Swenson and Sybil L. Dunlop, Greene Espel PLLP, 222 South 9th Street, Suite 2200, Minneapolis, MN 55402, for Plaintiffs.

Nathan J. Hartshorn, Minnesota Attorney General's Office, 445 Minnesota Street, Suite 1800, Saint Paul, MN 55101-2134, for Defendant.

Cameron Thomas Norris, Jeffrey M. Harris, and William S. Consovoy, Consovoy McCarthy PLLC, 1600 Wilson Boulevard, Suite 700, Arlington, VA 22209; Thomas H. Boyd, Winthrop & Weinstine, PA, 225 South Sixth Street, Suite 3500, Minneapolis, MN 55402-4629, for Amicus Curiae Honest Elections Project.

MEMORANDUM OPINION AND ORDER

SUSAN RICHARD NELSON, United States District Judge

This matter comes before the Court on Defendant Secretary of State Steve Simon's (Defendant or "Secretary") Motion to Dismiss (Doc. No. 13) and Plaintiffs Madeline Pavek's, Ethan Sykes's, DSCC's, and DCCC's Motion for a Preliminary Injunction (Doc. No. 22). Both motions have been fully briefed and were jointly argued to the Court.¹ Additionally, the Court has also received briefing from amicus curiae Honest Elections Project in support of Defendant's opposition to Plaintiffs’ preliminary injunction motion (see HEP Mem. [Doc. No. 50] ), to which Plaintiffs have responded. (See Pls.’ Opp'n to HEP's Mem. (Pls.’ HEP Opp'n Mem.) [Doc. No. 52].) For the following reasons, the Court grants Plaintiffs’ Motion for a Preliminary Injunction, and denies Defendant's Motion to Dismiss.

I. BACKGROUND

This election law dispute arises out of Minn. Stat. § 204D.13, subd. 2 (2018), referred to as the "Ballot Order" statute. (See Compl. [Doc. No. 1] ¶¶ 1, 4, 6.) By its terms, the statute requires that in Minnesota general elections, major political party candidates must be listed, on the ballot, in reverse order based on the average number of votes that their party received in the last state general election. (Id. ¶ 3.) Because the Democratic-Farmer-Labor Party ("DFL") received the highest average vote share in the most recent Minnesota general election, it appears that the Ballot Order statute requires all DFL-affiliated candidates to be listed last after all other major political party candidates on the ballot for the 2020 General Election, while the poorest performing major political party candidates are listed first. (Id. ¶ 4.)

Such an arrangement, Plaintiffs claim, impermissibly conveys an "arbitrary, across-the-board advantage" to the poorest performing major political party candidates solely on the basis of party affiliation. At the same time, Plaintiffs allege it inflicts an "increasing electoral disadvantage" to party candidates listed later on the ballot, through a phenomenon known as the "primacy effect," whereby first-listed candidates receive more votes solely as a result of their first-listed position. (Id. ¶ 1.) Plaintiffs contend that in doing so, the Ballot Order statute places an undue burden on the right to vote as well as the right to political association in violation of the First and Fourteenth Amendments to the United States Constitution. They ask the Court to declare the statute unconstitutional and enjoin the Secretary from enforcing it. (Id. ¶¶ 6, 41–54.)

A. The Parties

Plaintiffs consist of two individual Minnesota voters, and two Democratic party political committees.² Plaintiff Madeline Pavek is a resident of, and registered voter in, Minneapolis, Minnesota, who has voted consistently for DFL party candidates in the past and intends to do so again in the upcoming 2020 general election. (Compl. ¶ 12; see also Pavek Decl. [Doc. No. 27] ¶¶ 1–3.) Pavek is actively involved in efforts to help elect DFL candidates in Minnesota and is the statewide Political Director for the Minnesota Young DFL and the Stonewall DFL (the DFL's LGBTQ caucus). (Pavek Decl. ¶ 3.)

Plaintiff Ethan Sykes is a resident of, and registered voter in, Butterfield, Minnesota, who will be voting for the first time in November 2020, and who intends to vote for DFL candidates. (Compl. ¶ 13; see also Sykes Decl. [Doc. No. 25] ¶¶ 1–2.) Sykes is actively engaged in efforts to elect DFL candidates in Minnesota and serves as a member of the Minnesota State University Mankato College Democrats. (Sykes Decl. ¶ 2.)

Plaintiff DSCC is the national senatorial committee of the Democratic Party, as defined by 52 U.S.C. § 30101(14) (2018), and works to elect candidates of the Democratic Party to the U.S Senate, including in Minnesota. (Compl. ¶ 14; see also Schaumburg Decl. [Doc. No. 28] ¶ 2.) In the past, DSCC has made significant contributions and incurred significant expenditures to persuade and mobilize voters in support of DFL Senate candidates and intends to do so for the general election this fall. (Compl. ¶ 14; Schaumburg Decl. ¶ 11.)

Plaintiff DCCC is the national congressional committee of the Democratic party, as defined by 52 U.S.C. § 30101(14), and works to elect candidates of the Democratic Party to the U.S. House of Representatives, including in Minnesota. (Compl. ¶ 15; see also Guinn Decl. [Doc. No. 26] ¶ 2.) Much like the DSCC, the DCCC has made significant contributions and incurred significant expenditures to persuade and mobilize voters in support of DFL congressional candidates and intends to do so for the general election this fall. (Guinn Decl. ¶¶ 2, 4–5, 17, 20.)

Steve Simon is the Secretary of State of Minnesota and is named as Defendant in his official capacity. (Id. ¶ 16.) As Minnesota's chief elections officer, the Secretary is responsible for the administration and implementation of election laws in Minnesota, including the Ballot Order Statute, and any other rules for preparing the state general election ballot. (Id. (citing Minn. Stat. § 204D.13, subd. 2 ; Minn. Stat. § 204D.11, subd. 1 (2018) (requiring local election officials to prepare state general election ballot subject to rules of secretary of state)).) This includes creating the ballot—and the order of partisan candidates’ names—to be used in Minnesota's elections pursuant to state law. See Minn. Stat. § 204D.09, subd. 1 (2018) (requiring Secretary to supply local election officials with copy of example ballot to be used in state primary and general elections and requiring that official ballot conform to example ballot); Minn. R. 8250.1810, subp. 9 (2018) (requiring the Secretary to "certify to the county auditors the order in which the names of the candidates representing the [major] political parties ... must appear for every partisan office on the ballot"); Id. , subp. 18 (2018) (requiring official ballot to conform "in all respects to the example ballot" provided by the Secretary).

Non-party amicus curiae, the Honest Elections Project ("HEP"), is a self-described nonpartisan organization "devoted to supporting the right of every lawful voter to participate in free and honest elections." (HEP Mem. at 1.) It contends that it "defends the fair, reasonable measures that voters put in place to protect the integrity of the voting process" through "public engagement, advocacy, and public interest litigation."³ (Id. )

B. Minnesota's Ballot Order Statute

The "Ballot Order" statute, set forth at Minn. Stat. § 204D.13, subd. 2, provides in relevant part:

The first name printed for each partisan office on the state general election ballot shall be that of the candidate of the major political party that received the smallest average number of votes at the last state general election. The succeeding names shall be those of the candidates of the other major political parties that received a succeedingly higher average number of votes respectively. For the purposes of this subdivision, the average number of votes of a major political party shall be computed by dividing the total number of votes counted for all of the party's candidates for statewide office at the state general election by the number of those candidates at the election.

Under the statute, candidates for partisan office on the state general election ballot that have been nominated by a "major political party" that received the smallest average number of votes appear first on the general-election ballot, followed by major political party candidates that received the second-smallest average number, and so on. Id. The statute has existed in that format since 1981. Compare Minn. Stat. § 204D.13, subd. 2 (Supp. 1981), with Minn. Stat. § 204D.13, subd. 2 (2018).

By its terms, the Ballot Order statute's requirements apply only to candidates of "major" political parties in partisan races. See Minn. Stat. § 204D.13, subd. 2. Relevant here, one method of becoming a "major political party" in Minnesota is to present at least one candidate for election to a statewide office in a general election who subsequently receives at least five percent of the total number of votes cast for that particular election. See Minn. Stat. § 200.02, subd. 7(a) (2018). Once a party becomes a "major political party," it retains that status for at least two general election cycles, even if the party fails to maintain that same level of support in future elections. See Minn. Stat. § 200.02, subd. 7(d) (2018).

C. Minnesota's 2018 General Election Results & Effect On Ballot Order for Minnesota's November 2020 General Election

Minnesota's most recent general election was in 2018. According to the Secretary's website, DFL-affiliated candidates received the highest average number of votes for statewide office positions in Minnesota's 2018 General Election, followed by Republican-affiliated candidates.⁴ Two smaller Minnesota parties, the...