BUT I WANT TO BE FIRST: A COURT’S CURIOUS CHOICE OF REMEDY TO MINNESOTA’S CHALLENGED BALLOT ORDER STATUTE

By: Billy Price, Volume 105 Staffer

Before a single general election ballot was cast, commentators were already referring to the 2020 election as “on track to the be the most litigated ever,”[1] thanks in large part to lawsuits concerning the complexities of voting during the COVID-19 pandemic.[2] Largely hidden by the drama of lawsuits concerning mail-in voting[3] and polling places,[4] this election cycle has also featured at least two cases concerning ballot order statutes.[5] While seemingly mundane and even ministerial, lawsuits over ballot order have been a quiet flashpoint for the two major political parties in their battle for any electoral advantage—including the benefits that accrue from appearing first on the ballot.[6] This Post discusses recent ballot order litigation in Minnesota and focuses mainly on the remedy chosen by the district court. In short, this Post concludes that the remedy was ineffective at curing the constitutional harm identified by the court, and that ready alternatives were available.

I. MINNESOTA’S BALLOT ORDER STATUTE AND THE LITIGATION CHALLENGING IT

Minnesota’s ballot order statute dictates that major-party candidates[7] be listed in reverse order based on the average number of votes their party received in the most recent state general election.[8] This anti-incumbency formulation is a bit unique, as other states with similar statutes give the top spot to the incumbent party, often using the party of the governor as a proxy.[9] Under this scheme, there would be four major parties on Minnesota’s November 2020 ballots, and their candidates would appear in the following order in all races throughout the state: the Legal Marijuana Now Party, the Grassroots-Legalize Cannabis Party, the Republican Party, and the Democratic-Farm-Labor (DFL) Party.[10]

Unhappy that DFL candidates would appear lower on the ballot than other major party candidates, the party’s voters and committees sued the Minnesota Secretary of State over the ballot order statute. They alleged that the statute impermissibly conveyed across-the-board advantages to candidates of the poorest-performing major political parties on the basis of party affiliation.[11] The plaintiffs pointed to a “primacy effect” created by appearing first on the ballot and argued that the statute placed an undue burden on their First Amendment right to political association and Fourteenth Amendment right to vote.[12]

The district court agreed with the plaintiffs, finding that the statute violated their constitutional rights and could not be justified by the state’s asserted interests in discouraging long-term single party rule, countering the incumbent effect, and promoting diversity of political parties in the state.[13] The court suggested that the ballot order statute was so egregious that it could not survive even rational basis review, the lowest constitutional bar to clear.[14] It noted that “the Constitution does not allow a state to ‘put its thumb on the scale’ of an election and ‘award an electoral advantage’ to any party, irrespective of whether the party is in power or new to the political arena.”[15]

To remedy this constitutional harm, the district court issued a preliminary injunction and ordered the Secretary to use a lottery system to randomly select single statewide ballot order based on political party.[16] The court also considered a “non-discriminatory” rotation remedy, in which candidates’ names would be rotated on a precinct-by-precinct basis so each candidate would appear at the top of the ballot an equal number of times.[17] This option was ultimately dismissed because of concerns about technology and re-certification of election machines.[18]

During the course of the litigation, the Donald Trump presidential campaign intervened, seeking an emergency stay of the district court’s injunction.[19] The district court denied that request,[20] and the Trump campaign appealed to the Eighth Circuit. In a short opinion, the Eighth Circuit reversed the district court’s denial of emergency stay, finding that the statute’s burdens were minimal, and the means were rationally related to the state’s asserted interests.[21] It opined that a state always had a legitimate interest in some sort of order in its elections, as opposed to chaos.[22] Because it could not locate a likely constitutional violation, it stayed the injunction.[23]  Following that decision, the plaintiffs voluntarily dismissed the case.[24]

II. THE REMEDY THAT REMEDIES NOTHING.

Assuming that the district court was correct in its analysis that primacy effects (which have been explored at length[25]) can create constitutional burdens when allocated by an anti-incumbent ballot order statute, this case still presents a legal curiosity. That is because the remedy selected by the court does not actually alleviate the constitutional harm of allocating a systemic electoral advantage based on political party.

Under the court’s analysis, any state action that puts the “thumb on the scale” of a political party is impermissible.[26] It follows that any remedy (like a party-based lottery system[27]) that continues to base ballot order—and its attendant primacy advantage—on political party affiliation would be just as constitutionally suspicious. The court argues that a lottery “avoids the irreparable harm at issue—state-based favoritism—by randomizing which party benefits from the primacy effect.[28] But the mere fact that random chance—instead of the voters in the last election—chooses which party’s candidates appear first on the ballot does nothing to alleviate the core constitutional concern that ballot order may provide a systemic advantage to one party or another. Put differently, the results of the court’s lottery would still award one party a primacy effect on the statewide ballot, while the remaining parties would still suffer the constitutional harms of being assigned a lower ballot position, even if done so randomly.

It should be noted that the rotation remedy the court ultimately rejected also had issues under the court’s broad constitutional finding, most notably questions about ensuring equal treatment when rotating candidates by precinct.[29] That discussion, however, is beyond the scope of this Post.

III.  THE (BETTER) AVAILABLE ALTERNATIVES

Interestingly, the court noted, but did not choose from a range of permissible remedies because “a preliminary injunction is an exercise in discretion.”[30] It should have used that discretion to pursue a different remedy. Specifically, the court should have selected a remedy that was completely agnostic of political party. Perhaps most simply, the court could have ordered that major-party candidates be placed on the ballot in a random order, with a separate lottery for each race. This would have been party-agnostic, provided each candidate with an equal probability of appearing first on the ballot and would have avoided the technological problems associated with rotation. Moreover, this approach already appears in Minnesota election law, albeit for minor party candidates.[31] Thus, one could assume this “lottery per race” solution would be technologically feasible with the state’s current voting equipment.

Alternatively, an alphabetical system would presumably pass constitutional muster because it is wholly unrelated to party affiliation, and thus its primacy effects would be conveyed only on the basis of last name. Those benefits presumably would not accrue solely to the benefit of a single political party. Several states use various formulations of such a system. Nevada simply lists candidates in alphabetical order.[32] Of course, this would always benefit candidates with earlier last names and allow ambitious candidates to game the system by changing their names, so some states introduce chance into their schemes.[33] In North Carolina, candidates are listed in alphabetical or reverse alphabetical order, determined by a drawing after the filing period is closed.[34] California employs a randomized alphabet (and then, for good measure, rotates candidates by assembly district).[35] Under the California system, the entire twenty-six letter alphabet is randomly reorganized and used throughout the ballot, virtually ensuring that no single party benefits systemically from the primacy effect.[36] Notably, this system was established in response to court rulings holding that standard alphabetical order or incumbent-first designations were unconstitutional.[37]

Paraphrasing Justice Roberts, perhaps the best way to stop ballot ordering by political party affiliation is to stop ordering ballots using political party affiliation.[38] Here, there were a bevy of existing alternative remedies available to the court that would have entirely eliminated party-based favor or harm from Minnesota’s ballot ordering process. The decision to choose a remedy that perpetuated the exact constitutional transgression the court found in the existing statute was a curious and avoidable outcome.

[1] Michael Wines, As November Looms, So Does the Most Litigious Election Ever, N.Y. Times (Jul. 7, 2020), https://www.nytimes.com/2020/07/07/us/2020-election-laws.html [https://perma.cc/D38W-MLDA].

[2] See Zack Stanton, The Lawsuits that Could Decide the 2020 Election, Politico Mag. (Sept. 3, 2020, 7:53 PM), https://www.politico.com/news/magazine/2020/09/03/2020-election-lawsuits-trump-voting-coronavirus-408631 [https://perma.cc/KV7H-RGPC] (noting at least 230 pandemic-related election lawsuits as of early September 2020); Jerrick Adams, Tracking the 90+ Lawsuits Related to COVID-19 Election Changes, Ballotpedia (June 3, 2020, 2:33 PM), https://news.ballotpedia.org/2020/06/03/tracking-the-90-lawsuits-related-to-covid-19-election-changes [https://perma.cc/9WDW-RAG5].

[3] See, e.g., Ohio Democratic Party v. LaRose, No. 20AP-432, 2020 WL 5874872 (Ohio Ct. App. Oct. 2, 2020); People First of Ala. v. Merrill, No. 2:20-CV-00619, 2020 WL 5814455 (N.D. Ala. Sept. 30, 2020); Issa v. Newsome, No 2:20-CV-01044, 2020 WL 3074351 (E.D. Cal. June 10, 2020); League of Women Voters of Okla. v. Ziriax, 463 P.3d 524 (Okla. 2020).

[4] See, e.g., Anderson v. Raffensperger, No. 1:20-CV-032263, 2020 WL 6048048 (N.D. Ga. Oct. 13, 2020); Mi Familia Vota v. Abbott, No. 20-50793, 2020 WL 6058290 (5th Cir. Oct. 14, 2020); Common Cause Ind. v. Lawson, No. 20-2911, 2020 WL 6042121 (7th Cir. Oct. 13, 2020).

[5] See Pavek v. Simon, 967 F.3d 905 (8th Cir. 2020); Jacobson v. Fla. Sec’y of State, 974 F.3d 1236 (11th Cir. 2020) (vacating the district court’s order enjoining enforcement of a ballot order statute that listed the governor’s party first because the plaintiffs lacked standing and the complaint presented a nonjusticiable political question).

[6] See Pavek v. Simon, No. 19-CV-3000, 2020 WL 3183249, at **4–6 (D. Minn. June 15, 2020). See generally Laura Miller, Note, Election by Lottery: Ballot Order, Equal Protection, and the Irrational Voter, 13 N.Y.U.J. Legis. & Pub. Pol’y 373, 381–89 (2010); Barry C. Edwards, Alphabetically Ordered Ballots and the Composition of American Legislatures, 15 State Pol. & Pol’y Q. 171 (2015) (arguing that alphabetical ballot order effects have impacted legislatures more than previously thought and advocating reform).

[7] Major parties are defined, in part, as parties that received at least five percent of the vote in one of the last three elections. Minn. Stat. §§ 200.02(7)(a), (7)(d) (2019).

[8] Minn. Stat. § 204D.13(2) (2019).

[9] See, e.g., Tex. Elec. Code Ann. § 52.091(b) (West 2019) (ordering ballots with the candidate from the governor’s party listed first); Fla. Stat. § 101.151(3)(a) (2020) (same).

[10] Pavek, 2020 WL 3183249, at *3.

[11] Id. at *1.

[12] Id.

[13] Id. at **27–28.

[14] Id. at *27.

[15] Id. at *26 (quoting Jacobson v. Lee, 411 F. Supp. 3d 1249, 1275 (N.D. Fla. 2019)). See also Hand v. Scott, 285 F. Supp. 3d, 1289, 1297 (“The [Supreme] Court . . . has repeatedly recoiled from anything that resembles a thumb on the scales of association and, by extension, the democratic process.”).

[16] Id. at **28–29.

[17] Id.

[18] Id.

[19] Pavek v. Simon, No. 19-CIV-3000, 2020 WL 4013984, at *1 (D. Minn. July 16, 2020).

[20] Id. at *8.

[21] Pavek v. Simon, 967 F.3d 905, 909 (8th Cir. 2020).

[22] Anderson v. Celebrezze, 460 U.S. 780, 788 (1983).

[23] Pavek, 967 F.3d at 909.

[24] See Pavek v. Simon, No. 19-CV-3000, 2020 WL 5168086 (D.Minn. Aug. 26, 2020).

[25] See Pavek v. Simon, No. 19-CV-3000, 2020 WL 3183249, at **4–6 (D. Minn. June 15, 2020).

[26] Id. at *26.

[27] Id. at **28–29.

[28] Id. at *29.

[29] Not all precincts are created equally. As of June 1, 2020, the smallest precinct in Minnesota had two registered voters and the largest had 6,336. Off. of Sec. of State., Voter Registration by Precinct Split Spreadsheet (June 1, 2020), https://www.sos.state.mn.us/media/4111/june-1-2020-registered-voter-counts-by-precinct-split.xlsx [https://perma.cc/QQ5F-CP8D]. Party affiliation is similarly diverse in its concentration. Cf. David Weigel, The Five Political States of Minnesota, Wash. Post (Sept. 13, 2020), https://www.washingtonpost.com/graphics/2020/politics/minnesota-political-geography [https://perma.cc/VB8Y-GAZX] (discussing the geographical dispersion in Minnesota of party alignment). Ensuring such exacting equal treatment as the court seems to imply would be necessary would have its own challenges.

[30] Pavek, 2020 WL 3183249, at *28.

[31] See Minn. Stat. § 204D.13( 3) (2019).

[32] Nev. Rev. Stat. § 293.267(2) (2020).

[33] Cf. Lauren Theisen, Man Who Legally Changed Name to “Judge” Loses Judge Election in Landslide, N.Y. Daily News (Mar. 4 2020, 7:38 PM), https://www.nydailynews.com/news/national/ny-man-who-legally-changed-name-to-judge-loses-judge-election-20200305-o36nneor5ngx7nc3pxjnznk2em-story.html [https://perma.cc/9LCE-MJS7] (discussing a candidate who changed his name to “Judge” to gain an advantage in a judicial election); Chris Good, Name Change: Candidates Ditch Their Birth-Names, Run for Office on Made-Up Names, ABC News (Nov. 6, 2012, 12:23 AM), https://abcnews.go.com/Politics/OTUS/change-candidates-ditch-birth-names-run-office/story?id=17649641 [https://perma.cc/A5A3-58JU] (documenting two candidates who changed their names to gain electoral advantages).

[34] N.C. Gen. Stat. § 163-165.6(c) (2020).

[35] Cal. Elec. Code § 13112 (2020).

[36] Randomized Alphabet, Cal. Sec. of State, https://www.sos.ca.gov/elections/randomized-alphabet [https://perma.cc/8LXN-MTY4] (last visited Nov. 17, 2020).

[37] Id.

[38] Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 748 (2007).