Pavek v. Simon

Background

Minnesota Statute § 204D.13, subdivision 2, required candidates of major political parties to appear on general-election ballots in reverse order of the average number of votes their parties received in the previous state general election. The party with the lowest average appeared first, followed by the other major parties in increasing order of their prior vote totals.

For the 2020 general election, the court found that the four major parties were the Democratic-Farmer-Labor Party, the Republican Party, the Legal Marijuana Now Party, and the Grassroots-Legalize Cannabis Party. Based on the 2018 election results, the expected order was Legal Marijuana Now first, Grassroots-Legalize Cannabis second, Republican third, and Democratic-Farmer-Labor last, if those parties offered candidates for the relevant race.

The plaintiffs were Madeline Pavek, Ethan Sykes, DSCC, and DCCC. Pavek and Sykes were Minnesota voters who intended to vote for Democratic-Farmer-Labor candidates. DSCC and DCCC were national Democratic Party committees that worked to elect Democratic candidates to the United States Senate and House of Representatives, respectively, including candidates in Minnesota. Defendant Steve Simon was Minnesota’s Secretary of State and was sued in his official capacity.

The plaintiffs alleged that first-listed candidates receive more votes because of the “primacy effect,” meaning an advantage associated solely with appearing first on the ballot. They claimed that the law violated the First and Fourteenth Amendments by burdening the right to vote and the right to associate to promote political candidates, and by treating one major political party differently from the others. They sought declaratory and injunctive relief under 42 U.S.C. § 1983 and related federal statutes.

Standing

The court addressed standing even though the parties had not raised it, because federal courts must ensure that they have jurisdiction. Standing requires an actual or imminent injury, a connection between that injury and the challenged conduct, and a likelihood that a favorable decision will remedy the injury.

The court held that DSCC and DCCC had direct standing. First, both committees showed that they would divert resources from efforts supporting Democratic candidates in other states to counteract the ballot-order law’s effects in Minnesota. Second, they showed a concrete and imminent injury to the election prospects of the candidates they supported because the law placed Democratic-Farmer-Labor candidates last and gave earlier-listed candidates the expected primacy advantage.

The court also found that these injuries were traceable to the statute and to the Secretary because Minnesota law made the Secretary responsible for certifying the order of major-party candidates and supplying the example ballot. The injuries were redressable because an injunction could prevent enforcement of the challenged order and require a nondiscriminatory alternative. Because at least one plaintiff had standing, the court did not decide whether Pavek and Sykes had standing or whether DSCC and DCCC had associational standing.

Motion to Dismiss

Secretary Simon moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint states a legally sufficient claim. The court denied the motion as to both counts.

For Count One, the court held that the plaintiffs plausibly alleged that the law burdened voting and political-association rights protected by the First and Fourteenth Amendments. The court rejected the Secretary’s argument that the law was permissible because it was designed to make it harder for the strongest party to remain in power. The court concluded that the constitutional concern was the State’s decision to give one party an electoral advantage based on party affiliation, regardless of whether the favored party was an incumbent or an out-party.

For Count Two, the court held that the plaintiffs plausibly alleged unequal treatment. The ballot-order law applied to all parties classified under Minnesota law as major political parties, making those parties similarly situated for purposes of the statute. The law nevertheless automatically awarded the first-ballot-position advantage based on party affiliation and prior election performance. The court therefore denied the motion to dismiss Count Two as well.

Preliminary Injunction Analysis

A preliminary injunction is temporary relief intended to prevent likely irreparable harm while a case proceeds. The court applied the four-factor test that considers likelihood of success, irreparable harm, the balance of harms, and the public interest. Because the injunction would prevent enforcement of a state statute, the court required the plaintiffs to show that they were likely to prevail on their constitutional claims.

The court applied the Anderson/Burdick framework, which weighs the character and severity of the burden on voting and associational rights against the State’s interests and the necessity of those interests. The court found that the ballot-order law imposed a discriminatory burden because it awarded the first-position advantage to one major political party based solely on party affiliation. Although ballot position did not prevent any candidate from appearing on the ballot or prevent voters from supporting a candidate, the court found the practical burden significant because the evidence showed primacy effects ranging from approximately 1% to 5.5% more votes for first-listed candidates, and Minnesota elections could be decided by very small margins.

The Secretary identified interests in promoting political diversity, countering the incumbent effect, and discouraging sustained single-party rule. The court found that these interests were not legitimate when pursued by giving some parties an electoral advantage over similarly situated parties. It concluded that the plaintiffs were likely to succeed even under the lowest level of constitutional review.

The court also found likely irreparable harm because the alleged violations concerned voting, political association, and equal protection, and because an election could not be redone after it occurred. The balance of harms and the public interest favored an injunction because protecting constitutional rights was in the public interest and Minnesota had no interest in enforcing a law the court found likely unconstitutional.

Relief Ordered

The court granted the plaintiffs’ motion for a preliminary injunction. It ordered Secretary Simon, and those acting with him, not to enforce or permit enforcement of the ballot-order provision from June 15, 2020, until further order of the court. The court required no bond.

The court also ordered the Secretary to adopt a procedure assigning Minnesota’s four current major political parties, by lot, a single statewide ballot order governing the appearance of those parties’ candidates in every partisan race in the 2020 general election. The court selected this lottery approach rather than the parties’ alternative of rotating all candidates because it could be implemented using existing election equipment and would avoid the risks and testing requirements associated with a new rotation system.

The order granted preliminary, not permanent, relief. The opinion expressly recognized that factual findings and legal conclusions made at the preliminary-injunction stage were not final determinations binding at later stages of the case.