Libertarian Party of Minnesota v. Steve Simon ( 2021 )


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  •                 United States Court of Appeals
    For the Eighth Circuit
    ___________________________
    No. 20-2244
    ___________________________
    Libertarian Party of Minnesota; Chris Holbrook; Mason McElvain; Chris Dock;
    Brian McCormick
    Plaintiffs - Appellants
    v.
    Steve Simon, in his official capacity as the Minnesota Secretary of State, or his
    successor
    Defendant - Appellee
    ____________
    Appeal from United States District Court
    for the District of Minnesota
    ____________
    Submitted: June 16, 2021
    Filed: September 3, 2021
    [Unpublished]
    ____________
    Before GRUENDER, ARNOLD, and STRAS, Circuit Judges.
    ____________
    PER CURIAM.
    The Libertarian Party alleges that Minnesota’s election laws place its
    candidates and supporters at an unfair disadvantage. The district court 1 dismissed
    the complaint because it did not state a claim. We affirm.
    I.
    Different rules apply to major- and minor-party candidates in Minnesota.
    Major-party candidates must win a primary election to earn a spot on the general-
    election ballot. Minor-party candidates, by contrast, must navigate a nominating-
    petition process that requires the collection of signatures. See Minn. Stat.
    §§ 204B.03, 204B.08, subdiv. 3. In addition to satisfying a number of technical
    requirements, the nominating petition must have the following oath printed on each
    page: “I solemnly swear (or affirm) . . . that I do not intend to vote at the primary
    election for the office for which this nominating petition is made . . . .” Id.
    § 204B.07, subdiv. 4.
    All Libertarian Party candidates must meet these requirements. When some
    failed to do so, the Libertarian Party and four of its supporters 2 sued Minnesota
    Secretary of State Steve Simon. The district court dismissed the case. See Fed. R.
    Civ. P. 12(b)(6).
    II.
    We review the dismissal de novo, “accepting as true the allegations set forth
    in the complaint and drawing all reasonable inferences in favor of” the plaintiffs.
    Star City Sch. Dist. v. ACI Bldg. Sys., LLC, 
    844 F.3d 1011
    , 1016 (8th Cir. 2017). On
    1
    The Honorable David S. Doty, United States District Judge for the District
    of Minnesota.
    2
    They are Chris Holbrook, Mason McElvain, Chris Dock, and Brian
    McCormick.
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    appeal, the plaintiffs focus on three constitutional challenges. One of them was
    previously abandoned, and the other two are not viable.
    The first, which is that the oath requirement is vague and unconstitutionally
    burdensome, was “intentional[ly] . . . abandon[ed]” before the district court. United
    States v. Olano, 
    507 U.S. 725
    , 733 (1993) (quotation marks omitted). In response
    to Secretary Simon’s motion to dismiss, the plaintiffs stated: “[u]pon consideration
    of the constitutional arguments regarding the minor political party petition
    oath[,] . . . to the extent separately challenged in the amended complaint, the oath . . .
    requirement[] [is] abandoned as [a] separate claim[].” This statement, though
    arguably vague itself, “appear[s] to concede that the[] challenge to the oath is
    untenable,” which is how the district court understood it too. For that reason, we
    conclude that the plaintiffs have waived this issue. See United States v. Demilia,
    
    771 F.3d 1051
    , 1055 (8th Cir. 2014) (“Under our waiver jurisprudence, a right—
    such as the right to have recourse to a legal rule or argument—is waived when it is
    intentionally relinquished or abandoned.” (quotation marks omitted)).
    The plaintiffs preserved their next challenge, but in the end, it meets a similar
    fate. In this one, the plaintiffs take aim at signature collection, which they claim
    must be done in person, even though major-party supporters can express their
    candidate preferences by casting an absentee ballot by mail. Without a comparable
    alternative for minor parties, they say, Minnesota’s scheme violates the Equal
    Protection Clause of the Fourteenth Amendment. See U.S. Const. amend. XIV, § 1.
    Even assuming that major- and minor-party candidates are similarly situated
    to one another—a question we need not decide today—nothing in Minnesota law
    requires any candidate to collect signatures in person. To the contrary, nominating
    petitions are freely available online, meaning that anyone can print one, sign it, and
    send it to a candidate for filing. See Minn. Stat. § 204B.07. Like the district court,
    we will not invent a restriction by adding language to an otherwise unambiguous
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    statute. See Larson v. State, 
    790 N.W.2d 700
    , 703 (Minn. 2010) (“If a statute is
    unambiguous, then we must apply the statute’s plain meaning.”).
    The plaintiffs’ final challenge also alleges discriminatory treatment, but this
    time the focus is squarely on supporters, not candidates. The plaintiffs believe that
    minor-party supporters are treated unequally because they have to reveal their
    candidate preferences in nominating petitions, even though major-party supporters
    can keep their votes secret.
    The central flaw in this argument is that signatures on nominating petitions
    are not votes. For one thing, the eligibility requirements are different. Voters in
    primary elections have to be registered to vote, 
    Minn. Stat. § 201.018
    , whereas those
    signing a nominating petition must only be eligible, see 
    id.
     § 204B.08, subdiv. 2. In
    Equal Protection parlance, what this means is that petition signers are not necessarily
    similarly situated to voters. See Flowers v. City of Minneapolis, 
    558 F.3d 794
    , 798
    (8th Cir. 2009) (“To establish a violation of the Equal Protection Clause, . . . [the
    plaintiff] must show that he was treated differently than other persons who were in
    all relevant respects similarly situated.” (quotation marks omitted)).
    For another, every vote in Minnesota is secret, regardless of who casts it. To
    be sure, the oath requires petition signers to have no existing intention to cast a
    primary-election ballot. See Minn. Stat. § 204B.07, subdiv. 4. But, as the district
    court observed, they are free to change their minds. And if they do, their votes will
    be secret just like everyone else’s. See Keevan v. Smith, 
    100 F.3d 644
    , 648 (8th Cir.
    1996); Klinger v. Dep’t of Corr., 
    31 F.3d 727
    , 731 (8th Cir. 1994); see also Mills v.
    City of Grand Forks, 
    614 F.3d 495
    , 500 (8th Cir. 2010) (explaining why the
    plaintiff’s pleadings failed to demonstrate differential treatment).
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    III.
    We accordingly affirm the judgment of the district court.
    ______________________________
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