Depriving candidates of a major political party access to the general election ballot based on failure of any candidate of that party to satisfy the minimum vote threshold required by Minn. Stat. § 204D.10, subd. 2 (Supp. 2003), at the primary election does not serve any rational governmental purpose and therefore violates the First and Fourteenth Amendment rights of those candidates and their supporters.
The opinion of the court was delivered by: Blatz, Chief Justice
Took no part, Anderson, G. Barry, J.
Heard, considered, and decided by the court en banc.
On September 21, 2004, James Moore, David Allen, and Maureen Peterson*fn1 filed a petition under Minn. Stat. § 204B.44 (2002) requesting an order directing the respondent Mary Kiffmeyer, as Secretary of State of the State of Minnesota, to place the names of Independence Party nominees for the Minnesota House of Representatives and the United States House of Representatives on the November 2, 2004 general election ballot. The secretary of state had previously notified the Independence Party that its candidates would not appear on the general election ballot because none of the candidates had received the minimum number of votes required by Minn. Stat. § 204D.10, subd. 2 (Supp. 2003), in the September 14, 2004 primary election. After the parties and amicus curiae American Civil Liberties Union of Minnesota (ACLU-Minnesota) filed legal memoranda on an expedited basis, oral argument was heard on September 27, 2004. This opinion follows the order filed on September 27 granting relief to petitioners.
The dispute in this case centers on interpretation and application of Minn. Stat. § 204D.10, subd. 2,*fn2 which creates a threshold minimum percentage of votes that must be received in the partisan primary election for a major political party's*fn3 candidates to appear as the party's nominees on the general election ballot.*fn4 The primary threshold law provides that if any one of the candidates of a major political party receives the required number of votes in the partisan primary, then all of that party's candidates who received the highest number of votes for an office at the primary are the party's nominees on the general election ballot. However, if none of the party's candidates receive the threshold number of votes, then none of the party's candidates are nominated. The threshold number of votes is defined in the primary threshold law as ten percent of the average number of votes received by that party's candidates for state constitutional offices in the previous general election. The primary threshold law also provides that if none of the party's candidates meet the threshold, then the individual candidates of that party may be nominated "by nominating petition as provided in sections 204B.07 to 204B.09." Minn. Stat. § 204D.10, subd. 2. If the party's candidates do not qualify as the party's nominees under section 204D.10, they cannot appear on the general election ballot.
The secretary of state determined that none of the 24 candidates of the Independence Party for the Minnesota or United States House of Representatives satisfied the ten percent threshold of the primary threshold law in the September 14, 2004 partisan primary election. After consultation with, and based on advice from, the Minnesota Attorney General, the secretary of state notified the Independence Party on September 17 that all of the Independence Party candidates for the state legislature and for congress would be excluded from the general election ballot based on the primary threshold law. Each of the three other major political parties*fn5 satisfied the statutory threshold, because at least one of their candidates reached the ten percent mark.*fn6
Petitioners make two arguments in support of their request that the Independence Party candidates be placed on the general election ballot despite their failure to satisfy the primary vote threshold of Minn. Stat. § 204D.10, subd. 2.*fn7 First, petitioners argue that the primary threshold law was repealed in 1996 and therefore cannot be applied in this election. Second, petitioners argue if the primary threshold law was not repealed, its application to prevent Independence Party candidates from appearing on the general election ballot is unconstitutional as a violation of their rights under the United States and Minnesota Constitutions to associate for political purposes and to vote, as well as their rights to equal protection and due process. Although petitioners do not make the argument, the amicus curiae ACLU-Minnesota contends that the post-primary nominating petition process mentioned in the primary threshold law should be available to the Independence Party candidates.*fn8 The secretary of state disagrees that the primary threshold law was permanently repealed and that the nominating petition process is available after the primary election, but does not dispute petitioners' constitutional argument.
A. Repeal of the Primary Threshold Law
Petitioners first argue that the primary threshold law is no longer in effect because it was repealed by the 1996 Legislature in Act of Apr. 2, 1996, ch. 419, § 9, 1996 Minn. Laws 982.*fn9 Section 9 provides: "Minnesota Statutes 1994, section 204D.10, subdivision 2, is repealed." That section ...