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Carlson v. Simon

Supreme Court of Minnesota

December 28, 2016

Steve Carlson, Petitioner,
v.
Steve Simon, Minnesota Secretary of State, Respondent, Minnesota State Legislature, Respondent.

         Original Jurisdiction Office of Appellate Courts

          Stephen W. Carlson, Saint Paul, Minnesota, petitioner pro se.

          Lori Swanson, Attorney General, Nathan J. Hartshorn, Assistant Attorney General, Saint Paul, Minnesota, for respondent Steve Simon, Minnesota Secretary of State.

         SYLLABUS

         Because the State has a legitimate interest in requiring write-in candidates for President of the United States to designate a vice-presidential candidate, Minn. Stat. § 204B.09, subd. 3 (2016), does not violate the First Amendment right of free association.

         Petition denied.

         Considered and decided by the court without oral argument.

          OPINION

          PER CURIAM.

         In September 2016, after declaring his write-in candidacy for President of the United States for the 2016 general election, petitioner Steve Carlson filed a written request with the Secretary of State, asking him to count the votes cast for his candidacy. Minn. Stat. § 204B.09, subd. 3(a) (2016) (stating that "[a] candidate . . . who wants write-in votes for the candidate to be counted must file a written request" with the Secretary of State). Relying on subdivision 3(b) of section 204B.09, the Secretary of State refused to accept Carlson's request because he did not "include the name of a candidate for vice-president of the United States" with the request. Minn. Stat. § 204B.09, subd. 3(b) (2016) ("A candidate for president of the United States who files a request under [subdivision 3(a)] must include the name of a candidate for vice-president . . . ."). Carlson filed a petition with our court under Minn. Stat. § 204B.44(a)(4) (2016), asking us to direct the Secretary of State to accept his request to count the votes cast for his write-in candidacy because, Carlson asserted, requiring him to name a vice-presidential candidate imposes an unconstitutional burden on the First Amendment associational rights of the candidate and voters. In an order, we denied Carlson's petition.[1] This opinion confirms the decision made in that order.

         On September 14, 2016, Carlson declared himself a write-in candidate for President of the United States and asked the Secretary of State to "ensure that all Minnesota election precincts count, tabulate and report" any write-in votes cast for his candidacy. Carlson acknowledged in his request that he did not designate a vice-presidential candidate for his write-in candidacy, but explained that if elected, he would "ask the Electoral College or Congress to choose the Vice-President." The Secretary of State notified Carlson that his request did not meet the requirements of Minn. Stat. § 204B.09, subd. 3 (2016), "because it does not include the name of your Vice-Presidential candidate and the name of at least one elector."[2]

         Under the provision the Secretary of State cited, votes cast at an election for a write-in candidate are not counted unless the write-in candidate files a written request for counting with the Secretary of State. See Minn. Stat. § 204B.09, subd. 3; Minn. Stat. § 204C.33, subd. 1 (2016) ("[W]rite-in votes for a candidate for federal . . . office must not be counted unless the candidate has timely filed a request under section 204B.09, subdivision 3."). For the office of President of the United States, section 204B.09 also requires the write-in candidate to designate a vice-presidential candidate and to name at least one presidential elector when requesting vote counting. Minn. Stat. § 204B.09, subd. 3(b).

         After receiving the Secretary of State's notice, Carlson filed a petition with our court under Minn. Stat. § 204B.44 (2016). He asserts that the State does not have a legitimate interest in requiring a write-in presidential candidate to designate a vice-presidential candidate, and enforcing that requirement burdens the First Amendment associational rights of write-in candidates and the voters who support those candidates. Secretary of State Steve Simon asserts that the requirement to designate a vice-presidential candidate is constitutional under the balancing test applied in Anderson v. Celebrezze, 460 U.S. 780 (1983) (holding that Ohio's early filing deadline for independent candidates imposed an unconstitutional burden on voting and associational rights). Relying on Anderson, Secretary Simon contends that the State has a substantial interest in treating all presidential candidates the same with respect to the information that candidates must provide to the Secretary of State and that requiring the designation of a vice-presidential candidate is a reasonable regulation that does not burden the First Amendment rights of either write-in candidates or voters.

         We must decide whether requiring a write-in presidential candidate to name a vice-presidential candidate in order for any votes cast for the write-in candidate to be counted imposes an unconstitutional burden on the First Amendment associational rights of the candidate or voters.[3] See In re GlaxoSmithKline plc, 732 N.W.2d 257, 267 (Minn. 2007) ("The freedom of association [from the U.S. Constitution] is a derivative right, recognized as necessary to make meaningful the enumerated First Amendment rights of speech, press, petition, and assembly."); Minn. Fifth Cong. Dist. Indep.-Republican Party v. State, 295 N.W.2d 650, 652 (Minn. 1980) ("The Constitution protects political association as well as individual political expression."). States have a legitimate interest in fairly and equitably regulating elections, and Minn. Stat. § 204B.09 (2016) does not expressly prohibit voters from casting a vote for a write-in candidate. We therefore apply a standard more flexible than strict scrutiny to Carlson's constitutional challenge. See Burdick v. Takushi, 504 U.S. 428, 433-34 (1992) (recognizing that voting is a fundamental, but not absolute, right and that the interests of states in "assur[ing] that elections are operated equitably and efficiently" requires "a more flexible standard" when reviewing voting regulations); Clark v. Pawlenty, 755 N.W.2d 293, 311 (Minn. 2008) ("[T]he Supreme Court has employed a flexible approach in which the level of scrutiny is determined by the degree to which voters' rights are adversely affected by the challenged regulation.").[4] Specifically, we consider whether requiring a write-in presidential candidate to designate a vice-presidential candidate in order to have write-in votes cast for the candidate counted is a reasonable, nondiscriminatory restriction justified by an important regulatory interest of the State. See Burdick, 504 U.S. at 434.

         We first consider whether requiring a write-in presidential candidate to designate a vice-presidential candidate unreasonably impacts the associational rights of candidates or voters. See Anderson, 460 U.S. at 789 (stating that a court must "first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate"); Burdick, 504 U.S. at 434 (noting that although all election regulations have an impact on the right to vote, "it can hardly be said that" the challenged Hawaii regulation "unreasonably interfere[s] with the right of voters to associate and have candidates of their choice placed on the ballot"). At the outset, we note that all candidates, write-in or nominated, must comply with the same requirement; that is, all presidential candidates must provide the Secretary of State with the name of a vice-presidential candidate. See Minn. Stat. §§ 204B.09, subd. 3(b) (requiring a write-in candidate to identify a vice-presidential candidate); 208.03 (2016) (requiring "the chair of the major political party" to certify to the Secretary of State, in addition to the names of presidential electors, "the names of the party candidates for president and vice president"). In addition, major party candidates must make these designations several weeks before write-in candidates. Compare Minn. Stat. § 208.03 (stating that "[a]t least 71 days before the general election" the names of party candidates must be submitted), with Minn. Stat. ยง 204B.09, subd. 3(a) (requiring a write-in candidate to notify the Secretary of State "no later than the seventh day before the general election"). These provisions suggest that any burden imposed on write-in candidates in naming a vice-presidential candidate is similar to, and because of the timing, probably less than, the ...


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