Amicus Curiae Brief — Peterson v. Stafford

92-1499 [=

|, MAR 02 1993

No. }

= Eee ERK

Iu the

DSuprentwe Court of the Lnuited States

October Term, 1992

ROGER A. PETERSON,

Petitioner.

VS.

R. H. STAFFORD,

THE WASHINGTON COUNTY AUDITOR,

Respondent,

and

JOAN ANDERSON GROWE, SECRETARY OF STATE

OF THE STATE OF MINNESOTA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE MINNESOTA SUPREME COURT

BRIEF OF MINNESOTA CIVIL LIBERTIES UNION

FOUNDATION AMICUS CURIAE

IN SUPPORT OF PETITION FOR CERTIORARI

Deborah Moore Gilman

Counsel ot Record

William R. Lindman

MINNESOTA CIVIL LIBERTIES

UNION FOUNDATION

1021 West Broadway

Minneapolis, Minnesota 59411

(612) 5QB-3B894

1994 Bachman Legal Printing, 835 Second Ave. So., Mpls... MN 55402 — (612) 339-9518

BEAN 612-887-8053

TABLE OF CONTENTS

SOMLO CE RUCROEAGAORs 6 oc ce cciccteeeasees i

Interest of Amicus curiae...........ee6. 1

Summary Of Argument... cccccccccccccccces 2

APUGMON . cc ccccccccesesesessecnecececess 12

COMGIUGAOM se 5 0000006506600 e ekN Sheree 41

-

TABLE OF AUTHORITIES

CASES

Anderson v. Celebrezze,

460 U.S. 780 (1983)... ccccscccees passim

Anderson v Martin,

375 U.S. 399, (1964) -cccecccccscesssecs ao

Baker v. Carr,

369 U.S. 186 (1962) .ccvesecsecvcesr 6,i2,a2

Binkowski v. Miller,

Sik Bib. ORL. ChOTAl «cas keenceeeee 14,15

Bd. of Election Comm’rs v. Libertarian

Party of Illinois,

SSS Fite Se TA VO) Cs vse cctacuneunees 14,15

Clough v. Guzzi,

416 F.Supp. 1057 (D.Mass

1976) cccccccvesescescceesesesesesees 8,22

Elliot v. Secretary of State,

295 294 Huw. A271 CADSO) ov cccenessesects 9

Gould v. Grubb,

Tee Re). eee 16,18

Gustafson v. Holm,

23a TARR. EAB CEPSO) ows dcenesaweees passim

Holtsman v. Power,

261 BeBe AG GEG CASTE) ov ccucceseseeens 9,19

Illinois Elections Bd. v. Socialist

Workers Party,

440 U.S. 173 (1979) ccc cere cceeeeccveves 37

Kautenburger v. Jackson,

eCPM. cscs ccc ces eeseecs 9,19

McLain v. Meier,

637 F.2d 1159, 1166 (8th Cir. 1980) passim

502 U.S. » LABOR) occ cccvceccrcces passim

Reynolds v. Sims,

377 U.S. S33 (1964) .ccccccccccccscvcces 3,6

Rosen v. Brown,

Dre wee Bee, C6GR CAF. 1992)... ccccvee 34

Skinner v. State of Oklahoma,

BED Vets DBASCADERN) woccccesescccccsceseseses 4

United States v. Cruikshank,

I IEE sg case ccsesesscaceees 26

Weisberg v. Powell,

417 F.2d 388, 392-93 (7th Cir.1969)..... G

Westberry v. Sanders,

Dit SCRE nce cc encsccesceccececce 2

OTHER AUTHORITES

Canon 7 of the Code of Judicial Conduct38

The Federalist No. 78 (G.P.Putnam Ed.

ee ene e cb sane eccsecces 39

Annals of Congress. 3rd Congress (Nov.

BI, L794) BSG. cosevesccesccccescececeses 40

ii

Minn. Stat. § 204B.36, subd. 4.......... 5

Minn. Stat. Sec. 204B.36, subd. 5

Minn. Stat. Sec.204D.08, subd. 3(1992).

COS REREOCE REN OEM OG EAS 64S OOOO OOO es 16

iii

CONSENT OF PARTIES

All parties to this case have

consented in writing to the filing of

this brief of Amicus Curiae, the

Minnesota Civil Liberties Union. Their

letters of consent accompany this brief

pursuant to the Supreme Court Rule 37.2.

INTEREST OF THE AMICUS CURIAE

The Minnesota Civil Liberties Union

(MCLU) is a private, non-profit, non-

partisan, membership supported

organization having more than 6,500

members in the state of Minnesota. The

MCLU is a state-wide affiliate of the

American Civil Liberties Union. Its

purpose is the protection of the rights

and liberties preserved by the Minnesota

and United States Constitutions. Among

these rights is the fundamental right to

vote free from unconstitutional state

infringement. The MCLU has been active in

defence of this right against laws that

diminish the right to fair and impartial

elections.

SUMMARY OF ARGUMENT

"No right is more precious in a free

country than that of having a voice in

the election of those who make the laws

under which, as good citizens, we must

live." Westberry v. Sanders, 376 U.S.

1, 17 (1964). Because of their central

role in interpreting and applying the

laws, the individuals who sit on the

courts are an integral part of our

republican form of government. Where the

2

method of selection of the highest

judicial officers is by popular election,

as in Minnesota, that same "precious"

right is the prerequisite of democracy.

Voting rights are "preservative of other

basic civil and political rights."

Reynolds v. Sims, 377 U.S. 533, 562

(1964).

The constitutional right to be

protected is that of "likeminded voters

to gather in pursuit of common political

ends, thus enlarging the opportunities of

all voters to express their own political

preferences." Norman v. Reed, 502

U.S. P , 116 L.Ed.2d 711, 723

(1992) (citations omitted). In order for

this right of access to be meaningful,

infringements on the right require the

"demonstration of a corresponding

interest sufficiently weighty to justify

the limitation, Id., and, “any severe

ee

restriction [is] to be narrowly drawn to

advance a state interest of compelling

importance." Id. This follows the long

tradition of our constitutional

jurisprudence requiring strict scrutiny

in cases involving one of the basic civil

rights of humanity. Skinner v. State of

Oklahoma, 316 U.S. 535 (1942).

The State of Minnesota has a unique

election scheme for justices of its

supreme court. For example, in this case

where Associate Justice Gardebring was

vying against the challenge of Petitioner

Roger A. Peterson, the ballot read:

JUDICIAL OFFICES

ASSOCIATE JUSTICE

SUPREME COURT

(GARDEBRING SEAT)

(VOTE FOR ONE)

INCUMBENT

ROGER A. PETERSON

The statute which mandates this

format is Minn. Stat. § 204B.36, subds. 4

and 5. They read as follows:

The official ballot shall contain

the names of all candidates for

each judicial office and shall state

the number of those candidates for

whom a voter may vote. The title of

each judicial office shall be

printed on the official primary and

general election ballot as follows:

(a)In the case of the supreme court:

"Chief justice (or associate

justice) - supreme court (last name

of incumbent) seat."

Minn. Stat. Sec. 204B.36, subd. 4.

If a chief justice, associate

justice or judge is a candidate to

succeed again, the word "incumbent"

shall be printed after that judge’s

name as a candidate.

Minn. Stat. Sec. 204B.36, subd. 5.

The Minnesota Court has applied

"something akin to the rational basis

test". Peterson v. Stafford, 490 N.W.2d

at 423. This is the wrong standard both

based on precedent in this Court? and on

lsee, for example, Anderson Vv.

Celebrezze, 460 U.S. 780, 103 §.Ct. 1564,

75 L.Ed.2d 547 (1983) and Norman v. Reed,

560 U.S. , 112 &.Ct , 116 L.Ed.2d

711, 723 (1992).

a basic constitutional tenant, that

although in our federal system states

retain the power to regulate their own

elections, that power is not absolute.*

The current Minnesota scheme is more

historical accident than a result of the

legislature’s reasoning. In 1949,

Minnesota began designating the incumbent

in judicial elections. Peterson v.

2mMinnesota need not opt for an

elected judiciary, but could appoint the

members or possibly even draw lots for the

seats. The fact that Minnesota has

selected judicial elections guarantees

them the due process of the laws in the

manner in which those elections are held,

as well as the equal protection and

associational voting rights established by

the federal constitution. When they opted

for the democratic process, the United

States Constitutional requires that no

voter by treated favorably at the expense

of other voters. See, eg. Baker V. Carr,

369 U.S. 186 (1962) and Reynolds v. Sims,

377 U.S. 533 (1964).

Allowing slanting of elections by

manifestly unfair ballot manipulation

would destroy apportionment guarantees

established by Baker and Reynolds.

6

eee

Stafford, 490 N.W.2d at 423. In an

attempt to merge the benefits of

retention-type ballots of other states

with the public’s right to "retain

ultimate control of the judiciary,"

"‘tjhe legislature considered it

appropriate for the ballot to inform the

voters which candidate was seeking

retention." Id. Historical accident,

this Court has stated, may be an

explanation, but it is not a

justification. Norman v. Reed, 116

L.Ed.2d at 726-27 Note 10 (citations

omitted). -

The Minnesota Supreme Court has

acknowledged that the statutory

provisions in question may have a

discriminatory impact on voters

supporting non-incumbents. Gustafs Vv.

Holm, 232 Minn. 118, 128, 44 N.W.2d 443,

(1950).? This advantage to an

incumbent’s supporters results ina

benefit to that justice: An appearance

of state endorsement. At least one

federal court has been upheld by a

circuit court when it found as a matter

of fact that even the listing of

incumbents first without any other

identifications, amounted to "an

advantage of at least five (5) percent."

McLain v. Meier, 637 F.2d 1159, 1166

3"Even though the candidate

indirectly may derive some benefit from

such identification...." Gustafson _v.

Holm, 232 Minn. 118, 128, 44 N.W..2d 443

(1950). And "[(Tjhis designation may

provide the incumbent with an advantage

over other candidates...." Peterson v.

Stafford, 490 N.W.2d 418, 423 (1992).

“Whatever advantage there may be to the

incumbent from the incumbency designation

on the ballot...." JId., at 424. ""’The

fact that some statistical advantage may

at the same time accrue to one of the

candidates by virtue of his or her

incumbency....’" Id., quoting Clough v.

Guzzi, 416 F.Supp. 1057, 1068 (D.Mass.

1976).

Eee

:

(1980) .4

It also appears to be the intent of

the Minnesota legislation to implement a

"retention-plan", yet have it masquerade

as a popular election. Had Minnesota

opted for a retention election, the

voters would at least know that the

4see also, the following cases cited

in McLain, 637 F.2d at 1166-67: Weisberg

v. Powell, 417 F.2d 388, 392-93 (7th Cir.

1969) ; Culliton v. Bd. of Election Comm’rs

of the County of DuPage, 419 F.Supp. 126

(".D.Z11. 1976), aff’d in part and

remanded in part sub nom. Sangmeister v.

Woodard, 565 F.2d 460 (7th Cir. 1977),

cert. denied and app. dismissed sub non.

Illinois State Bd. of Elections v.

Sangmeister, 435 U.S. 939, 98 S.Ct. 1516,

55 L.Ed.2d 535 (1978); Gould v. Grubb, 14

Cal. "ha 661, 122 Cal.Rptr. 377, 536 P.2d

1337 (1975); Holtsman _v. Power, 313

N.Y¥.S.2d 904, 62 Misc.2d 1020, aff’d men.,

34 App. Div.2d 917, 311 N.Y.S.2d 824,

aff’d mem., 27 N.Y.2d 628, 313 °N.Y.S.2d

760, 261 N.E.2d 666 (1970); Kautenburger

v. Jackson, 85 Ariz. 128, 333 P.2d 293

(1958); Elliot v. Secretary of State, 295

Mich. 245, 294 N.W. 171 (1940).

9

election is for retention.° Current

"elections" are a confusing hybrid with

none of the advantages of open elections

or retention systems. An open election

would fairly offer the candidates to

voters. A retention election would allow

evaluation by voters of the incumbent’s

performance in office, followed if

necessary by a fair and open election or

the political process of appointment.

The judicial election process is of

profound importance in Minnesota, where

governors appoint judges without the

"Advice and Consent" of a legislative

body, as required by the United States

Constitution. While Minnesota describes

its scheme as merely "its own variation

of the election process",Id., that

“The Minnesota constitution requires

an “open election" for judges. e so

v. Stafford, 490 N.W.2d at 424.

10

"variation" deviates from minimum

guarantees of the first and fourteenth

amendments.

The intent to discriminate is

further evident in the Minnesota Supreme

Court’s acknowledgement that the

incumbency designation is a means of

persuading the voters by listing it as a

"qualification for candidacy." Id.,at

425. Minnesota judicial elections were

made non-partisan in 1912 to avoid having

party endorsements presented at the

polling booth as qualifications. Id., at

422. Now there is only one endorsement

for judicial office in Minnesota and that

is for the incumbent, who’s name is

presented on the ballot in a manner that

implies the incumbent candidate has the

endorsement of the state.

This "comprehensive elective

scheme,"Id., developed through

11

tain ieaai iii iiaiiiatiaiiiaiiiiaie

"distinctive legislative treatment" Id.,

at 423, has largely succeeded in

depriving Minnesotans of a meaningful

choice at the polling place when an

incumbent judge is seeking re-election.

ARGUMENT

A presumption of validity generally

favors legislation governing the

structure of elections under

circumstances where the fundamental right

is not unduly burdened. This is because,

under ordinary circumstances, election

processes are "necessarily structured to

maintain the integrity of the democratic

system." Anderson v. Celebrezze, 460

U.S. 780, 788 (1985).° However, a

®Tt has now become well established

that election questions may be

justiciable. See, eg. Baker v. Carr, 369

U.S. 186 (1962). But, the deference given

12

Se

stricter scrutiny is applied to

discriminatory burdens on the fundamental

right:

[A court] must 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. It

then must identify and evaluate the

precise interests put forward by the

state as justifications for the

burdens imposed by its rule. In

passing judgment, the Court must not

only determine the legitimacy and

strength of each of those interests,

it must also consider this extent to

which those interests make it

necessary to burden the plaintiff’s

rights. Only after weighing all of

these factors is the reviewing court

in a position to decide whether the

challenged provision is

unconstitutional. Anderson v.

Celebrezze, 460 U.S. 780, 789

(1983).

legislated procedural election controls

implicitly recognizes that non-substantial

interference with voting rights is but

narrowly distinguishable from the

political question.

5. The Seventh Circuit has articulated a

standard of review for such ballot

manipulation to fail judicial scrutiny if

there is a showing of “intentional or

13

———E—E———————7~

There is an inherent difficulty

where a court, without review by any

authority, examines the validity of its

own justices’ election against the

standards of the United States

Constitution. No state interests exists

to justify the magnitude of the injury to

purposeful discrimination by authorities"

and actual harm to candidates. Ba. of

j ’ Vv. j j ty o

Illinois, 591 F.2d 22, 24-25 (7th Cir),

cert. denied, 442 U.S. 918, 99 S.Ct. 2840,

‘ 61 L.Ed.2d 285 (1979), citing Bohus v. Bd.

| of Election Comm’rs, 447 -2d 821 (7th

Cir. 1971) and ee v. Woodward,

565 F.2d 465 (7th Cir. 1977), cert. denied .

and app. dismissed sub nom. Illinois State

Bd. of Elections v. Sangmeister, 435 U.S.

939, 98 S.Ct. 1516, 55 L.Ed.2d 535 (1978).

The intent element of this standard

is satisfied both by clear inference from

the foreseeable result of the combination

of ballot position preference and the

double designation as well as_ the

Minnesota supreme court’s prolonged

discussion of, and reference to, the

(unauthorized) advantages of retention

elections. It is likely that the so-

called "Missouri Plan" elections were

never enacted in Minnesota because the

citizens of Minnesota desired open

elections.

voters’ rights protected by the First and

Fourteenth Amendments.

The remainder of this brief further

illustrates the substantial nature of the

burden on the fundamental rights of

voters and candidates imposed by the

Minnesota statute.

THE MINNESOTA INCUMBENCY DESIGNATIONS FOR

ELECTIONS TO THE STATE SUPREME COURT

VIOLATE THE FIRST AND FOURTEENTH

AMENDMENTS TO THE FEDERAL CONSTITUTION.

_Incumbency designations are not

utilized in elections for any non-

judicial offices in Minnesota. In fact,

the Minnesota legislature has explicitly

recognized that “incumbency first"

ballots give an unfair advantage to

” atl

candidates in the top position. Minn.

Stat. Sec.204D.08, subd. 3(1992).° The

Minnesota Supreme Court tacitly

acknowledges the unfairness of the

incumbency designations when it states

that "whatever advantage there may be to

the incumbent from the incumbency

designation on the ballot, [the

advantages are justified by the statute’s

interest in a] able, independent and

stable judiciary". Peterson v. Stafford,

490 N.W.2d at 424.

The purpose of the statute, however,

appears to be one more of entrenchment

SmMinn. Stat. Sec. 204D.08, subd. 3

(1992) requires rotating the names of the

candidates on the ballot. No such

remedial legislation acts to compensate

for the effects of the incumbency

designations or the denomination of the

office as the justice’s "seat" at the top

of the ballot. See also, Gould v. Grubb,

536 P.2d 1337 (Calif. 1975) (incumbent

first ballots violate the United States

Constitution) and McLain v. Meier, 637

F.2d 1159 (8th Cir. 1980) (incumbent party

members in first column held

unconstitutional).

16

and protectionism than the Minnesota

Supreme Court acknowledges. This is

evidenced by the Minnesota Supreme

Court’s statement that incumbency is a

qualification relevant to judicial

elections, Peterson v. Stafford, 490

N.W.2d at 425, and yet the Minnesota

scheme provides no method for non-

incumbents to list any of their

qualifications on the ballot. The clear

inference from the state’s awareness of

the unfair impact of the statute is an

intent to endorse incumbent candidates

with all the influence of the state, in

the privacy of the polling place. This

is discrimination and it limits political

association without showing a compelling

state interest.

In direct conflict with the

constitutional interpretation of the

Minnesota Supreme Court is the California

17

eee na ee

Supreme Court’s declaration that no

rational basis can exist for placing

incumbents first on the ballot. Gould v.

Grubb, 536 P.2d 1337 (Calif. 1975). The

Gould court stated, "... the challenged

provision effectively undermines the

fundamental democratic election tenet of

majority rule." Gould v. Grubb, 536 P.2d

: at 1343 (citations omitted) .?

%While courts such as McLain v. Meier

and Gould _v. Grubb have held incumbent

designations and ballot placement

advantages unconstitutional, this Court

once affirmed a more limited incumbency

designation alone in Binkowski v. Miller,

411 U.S. 901 (1973) (summary disposition).

Binkowski is, of course, because of

its summary disposition, not precedent.

Even the issue of incumbency designations

alone has apparently not been fully

briefed to this Court. In the instant

case, there is also the combined effect of

incumbency designations, listing first on

each ballot the name of the incumbent,

naming the "seat" for the incumbent, and

using the incumbent’s name twice on each

ballot and the challenger’s name just

once. Further, Binkowski’s incumbency

designations were authorized by the

Michigan constitution; the Minnesota

constitution makes no_ such provision.

18

Similarly, the Arizona Supreme Court has

found that even an alphabetical listing

provides an unconstitutional advantage to

the candidate appearing first on the

ballot. Kautenburger v. Jackson, 85 Ariz.

128, 333 P.2d 293 (Az. 1958). By

reaffirming the 1950 Gustafson decision,

the Minnesota Supreme Court has found

rationality where other states and

federal courts could not.?9° Because of

the conflicting holdings of circuit

courts of appeal and state supreme courts

This case provides the Court with a better

opportunity to delineate the standards for

this most vital of all areas of law in a

democracy than did the 1973 Binkowski

case.

10 McLain v. Meier, 637 F.2d 1159 (8th

Cir. 1980), Netsch v. Lewis, 344 F.Supp.

1280 (N.D.I1ll. 1972), and Holtzman _ v

Power, 313 N.Y.S. 2d 904, 62 Misc.2d 1029,

aff'd mem., 34 App.Div.2d 628, 313

N.Y.S.2d 760, 261 N.E.2d 666 (1970).

Rule 10.1 (a) of this Court is

applicable.

19

ee ———eo7'!n7T

regarding incumbency first/incumbency

endorsement ballots, guidance from this

Court on the parameters of constitutional

guarantees requires articulation.

DESIGNATION BY ENTITLEMENT OF THE

JUDICIAL OFFICE OF CHIEF JUSTICE OR

ASSOCIATE JUSTICE ON THE BALLOT AS THE

"SEAT" OF THE INCUMBENT VIOLATES THE

FIRST AND FOURTEENTH AMENDMENTS

OF THE UNITED STATES CONSTITUTION.

Assuming arguendo that the "stable"

judiciary desired by those holding power

in Minnesota may be achieved without

offending the constitution by use of the

incumbency designation, it is

nevertheless made excessively, and

unconstitutionally, "stable" by labeling

the office with the name of the office

holder.

This double advantage to the

incumbent substantially interferes with

voters’ abilities to elect non-

20

incumbents. The Minnesota Supreme Court

has implicitly recognized as much by

stating that, "In assisting voters to

cast their votes intelligently for

offices unfamiliar to the average voter,

it is only a matter of fairness that he

be advised who the present judge is."

et Vv. , 490 N.W.2d at 423-

24 quoting Gustafson v. Holm, 232 Minn.

at 1265-27, 44 N.W.2d at 447. When

offices are “unfamiliar to the average

voter," there is no doubt further

confusion of the electorates attendant to

the double designation. If the average

voter is unfamiliar with the judiciary

and requires an incumbency designation,

how much more unfamiliar the marginal

voter must be; and it is the marginal

voter who may make the difference in a

21

close election.++ The Minnesota

Supreme Court has as much as admitted

that the elections are not even.?}?

The intention and effect of the

Statute’s disparate treatment is

obviously to perpetuate incumbents and

discriminate against voters supporting

challengers. Exacerbating polling place

confusion can only inure to the benefit

of the incumbent. ??

lithis effect has been noted by, among

others, the Eighth Circuit as it applied

to incumbent-first ballots in North

Dakota. McLain v. Meier, 637 F.2d 1159,

1167 (8th Cir. 1980).

12see Note 2, supra.

13Compare, the statement from a

district court opinion quoted by the

Minnesota court that the "advantage

remains problematic and variable from

election to election." Slip op. at 15

quoting, Clough v. Guzzi, 416 F.Supp.

1057, 1068 (D.Mass. 1976). Presumably

this reference indicates that the

disadvantage may not be substantial in ALL

elections, but it certainly IS substantial

when the election is close.

22

THE MINNESOTA INTERESTS POSITED AS

"JUSTIFICATIONS" FOR THE BALLOT

DESIGNATIONS ARE INSUFFICIENT TO

LEGITIMIZE THE CHARACTER AND MAGNITUDE OF

THE BURDEN ON VOTERS’ FIRST AND

FOURTEENTH AMENDMENT RIGHTS.

The Minnesota Supreme Court premised

its ruling on several bases as

justifications for the statutes

infringement on the Minnesota voters’

Fourteenth Amendment rights.** They

l4mhe Minnesota Court offered these

justifications in an analysis of the

statute against only an equal protection

challenge applying a mere rational basis

analysis. As discussed above, this

standard in inappropriate where’ the

statute is challenged on the basis of an

infringement of a fundamental right.

Furthermore, Minnesota apparently

failed altogether to consider the First

Amendment associational right (as

applicable to the states through the

fourteenth amendment’s due process

clause). In relying on its decision in

Gustafson v. Holm, Minnesota has missed

the development by this Court of

associational rights as applied to voting

rights that were, at the time of

Gustafson, often assumed to be political

questions without constitutional

protection by the courts. Since Baker v.

Carr, 369 U.S. 186 (1962), however, this

23

CO

are as follows:

a. The denotion of a judicial

office on the ballot as the incumbent’s

seat “promotes and clarifies the

distinction between the separate

offices." eterson v. Stafford, 490

N.W.2d at 424.

This ground fails as it tends to

obscure the fact that the challenger in

an election, and her supporters, have an

equal right to the judicial seat. To

promote and clarify a distinction by

blurring the boundaries between candidate

and office manifests unreasonable and

irrational expectations of the voters

Court has made it clear that Equal

Protection of suspect categories of people

is not the only specific constitutional

provision safeguarding our republican form

of government. See, Norman v. Reed, 116

L.Ed.2d 711, 723 note 8. The right of

political association encompasses equal

protection, but equal protection does not

encompass all of the rights guaranteed for

political association.

24

[_

(ie. to sort out in their minds that

which has been muddled by the

legislature). The double impediment to a

fair election of naming the seat for the

incumbent and the fact that the

incumbents name is therefore always

listed first has the purpose and effect

of influencing the voter "at the most

crucial stage in the electorial process -

the instant before the vote is cast...."

Anderson v Martin, 375 U.S. 399, 84 S.Ct.

at 456 (1964).

Less restrictive means were

available to the legislature, including

numbering the seats, much in the way

legislative districts are numbered.

Furthermore, legislatures in other states

have not found it "necessary" to identify

judicial offices by the name of the

incumbent. But, "Minnesota has adopted

its own middle-of-the-road (sic) approach

25

to judicial selection" Id., an approach

which, under the usual circumstances,

makes the result of "elections" a

foregone conclusion.?>

b. “[T)he overriding purpose has

been to assure an able, independent and

stable judiciary while at the same time

requiring incumbent judges to submit to

voter appraisal in an open election."

Peterson v. Stafford, 490 N.W.2d at 424.

15although case law in the election

context is not as fully developed as that

for equal protection and political

association, fundamental procedural and

substantive due process as well as

candidates’ supporters’ privileges and

immunities may be impaired where the

government slants the entire election

process. Cf. United States v. Cruikshank,

92 U.S. 542 (1876).

The Guarantee Clause of the United

States Constitution, if it contains any

positive law at all, must surely guarantee

some level of fairness in elections

mandated by the people in their state

constitutions. Further, implicit in the

constitutional provisions dealing with

elections is the understanding that those

elections will be free from undue

governmental influence.

26

Here the Minnesota Court is

referring to "the state’s important

regulatory interests (which) are

generally sufficient to justify

reasonable, non-discriminatory

restrictions" Anderson v. Celebrezze, 460

U.S. 780, 788 (1983). However, in

Anderson this Court stated some

predicates, normally presumed but absent

here. The restrictions must be

evenhanded and protect the integrity and

reliability of the electorial process.

Anderson v. Celebrezze, 460 U.S. at 788-

89 Note 8, 75 L.Ed.2d 547, 553 Note 7b.

These regulations are not evenhanded

towards the voters, as they tend to

promote the interests of only those

voters supporting the incumbent.

Therefore, they detract from the

integrity and reliability of the

electoral process.

27

"Accepting the legitimacy of the

interest claimed would not, however,

excuse the requirement’s unconstitutional

breadth." Norman v. Reed, 711 L.Ed.2d at

726. Even if the abstract goals of an

able, independent and stable judiciary

can indeed be classified as "precise

interests" capable of justifying some

lessor intrusion on constitutional

rights, Anderson v. Celebrezze, at 460

U.S. at 789, they cannot justify the

character and magnitude of the injury to

Minnesota voters. Perpetuation in office

does not by itself produce "able"

government; an "independent" judiciary

does not compel a sacrifice to the

democracy the judiciary is intended to

serve; and, free and fair elections have

been selected in the Minnesota

constitution to be of more compelling

interest than "stable" judges, secure in

28

high state offices.

In no event can such a double

designation be deemed "necessary" when

other jurisdictions avoid it. Further,

the limits on participation by a class of

voters is “especially difficult for the

State to justify." Anderson v.

Celebrezze, 460 U.S. at 793 (voters

supporting independent candidates

unconstitutionally denied equal ballot

treatment). The limits on a class

amplify the burden on the state so that

the abstract interests, even if

compelling in other contexts, could not

justify the interference even if they

were more focused in application--the

scheme is simply too uneven.?®

167t is no coincidence that the recent

election of the first minority member ever

of the Minnesota Supreme Court, The

Honorable Alan C. Page, was not running

against an incumbent, but for the seat of

a retiring associate justice.

29

The latitude extended to states to

provide for the method of elections must

still exist within the basic framework of

the Federal Constitution. Just as a vote

may be rendered meaningless by

gerrymandering, so too may its effect be

diluted by voting cues placed on ballots

under color of law.

c. “[T)he purpose of these two

separate identifications is

informational, not to give the incumbent

an advantage...," Peterson v. Stafford,

490 N.W.2d at 423, and "to identify the

candidate so that the voter will know

whom he is voting for." Id, at 424

quoting Gustafson v. Holm, 232 Minn. at

126-27, 44 N.W.2d at 447.

The "information" conveyed is that

the candidates are unequally qualified.

The incumbent is impliedly more qualified

by virtue of her judicial experience

30

(even if the challenger had previous

judicial or other relevant experience,

that information is not conveyed to the

voters).+’ The very seat contested is

named after the incumbent. No

information other than existence is

conveyed on behalf of the non-incumbent

candidate.

In a recent case which challenged an

election procedure where party

affiliation designations were permitted,

but independent candidates received no

designation, the Sixth Circuit

characterized the unfairness as akin to,

[A]n unlabeled product on a shelf

17Incumbency designations communicate

"as a qualification for candidacy that

fact of present judicial service."

eters v. Stafford, 490 N.W.2d at 425.

It should be noted that a non-incumbent

candidate may have present judicial

service as a trial court judge or a member

of the Court of Appeals, however, that

information is not conveyed to the voters

on the ballot.

31

next to brand name products in a

Supermarket. Consumers would not

chose the unlabeled product, because

they have been conditioned by

advertising to perceive quality in

brand name products. Similarly, the

absence of a label for a candidate

gives rise to mistrust and negative

inferences. Rosen v. Brown, 970

F.2d 169, 172-73 (6th Cir. 1992).

Certainly, the Minnesota method is

broader than necessary to achieve mere

informational goals.

The applicable standard was clearly

articulated when the Court examined the

Illinois election system last term in

Norman v. Reed, 502 U.S. » Bike 8.8.

698, 116 L.Ed.2d 711 (1992). In that

case, Illinois required gathering 25,000

votes for a party to be eligible to place

its candidates on the ballot in separate

political subdivisions. This Court

32

——

a eS a ~_

declared that even if the state

interest?® were accepted as legitimate,

Illinois had not chosen the requisite

MOST NARROWLY TAILORED MEANS OF ADVANCING

THE INTEREST...." Id. 116 L.Ed.2d at 726 ‘

(emphasis added) .?9

The Minnesota Supreme Court admits

that the incumbency designation alone is

"but one means" of informing the voter of

the added qualification of current

judicial experience. Peterson v.

Stafford, 490 N.W.2d at 425. One other

18me state interest asserted was

"ensuring that the electoral support for

new parties in a multidistrict political

subdivision extends to every district."

Norman _v. Reed, _ U.S. __, _, #116

L.Ed.2d 711, 726 (1992).

19Norman also appears to place a

requirement on the state to supply the

Court with justifications for its

substantial burdens on the rights of

voters. Norman, 116 L.Ed.2d at 726 ("Reed

has adduced no justification for the

disparity here"). This brief addresses

each justification posited by Minnesota.

33

method would be to use the incumbent’s

name as a description of the office. The

Minnesota legislature has also selected

this method. Either method serves a

greater master--persuading, influencing,

and pressuring a voter with state

endorsement. The use of both schemes is

intrinsically broader than necessary. It

requires “elusive logic to demonstrate a

serious state interest" v. Reed,

116 L.Ed.2d 711, 726) in communicating

20 If some

the fact not once but twice.

voters do not understand that the

"Gardebring Seat" indicates that Justice

Gardebring holds that judicial office,

20The Rosen court noted the affidavit

of an expert in marketing and

communications who stated that generally

accepted communications and advertising

principles recognize "substantial

prejudice" in permitting designations for

party candidates but not for independents.

970 F.2d 169, 172 (6th

Cir. 1992).

34

i

how much more information can be imparted

to those voters by designating the

Justice as the "incumbent"?

ad. “[TJo allow the public to

reflect favorably or unfavorably on a

judge’s competence in office while, at

the same time, ‘retain(ing) ultimate

control of the judiciary in the hands of

the voting public.’" e s Vv.

Stafford, 490 N.W.2d at 423

The Minnesota Supreme Court proffers

this justification by quoting the

judicial Branch Committee Report,

Minnesota Constitutional Study Commission

(1972), despite the fact that the

Judicial Branch Committee’s

recommendations for adoption of a

"Missouri Plan" were not enacted.

This goal is the goal of all

elections, save those elections where the

incumbent does not seek re-election. The

goal is best served by open and fair

35

elections. Minnesotans have decided this

by ratifying a state constitution which

requires "incumben*: judges to submit to

voter appraisal in an open election."

Peterson v. Stafford, 490 N.W.2d at

424.22 The incumbency designation

alone slants an election more than it

provides reflection at the instant a

ballot is cast. Bestowing a property

interest on the incumbent at the top of

each ballot actually detracts from these

two goals by taking some control from

informed voters who may, upon unfavorable

reflection, desire to oust an incumbent.

The task is made more difficult where

uninformed voters are tilted, by double

ballot designations presented at the

2lfhe Minnesota court is evidently

interpreting its state constitution which

requires that judges "shall be elected by

the voters from the area which they are to

serve in the manner provided by law."

Minn. Const. Art. VI, Sec. 7.

36

ultimate moment of decision, in favor of

incumbents.

For example, if two percent of

voters cast their ballots for the

incumbent solely because of the improper

influence in the polling place, the

challenger in a two perso race must the

muster the 50% plus one votes out of only

98% of the voters. This means that

challenger must obtain votes from more

than 51.02% of those not swayed by the

double designation. If 5% of the voters

cast their ballots for incumbents due to

the double designation, the challenger

must have over 52.632% of the remaining

95% of votes cast.*% Note also that

22mhis burden is analogous to the

burden on Illinois voters held

unconstitutional in Jllinois Elections

Board v. Socialist Workers Party, 440 U.S.

173, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979)

and the increased signature requirements

in subdivisions with separate districts in

Norman v. Reed, 560 U.S. ,» 212 S.Ct.

37

the Eighth Circuit has upheld a district

court finding that "at least five (5)

percent" differential results solely from

listing the incumbent first. McLain v.

Meier, 637 F.2d 1159, 1166 (8th Cir.

1980) (emphasis added). The non-arbitrary

voting public thus has LESS control under

the Minnesota scheme.

Finally, information about judicial

candidates may be disseminated through

more conventional political methods than

by ballot manipulation. ??

, 116 L.Ed.2d 711 (1992).

23The Minnesota court believes the

ethical constraints on judges prohibit

fair dissemination of candidate

information, and so the legislature has

attempted to help the justices disseminate

their qualification of judicial

experience. Peterson v. Stafford, 490

N.W.2d at 425. However, the ethical

constraints on judges also apply to

judicial candidates, and the legislature

has compensated only for the constraints

on incumbents.

Canon 7 of the Code of Judicial

38

e. "“"[Tjhe explicit or implicit goal

of the constitutional provisions and

enabling legislation is the same--to

create and maintain an independent

judiciary, as free from political,

economic and social pressure as possible

to allow judges to decide cases without

those influences." Peterson v. Stafford,

490 N.W.2d at 420.

Having stated this purpose, the

Minnesota Supreme Court cites with much

admiration The Federalist No. 78,

praising permanency in office.Id.

Although life-time appointments weli

serve the goal of independence in the

federal judiciary, Minnesotans have

selected an open election where ultimate

control is purportedly vested in the

hands of the voters. Circuitous methods

of assuring judicial permanence under the

guise of voter information are misguided

at best and disingenuous at worst. The

Conduct reads: "A.(1) A judge or a

candidate for election to judicial office

should not...."(emphasis added).

39

right of voters to have their candidate

on a ballot will have no significance

unless the ensuing election is

meaningful. Or as Madison more cogently

articuiated it:

If we avert to the nature of

Republican Government, we shall find

that the censorial power is in the

people over the Government, and not

in the Government over the people.

Annals of Congress. 3rd Congress

(Nov. 27, 1794) 934.

However, without a measure of

fairness, equality, and associational

protection, the censorial power shifts to

those who presently hold office.

The fact that some political

economic and social pressure necessarily

results from the existence of Minnesota’s

constitutionally mandated elections

cannot justify slanting the process of

those elections to alleviate those

pressures as they effect incumbents. In

this respect, judicial elections must

40

conform to the same levels of fairness as

the elections for offices in the other

branches. Escaping the political and

social pressure of elections is an

argument more suited to the robes of a

king than to the robes of a judge.

Substantial impairment of

fundamental voting, equal protection, and

associational rights is not justified by

the State’s expounded logic. Even if the

State’s interests, articulated as

abstract ideals, are held to be

compelling, the method aimed at achieving

those interests is far broader than

necessary to achieve them.

CONCLUSION

The Minnesota statute fails to

satisfy the minimum standards of the

United States Constitution. The statute

41

substantially impairs fundamental rights

without compelling justification.

Further, its methods are broader than

necessary to achieve the State’s

purported interests. Amicus therefore

respectfully asks the Petition for

Certioari be granted.

Dated March 2, 1993.

Deborah Moore Gilman

Counsel of Record

William R. Lindman

Minnesota Civil Liberties

Union Foundation

1021 West Broadway

Minneapolis, Minnesota 55411

42