Opposition Brief — Peterson v. Stafford

Rogrense Court, 22

No. 92-1488 FILED

MARZ 1993

In The

OFF) Ck U} THE CLERK

Supreme Court of the United-States-——

October Term, 1992

.

ROGER A. PETERSON,

Petitioner,

vs.

R. H. STAFFORD, WASHINGTON COUNTY

AUDITOR, ET AL.,

Respondents.

S

Petition For Writ Of Certiorari

To The Supreme Court Of Minnesota

S

BRIEF IN OPPOSITION

¢

Husert H. Humpurey II!

Attorney General

State of Minnesota

JoceLYN F. OLson

Assistant Attorney General

Counsel of Record

525 Park Street, Suite 200

St. Paul, MN 55103

(612) 297-1223

Attorneys for Respondent Joan

Growe, Secretary of State

RicHarRD D. Hopspon

First Assistant County Attorney

14900 61st Street North

Stillwater, MN 55082

(612) 430-6119

Attorney for Respondent

Washington County Auditor

R.H. Stafford

COCKLE LAW BRIEF PRINTING CO., (800) 225 6964

OR CALL COLLECT (402) 42 2831

QUESTION PRESENTED

Do the designations required by Minn. Stat

§ 204B.36, subds. 4 and 5 (1992), to be stated on the ballot

in a judicial election, which inform the voters of the name

of the person who currently fills that judicial office, vio-

late the equal protection guarantee of the Fourteenth

Amendment to the United States Constitution?

TABLE OF CONTENTS

Page

WUESTION PRESENUBED ..ssssccncaaseens cceewaws. 5

TABLE GF CONN TRI Os. cons csacksavenselbener eee ii

TAGLE GH AUT IRJRI TED csi sb ceeenreceoeeres iv

STATEMENT OF UGE CARB, cccaxceuaseuesee wes 2

REASONS FOR DENYING THE PETITION......... 5

l. THE MINNESOTA SUPREME COURT'S DECISION

IS CONSISTENT WITH DECISIONS OF THIS

COURT AND WITH OTHER COURT DECISIONS

UPHOLDING SIMILAR STATUTES .............. 5

A. The Minnesota Supreme Court Properly

Upheld The Statutes Under the Rational

BAGG TOM... 6 .cksavancke eee eeee eee 6

1. The rational basis test is the proper stan-

Gard it (US COOP cna ki eee es 7

2. The Anderson decision rested on First

Amendment grounds and does not apply

mn (el CDN 6.cissene eee 11

B. Minn. Stat. § 204B.36, Subds. 4 And 5 (1992),

Are Rationally Related To A Legitimate State

fe Pe ee er a bi ax o ‘en. OO

1. The incumbency designation required by

Minn. Stat. § 204B.36, subd. 5 (1992), is

supported by the rational basis test.... 14

2. The statutory requirement to indicate on

the ballot the name of the justice whose

seat is up for election is supported by the

rational Deel WOE: « <.5<siusens ise eew eka 22

TABLE OF CONTENTS

Continued

Page

THIS CASE DOES NOT PRESENT AN IMPOR.-

TANT FEDERAL QUESTION PERTAINING TO

STATE ELECTION LAWS

CONCLUSION ...

IT.

Rho

JT

TABLE OF AUTHORITIES

UNITED STATES CONSTITUTION

yo, we! OR re ae ee 6, Il, kd io

Fourteenth Amendment, Equal Protection Clause passim

MINNESOTA CONSTITUTION AND STATUTES

Peer: GE Ee OP ee oct eects oee ealnen 16

Minn. Stat. § 204B.06, subd. 6 (1992)................ 22

Minn. Stat. § 204B.36, subd. 4 (1992)............ passim

Minn. Stat. § 204B.36, subd. 5 (1992)............ passim

main. Stat. & SPSR.Se CISFS™). occ e ccs cctes Se atenetee

Minn. Stat. § 204D.08, subd. 3 (1992)........ -:

Minn. Stat. § 204D.14 (1992) .............. a =

FEDERAL DECISIONS

Anderson v. Celebrezze, 460 U.S. 780 (1983)..7, 11, 12, 13

Anderson v. Martin, 375 U.S. 399 (1964).............. 9

Binkowski v. Miller, 411 U.S. 901 (1973).......... 17, 18

Bd. of Election Comm'rs v. Libertarian Party, 591

F.2d 22 (7th Cir.), cert. denied sub nom. Liber-

tarian Party of Illinois v. Bd. of Election

Comm'rs, 442 U.S. 918 (1979).............ce eee eee 24

Bohus v. Bd. of Election Comm’rs, 447 F.2d 821

(Fame Ce FT Baars cs oa ee ee ee ee ee 24

Bullock v. Carter, 405 U.S. 134 (1972) .......... 8, 9, 26

Burdick v. Takushi, _—_~—O.S. __, 112 S. Ct. 2059,

Sd COMED. Cac re eee eee eee 8

TABLE OF AUTHORITIES - Continued

Page

Clough v. Guzzi, 416 F. Supp. 1057 (D. Mass. 1976) . passim

Harper v. Virginia State Bd. of Elections, 383 U.S.

ee | AE re ry ey ane 8, 9, 25, 26

Herb v. Pitcairn, 324 U.S. 117 (1945)................ 16

Hill v. Stone, 421 U.S. 289 (1975) ................. 8, 26

Hooper v. Bernalillo County Assessor, 472 U.S. 612

(SPE sav ondni tn x05 CORN ee ees ae Re ae 6

Krasnoff v. Hardy, 436 F. Supp. 304 (E.D. La. 1977) .... 24

Kusper v. Pontikes, 414 U.S. 51 (1973) ............ 8, 26

McLain v. Meier, 637 F.2d 1159 (8th Cir. 1980)... ..9, 23

New Orleans v. Dukes, 427 U.S. 297 (1976).......... 13

Nordlinger v. Hahn, ___—~U.S. __, 112 S. Ct. 2326

OE Riese en ee 13

peyeer ©. Choe, O57 UG. Be CYR ck cn cs vevbisnses 7

Southern Railway Co. v. Seabord Milling Co., 442

U.S. 444 (1979), 99 S. Ct. 2388 (1979) ............. 18

Stiles v. Hunt, 912 F.2d 260 (8th Cir. 1990)........... 8

Tigner v. Texas, 310 U.S. 141 (1940).............. ve

Voltaggio v. Caputo, 210 F. Supp. 337 (D.N.J.

1962), app. dismissed as moot, 371 U.S. 232

ty ee Pere eer ere es re er er erry ree 24

vi

TABLE OF AUTHORITIES - Continued

Williamson v. Fortson, 376 F. Supp. 1300 (N.D. Ga.

oo ) a re ay tie i eth

Zacchini v. Scripps-Howard Broadcasting Co., 433

ee COSTE adc d eda cee Pen eaee ean ee aeeer as

STATE €oOuURT DECISIONS

Foley v. Donovan, 274 Minn. 501, 144 N.W.2d 600

CREE oh hein eek kee ae ea eh ee eee

Gould v. Grubb, 536 P.2d 1337 (Cal. 1975)........

(;ustafson v. Helm, 232 Minn. 68, 44 N.W.2d 443

1 ee eet on a ae 11, 20,

Rees v. Layton, 6 Cal.App.3d 815, 86 Cal. Rptr. 268

Pe GE OD. IGF ics vad asswesteseanataes en

Peterson v. Stafford, 490 N.W.2d 418 (Minn. 1992)

. 5, 14,

Salinger v. Jordan, 395 P.2d 49 (Cal. 1964)........

Ulland v. Growe, 262 N.W.2d 412 (Minn.), cert.

denied sub nom. Berg v. Growe, 436 U.S. 927

I oo ee uty ee ee eee

OTHER AUTHORITIES

Maurice Kelman, Ballot Designations: A Second

Look, 35 Wayne L. Rev. 63 (1988)...........

res Cee eer as en tnaes 5

P a £ e

passim

. 16

1D,

No. 92-1488

¢

In The

Supreme Court of the United States

October Term, 1992

ma ®

ROGER A. PETERSON,

Petitioner,

vs

R. H. STAFFORD, WASHINGTON COUNTY

AUDITOR, ET AL.,

Respondents.

4

Petition For Writ Of Certiorari

To The Supreme Court Of Minnesota

e¢-—

BRIEF IN OPPOSITION

a

The respondents Joan Growe, Secretary of State of the

State of Minnesota, and Washington County Auditor R.H.

Stafford respectfully request that this Court deny the

Petition for Writ of Certiorari (hereinafter “Pet.”) seeking

review of the decision of the Supreme Court of Minnesota

in this case. The opinion of the Minnesota Supreme Court

is reported at 490 N.W.2d 418 and is reproduced in the

appendix to the petition (hereinafter “Pet. App.”) at page

3A.

No

STATEMENT OF THE CASE

On July 21, 1992, Roger A. Peterson filed for can-

didacy to the office of Associate Justice of the Minnesota

Supreme Court, seeking the seat held by Justice Sandra

Gardebring. Pet. at 6. A person who files as a candidate

for the office of Associate Justice of the Minnesota

Supreme Court must state in his or her affidavit of can-

didacy the office of the particular justice or judge for

which the individual is a candidate. Minn. Stat. § 204B.06,

subd. 6 (1992). Each justice of the Minnesota Supreme

Court is “deemed to hold a separate nonpartisan office.”

Id. The ballots for the primary and general elections for

positions on the Minnesota Supreme Court are required

by Minn. Stat. § 204B.36, subd. 4 (1992) to be printed with

the title of the office as follows.

(a) In the case of the supreme court:

“Chief justice (or associate justice)

supreme court (last name of incumbent) seat.”

In addition Minn. Stat. § 204B.36, subd. 5 (1992) provides:

“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.”

Pursuant to Minn. Stat. § 204D.14 (1992), in a nonpar-

tisan election the names of candidates must be rotated

with the names of the other candidates for eiection to the

office so that the name of each candidate appears sub-

stantially an equal number of times at the top, at the

bottom, and at each intermediate place in that group of

candidates. See Minn. Stat. § 204D.08, subd. 3 (1992). To

comply with the rotation requirement in an election with

only two candidates, as in the present case, two different

styles of ballots were printed,! one style listing Peterson

first in order and the other listing him second, as follows:

Style 1

ASSOCIATE JUSTICE

SUPREME COURT

(GARDEBRING SEAT)

(VOTE FOR ONE)

ROGER A. PETERSON

SANDRA S. GARDEBRING Incumbent

Style 2

ASSOCIATE JUSTICE

SUPREME COURT

(GARDEBRING SEAT)

(VOTE FOR ONE)

SANDRA S. GARDEBRING Incumbent

ROGER A. PETERSON

' Because the election occurred after the Minnesota

Supreme Court’s decision in this case, the actual printed ballots

used in the election are not in the record. Peterson acknowl-

edges the rotation requirement, Pet. at 23 n.4, 26, and does not

dispute the fact that the ballots were printed and distributed in

accordance with all statutory requirements.

ld. These two different styles of ballots were required to

be distributed in such a way that half the voters received

one styie of baliot and half the voters received the other

stvle, thus minimizing any perceived advantage that one

candidate would have over the other as a result of

appearing first on the ballot. Affidavit of Secretary of

State Joan Growe, ¥ 4.

Prior to the election, on September 1, 1992, Peterson

filed with the Minnesota Supreme Court his Petition Filed

Pursuant to Minnesota Statute § 204B 44. Pet. App. at

18A. Peterson alleged in the petition that the designations

required by Minn. Stat. § 204B.36, subds. 4 and 5 (1992),

deny him and all other parties similarly situated equal

protection and due process in violation of the United

States and Minnesota Constitutions. At no time during

the proceedings before the Minnesota Supreme Court did

Peterson attempt to introduce evidence demonstrating

that the challenged statutes have an impact on judicial

elections by providing an advantage to incumbents.

Although Peterson repeatedly asserts that the challenged

statutes provide advantages to incumbents which make it

“virtually impossible” for a non-incumbent to prevail ina

judicial election, Pet. at 15, 16, there is not a shred of

evidence in the record even attempting to show that it is

“virtually impossible” to unseat an incumbent in a judi-

cial election in Minnesota.

In its decision dated October 9, 1992, the Minnesota

Supreme Court rejected Peterson’s claims, holding that

the statutes satisfied the Equal Protection Clauses of both

the state and federa! constitutions.? Peterson v. Stafford,

490 N.W.2d 418, 424 (Minn. 1992), Pet. App. at 16A.

The election was held in November, 1992. Pet. at 2.

Associate Justice Gardebring was re-elected.

REASONS FOR DENYING THE PETITION

A petition for certiorari is granted by this Court

“only when there are special and important reasons

therefore.” Sup. Ct. R. 10.1. Review may be granted when

a state court has decided a federal question in a way that

conflicts with decisions of this Court or other courts or

when a-state court has decided an “important question of

federal law which has not been, but should be, settled by

this Court.” Id. This case, however, does not meet these

standards and, therefore, the petition should be denied.

I. THE MINNESOTA SUPREME COURT'S DECISION

IS CONSISTENT WITH DECISIONS OF THIS

COURT AND WITH OTHER COURT DECISIONS

UPHOLDING SIMILAR STATUTES.

The Minnesota Supreme Court held that the bal-

lot designations required by Minn. Stat. § 204B.36,

subds. 4 and 5 (1992), do not violate the Equal Protec-

tion Clause of the Fourteenth Amendment to the

United States Constitution. As demonstrated below,

this decision is consistent with the well-understood

principles of equal protection established by this

2 Because Peterson’s due process claim was not addressed

in Peterson’s brief in the Minnesota Supreme Court, the claim

was not addressed in the Minnesota Supreme Court’s decision.

Court. The decision is also consistent with previous

court decisions upholding the constitutionality of

similar statutes.

A. THE MINNESOTA SUPREME COURT PROP-

ERLY UPHELD THAT STATUTES UNDER THE

RATIONAL BASIS TEST.

Peterson argues that the designation required by

Minn. Stat. § 204B.36, subds. 4 and 5 (1992), violate the

Equal Protection Clause of the Fourteenth Amendment to

the United States Constitution.* The Equal Protection

Clause provides:

No State shall... deny to any person within its

jurisdiction the equal protection of the laws.

Despite the breadth of this language, this Court has rec-

ognized that a state is not required to treat all persons

alike. Tigner v. Texas, 310 U.S. 141, 147 (1940). As this

Court stated in Hooper v. Bernalillo County Assessor, 472

U.S. 612, 618 (1985):

Generally, a law will survive that scrutiny

{under the Equal Protection Clause] if the dis-

tinction rationally furthers a legitimate state

purpose.

* There are references in the Petition and in the brief of the

amicus curiae Minnesota Civil Liberties Union to infringement

on the First Amendment right of voters. However, this case does

not present a First Amendment issue to this Court. No First

Amendment issue was raised in the Minnesota Supreme Court,

nor was any First Amendment issue argued before or decided

by the Minnesota Supreme Court.

However, if a law operates to the peculiar disadvantage

of a suspect class or interferes with the exercise of a

fundamental right, the law is subject to strict scrutiny, in

which case the classification must further a compelling

governmental interest which cannot be served by an

alternative means less burdensome to the suspect class or

fundamental right. See Plyler v. Doe, 457 U.S. 202, 217

(1982).4 As the discussion below demonstrates, the Min-

nesota Supreme Court properly subjected the challenged

statutes to the rational basis test, not to strict scrutiny.

Peterson also raises for the first item in this case the issue

of whether the Court in Anderson v. Celebrezze, 460 U.S.

780 (1983), established a separate equal protection stan-

dard applicable only to challenges to state election laws

and whether that standard should be applied here. Pet. at

16-17. As discussed below, the Anderson balancing test

does not apply in this case.

1. The rational basis test is the proper stan-

dard in this case.

The Minnesota statutes challenged in this case merely

apprise the voters of which of the seats on the state

supreme court is being contested and which of the candi-

dates is the incumbent. The statutes do not operate to the

peculiar disadvantage of a suspect class or interfere with

the exercise of a fundamental right. Although legislative

enactments which directly infringe upon the exercise of

4 This Court has also applied an intermediate level of scru-

tiny to certain classifications, not relevant here, where the clas-

sification “gives rise to recurring constitutional difficulties,

such as those based on alienage, gender, or illegitimacy.” Id.

44

the political franchise are subject to “strict scrutiny”

review, Harper v. Virginia State Bd. of Elections, 383 U.S.

663 (1966), not every law that imposes any burden upon

the right to vote is subject to strict scrutiny. Burdick v.

Takushi, _ U.S. __, 112 S.Ct. 2059, 2063 (1992). As this

Court observed in Burdick, all election laws impose some

burden upon individual voters, and to subject every vot-

ing regulation to strict scrutiny “would tie the hands of

the States seeking to assure that elections are operated

equitably and efficiently.” Id.

There was no evidence before the Minnesota

Supreme Court demonstrating that the challenged stat-

utes in any way infringe upon the right to vcte. Instead,

the statutes relate to the manner in which candidates run

for office. The Eighth Circuit has recently observed that

“the right to run for office, unlike the right to vote, is not

a fundamental right.” Stiles v. Hunt, 912 F.2d 260, 265 (8th

Cir. 1992), citing Bullock v. Carter, 405 U.S. 134, 92 S.Ct.

849 (1972).

The challenged statutes are not subject to strict scru-

tiny because they do not impose the type of restrictions on

the fundamental right to vote that have been held by this

Court to warrant strict scrutiny. They do not limit the

right to vote to certain classes of persons, Hill v. Stone,

421 U.S. 289 (1975) (limiting voting in city bond electiors

to persons who pay property taxes in the city). They ao

not prevent a person from voting for different politica’

parties within a certain time frame, Kusper v. Pontikes, 414

U.S. 51 (1973) (prohibiting a person from voting in the

primary election of a political party if the person voted in

the primary of another party within the preceding 23

months). They do not impose prohibitively burdensome

candidate filing fees, Bullock v. Carter, 405 U.S. 134 (1972).

They do not restrict the ballot to candidates of only

certain political parties, Williams v. Rhodes, 393 U.S. 23

(1968). They do not make payment of a fee a prerequisite

to voting, Harper v. Virginia Board of Elections, 383 U.S. 664

(1966). They also do not involve suspect classes, as in

Anderson v. Martin, 375 U.S. 399 (1964), where the candi-

date’s race was required to be printed on the ballot. Thus

the statutes are subject to the rational basis test under the

Equal Protection Clause of the Fourteenth Amendment.$

The applicability of the rational basis test to the

statutes here is supported by the decision in Clough v.

Guzzi, 416 F.Supp. 1057 (D.Mass. 1976). In Clough, the

challenged statutes provided that the incumbents’ names

would appear first on all ballots and that the names be

followed by the designation “incumbent”. The plaintiff

alleged that the fundamental right to vote was being

infringed by the statute. Jd. at 1066. The court stated that

in order to determine whether the statute was subject to

Strict scrutiny required “an examination ‘in a realistic

light’ of the extent and nature of the impact of the ques-

tioned practice on the right to vote.” Id. (quoting Bullock

v. Carter, 405 U.S. 134, 143 (1972)). The court rejected the

plaintiff's argument that the challenged statute had the

> Peterson cites McLain v. Meier, 637 F.2d 1159, 1167 (8th Cir.

1980), for the proposition that “the manipulation of the informa-

tion provided on the ballot has an effect on the fundamental

right to vote,” Pet. at 14, thus implying that strict scrutiny was

applied in that case to a ballot format statute. However, the

Eighth Circuit did not apply strict scrutiny, noting that “most

courts have applied the rational basis test” to ballot format

statutes. 637 F.2d at 1167.

10

effect of providing incumbents such an unfair advantage,

by giving them the windfall vote, that it diluted the

weight of the vote of voters who support the class of non-

incumbents. The court stated:

[T]he dilution effect here depends upon the

existence of a pool of presumably uninformed

voters. Yet non-incumbents and their supporters

have access to those voters and may, in theory

and possibly in practice, so educate them as to

eliminate the donkey vote and thus eliminate

the statistical bias. Furthermore, the impact of

the Massachusetts statutes on the total vote is

not so clear that we can really define with any-

thing approaching certainty . . . how signifi-

cantly the state is directly affecting the weight of

anyone’s vote.

416 F. Supp. at 1067. The court concluded that, even

assuming some positional advantage, the voters’ right to

choose among candidates was not sufficiently infringed

as to warrant strict scrutiny. Id. Peterson also argues that

the incumbency designations of Minn. Stat. § 204B.36,

subds. 4 and 5 (1992) “dilute the weight of the votes of all

the electors who cast their votes for non-incumbents.”

Pet. at 20. As in Clough, Peterson’s dilution argument has

no merit, and strict scrutiny is not applicable.

The applicability of the rational basis test to the

statutes here is also supported by the decision in Wil-

liamson v. Fortson, 376 F. Supp. 1300 (N.D. Ga. 1974),

which involved a Georgia statute that required the

incumbency of a candidate seeking party nomination to

be indicated on the ballot for the primary election. The

court applied the rational basis test in scrutinizing the

statute under the Equal Protection Clause.

11

The Minnesota Supreme Court’s decision in this case

is consistent with its previous decisions applying the

rational basis test to ballot format statutes. In Gustafson v.

Holm, 232 Minn. 68, 44 N.W.2d 443 (1950), the court

upheld under the rational basis test the predecessor stat-

ute to Minn. Stat. § 204B.36, subds. 4 and 5 (1992), which

required an incumbent designation on the ballot for a

judge or a justice running for re-election. Also, in Ulland

v. Growe, 262 N.W.2d 412 (Minn.), cert. denied sub nom.

Berg v. Growe, 436 U.S. 927 (1978), the court refused to

apply strict scrutiny to statutes which controlled the

order in which candidates’ names appeared on election

baliots, requiring party-designated candidates to be listed

before independent candidates. The Court specifically

rejected the analysis ot Gould v. Grubb, 536 P.2d 1337 (Cal.

1975) (applying strict scrutiny to a ballot position stat-

ute), upon which Peterson would have this Court rely.

Pet. at 25. The challenged statutes were upheld under the

rational basis test.

Because the designations required by Minn. Stat.

§ 204B.36, subds. 4 and 5 (1992), are no more burdensome

on the exercise of right to vote than the statutes examined

in Clough, Williamson, Gustafson, and Ulland, the Minne-

sota Supreme Court properly applied the rational basis

test in this case.

2. The Anderson decision rested on First

Amendment grounds and does not apply in

this case.

Peterson has urged this Court to determine that, even

if the Minnesota Supreme Court’s rejection of the strict

12

scrutiny test was correct, the decision should be reviewed

because the Minnesota Supreme Court should have

applied the balancing test set forth in Anderson v. Cele-

brezze, 460 U.S. 780, 789 (1973).© Pet. at 16-17. By charac-

terizing the Anderson test as an alternative to strict

scrutiny, Peterson implies that this Court has established

a separate equal protection standard that applies only to

challenges to state election laws. This contention cannot

be sustained.

Anderson involved an Ohio law which barred inde-

pendent candidates from the ballot for President if they

did not file a statement of candidacy by March of the

election year. The Court found that his restriction

“impinges, by its very nature, on associational choices

protected by the First Amendment.” [d. at 793. In striking

down the law, the Court held:

Under any realistic appraisal, the ‘extent and

nature’ of the burdens Ohio has placed on the

voters’ freedom of choice and freedom of asso-

ciation, in an election of nationwide importance,

unquestionably outweigh the State’s minimal

interest in imposing a March deadline.

® The balancing test established in Anderson requires the

court to 1) 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; and 2) iden-

tify and evaluate the precise interests put forward by the State

as justifications for the burden imposed by its rule. The court

must then consider the legitimacy and strength of those inter-

ests and the extent to which those interests make it necessary to

burden the plaintiff’s rights. Although the test itself mentions

the Fourteenth Amendment, the case did not invalidate the

statute on equal protection grounds.

13

Clearly, Anderson was a ballot access case which was not

decided as an equal protection case and does not estab-

lish a test which replaces either the rational basis test or

the strict scrutiny test in equal protection challenge.

Peterson has asked this Court to review the Minne-

sota Supreme Court’s equal protection decision. The case

was neither argued nor decided as a First Amendment

case below, and Peterson does not raise the First Amend-

ment in his statement of the issue. Pet. at i. Therefore the

Anderson test has no applicability to this case.

B. Minn. Stat. § 204B.36, Subds. 4 and 5 (1992), Are

Rationally Related To A Legitimate State Inter-

est.

Under the rational basis test, this Court accords the

legislative judgment a presumption of constitutionality.

The Court has stated:

Unless a classification trammels fundamental

personal rights or is drawn upon inherently sus-

pect distinctions such as race, religion, or alien-

age, or decisions presume the constitutionality

of the statutory discrimination and require only

that the classification challenged be rationally

related to a legitimate state interest.

New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (emphasis

added). The elements of the rational basis test were

recently restated in Nordlinger v. Hahn, __ U.S. __, 112

S.Ct. 2326, 2332 (1992), as follows:

[T]he Equal Protection Clause is satisfied so

long as there is a plausible policy reason for the

classification, [citation omitted] the legislative

14

facts on which the classification is apparently

based rationally may have been considered to be

true by the governmental decisionmaker, [cita-

tion omitted], and the relationship of the classi-

fication to its goal is not so attenuated as to

render the distinction arbitrary or irrational

[citation omitted].

As the discussion below amply demonstrates, Minn. Stat.

§ 204B.36, subds. 4 and 5 (1992), are constitutional under

the rational basis test.

1. The incumbency designation required by

Minn. Stat. § 204B.36, subd. 5 (1992), is sup-

ported by the rational basis test.

The incumbency designation required by Minn. Stat.

§ 204B.36, subd. 5 (1992), is rationally related to a legiti-

mate state interest. As the Minnesota Supreme Court

recognized in its decision in this case, “judicial elections

are unique in this state’s comprehensive elective

scheme,” due to the fact that “the powers conferred on

the judicial branch differ markedly from those exercised

by the other two branches of government.” Peterson, 490

N.W.2d at 422; Pet. App. at 11A. Because the judiciary

must remain independent and “as free from political,

economic and social pressure as possible to allow judges

to decide cases without those influences,” Peterson, 490

N.W.2d at 420, Pet. App. at 7A, judicial officers running

for re-election lack some of the advantages that other

candidates for political office enjoy. As the Minnesota

Supreme Court recognized almost 30 years ago in Foley v.

Donovan, 274 Minn. 501, 503, 144 N.W.2d 600, 603 (1966):

15

A great many of our voters are not personally

acquainted with members of the judiciary, and

particularly, with members of the supreme

court. They run on a nonpartisan ticket without

benefit of party, platform, or issues. They have

little time for campaigning.

The present Minnesota Supreme Court also recognized

the restraints imposed upon judicial candidates by the

nature of the office itself, stating that it is “a position that

requires its holder to studiously avoid partisan politics,

to refrain from all discussions of public issues and to

restrict one’s membership and participation in organiza-

tions to those primarily of a professional nature.” Peter-

son, 490 N.W.2d at 425, Pet. App. at 16A.

Given these disadvantages, the state has a legitimate

interest in providing useful and precise information to

the voters as to whether any of the candidates has filled

the office previously. That way, the voters may make a

more informed choice for an office with which they, with

the probable exception of voters who are members of bar,

are largely unfamiliar. In Foley, the Minnesota Supreme

Court stated:

Our election laws are bottomed on the theory

that no candidate for an office ought to be given

an unfair advantage over another and the people

ought to be permitted to know whom and what they

are voting for.

Id. (emphasis supplied).

The incumbency designation feature of Minn. Stat.

§ 204B.36, subds. 4 and 5 (1992), is further supported by a

rational basis because, as the Minnesota Supreme Court

noted, it is part of Minnesota’s “ ‘middle-of-the-road’

16

approach to judicial selection.” Peterson, 490 N.W.2d at

425, Pet. App. at 16A. While the election process gives the

ultimate choice of judicial officers to the voters, the stat-

utes serve as a quasi-retention feature by informing the

voter who is the incumbent candidate whose perfor-

mance is under review. Id. Thus there are plausible policy

reasons for the classification created in Minn. Stat.

§ 204B.36, subds. 4 and 5 (1992), based on legislative facts

which rationally may have been considered to be true by

the Legislature.”

Minn. Stat. § 204B.36, subd. 5 (1992), also meets the

last prong of the rational basis test because the relation-

ship of the classification to its goal is not so attenuated as

to render the distinction arbitrary or irrational. Where,

due to the nature of the office, there are likely to be a

large number of uniformed voters, it is logical to identify

the incumbent if the voters are to be permitted to know

for or against whom they are voting. Thus the statutes

here meet all of the tests of the federal rational basis test

and were properly upheld under the Equal Protection

Clause of the Fourteenth Amendment.

7 At pages 21-22 of the Petition, Peterson appears to argue

that the legislative purposes underlying the challenged statutes

violate Minn. Const. art. VI, § 7 and that the Minnesota Supreme

Court interpreted that s.ate constitutional provision too broadly

when it upheld the challenged statutes. However, this Court has

stated that “[o]ur only power over state judgments is to correct

them to the extent that they incorrectly adjudge federal rights.”

Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 566

(1977) (emphasis added) (quoting Herb v. Pitcairn, 324 U.S. 117,

125-26 (1945)). Thus the consistency of the statute with the

Minnesota Constitution cannot be brought before this Court.

17

The Minnesota Supreme Court’s decision upholding

the constitutionality of the incumbency designation is in

harmony with other federal and state court decisions

upholding incumbency designation statutes under the

rational basis test.

The facts in the unreported decision summarily

affirmed in Binkowski v. Miller, 411 U.S. 901, 93 S.Ct. 1530

(1973), are extremely similar to the facts in the instant

case. See discussion in Maurice Kelman, Ballot Designa-

tions: A Second Look, 35 Wayne L. Rev. 63, 68-71 (1988).

Binkowski, a local district judge, was a candidate for a

county probate court seat, and his opponent received the

benefit of the incumbent designations provided by the

Michigan constitution. /d. at 69. The lower court’s opinion

was rendered in the form of unpublished remarks from

the bench. Id. The court applied the rational basis test,

Stating:

We find it to be a valid and compelling State

objective to eliminate as much as possible the

participation of judges in the political process.

We find the judicial office sui generis, different

from the executive and legislative office, and we

find the State to have made an appropriate

determination to give the people some voice in

the selection but at the same time limit to some

extent the extent of permissible participation by

incumbent judicial officers, and that the deter-

mination to afford incumbent officers the desig-

nation of their office is reasonably related to this

objective.

Id. Binkowski appealed to this Court, and the State Bar of

Michigan moved to affirm, stating the issue as follows:

18

Does the Equal Protection Clause of the Four-

teenth Amendment prohibit the State of Michi-

gan from utilizing a “hybrid” system for

selecting its judiciary that combines the elective

process with a method of incumbency designa-

tions rationally designed to minimize the partic-

ipation of incumbent justices and judges in the

political arena and provides some measure of

judicial tenure and stability?

Id. at 70. As Professor Kelman states in his law review

article: “The summary affirmance must be understood as

a clear-cut repudiation of Binkowski’s equal protection

complaint.” Id.

Although Peterson asserts that the Binkowski decision

has no precedential value, Pet. at 27, this Court has recog-

nized that a “summary affirmance . . . while having less

precedential value than an opinion in an argued case, was

nonetheless a ruling on the merits.” Southern Railway Co.

v. Seaboard Milling Co., 442 U.S. 444, 462, 99 S.Ct. 2388,

2398 (1979).8

The Minnesota Supreme Court’s decision is in har-

mony with the decision in Williamson v. Fortson, 376

F.Supp. 1300 (N.D. Ga. 1974), in which a statute required

ballots for the primary election to indicate the incumbent

among candidates for the Georgia House of Representa-

tives. The court stated:

The state has wide discretion to decide what

information should be presented to the voters.

* Peterson’s attempt to distinguish this case, Pet. at 27, on

the grounds that the Michigan Constitution specifically permit-

ted an incumbency designation fails, since the Michigan Consti-

tution is also subject to equal protection review by this Court.

i simian eae eae

19

The court agrees with the plaintiff that it would

be desirable for all voters to be well informed in

making their electoral choices. The court cannot,

however, agree that it is irrational for the state

to attempt to provide some minimum quantum

of information on which to base his choice

among the candidates. The fact that this statute

may not be the best possible method to achieve

the state’s objective is not sufficient to invalidate

the statute under the rational basis test.

Id. at 1303. The court upheld the constitutionality of the

Statute.

In Clough v. Guzzi, 416 F.Supp. 1057 (D. Mass. 1976), a

Massachusetts statute required ballots in primary and

final elections to list incumbents first and to designate

incumbents. The court had heard expert testimony from

which it concluded: “[T]he advantage conferred by

incumbency and by first position on the ballot is not one

which is easily susceptible to measurement.” Id. at 1065.

The court found that “designation of incumbency does

confer a distinct benefit on the incumbent candidate” but

had difficulty clearly identifying the extent of any

unequal treatment. Id. at 1065-66. The Commonwealth of

Massachusetts asserted that the incumbency designation

was an “informational device” which indicated “in a clear

manner who is the candidate for re-election.” Id. at 1068.

The Commonwealth asserted that the most important

decision the voter must make is whether to retain or

replace the incumbent. The Commonwealth also asserted

that “if there is an uninformed segment of the voters,

those votes should go to the incumbent candidate who at

least has some experience in the business of govern-

ment.” Id. The court stated:

20

We cannot say that these are illegitimate consid-

erations beyond the authority of the Common-

wealth properly and lawfully to advance. The

designation of incumbency is material, and the

statutory order relevant, to the decision-making

process. [Citations omitted.] The fact that some

Statistical advantage may at the same time

accrue to one of the candidates by virtue of his

or her incumbency does not for constitutional

purposes invalidate that otherwise legitimate

purpose, especially where that advantage

remains problematic and variable from election

to election.

Id. The court upheld the statute under the Equal Protec-

tion Clause of the Fourteenth Amendment.

Prior to the decision in this case, the Minnesota

Supreme Court upheld incumbency designation require-

ments on judicial ballots in Gustafson v. Holm, 232 Minn.

68, 44 N.W.2d 443 (1950). In Gustafson, the petitioner

challenged the constitutionality of the predecessor statute

to Minn. Stat. § 204B.36, subds. 4 and 5-(1992). The 1949

law required that “if a justice or judge is a candidate to

succeed himself, the word ‘incumbent’ shall be printed

after his name where it appears among the names of the

candidate for office.” The court stated:

Petitioner next contends that the act in question

is unequal and partial legislation and that it

gives the incumbent an undue advantage over

other candidates. Indirectly this may be so, but

that does not necessarily invalidate the act. Use

of the word “incumbent” following the candi-

date’s name simply informs the voter of the

person who presently holds the position. In

21

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.

Id. at 126-27, 44 N.W.2d at 447. The court pointed out that,

depending upon the attitude of the voter toward the

incumbent, the designation of incumbency could result in

either a positive or a negative vote:

If [the voter] then believes that the judge should

be retained, he has the opportunity of expres-

sing his opinion by his vote. If he feels that the

present judge shou'd be replaced, he has a like

opportunity of so indicating his opinion.

Id. The court identified the legitimate interest being pur-

sued by the state and the impossibility of achieving per-

fect equality. The court stated:

The underlying purpose of the legislation is to

identify the candidate so that the voter will

know whom he is voting for. In order to enable

the electorate to know who candidates are, it is

not always possible to treat all candidates with

absolute equality.

Id. The court upheld the constitutionality of the statute.

Peterson cites only one case which it appears that a

requirement for designation of incumbency was struck

down: Rees v. Layton, 6 Cal.App.3d 815, 86 Cal. Rptr. 268

(Cal. Ct. App. 1970). This decision was considered by the

court in Williamson, which found itself “in disagreement

with the California appeals court that identification of

incumbents on the ballots does not have the effect of

providing information for the voters,” 376 F.Supp. at

22

1302. The Williamson court did not follow Rees, nor should

this Court.

Because the Minnesota Supreme Court’s decision is

consistent with the principles of equal protection

announced by this Court and with the relevant prece-

dents, the Court should deny the Petition.

2. The statutory requirement to indicate

on the the ballot the name of the justice

whose seat is up for election is sup-

ported by the rational basis test.

The requirement of Minn. Stat. § 204B.36, subd. 4

(1992), to indicate on the ballot the name of the justice

whose seat is up for election is a natural outgrowth of the

provisions of Minn. Stat. § 204B.06, subd. 6 (1992), which

state that each justice of the Minnesota Supreme Court is

“deemed to hold a separate nonpartisan office.”? Without

naming the justice whose seat is up for election, voters do

not know what position they are voting for. As with the

incumbency designation, it is legitimate for the state to

inform voters as to what they are voting for, and this

information is effective to provide that information.

Clough, 416 F.Supp. at 1068; Williamson, 376 F.Supp. at

1302; Gustafson, 232 Minn. at 126-27, 44 N.W.2d at 447.

Peterson is in error in arguing that Minn. Stat.

§ 204B.36, subd. 4 (1992), is in effect an “incumbent first”

statute like those struck down in the cases cited at page

24 of the Petition. First, the physical placement of the

° The constitutionality of Minn. Stat. § 204B.06, subd. 6

(1992), was never at issue in this case.

23

justice’s name is different than the placement of candi-

dates’ names in the “incumbent first” statutes. For exam-

ple, in McLain v. Meier, 637 F.2d 1159 (8th Cir. 1980), the

statute required the list of candidates to start out with the

candidate from the party who received the most votes in

the last congressional election. This meant that the voter

looking at the list of names from which he or she must

choose saw the incumbent’s name at the top of the list of

candidates. Minnesota’s statutory scheme has carefully

avoided the potential for positional advantage on ballots

for the Minnesota Supreme Court by requiring that

names on ballots be rotated. To comply with the rotation

requirement of Minn. Stat. § 204D.14 (1992), in this case,

two different styles of ballots were printed, one listing

Peterson first and another listing Peterson second. See

footnote 1, supra. These two different styles of ballots

were distributed in such a way that half the voters

received one style of ballot and half the voters received

the other style, thus minimizing any advantage that one

candidate would have had over the other as a result of

appearing first on the ballot. Id. The listing of the

officeholder’s name in the space identifying the office up

for election in no way encourages the capricious or indif-

ferent voter (the so-called “donkey vote,” see McLain, 637

F.2d at 1166) to cast a ballot for the officeholder by

checking off whoever is at the top of the ballot.

Even if the designation required by Minn. Stat.

§ 204B.36, subd. 4 (1992), provides some advantage to

incumbents, that advantage does not render the statute

unconstitutional. The statute in Clough v. Guzzi, 416

F.Supp. 1057 (D. Mass. 1976), provided both for the

“incumbent first” position and the designation of the

24

incumbent.!° Despite the court’s recognition of some

advantage, though immeasurable and uncertain, accrued

to incumbents from the requirements, the court upheld

the statute as furthering a legitimate purpose of govern-

ment.

In Ulland v. Growe, 262 N.W.2d 412 (Minn.), cert.

denied sub nom. Berg v. Growe, 436 U.S. 927 (1978), the

statute required names of party-designated candidates to

precede those of independent candidates on partisan

election ballots. The case proceeded on the factual

assumption that the candidate occupying the first posi-

tion on the ballot will receive a substantial number of

“extra” votes from voters who are either uninformed or

uninterested in the candidates. The statute was upheld

under the rational basis test as a legitimate method “to

assist partisan voters in locating their candidates on the

ballot,” 262 N.W.2d at 418, despite the assumption that

some candidates received an advantage from ballot posi-

tion. Thus, even if the challenged statute could be seen as

10 Other decisions inolving alleged “positional bias” in

which the statutes were upheld against an equal protection

challenge include Bd. of Election Comm'rs v. Libertarian Party, 591

F.2d 22 (7th Cir.), cert. denied sub nom. Libertarian Party of Illinois

v. Bd. of Election Comm'rs, 442 U.S. 918 (1979) (established politi-

cal parties placed in top ballot positions, new political parties

placed below); Bohus v. Bd. of Election Comm'rs, 447 F.2d 821 (7th

Cir. 1971) (Democratic candidate placed on top line of ballot);

Krasnoff v. Hardy, 436 F. Supp. 304 (E.D. La. 1977) (candidates’

names appeared on same horizontal plane); Voltaggio v. Caputo,

210 F. Supp. 337 (D.N.J. 1962), app. dismissed as moot, 371 U.S. 232

(1963) (political parties given first choice of position on ballot);

Salinger v. Jordan, 395 P.2d 49 (Cal. 1964) (first ballot position

given to incumbent).

25

an “incumbent first” statute, which it is not, the statute

should be upheld.

Peterson asserts that Gould v. Grubb, 536 P.2d 1337

(Cal. 1975), which struck down an “incumbent first” stat-

ute, should be followed in this case. Gould is distinguish-

able from the instant case because, in addition to the fact

that Minn. Stat. § 204B.36, subd. 4 (1992), is not an

“incumbent first” statute, the California Supreme Court

had before it a full evidentiary record that the California

statute conferred a “significant advantage” to the candi-

date in the top ballot position. 536 P.2d at 1340. There was

no such record before the Minnesota Supreme Court. In

addition, the California Supreme Court applied strict

scrutiny to the California statute. As previously dis-

cussed, that standard is not the appropriate standard to

be used in this case.

Because Minn. Stat. § 204B.36, subd. 4 (1992), is sup-

ported by a rational basis, the statute does not violate the

Equal Protection Clause of the Fourteenth Amendment to

the United States Constitution and was properly being

upheld by the Minnesota Supreme Court. The Petition

should be denied.

Il. THIS CASE DOES NOT PRESENT AN IMPOR-

TANT FEDERAL QUESTION PERTAINING TO

STATE ELECTION LAWS.

It is true that the right to vote is a fundamental right,

Harper v. Virginia State Board of Elections, 383 U.S. 663

(1966), and that important federal questions pertaining to

state election laws which impair those rights should be

decided by this Court. However, the question of whether

26

states can require incumbency designations on ballots in

elections where judges and Minnesota Supreme Court

justices are running for re-election is not an important

federal question. Neither is the question of whether a

ballot for the Minnesota Supreme Court should be

allowed to indicate the name of the justice whose seat is

up for re-election. The reason is that these types of ballot

requirements do not affect the free and unimpaired exer-

cise of the right to vote to the degree that some other

state election laws have done.

As discussed supra at 8-9, the challenged statutes do

not present the potential for denial of access to the ballot,

as did the state laws in Bullock v. Carter, 405 U.S. 134

(1972) (filing fees), and Williams v. Rhodes, 393 U.S. 23

(1968) (restricting the ballot to candidates of only certain

political parties). They do not place any restrictions on

voters themselves, as did the state laws in Hill v. Stone,

421 U.S. 289 (1975) (restricting voting to people who pay

property taxes); Kusper v. Pontikes, 414 U.S. 51 (1973)

(restricting voting for different political parties in differ-

ent primary elections); and Harper v. Virginia Bd. of Elec-

tions, 383 U.S. 664 (1966) (poll tax). In fact, the challenged

Statutes do not place any restrictions on voting, but

merely provide the voters with factual information.

This case also does not present any question of

impairment of First Amendment freedoms. No First

Amendment issue was raised in Peterson’s petition filed

with the Minnesota Supreme Court, see Pet. App. at

18A-21A, and no First Amendment issues were argued to

or decided by the Minnesota Supreme Court. This issue

was most likely not raised because it is difficult, if not

— SSS eens

af

impossible, to see how providing information on the bal-

lot impairs the voters’ right to freedom of association.

Finally, Peterson argues that this Court should decide

this case because Minn. Stat. § 204B.36, subd. 4. (1992), is

an “incumbent first” statute, and some courts have struck

down “incumbent first” statutes. See Pet. at 24. However,

as discussed supra at 22-23, the challenged statute is not a

true “incumbent first” statute, and thus this is not a true

“incumbent first” case. All of the “incumbent first” cases

involved ballots where the incumbent was listed first

among the candidates to be voted for. Because of the

Statutory rotational requirement in Minnesota, non-

incumbent judicial candidates are listed first in the list of

candidates on half of the ballots.

Because this case does not present an important fed-

eral question pertaining to state election laws, this Court

should deny the petition.

28

CONCLUSION

For the foregoing reasons, petition should be denied.

Dated: March 23, 1993

Respectfully submitted,

Hupert H. Humpnurey III

Attorney General

State of Minnesota

JoceLYN F. OLsSon

Assistant Attorney General

Counsel of Record

525 Park Street, Suite 200

St. Paul, MN 55103

(612) 297-1223

Attorneys for Respondent

Joan Anderson Growe,

Secretary of State of the

State of Minnesota

RIcHARD D. HopspDon

First Assistant County Attorney

14900 61st Street North

Stillwater, NM 55082

(612) 430-6119

Attorney for Respondent

Washington County Auditor

R.H. Stafford