# Opposition Brief — Peterson v. Stafford > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2232%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1993 - **Citation:** 507 U.S. 1033 ## Text 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: « 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_2232%3A3. Public record. Not legal advice.