Nonprofit, independent journalism. Supported by readers.


Minnesota makes it really difficult for minor parties to get on the ballot. Could a new lawsuit change that?

Among other things, Minnesota law makes those who sign petitions to put a minor party candidate on the ballot take an oath — under threat of perjury — that they won’t take part in any other party’s primary process. 

Chris Holbrook, chair of the Libertarian Party of Minnesota
Chris Holbrook, chair of the Libertarian Party of Minnesota: “The state shouldn’t be able to decide which voices can be heard simply because they do or do not align with a pre-existing ideology.”
MinnPost photo by Peter Callaghan

They’re called “minor parties” in Minnesota state law, but candidates from political groups like the Libertarians and Greens often feel like second-class citizens.

State law demands third parties gather signatures of several hundred or a few thousand residents (depending on the office) — all within two weeks over the Memorial Day weekend — to make it onto the ballot. Major parties just sign up and write a check.

And if minor parties ever hope to get the same privileges as the state DFL and Republican parties, they have to win at least 5 percent of the vote in a race for one of the statewide elected offices. To stay there, they have to get 5 percent the next election as well, higher than in neighboring states. (There is another way to get major party status: present 45 candidates for state representative, 23 candidates state senator, four candidates for Congress, and one candidate for each of the state’s constitutional offices in a general election.)

State law even dictates the size of the paper the parties can use for petitions. More notably: it makes petition signers take an oath that they won’t take part in any other party’s primary election process under threat of perjury.

Article continues after advertisement

A federal lawsuit filed this week [PDF] is the latest attempt by the minor parties to fight back against such rules, which advocates say are the most-onerous in the Midwest. On Wednesday, The Libertarian Party of Minnesota filed suit in U.S. District Court in St. Paul against the county attorneys of Hennepin, Ramsey and Anoka counties seeking a court order that would prevent the counties from taking perjury actions against voters who both sign minor party petitions and vote in a major party primary.

Erick Kaardal, the Minneapolis attorney filing the case on behalf of the Libertarians, said it is the first in what could be a series of federal court challenges to minor party rules. “This lawsuit is about this oath and the way that the major political parties have used legislation to senselessly regulate and put up obstacles before minor parties,” he said. “It’s hard enough being a minor party and going through all of these processes.” 

To illustrate how difficult the path can be, Kaardal said even if he is successful in having the oath declared unconstitutional, it will require another legal challenge  — or the passage of a bill in the state legislature — to have the language removed from the petitions minor parties are required to use.

Kaardal said prosecutions are not common but that the presence of the oath on petitions gives potential signers pause. Perjury, after all, is a felony subject to five years in prison and a $10,000 fine, Kaardal said. “Who in their right mind would sign anything?” he said. “No one’s getting paid to sign these things. The people running for office aren’t getting paid for running for office. Why is there so much criminal liability imposed at this very moment in our political system?”

Erick Kaardal
MinnPost photo by Peter Callaghan
Erick Kaardal, the Minneapolis attorney filing the case on behalf of the Libertarians, said it is the first in what could be a series of federal court challenges of minor party rules.
Kaardal cited the 2018 election where residents who signed a petition to nominate a Libertarian for state auditor had to promise not to vote in the auditor primary. But because only one candidate from the Republicans and DFL filed for the office, there was no primary for that position.

Next year, the new presidential nominating primary will be in March, two months before minor parties will even start collecting signatures to get a Libertarian presidential candidate on the November ballot. Would the oath block them from changing their support to a minor party presidential candidate later?

Kaardal said one purpose of the lawsuit is to protect a voter’s “right to change their mind.”

Kaardal is familiar with suing the government. He has taken two cases to the U.S. Supreme Court, most recently with his challenge of a state law restricting clothing with political messages from polling places

He said the board of the state Libertarian Party envisions a series of lawsuits challenging other aspects of state law regulating minor parties. But the oath section was chosen first because Kaardal said it has the highest likelihood of success. 

Article continues after advertisement

Chris Holbrook, chair of the Libertarian Party of Minnesota, said the party’s candidate for state auditor in 2018, Chris Dock, received 53,000 votes, while the Libertarian candidate for president in 2016, Gary Johnson, received nearly 113,000 votes in Minnesota. 

The party did not get nearly enough votes under state law to qualify as a major party, a designation that would give it much easier access to the ballot. “The state shouldn’t be able to decide which voices can be heard simply because they do or do not align with a pre-existing ideology,” he said. “The major parties are not the only voices of the people.”

Bipartisan bills last session would have liberalized some of the rules. But those bills went nowhere, partly because of missteps by the sponsors but largely because lawmakers from major parties don’t show much interest in helping out would-be challengers.

Bills sponsored by Sen. Scott Jensen, R-Chaska, and Rep. Steve Elkins, DFL-Bloomington last session would have lowered the threshold for getting major party status from 5 percent of the statewide vote to 1 percent. South Dakota and Wisconsin give major party status to any party that wins at least 1 percent of the vote in presidential or gubernatorial contests. In Iowa, the qualification threshold is 2 percent.

The bills also would have extended the time allowed to gather signatures from 14 days to 88 days for all offices and ended the prohibition on signers taking part in primary elections. And they would have lowered the signature requirements for statewide, legislative and local offices.

The bill also contained language that would have given parties veto power over which candidates could appear on the primary ballot using the party label. For example, the state DFL could have blocked Richard Painter from running against Tina Smith on the 2018 DFL primary for U.S. Senate. 

Minor party officials said the provision was designed to keep candidates unaffiliated with the minor parties from highjacking party labels, using it as an easier path to the general election than running in major party primaries. But the language raised objections from the major parties, with state DFL Chairman Ken Martin calling the provision “goofy.” 

Holbrook said the minor parties will make another run at the legislation next session, but that they haven’t yet decided whether to include that most-controversial section.