United States Court of Appeals

For the Eighth Circuit 

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No. 20-2244

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Libertarian Party of Minnesota; Chris Holbrook; Mason McElvain; Chris Dock; 

Brian McCormick

 Plaintiffs - Appellants

v.

Steve Simon, in his official capacity as the Minnesota Secretary of State, or his 

successor

 Defendant - Appellee

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Appeal from United States District Court 

for the District of Minnesota

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Submitted: June 16, 2021

Filed: September 3, 2021

[Unpublished] 

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Before GRUENDER, ARNOLD, and STRAS, Circuit Judges.

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PER CURIAM.
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The Libertarian Party alleges that Minnesota’s election laws place its 

candidates and supporters at an unfair disadvantage. The district court1 dismissed 

the complaint because it did not state a claim. We affirm. 

I. 

Different rules apply to major- and minor-party candidates in Minnesota. 

Major-party candidates must win a primary election to earn a spot on the generalelection ballot. Minor-party candidates, by contrast, must navigate a nominatingpetition process that requires the collection of signatures. See Minn. Stat. 

§§ 204B.03, 204B.08, subdiv. 3. In addition to satisfying a number of technical 

requirements, the nominating petition must have the following oath printed on each 

page: “I solemnly swear (or affirm) . . . that I do not intend to vote at the primary 

election for the office for which this nominating petition is made . . . .” Id.

§ 204B.07, subdiv. 4. 

All Libertarian Party candidates must meet these requirements. When some 

failed to do so, the Libertarian Party and four of its supporters2 sued Minnesota 

Secretary of State Steve Simon. The district court dismissed the case. See Fed. R. 

Civ. P. 12(b)(6). 

II. 

We review the dismissal de novo, “accepting as true the allegations set forth

in the complaint and drawing all reasonable inferences in favor of” the plaintiffs. 

Star City Sch. Dist. v. ACI Bldg. Sys., LLC, 844 F.3d 1011, 1016 (8th Cir. 2017). On 

1

The Honorable David S. Doty, United States District Judge for the District 

of Minnesota.

2

They are Chris Holbrook, Mason McElvain, Chris Dock, and Brian 

McCormick. 
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appeal, the plaintiffs focus on three constitutional challenges. One of them was 

previously abandoned, and the other two are not viable. 

The first, which is that the oath requirement is vague and unconstitutionally 

burdensome, was “intentional[ly] . . . abandon[ed]” before the district court. United 

States v. Olano, 507 U.S. 725, 733 (1993) (quotation marks omitted). In response 

to Secretary Simon’s motion to dismiss, the plaintiffs stated: “[u]pon consideration 

of the constitutional arguments regarding the minor political party petition 

oath[,] . . . to the extent separately challenged in the amended complaint, the oath . . . 

requirement[] [is] abandoned as [a] separate claim[].” This statement, though 

arguably vague itself, “appear[s] to concede that the[] challenge to the oath is 

untenable,” which is how the district court understood it too. For that reason, we 

conclude that the plaintiffs have waived this issue. See United States v. Demilia, 

771 F.3d 1051, 1055 (8th Cir. 2014) (“Under our waiver jurisprudence, a right—

such as the right to have recourse to a legal rule or argument—is waived when it is 

intentionally relinquished or abandoned.” (quotation marks omitted)). 

The plaintiffs preserved their next challenge, but in the end, it meets a similar 

fate. In this one, the plaintiffs take aim at signature collection, which they claim

must be done in person, even though major-party supporters can express their 

candidate preferences by casting an absentee ballot by mail. Without a comparable 

alternative for minor parties, they say, Minnesota’s scheme violates the Equal 

Protection Clause of the Fourteenth Amendment. See U.S. Const. amend. XIV, § 1.

Even assuming that major- and minor-party candidates are similarly situated 

to one another—a question we need not decide today—nothing in Minnesota law 

requires any candidate to collect signatures in person. To the contrary, nominating

petitions are freely available online, meaning that anyone can print one, sign it, and 

send it to a candidate for filing. See Minn. Stat. § 204B.07. Like the district court, 

we will not invent a restriction by adding language to an otherwise unambiguous 
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statute. See Larson v. State, 790 N.W.2d 700, 703 (Minn. 2010) (“If a statute is 

unambiguous, then we must apply the statute’s plain meaning.”).

The plaintiffs’ final challenge also alleges discriminatory treatment, but this 

time the focus is squarely on supporters, not candidates. The plaintiffs believe that 

minor-party supporters are treated unequally because they have to reveal their 

candidate preferences in nominating petitions, even though major-party supporters 

can keep their votes secret. 

The central flaw in this argument is that signatures on nominating petitions 

are not votes. For one thing, the eligibility requirements are different. Voters in 

primary elections have to be registered to vote, Minn. Stat. § 201.018, whereas those 

signing a nominating petition must only be eligible, see id. § 204B.08, subdiv. 2. In 

Equal Protection parlance, what this means is that petition signers are not necessarily 

similarly situated to voters. See Flowers v. City of Minneapolis, 558 F.3d 794, 798 

(8th Cir. 2009) (“To establish a violation of the Equal Protection Clause, . . . [the 

plaintiff] must show that he was treated differently than other persons who were in 

all relevant respects similarly situated.” (quotation marks omitted)).

For another, every vote in Minnesota is secret, regardless of who casts it. To 

be sure, the oath requires petition signers to have no existing intention to cast a 

primary-election ballot. See Minn. Stat. § 204B.07, subdiv. 4. But, as the district 

court observed, they are free to change their minds. And if they do, their votes will 

be secret just like everyone else’s. See Keevan v. Smith, 100 F.3d 644, 648 (8th Cir. 

1996); Klinger v. Dep’t of Corr., 31 F.3d 727, 731 (8th Cir. 1994); see also Mills v. 

City of Grand Forks, 614 F.3d 495, 500 (8th Cir. 2010) (explaining why the 

plaintiff’s pleadings failed to demonstrate differential treatment). 
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III. 

We accordingly affirm the judgment of the district court.

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