*The HONORABLE HARLINGTON WOOD, JR., United States

Circuit Judge for the Seventh Circuit, sitting by

designation.

_____________

No. 94-3417MN

_____________

Twin Cities Area New Party, *

*

Appellant, *

*

v. *

* Appeal from the United States

Lou McKenna, Director, Ramsey * District Court for the District

County Department of Property * of Minnesota.

Records and Revenue; Joan *

Anderson-Growe, Secretary of *

State, State of Minnesota, ** Appellees. * _____________

Submitted: May 18, 1995

 Filed: January 5, 1996 _____________

Before RICHARD S. ARNOLD, Chief Judge, and WOOD* and FAGG, Circuit

Judges. _____________

FAGG, Circuit Judge.

In this case, we must decide whether Minnesota can

constitutionally prevent a minor political party from nominating

its chosen candidate on the ground the candidate is another party's

nominee, even though the candidate consents to the minor party's

nomination and the other party does not object. See Minn. Stat.

§ 204B.06 subd. 1(b) (1994); id. § 204B.04 subd. 2.

The facts are undisputed. In April 1994, the Twin Cities Area

New Party, a legitimate minor political party under Minnesota law,
-2-

see id. § 200.02 subd. 7, voted to nominate Andy Dawkins, the

incumbent Democratic-Farm-Labor (DFL) state representative in House

District 65A, as the New Party's candidate for that office in the

November 1994 general election. The New Party believed Dawkins

would best represent and deliver the principles of the New Party's

platform. Dawkins, who faced no opposition in the upcoming DFL

primary election and was thus ensured the DFL nomination, accepted

the New Party's nomination and signed an affidavit of candidacy for

the New Party. See id. § 204B.06 (requiring all candidates to file

affidavit of candidacy). The DFL did not object to the New Party's

nomination of Dawkins. The New Party prepared a nominating

petition with the required number of signatures. Id. § 204B.03

(providing for minor party nomination through nominating petitions

rather than primaries); see id. § 204B.07; id. § 204B.08.

When the New Party attempted to file Dawkins's affidavit and

the nominating petition, however, the Secretary of State's office

rejected them because Dawkins had filed an affidavit of candidacy

for the DFL party, a major political party in Minnesota. Thus,

Dawkins's New Party affidavit did not state he had "no other

affidavit on file as a candidate . . . at the . . . next ensuing

general election," as Minnesota law requires. Id. § 204B.06 subd.

1(b). Dawkins's candidacy on the New Party ticket was also

prohibited under a Minnesota statute that provides, with exceptions

inapplicable here, "No individual who seeks nomination for any

partisan . . . office at a primary shall be nominated for the same

office by nominating petition." Id. § 204B.04 subd. 2.

After the rejection of its nominating petition, the Twin

Cities Area New Party brought this action challenging the laws

preventing Dawkins's nomination, and the district court upheld the

laws in granting summary judgment to Minnesota Secretary of State

Joan Anderson-Growe, the official in charge of administering state

elections, and Lou McKenna, a Minnesota county director in charge

of county elections. Twin Cities Area New Party v. McKenna, 863 F.
-3-

Supp. 988 (D. Minn. 1994). The New Party appeals.

Although the New Party's nomination of a candidate already

nominated by a major political party may appear unconventional to

many present-day voters, the practice dates back to nineteenth

century politics. The practice, called "multiple party nomination"

or "fusion," is the nomination by more than one political party of

the same candidate for the same office in the same general

election. William R. Kirschner, Note, Fusion and the Associational

Rights of Minor Political Parties, 95 Colum. L. Rev. 683, 687

(1995). A person who votes for a candidate nominated by multiple

parties simply chooses between casting the vote on one party line

or another. General election votes that the candidate receives on

each party's line are added together to decide the overall winner.

Id. Thus, as without multiple party nomination, the person who

receives the most votes wins the general election.

Multiple party nomination was widely practiced in state and

national elections throughout the 1800s. Peter H. Argersinger, "A

Place on the Ballot": Fusion Politics and Antifusion Laws, 85 Am.

Hist. Rev. 287, 288 (1980). Following the national emergence of a

third party and its extensive fusion with a major party in the 1892

presidential campaign, the parties in power in state legislatures

started to ban multiple party nomination in both state and national

elections to squelch the threat posed by the opposition's combined

voting force. Id. at 302. Minnesota and about ten other states

enacted the bans around 1900. Id. By preventing multiple party

nomination, the bans ended the importance and existence of

significant third parties. Id. at 303.

Although multiple party nomination is prohibited today, either

directly or indirectly, in about forty states and the District of

Columbia, the practice is still permitted in ten states, including

New York. Kirschner, 95 Colum. L. Rev. at 685 nn.13 & 14. Where

multiple party nomination is allowed, the practice plays a
-4-

significant role in modern elections. Many prominent national,

state, and city leaders, including Ronald Reagan, John F. Kennedy,

Franklin D. Roosevelt, Earl Warren, and Fiorello LaGuardia, have

won significant elections at least partially because they appeared

on the general election ballot as the candidate for a minor party

in addition to a major party. Id. at 683 & n.2. For example, in

the 1980 presidential race in New York, Jimmy Carter received more

votes as a Democrat than Ronald Reagan did as a Republican, but

Reagan's additional votes on the Conservative Party line allowed

him to carry the state. Id.

The legal standards that control our review are well-settled.

A state's broad power to regulate the time, place, and manner of

elections does not eliminate the state's duty to observe its

citizens' First Amendment rights to political association. Eu v.

San Francisco County Democratic Cent. Comm'n, 489 U.S. 214, 222

(1989). To decide a state election law's constitutionality, we

first consider whether it burdens First Amendment rights. Id. If

so, the state must justify the law with a corresponding interest.

See id. When the burden on First Amendment rights is severe, the

state's interest must be compelling and the law must be narrowly

tailored to serve the state's interest. See id.; Norman v. Reed,

502 U.S. 279, 288-89 (1992).

Minnesota's statutes precluding multiple party nomination

unquestionably burden the New Party's core associational rights.

Political parties enjoy freedom "to select a `standard bearer who

best represents the party's ideologies and preferences.'" Eu, 489

U.S. at 224 (quoted case omitted). Parties have the right "to

select their own candidate." Id. at 230 (quoting with approval

Tashjian v. Republican Party of Conn., 479 U.S. 208, 235-36 (1986)

(Scalia, J., dissenting)). Parties also have an associational

right to "broaden the base of public participation in and support

for [their] activities." Tashjian, 479 U.S. at 214.
-5-

The burden on the New Party's associational rights is severe.

The New Party cannot nominate its chosen candidate when the

candidate has been nominated by another party despite having the

candidate's and the other party's blessing. The State's simplistic

view that the New Party can just pick someone else does not lessen

the burden on the New Party's right to nominate its candidate of

choice. See Norman, 502 U.S. at 289 (law preventing group from

using established political party's name with party's consent

severely burdened group). As in Norman, the burden here is severe

because Minnesota's laws keep the New Party from developing

consensual political alliances and thus broadening the base of

public participation in and support for its activities. History

shows that minor parties have played a significant role in the

electoral system where multiple party nomination is legal, but have

no meaningful influence where multiple party nomination is banned.

See Kirschner, 95 Colum. L. Rev. at 700-04. This is so because a

party's ability to establish itself as a durable, influential

player in the political arena depends on the ability to elect

candidates to office. And the ability of minor parties to elect

candidates depends on the parties' ability to form political

alliances. When a minor party and a major party nominate the same

candidate and the candidate is elected because of the votes cast on

the minor party line, the minor party voters have sent an important

message to the candidate and the major party, which gets attention

for the minor party's platform. By foreclosing a consensual

multiple party nomination, Minnesota's statutes force the New Party

to make a no-win choice. New Party members must either cast their

votes for candidates with no realistic chance of winning, defect

from their party and vote for a major party candidate who does, or

decline to vote at all.

Minnesota's ban on multiple party nomination is broader than

necessary to serve the State's asserted interests, regardless of

their importance. Minnesota asserts the statutes are necessary

because without them, minor party candidates would just ride the
-6-

coattails of major party candidates, disrupting the two-party

political system as we know it. Minnesota is concerned about

internal discord within the two major parties and major party

splintering. The New Party responds that to avoid these problems,

Minnesota need only require the consent of the candidate and the

candidate's party before the minor party can nominate the

candidate. We agree. By merely rewriting the laws to require

formal consent, Minnesota can address its concerns without

suppressing the influence of small parties. Norman, 502 U.S. at

290. Minnesota has no authority to protect a major party from

internal discord and splintering resulting from its own decision to

allow a minor party to nominate the major party's candidate.

Tashjian, 479 U.S. at 224. The "State . . . may not

constitutionally substitute its own judgment for that of the

[major] [p]arty." Id. Minnesota's interest in maintaining a

stable political system simply does not give the State license to

frustrate consensual political alliances. We realize "splintered

parties and unrestrained factionalism may do significant damage to

the fabric of government," Storer v. Brown, 415 U.S. 724, 736

(1974), but Minnesota's concerns that all multiple party

nominations would cause such ruin are misplaced. Indeed, rather

than jeopardizing the integrity of the election system, consensual

multiple party nomination may invigorate it by fostering more

competition, participation, and representation in American

politics. As James Madison observed, when the variety and number

of political parties increases, the chance for oppression,

factionalism, and nonskeptical acceptance of ideas decreases.

Kirschner, 95 Colum. L. Rev. at 712 n.213.

The State's concerns about voter confusion can also be dealt

with in less restrictive ways. The State worries that voters would

be confused at the polls by seeing a candidate's name on more than

one party line. This confusion could be alleviated by simple

explanations in the ballot directions to cast the ballot for the

candidate on one party line or the other. The State also believes
-7-

it would be difficult for the voters to understand where a

candidate stands on issues when the candidate's name appears twice

on a ballot, and voters will be misled by party labels. The State

undoubtedly has a legitimate interest in "'fostering informed and

educated expressions of the popular will in a general election.'"

Tashjian, 479 U.S. at 220 (quoting Anderson v. Celebrezze, 460 U.S.

780, 796 (1983)). A consensual multiple party nomination informs

voters rather than misleads them, however. If a major party and a

minor party believe the same person is the best candidate and would

best deliver on their platforms, multiple party nomination brings

their political alliance into the open and helps the voters

understand what the candidate stands for. See Norman, 502 U.S. at

290 (misrepresentation easily avoided by requiring established

political party's formal consent to use of its name by likeminded

candidates).

The Supreme Court has recognized that party labels "provide a

shorthand designation of the views of party candidates on matters

of public concern, [and] the identification of candidates with

particular parties plays a role in the process by which voters

inform themselves for the exercise of the franchise [to vote]."

Tashjian, 479 U.S. at 220. For example, a candidate's ballot

listing on the Right to Life Party ticket gives a voter more

specific information about the candidate's views than a ballot

listing on a major party ticket alone. Essentially, Minnesota

suggests multiple party nomination would confuse voters by giving

them more information. The Supreme Court teaches, however, that

courts must skeptically view a state's claim that it is enhancing

voters' ability to make wise decisions by restricting the flow of

information to them. Id. at 221. Indeed, neither the record nor

history reveal any evidence that multiple party nominations have

ever caused any type of confusion among voters, in Minnesota or

anywhere else. See Kirschner, 95 Colum. L. Rev. at 707-08 n.176.

The State's remaining concerns about multiple party nomination
-8-

are simply unjustified in this case. The potential problem of

overcrowded ballots is already avoided by requiring a candidate to

display a minimum level of support before being placed on the

ballot. See Minn. Stat. § 204B.08. The State's concern with

"knowing how the winner will be determined" is not furthered by

statutes preventing multiple party nomination in general elections.

The winner is determined in the same way in general elections

whether or not a fusion candidate is involved: the individual who

receives the most votes wins. Electoral history shows there is

nothing remarkable about awarding victory to a candidate who

receives the most overall votes, just because the votes are cast on

two lines rather than one. As noted earlier, this is how Ronald

Reagan beat Jimmy Carter in the 1980 presidential race in New York.

On a final note, we recognize one federal court of appeals has

addressed the constitutionality of laws preventing multiple party

nomination. In Swamp v. Kennedy, 950 F.2d 383 (7th Cir. 1991),

cert. denied, 112 S. Ct. 2992 (1992), two judges on a divided

three-judge panel held Wisconsin's statutes banning multiple party

nomination did not burden a minor political party's associational

rights, and even if they did, the State's interests justified the

burden. Id. at 386. The other panelist believed the party's

rights were burdened and thought only the State's compelling

interest in maintaining the distinct identities of the political

parties justified the laws. Id. at 386-88 (Fairchild, J.,

concurring). On the denial of rehearing en banc, Judges Ripple,

Posner, and Easterbrook dissented because they believed the panel

had deviated from the Supreme Court's analysis in applying the

controlling legal standards. Id. at 388-89. In any event, neither

the majority nor the concurrence in Swamp decided whether

Wisconsin's law could have been more narrowly tailored with a

consent requirement.

We hold Minn. Stat. §§ 204B.06 subd. 1(b) & 204B.04 subd. 2

are unconstitutional because the statutes severely burden the New
-9-

Party's associational rights and the statutes could be more

narrowly tailored (with a consent requirement) to advance

Minnesota's interests. We do not reach the constitutionality of

Minn. Stat. § 204B.04 subd. 1, which states, "No individual shall

be named on any ballot as the candidate of more than one major

political party," because it is not involved in this case. We

reverse the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.