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                            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,



     *The HONORABLE HARLINGTON WOOD, JR., United States
     Circuit Judge for the Seventh Circuit, sitting by
     designation.
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.

                               -2-
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

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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.


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     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

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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

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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

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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

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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.




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