This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1380

 

Douglas Krueger,

Appellant,

 

vs.

 

McLeod County, Minnesota, et al.,

Respondents,

 

City of Hutchinson, et al.,

Respondents.

 

Filed May 23, 2006

Affirmed
Klaphake, Judge

 

McLeod County District Court

File No. C4-04-973

 

Alan W. Weinblatt, Luke M. Kuhl, Weinblatt & Gaylord PLC, Suite 300 Kellogg Square, 111 East Kellogg Boulevard, St. Paul, MN  55101 (for appellant)

 

Michael Junge, McLeod County Attorney, McLeod County Courthouse, 830–11th Street East, Suite 112, Glencoe, MN  55336 (for respondents McLeod County, et al.)

 

Clifford M. Greene, William Otteson, Greene Espel, P.L.L.P., 200 South Sixth Street, Suite 1200, Minneapolis, MN  55402 (for respondents City of Hutchinson, et al.)

 

            Considered and decided by Klaphake, Presiding Judge, Stoneburner, Judge, and Harten, Judge.*

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Douglas Krueger brought this declaratory judgment action against respondents City of Hutchinson, city administrator Gary Plotz, McLeod County, and county auditor Cindy Schultz, asking that the district court (1) declare that the county’s 2002 redistricting violated the Minnesota Constitution; (2) enjoin the county from holding any public elections under the 2002 plan; and (3) order the city to adopt new precinct boundaries and the county to adopt new commissioner districts.

            Because appellant has raised what is essentially a political gerrymandering claim without proof of impact on a suspect class or fundamental right, we conclude that the district court properly held this to be a nonjusticiable claim that lacks a judicial remedy.  We therefore affirm.

D E C I S I O N

            Appellant alleges violations of his constitutional rights under Minn. Const., art. I, § 2 (“No member of this state shall be disenfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers.”); art. I, § 3 (“[a]ll persons may freely speak, write and publish their sentiments on all subjects”); art. VII, § 1 (guaranteeing the right to vote to all citizens over the age of 18, subject to certain exceptions).[1]

            The right to vote is a fundamental right under both the federal and state constitutions.  Kahn v. Griffin, 701 N.W.2d 815, 831 (Minn. 2005) (citing Reynolds v. Sims, 377 U.S. 533, 555, 84 S. Ct. 1362, 1377 (1964); Erlandson v. Kiffmeyer, 659 N.W.2d 724, 730 (Minn. 2003)).  A law that explicitly distinguishes between voters on the basis of a suspect classification, such as race, or that, although facially neutral, has that effect, is a direct infringement on the fundamental right to vote.  Shaw v. Reno, 509 U.S. 630, 643-44, 113 S. Ct. 2816, 2824-25 (1993).  Arithmetical dilution, “where two legislative districts of substantially unequal population size elect the same number of legislative representatives,” directly infringes on the individual voter’s right to equal participation because it accords some votes lesser and some votes greater value.  Ulland v. Growe, 262 N.W.2d 412, 416 (Minn. 1978).  A direct infringement on voting rights is subject to strict scrutiny.  Id. at 415.  In order to withstand strict scrutiny, a law must advance a compelling state interest and employ the least restrictive means of advancing that interest.  Kahn, 701 N.W.2d at 831.

            State and local governments are permitted to enact electoral regulations, which are not direct infringements on the fundamental right to vote.  Ulland, 262 N.W.2d at 415.  For example, a law that limits the right to vote by absentee ballot, but not the right to vote generally, is not a direct infringement and is thus reviewed under the rational basis standard.  See Erlandson, 659 N.W.2d at 733.

            Appellant argues that his fundamental right to vote is impaired because the 2002 redistricting, which gave the city majorities of voters in three of five commissioner districts despite the fact that city residents are not a majority in the county, diluted the power of the non-city voter.  A classification of city versus non-city, or urban versus rural, is not a suspect classification as is race.  See Shaw, 509 U.S. at 650, 113 S. Ct. at 2828 (stating that Fourteenth Amendment jurisprudence “always has reserved the strictest scrutiny for discrimination on the basis of race” in light of country’s long and persistent history of racial discrimination).  What appellant describes is more akin to a political gerrymander.  See Vieth v. Jubelirer, 541 U.S. 267, 271, n.1, 124 S. Ct. 1769, 1773 n.1 (2004) (defining “political gerrymander” as “the practice of dividing a geographical area into electoral districts, often of highly irregular shape, to give one political party an unfair advantage by diluting the opposition’s voting strength”) (quotation omitted)). 

            In Vieth, a plurality of the Supreme Court concluded that political gerrymanders present a nonjusticiable issue.  Id. at 306, 124 S. Ct. 1792.  The Court commented:  “It nowhere says that farmers or urban dwellers, Christian fundamentalists or Jews, Republicans or Democrats, must be accorded political strength proportionate to their numbers.”  Id. at 288, 124 S. Ct. 1782 (footnote omitted).  The Court further stated that “one-person, one-vote” cases do not bear on cases involving the proportionate representation of discernible groups, such as “farmers or urban dwellers or political parties” but are based on the vote of the individual; dilution of the individual’s right to vote can be determined by where the voter lives, how many voters are in that district, and how many voters are in other districts.  Id. at 290, 124 S. Ct. 1783-84.  But in the case of political gerrymanders, there are no judicially enforceable limits on the political considerations that a court would have to take into account when considering how to divide a district.  Id. at 305, 124 S. Ct. at 1792.  The Court reasoned that while racial gerrymanders are subject to strict scrutiny, political ones, in which discernible political groups do not achieve equal representation, are not.  Id. at 294, 124 S. Ct. at 1786.[2] 

            Appellant does not argue that his vote, as compared to other individual votes, is accorded less weight, but rather that his vote as a member of an interest group that he identifies as rural voters is somehow diminished.  This court is not able to adjudicate a reasonable remedy to this problem, given the restrictions of the governing statutes and the Constitution.  Appellant must seek his remedy in the legislature, which has defined the parameters for creation and division of county commissioner districts.

            Affirmed.