20-2179
Libertarian Party of Connecticut v. Lamont

                           In the
               United States Court of Appeals
                       FOR THE SECOND CIRCUIT



                               AUGUST TERM 2020
                                 No. 20-2179

    LIBERTARIAN PARTY OF CONNECTICUT, HAROLD HARRIS, AND
                        DANIEL REALE,
                      Plaintiffs-Appellants,

                                         v.

NED LAMONT, GOVERNOR OF CONNECTICUT, AND DENISE MERRILL,
          SECRETARY OF STATE OF CONNECTICUT,
                  Defendants-Appellees.



 On Appeal from the United States District Court for the District of
                          Connecticut



                       SUBMITTED: SEPTEMBER 29, 2020
                         DECIDED: OCTOBER 2, 2020



Before:        WINTER, WALKER, AND MENASHI, Circuit Judges.

       The Libertarian Party of Connecticut and two of its affiliated
candidates sued the Governor and Secretary of State of Connecticut,
arguing that the State violated Appellants’ First and Fourteenth
Amendment rights by requiring candidates for office to collect
signatures from electors before appearing on the general election
ballot. Appellants sought a preliminary injunction prohibiting the
State from enforcing the petitioning laws and requiring it to place all
nominated Libertarian Party candidates on the general election ballot.
The district court denied the motion for a preliminary injunction on
the ground that Appellants failed to demonstrate a clear or substantial
likelihood of success on the merits. We agree. Applying the Anderson-
Burdick framework, we conclude (1) that Connecticut’s laws do not
impose a severe burden on Appellants’ rights and (2) that the State’s
interest in requiring candidates for office to demonstrate some
support before appearing on the ballot justified those laws. For these
reasons, we affirm.



            Edward Bona, Plainfield, CT, for Plaintiffs-Appellants
            Libertarian Party of Connecticut and Harold Harris.

            Daniel Reale, Plainfield, CT, pro se.

            Clare E. Kindall, Solicitor General; Maura Murphy
            Osborne, Assistant Attorney General; and Alma Rose
            Nunley, Assistant Attorney General, for William Tong,
            Attorney General of the State of Connecticut, Hartford,
            CT.



MENASHI, Circuit Judge:

      The Libertarian Party of Connecticut and two of its candidates
sued the Governor and Secretary of State of Connecticut, arguing that
the State violated Appellants’ First and Fourteenth Amendment
rights by requiring them to gather a certain number of signatures in

                                  2
unfavorable conditions before appearing on the general election
ballot. They moved for a preliminary injunction to prohibit the State
from enforcing the petitioning laws and to require it to place all
nominated Libertarian Party candidates on the November ballot. The
United States District Court for the District of Connecticut (Hall, J.)
denied the motion on the ground that Appellants failed to
demonstrate a substantial likelihood of success on the merits.

      This appeal was calendared for argument on October 13, 2020.
On September 18, 2020, Appellant Daniel Reale moved for expedited
consideration of the appeal and asked that it be decided by October
2, 2020, the date on which absentee ballots are made available to
voters. On October 1, 2020, we granted that motion and affirmed the
judgment of the district court. We noted that an opinion would be
forthcoming. In this opinion we explain the reasons for our order
affirming the district court.

                                   I

      Under Connecticut law, a party’s candidate for an office is
automatically placed on the ballot if that party’s candidate received
more than 1 percent of the vote for that office in the last preceding
general election. Conn. Gen. Stat. §§ 9-372(6), 9-379. For independent
candidates and candidates whose parties do not meet the vote
threshold, Connecticut law provides an alternative: a candidate may
petition onto the ballot by gathering a number of signatures “equal to
the lesser of (1) one per cent of the votes cast for the same office or
offices at the last-preceding election ... or (2) seven thousand five
hundred.”

petitioning opens on the first business
day of the year

must submit signatures “to
the appropriate town clerk or to the Secretary of the State not later


                                  3
than four o’clock p.m. on the ninetieth day preceding the day of the
... election,”

March 10, 2020, the Governor of Connecticut declared a
public health emergency. Over the following month, the Governor
issued a series of executive orders designed to reduce the spread of
COVID-19. On April 4, 2020, Appellants sued Governor Ned Lamont
and Secretary of State Denise Merrill and alleged that Connecticut’s
petitioning law was unconstitutional. They sought a preliminary
injunction requiring the State to place all nominated Libertarian Party
candidates on the November ballot. On May 11, 2020, Governor
Lamont issued Executive Order 7LL, which altered Connecticut’s
petitioning requirement in three ways. First, it reduced the number of
signatures required by 30 percent. Second, it extended the filing
deadline by two days. Third, it permitted candidates to collect
signatures electronically or by mail. 1


1   Executive Order 7LL provides, in relevant part:
        For candidates seeking ballot access as a petitioning candidate
        or a candidate petitioning using a party designation,
        including a party designation for an existing minor party, the
        following provisions shall apply:
            a. Notwithstanding the provisions of section 9-453d of the
            General Statutes, the number of signatures required under
            section 9-453d of the General Statutes shall be reduced by
            thirty percent.
            b. Notwithstanding the provisions of section 9-453i, the
            deadline for filing such petitions shall be extended by two
            days.
            c. Notwithstanding sections 9-453a to 9-453o of the
            General Statutes, a petitioning signature shall be accepted
            as valid without attestation of the circulator or

                                       4
      After permitting the Independent Party, the Green Party, and
several individual plaintiffs to intervene, the district court denied
Appellants’ motion for a preliminary injunction on the ground that
Connecticut’s petitioning requirement imposes a reasonable,
nondiscriminatory burden on candidates seeking a place on the
ballot. Accordingly, the district court concluded that Appellants
failed to establish a clear or substantial likelihood of success on the
merits. Appellants timely appealed to this court. 2


         acknowledgment otherwise required if: (i) a registered
         voter signs a petition containing only his or her signature
         that is returned by U.S. mail to the candidate and later to
         the town clerk of the municipality or the Secretary of the
         State by the applicable deadline, or (ii) a registered voter
         signs a petition containing only his or her signature, which
         signature may be scanned or photographed electronically,
         and returned to the candidate by electronic mail and later
         to the town clerk of the municipality or the Secretary of
         the State by the applicable deadline along with a copy of
         the email demonstrating the electronic transmission of the
         petition by the registered voter. Any petition submitted in
         accordance with subdivisions (i) or (ii) of this subsection
         shall contain the information required under sections 9-
         453a, 9-453f and 9-453g of the General Statutes and shall
         include a statement by the registered voter attesting to his
         or her identity, and qualification as an elector and shall be
         signed under the penalties of false statement. If more than
         one signature is on a petition page, all the requirements of
         9-453a to 9-453o of the General Statutes must be satisfied,
         provided that any existing Executive Orders governing
         remote notarizations may be utilized. Nothing in this
         Order shall preclude petitioning by any other means set
         forth in section 9-453a to 9-453o of the General Statutes.
2Only the Libertarian Party and two of its affiliated candidates (Harold
Harris and Daniel Reale) appealed from the district court’s judgment.

                                     5
                                      II

       We review a district court’s decision to deny a preliminary
injunction for abuse of discretion. See Citigroup Glob. Mkts., Inc. v. VCG
Special Opportunities Master Fund Ltd., 

, 34 (2d Cir. 2010).
“A district court abuses its discretion when it rests its decision on a
clearly erroneous finding of fact or makes an error of law.” Almontaser
v. N.Y.C. Dep't of Educ., 

, 508 (2d Cir. 2008).

       “[T]o obtain a preliminary injunction against governmental
action taken pursuant to a statute, the movant has to demonstrate
(1) irreparable harm absent injunctive relief, (2) a likelihood of success
on the merits, and (3) public interest weighing in favor of granting the
injunction. The movant also must show that the balance of equities
tips in his or her favor.” Yang v. Kosinski, 

, 127 (2d Cir.
2020) (internal quotation marks, footnote, and alteration omitted).
When the plaintiff seeks a mandatory injunction, the standard is
particularly exacting: “a district court may enter a mandatory
preliminary injunction against the government only if it determines
that, in addition to demonstrating irreparable harm, the moving party
has shown a ‘clear’ or ‘substantial’ likelihood of success on the
merits.” Mastrovincenzo v. City of New York, 

, 89 (2d Cir.
2006) (quoting No Spray Coal., Inc. v. City of New York, 

,
150 (2d Cir. 2001)). Because Appellants sought an injunction directing
the Governor to place their candidates on the ballot, that injunction
could issue only on a showing of a clear or substantial likelihood of
success on the merits. Wright v. Giuliani, 

, 547 (2d Cir.


Harris requires 301 signatures to appear on the ballot for state senate. Reale
requires 268, 62, and 48 signatures to appear on the ballot for several offices.
Appellees’ App’x 11.

                                       6
2000) (“[W]hen the injunction sought ‘will alter rather than maintain
the status quo[,]’ the movant must show [a] ‘clear’ or ‘substantial’
likelihood of success.”) (quoting Rodriguez v. DeBuono, 

,
233 (2d Cir. 1999)); Tom Doherty Assocs., Inc. v. Saban Ent., Inc., 

, 33-34 (2d Cir. 1995) (“[W]e have required the movant to meet a
higher standard where: (i) an injunction will alter, rather than
maintain, the status quo, or (ii) an injunction will provide the movant
with substantially all the relief sought and that relief cannot be
undone even if the defendant prevails at a trial on the merits.”).

      Challenges to state action restricting ballot access are evaluated
under the Anderson-Burdick framework. Under that framework, the
level of scrutiny we apply depends on the severity of the burden state
law imposes on First and Fourteenth Amendment rights. When a
state’s election regulation imposes “‘severe’ restrictions” on First and
Fourteenth Amendment rights, “the regulation must be ‘narrowly
drawn to advance a state interest of compelling importance.’” Burdick
v. Takushi, 

, 434 (1992) (quoting Norman v. Reed, 

, 289 (1992)). By contrast, “when a state election law provision
imposes only ‘reasonable, nondiscriminatory restrictions’ upon the
First and Fourteenth Amendment rights of voters, ‘the State’s
important regulatory interests are generally sufficient to justify’ the
restrictions.”

Celebrezze, 

, 788
(1983)). “Review in such circumstances will be quite deferential, and
we will not require ‘elaborate, empirical verification of the
weightiness of the State’s asserted justifications.’ Nonetheless, in
cases … where the burden imposed by the law is non-trivial, we must
weigh the State’s justification against the burden imposed.” Price v.
N.Y. State Bd. of Elections, 

, 109 (2d Cir. 2008) (quoting



                                    7
Timmons v. Twin Cities Area New Party, 

, 364 (1997))
(internal citation omitted).

      Applying the Anderson-Burdick framework, the district court
determined     that   Connecticut’s      laws   impose    a     reasonable,
nondiscriminatory     burden    on       Appellants’   rights   and    that
Connecticut’s important interest in restricting ballot access to those
candidates with some demonstrated support justifies that burden. For
these reasons, the district court concluded that Appellants failed to
establish a likelihood of success on the merits. Because the district
court did not abuse its discretion in reaching that conclusion, we
affirm.

                                     A

      We begin with the question of whether Connecticut’s laws
impose a severe burden on Appellants’ rights. As the Sixth Circuit has
held, “[t]he hallmark of a severe burden is exclusion or virtual
exclusion from the ballot.” Libertarian Party of Ky. v. Grimes, 

, 574 (6th Cir. 2016). Accordingly, we ask whether Connecticut’s
petitioning laws effectively prevent Libertarian Party candidates
from appearing on the ballot. “What is ultimately important is not the
absolute or relative number of signatures required but whether a
‘reasonably diligent candidate could be expected to be able to meet
the requirements and gain a place on the ballot.’” Stone v. Bd. of
Election Comm'rs, 

, 682 (7th Cir. 2014) (quoting Bowe v. Bd.
of Election Comm'rs, 

, 1152 (7th Cir. 1980)).

      Our decision in LaRouche v. Kezer, 

(2d Cir. 1993), is
instructive. In that case, we considered a challenge to Connecticut’s
ballot access statutes by the presidential candidate Lyndon LaRouche.
Rejecting the argument that Connecticut law—which required

                                     8
LaRouche to gather 6,518 signatures in two weeks—imposed a severe
burden on LaRouche’s First and Fourteenth Amendment rights, we
surveyed Supreme Court precedent assessing the constitutionality of
state petitioning laws. In Storer v. Brown, 

, 740 (1974), the
Supreme Court considered the constitutionality of a state statute
requiring candidates for President and Vice President to “gather[]
325,000 signatures in 24 days,” a number equivalent to 5 percent of
the votes cast in the state in the preceding general election. In addition
to requiring a substantial number of signatures, the statute also
“disqualifie[d] from signing the independent’s petition all registered
voters who voted in the primary,” the practical effect of which was
that, if a sufficient number of people voted in the primary, the eligible
pool of signers could be so small as to make it impossible to satisfy
the statute’s numerical threshold.

739. Remanding the case for a
determination of whether the signature requirement imposed a
severe burden as applied, the Court commented on the burden the
statute imposed on its face:

      Standing alone, gathering 325,000 signatures in 24 days
      would not appear to be an impossible burden. Signatures
      at the rate of 13,542 per day would be required, but 1,000
      canvassers could perform the task if each gathered 14
      signers a day. On its face, the statute would not appear
      to require an impractical undertaking for one who
      desires to be a candidate for President.

740. Similarly, in American Party of Texas v. White, 

,
778 (1974), the Court rejected a challenge to a Texas statute that
permitted a gubernatorial candidate to appear on the ballot if he or
she secured 22,000 signatures, a number equivalent to 1 percent of the
votes cast for governor in the preceding general election. The Court
observed that the statute’s requirement that a candidate collect 22,000

                                    9
signatures in 55 days was not “too onerous.”

787. 
Although
satisfying the statute would require signatures “to be obtained … at
the rate of 400 per day,” the Court explained that the statute was
justified by Texas’s “compelling” interest in “regulating the number
of candidates on the ballot to avoid undue voter confusion.”
 Id. at 
786,
782 n.14. The Court considered the ultimate effect of the statute and
concluded that “Texas ‘in no way freezes the status quo’” by
preventing independents from accessing the ballot.
 Id. at 
787 (quoting
Jenness v. Fortson, 
403 U.S. 431
, 439 (1971)). Rather, its laws “afford[]
minority political parties a real and essentially equal opportunity for
ballot qualification.”
 Id. at 
788. Applying Storer and American Party of
Texas, and “[l]ooking to the percentage of potential voters that must
sign the petition, the number of volunteers needed, and the minimum
number of signatures to be obtained each day,” we held in LaRouche
that the Connecticut statute, which “require[d the collection of] 466
signatures a day,” was “‘reasonable’ and serve[d] an ‘important’ state
interest.” 
LaRouche, 990 F.2d at 41 
(quoting 
Burdick, 504 U.S. at 434
).

      Applying LaRouche, we conclude that, on its face, Connecticut’s
signature requirement does not impose a severe burden on First and
Fourteenth Amendment rights because a reasonably diligent
candidate could be expected to satisfy the signature requirement. See
Jenness, 403 U.S. at 442 
(upholding a statute that required a candidate
to secure signatures from 5 percent of eligible electors who voted in
the previous election); Schulz v. Williams, 
44 F.3d 48
, 56-57 (2d Cir.
1994) (holding that a New York statute requiring “an independent
who seeks ... statewide office” to “gather the signatures of 15,000
registered voters” during a 42-day period fell “well within the
constitutional bounds set by Storer”); Tripp v. Scholz, 
872 F.3d 857
, 865
(7th Cir. 2017) (concluding that a statute requiring the collection of

                                   10
approximately 2,400 signatures—5 percent of the voters in the
previous election—in 90 days was “not severe”).

      We turn, then, to the main question in this appeal: whether the
district court erred in concluding that Connecticut’s facially
constitutional petitioning statute did not impose a severe burden on
Appellants’ First and Fourteenth Amendment rights as it was applied
in this case. Appellants make two arguments.

      Appellants first argue that in-person petitioning was
essentially prohibited by Governor Lamont’s executive orders. In the
proceedings before the district court, they pointed to Executive Order
7H, which provides, in relevant part:

      Effective on March 23, 2020 at 8:00 p.m. and through
      April 22, 2020, unless earlier modified, extended, or
      terminated by me, all businesses and not-for-profit
      entities in the state shall employ, to the maximum extent
      possible, any telecommuting or work from home
      procedures that they can safely employ. Non-essential
      businesses or not-for-profit entities shall reduce their in-
      person workforces at any workplace locations by 100%
      not later than March 23, 2020 at 8:00 p.m. Any essential
      business or entity providing essential goods, services or
      functions shall not be subject to these in-person
      restrictions.
App’x 88-89. Appellants’ position is that, because petitioning is not
designated as an essential business activity, Executive Order 7H
prohibits it. The district court rejected this argument, observing that
neither Executive Order 7H nor any other executive order “expressly
prohibits or restricts” in-person petitioning.
 Id. at 
130. That is true, but
the question is closer than the district court’s analysis suggests. The
order’s requirement that non-essential businesses “reduce their in-

                                    11
person workforces at any workplace location” might plausibly be
read to require candidates to avoid employing petition canvassers.
Nevertheless, we need not determine whether Executive Order 7H
forbade in-person petitioning. As the district court correctly
explained, Connecticut clarified its position on the matter in a May
guidance   document     that   explicitly   provided   that   in-person
petitioning could be conducted so long as it was done in a manner
consistent with Connecticut’s social distancing guidelines. See
 id. at
130 
(“This year, defendants had clarified by mid-May that petitions
may be circulated in person consistent with social distancing
protocols.”) (internal quotation marks and alteration omitted). Even
assuming that Executive Order 7H prohibited in-person petitioning
in the nearly two months between its issuance and the promulgation
of the guidance document, that would have left Appellants two
months prior to Executive Order 7H’s issuance and two months after
Connecticut clarified its position in which to gather signatures.

      Appellants next argue that, irrespective of the legality of in-
person petitioning, the pandemic and the Governor’s executive
orders have made petitioning nearly impossible. In support of their
argument, Appellants presented to the district court limited evidence
about the feasibility of in-person petitioning. The Independent Party
plaintiffs presented additional evidence, including declarations
describing the diminished success rate of in-person petitioning.
Though Executive Order 7LL authorized alternative methods,
Appellants argue that those methods were impractical based on the
declarations of Appellants Harris and Reale. Harris declared that he
prepared “letters with petitions and prepaid postage including return
postage, 140 going to Greens and Libertarians and another 400 going
to registered Independents,” that the preparation “took four hours of

                                  12
time, four hours of labor, and a lap time of seven days,” and resulted
in ten signatures. App’x 104-05. Reale declared that mail was not an
effective means of collecting signatures because “[m]ail turn around
time remains slow.”
 Id. at 
App’x 108.

      Both Harris and Reale insisted that collecting signatures
electronically was not feasible either. Harris alleged that he lacked the
technical ability or software necessary to collect signatures
electronically; Reale claimed that the Libertarian Party “do[es] not
have the resources to develop electronic signature gathering software
that would comply with Executive Order 7LL.”
 Id. at 
107. Appellants
also argued that compliance with Executive Order 7LL would impose
substantial costs on account of the record-keeping obligations it
allegedly imposes on candidates. The Independent Party plaintiffs
similarly declared that petitioning by mail would be prohibitively
expensive and that they lacked the infrastructure to petition
electronically.

      Rejecting Appellants’ arguments, the district court relied on the
declaration of Theodore Bromley, Connecticut’s Director of Elections.
In his declaration, Bromley explained that several candidates
successfully petitioned onto the primary ballot using a combination
of in-person, electronic, and mail petitioning; these candidates
obtained many signatures—sometimes numbering in the hundreds—
over a 17-day period. Candidates also petitioned onto the general
election   ballot.   Ernestine   Holloway,   a   candidate    from   the
Independent Party—and one of the declarants in support of the
Independent Party’s motion for a preliminary injunction—obtained
petitioning papers on May 27, 2020. By June 18, 2020—23 days later—
Holloway had collected 87 signatures, a collection rate of nearly four
signatures a day that satisfied the statutory requirement and qualified
                                   13
her for the ballot. This evidence undercuts Appellants’ argument that
a diligent candidate would be unable to secure a place on the ballot
by petition.

      On this record, we cannot say that the district court abused its
discretion in concluding that Connecticut’s laws impose only a
reasonable, nondiscriminatory burden. The petitioning period ran for
218 days—from January 2 to August 7—and the evidence
demonstrates that petitioning was possible even under the
challenging conditions in the State of Connecticut. For that reason, we
affirm the district court’s decision that Connecticut’s petitioning laws
do not impose a severe burden on Appellants’ First and Fourteenth
Amendment rights.

                                   B

      We also agree with the district court that important state
interests justify the burden that Connecticut’s laws impose. The
Supreme Court has repeatedly held that “[t]he State has the
undoubted right to require candidates to make a preliminary
showing of substantial support in order to qualify for a place on the
ballot, because it is both wasteful and confusing to encumber the
ballot with the names of frivolous candidates.” 
Anderson, 460 U.S. at
788 
n.9. This court and others have recognized that signature
requirements are an appropriate means of vindicating that interest.
See 
Schulz, 44 F.3d at 57-58 
(explaining that a state’s interest in
“limiting the ballot to those candidates who have demonstrated
support” is “by no means novel and ha[s] long enjoyed support in the
case law”); Barr v. Galvin, 
626 F.3d 99
, 111 (1st Cir. 2010) (upholding a
signature requirement “[i]n light of the state’s legitimate interest in
ensuring that the candidates who appear on the statewide ballot have


                                   14
demonstrable support among the voting public”). The district court
did not err in concluding that this important interest justified the
burden Connecticut’s laws impose on Appellants. 3

                              CONCLUSION

       For the foregoing reasons we AFFIRM the judgment of the
district court.




3 Appellants suggest on appeal that the Governor lacked authority under
state law to issue Executive Order 7LL. We decline to address this argument
because it was forfeited, see Greene v. United States, 
13 F.3d 577
, 586 (2d Cir.
1994) (“[I]t is a well-established general rule that an appellate court will not
consider an issue raised for the first time on appeal.”), and in any event
would be an improper basis for an injunction from a federal court, see
Pennhurst State Sch. & Hosp. v. Halderman, 
465 U.S. 89
, 106 (1984) (“[I]t is
difficult to think of a greater intrusion on state sovereignty than when a
federal court instructs state officials on how to conform their conduct to
state law. Such a result conflicts directly with the principles of federalism
that underlie the Eleventh Amendment.”).

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