Filed: Feb. 27, 2014
Latest Update: Mar. 02, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1368 AL PISANO; NORTH CAROLINA CONSTITUTION PARTY; NORTH CAROLINA GREEN PARTY; NICHOLAS TRIPLETT, Plaintiffs – Appellants, v. KIM WESTBROOK STRACH, as Executive Director of the North Carolina Board of Elections; JOSH HOWARD, as Member of the North Carolina Board of Elections; RHONDA AMOROSO, as Member of the North Carolina Board of Elections; PAUL FOLEY, as Member of the North Carolina Board of Elections; MAJA KRICKER, as Mem
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 13-1368 AL PISANO; NORTH CAROLINA CONSTITUTION PARTY; NORTH CAROLINA GREEN PARTY; NICHOLAS TRIPLETT, Plaintiffs – Appellants, v. KIM WESTBROOK STRACH, as Executive Director of the North Carolina Board of Elections; JOSH HOWARD, as Member of the North Carolina Board of Elections; RHONDA AMOROSO, as Member of the North Carolina Board of Elections; PAUL FOLEY, as Member of the North Carolina Board of Elections; MAJA KRICKER, as Memb..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-1368
AL PISANO; NORTH CAROLINA CONSTITUTION PARTY; NORTH
CAROLINA GREEN PARTY; NICHOLAS TRIPLETT,
Plaintiffs – Appellants,
v.
KIM WESTBROOK STRACH, as Executive Director of the North
Carolina Board of Elections; JOSH HOWARD, as Member of the
North Carolina Board of Elections; RHONDA AMOROSO, as
Member of the North Carolina Board of Elections; PAUL
FOLEY, as Member of the North Carolina Board of Elections;
MAJA KRICKER, as Member of the North Carolina Board of
Elections; JOSHUA MALCOLM, as Member of the North Carolina
Board of Elections,
Defendants – Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Graham C. Mullen,
Senior District Judge. (3:12-cv-00192-GCM)
Argued: October 29, 2013 Decided: February 27, 2014
Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.
Affirmed by published opinion. Judge Diaz wrote the opinion, in
which Judge Niemeyer and Judge Motz joined.
ARGUED: Robert Milton Bastress, Jr., Morgantown, West Virginia,
for Appellants. Susannah Porter Holloway, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.
ON BRIEF: Jason E. Huber, CHARLOTTE SCHOOL OF LAW, Charlotte,
North Carolina, for Appellants. Roy Cooper, North Carolina
Attorney General, Susan K. Nichols, Special Deputy Attorney
General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellees.
2
DIAZ, Circuit Judge:
North Carolina provides three ways for a candidate to
appear on a general election ballot when running for a partisan
federal, state, county, or municipal office. 1 First, a
“recognized” political party may nominate candidates. Second,
unaffiliated candidates may petition to appear on a general
election ballot. Third, and most relevant here, a “new”
political party may nominate candidates.
In this appeal, Al Pisano, Nicholas Triplett, the North
Carolina Constitution Party, and the North Carolina Green Party
raise an as-applied challenge to North Carolina’s May 17
petition-filing deadline for the formation of new political
parties. 2 They contend that the deadline violates the First and
Fourteenth Amendments because it imposes an unjustified, severe
burden on their ability to field presidential candidates. They
also assert that the deadline violates the Equal Protection
Clause of the Fourteenth Amendment because it places an
additional, substantial burden on them that is not imposed on
unaffiliated candidates or recognized political parties.
1
An individual may also qualify as a write-in candidate for
a non-municipal, partisan office. See N.C. Gen. Stat. § 163-
123.
2
Al Pisano is the chairperson of the North Carolina
Constitution Party. Nicholas Triplett is a vice chairperson of
the North Carolina Green Party.
3
The district court held that discovery was not necessary to
determine the constitutionality of the deadline and upheld its
validity, noting that the deadline has no impact on Plaintiffs’
constitutional rights. Even assuming that it did, however, the
court concluded that the deadline is justified, and any burden
it imposes is ameliorated by other aspects of North Carolina’s
statutory framework. For the reasons that follow, we affirm.
I.
We begin with a brief sketch of the relevant statutory
framework before turning to the issues presented.
A.
North Carolina election law provides that a recognized
political party may nominate candidates for federal, state, and
local offices. McLaughlin v. N.C. Bd. of Elections, 65 F.3d
1215, 1218 (4th Cir. 1995). Recognized political parties must
nominate their candidates by primary election unless only one
candidate from that party seeks election for a particular
office.
Id. at 1219; see also N.C. Gen. Stat. § 163-110. North
Carolina recognizes a political party if it polled at least two
percent of the entire votes cast in the state for governor or
for presidential electors. See N.C. Gen. Stat. § 163-96(a)(1).
A new political party may also nominate candidates. See
id. § 163-98. To do so, a qualifying new party must select its
4
candidates by party convention and submit its nominees by July
1. Id. To qualify as a new party, a group must file petitions
with the State Board of Elections before 12:00 PM on June 1 in
the election year in which the group desires to participate.
Id. § 163-96(a)(2), (b1). A separate petition must be filed for
each county in which the group gathers signatures. See
id.
§ 163-96(b), (b1).
The petitions must collectively be “signed by registered
and qualified voters in [North Carolina] equal in number to two
percent (2%) of the total number of voters who voted in the most
recent general election for Governor,” with at least 200
signatures from each of at least four congressional districts.
Id. § 163-96(a)(2). In addition to complying with the June 1
deadline, a group must submit each petition for verification to
the chairperson of the county board of elections in the county
where the signatures were obtained by 5:00 PM on May 17. 3
Id.
§ 163-96(b1).
3
The statute does not expressly say that May 17 is the
operative deadline. Rather, it requires that the petitions be
submitted to the chairperson “of the county board of elections
in the county in which the signatures were obtained no later
than 5:00 P.M. on the fifteenth day preceding the date the
petitions are due to be filed with the State Board of
Elections.” N.C. Gen. Stat. § 163-96(b1). Although Plaintiffs
initially contended that the operative deadline was May 16, see
First Am. Compl. ¶ 19 , they now concede the additional day.
5
Groups seeking to form new political parties are not
limited to a short time frame for gathering signatures and have
notice of the number of signatures required three-and-one-half
years before the deadline. This is so because the number of
required signatures is based on the total number of votes cast
in the previous gubernatorial election. See id. § 163-96(a)(2).
North Carolina does not preclude voters from signing petitions
based on their party affiliation or from signing multiple
petitions.
North Carolina held a primary election on May 8, 2012. The
Republican presidential candidate was nominated in August, and
the Democratic presidential candidate was nominated in
September. The general election was held on November 6. To
nominate candidates for North Carolina’s general election
ballot, a group needed to collect and timely submit 85,379
signatures, a figure amounting to two percent of the total
number of votes cast in North Carolina’s 2008 gubernatorial
election.
B.
The North Carolina Constitution Party and Al Pisano filed
suit against the Executive Director of the State Board of
Elections and its members on March 27, 2012. On April 6, they
filed an amended complaint, joined by the North Carolina Green
Party and Nicholas Triplett. Plaintiffs allege that the May 17
6
deadline violates the First and Fourteenth Amendments and the
Equal Protection Clause because it severely burdens their
ability to field presidential candidates. Although Plaintiffs
do not challenge North Carolina’s two percent signature
requirement, they argue that the deadline, in combination with
the signature requirement, creates an impermissible barrier to
ballot access. Plaintiffs moved in the district court for a
preliminary injunction to prevent enforcement of the May 17
petition-filing deadline in the 2012 presidential election,
which the district court denied.
The parties subsequently held a conference in which they
agreed not to take discovery until the district court ruled on
Defendants’ motion for summary judgment or Plaintiffs’ motion
under Federal Rule of Civil Procedure 56(d) for discovery. The
district court denied the Rule 56(d) motion on October 18, 2012,
concluding that discovery was not needed to decide whether the
May 17 deadline is unconstitutional. The court allowed
Plaintiffs time to file additional affidavits before the court
ruled on the summary judgment motion, but Plaintiffs did not
take advantage of that opportunity.
7
On March 1, 2013, the district court granted Defendants’
motion for summary judgment. 4 It first stated that the filing
deadline has no impact on Plaintiffs' rights and that it is
instead the unchallenged two percent signature requirement that
imposes a severe burden. The court then concluded, however,
that the filing deadline is constitutional even if it does
impose a burden. Applying strict scrutiny, the court determined
that the deadline is narrowly tailored and that any burden it
imposes “is significantly lessened by the alleviating factors in
the overall statutory scheme.” J.A. 96-97. The district court
also rejected Plaintiffs’ equal protection claim, holding that
groups seeking to form new political parties are not similarly
situated to unaffiliated candidates or recognized political
parties. This appeal followed.
II.
A.
Plaintiffs first argue that the district court erred in
denying their Rule 56(d) motion. Rule 56(d) mandates that
4
The district court ruled on the merits of Plaintiffs’
claims after the November 2012 general election. The case is
not moot, however, because Plaintiffs’ challenge to the May 17
deadline falls under the “capable of repetition, yet evading
review” exception to the mootness doctrine. See Norman v. Reed,
502 U.S. 279, 287-88 (1992) (internal quotation marks omitted).
8
summary judgment be denied when the nonmovant “has not had the
opportunity to discover information that is essential to his
opposition.” 5 Ingle ex rel. Estate of Ingle v. Yelton, 439 F.3d
191, 195 (4th Cir. 2006) (internal quotation marks omitted). A
court should hesitate before denying a Rule 56(d) motion when
the nonmovant seeks necessary information possessed only by the
movant.
Id. at 196-97. But a court may deny a Rule 56(d)
motion when the information sought would not by itself create a
genuine issue of material fact sufficient for the nonmovant to
survive summary judgment.
Id. at 195. We review a district
court’s denial of a Rule 56(d) motion for abuse of discretion.
Greater Balt. Ctr. for Pregnancy Concerns,
Inc., 721 F.3d at
280.
Plaintiffs sought the following discovery: (1) production
of any state records regarding minor parties’ attempts to gain
ballot access for presidential candidates in North Carolina; (2)
a deposition of Gary Bartlett, then Executive Director of the
State Board of Elections, to explore North Carolina’s
justifications for the May 17 deadline; and (3) information from
officials in other states as to the efficacy of later filing
5
“By amendment that took effect on December 1, 2010, former
Rule 56(f) was carried forward into subdivision (d) without
substantial change.” Greater Balt. Ctr. for Pregnancy Concerns,
Inc., v. Mayor of Balt., 721 F.3d 264, 275 n.6 (4th Cir. 2013)
(en banc).
9
deadlines. They contend that this discovery was essential to
their ability to oppose summary judgment.
We conclude that the district court did not abuse its
discretion on this issue. To begin with, the record includes
information regarding other minor parties’ efforts to gain
ballot access in recent years. Between 1996 and 2012, the
Libertarian Party qualified as a new party four times and
qualified once as a recognized political party based on previous
election results. The Reform Party qualified as a new party
twice, and the Natural Law Party and the Americans Elect Party
each qualified as a new party once. We also know that as of
April 17, 2012, five groups other than Plaintiffs had expressed
interest in forming new political parties but had not submitted
any signatures. In addition, the State Board of Elections posts
the status of current statewide petitions in each county on its
website. Plaintiffs do not appear to dispute this record
evidence; they simply want more.
Plaintiffs complain that they do not know precisely how
many groups have attempted but failed to qualify as new
political parties. True enough, but we are satisfied that this
information by itself would not create a genuine issue of
material fact sufficient to preclude summary judgment, given
that the question before us is principally one of law, and there
is a wealth of case law assessing similar challenges.
10
Second, with respect to North Carolina’s reasons for the
May 17 deadline, the record provides justifications. In a sworn
declaration, Bartlett highlighted the problems that the state
fears would arise without ballot-access requirements, including
“tremendous voter confusion and chaos.” J.A. 19. At bottom,
Plaintiffs want to compel North Carolina to say more in support
of the May 17 deadline. But the fact that Plaintiffs believe
the state has provided only ephemeral support for the deadline
goes to the merits of their claim--not to whether the district
court properly denied the Rule 56(d) motion.
Finally, Plaintiffs sought information from officials in
other states about possible alternatives to the May 17 deadline,
presumably to attack the merits of North Carolina’s choice. The
district court, however, did not bar Plaintiffs from obtaining
and presenting that evidence. To the contrary, it gave
Plaintiffs ample opportunity to offer additional affidavits
before considering the summary judgment motion, but Plaintiffs
simply chose not to do so.
We find no abuse of discretion on this record.
B.
We next consider whether the May 17 petition-filing
deadline violates Plaintiffs’ First and Fourteenth Amendment
rights. We review the district court’s grant of summary
11
judgment de novo. See S.C. Green Party v. S.C. State Election
Comm’n, 612 F.3d 752, 755 (4th Cir. 2010).
It is well established that ballot-access restrictions
“implicate substantial voting, associational and expressive
rights protected by the First and Fourteenth Amendments.”
McLaughlin, 65 F.3d at 1221. In analyzing whether state
election laws impermissibly infringe on such rights, the Supreme
Court has instructed us to weigh
‘the character and magnitude of the asserted injury to
the rights protected by the First and Fourteenth
Amendments that the plaintiff seeks to vindicate’
against ‘the precise interests put forward by the
State as justifications for the burden imposed by its
rule,’ taking into consideration ‘the extent to which
those interests make it necessary to burden the
plaintiff’s rights.’
Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson
v. Celebrezze,
460 U.S. 780, 789 (1983)).
Applying the Anderson/Burdick framework, we have stated
that election laws that impose a severe burden on ballot access
are subject to strict scrutiny, and a court applying strict
scrutiny may uphold the restrictions only if they are “narrowly
drawn to advance a state interest of compelling importance.”
McLaughlin, 65 F.3d at 1220 (internal quotation marks omitted).
On the other hand, “if a statute imposes only modest burdens,
then a State’s important regulatory interests will usually be
enough to justify reasonable, nondiscriminatory restrictions.”
12
S.C. Green Party, 612 F.3d at 756 (internal quotation marks
omitted).
When deciding whether a state’s filing deadline is
unconstitutionally burdensome, we evaluate the combined effect
of the state’s ballot-access regulations. See Wood v. Meadows,
207 F.3d 708, 711 (4th Cir. 2000) (“When determining whether a
given state’s filing deadline unconstitutionally burdens
candidates’ and voters’ rights, a court must examine that
state’s ballot access scheme in its entirety.”).
Although the district court relied on our decision in
McLaughlin when it applied strict scrutiny, we do not believe
that McLaughlin addresses the appropriate level of scrutiny that
we should apply here. There, we considered several challenges
to North Carolina’s then-applicable statutory framework,
including its retention requirement to qualify as a recognized
political party. See 65 F.3d at 1220. Then, as now, North
Carolina imposed a two percent signature requirement on groups
seeking to form new political parties. See
id. at 1219. At the
time, however, the state also required that a notarized
affidavit and a five-cent verification fee accompany each
signature. 6
Id. at 1218. Furthermore, a political party could
6
The district court had invalidated the notarized affidavit
and five-cent verification fee requirements, and the state did
not cross appeal. Id. at 1220.
13
only retain the right to field candidates if its nominee for
governor or for president received at least ten percent of the
votes cast in the previous general election for governor or
president. 7 Id. at 1219.
In McLaughlin, the Libertarian Party challenged the ten
percent retention requirement, as it had satisfied the
requirements to form a new political party multiple times. Id.
at 1219-20. We recognized that the burden imposed by North
Carolina’s then-applicable restrictions was “undoubtedly severe”
because, “as history reveal[ed], those regulations ma[d]e it
extremely difficult for any ‘third party’ to participate in
electoral politics.”
Id. at 1221. Moreover, we expressed
concern about the regulations’ impact on candidates for local
offices. In effect, the regulations prevented any third-party
candidates for local offices from designating their party
affiliation on the ballot unless their group met the two percent
or ten percent requirements--even if the corresponding number of
signatures or votes far exceeded the number of people entitled
to vote for that local office.
Id. at 1224. Concluding that
strict scrutiny applied because the restrictions imposed a
severe burden, see
id. at 1221, we nevertheless rejected the
7
The ten percent requirement has since been repealed. See
Electoral Fairness Act, 2006 N.C. Sess. Laws 234 § 1 (changing
the ten percent requirement to a two percent requirement).
14
Libertarian Party’s challenge in light of applicable Supreme
Court precedent, id. at 1225-26. We did not expressly decide,
however, whether North Carolina’s filing deadline is
constitutional. 8
Nor does McLaughlin mandate that we apply strict scrutiny
in this case. In McLaughlin, we considered a significantly more
restrictive statutory framework in the context of a different
type of challenge. North Carolina no longer requires groups
seeking new party status to submit notarized affidavits and
verification fees, nor does it impose a ten percent retention
requirement. See N.C. Gen. Stat. § 163-96. Thus, the pre-1996
history that we discussed in McLaughlin is immaterial to the
question at hand: whether the current statutory framework
imposes a severe burden. In addition, Plaintiffs challenge the
filing deadline only in the context of presidential elections,
which involve the entire statewide electorate. Thus, our
concern in McLaughlin about the regulations’ effect on
candidates in local elections is irrelevant here.
With this background in mind, we address the
constitutionality of the May 17 petition-filing deadline as
8
We note that since our 1995 decision in McLaughlin, minor
parties have met the two percent signature requirement eight
times in presidential election years, and the Libertarian Party
placed its candidate on the 2012 ballot by satisfying the ballot
retention provision.
15
applied to Plaintiffs. Consistent with the Supreme Court’s
analytical framework, “we base our conclusions directly on the
First and Fourteenth Amendments and do not engage in a separate
Equal Protection Clause analysis.” Norman, 502 U.S. at 288 n.8
(quoting
Anderson, 460 U.S. at 786 n.7); see also Libertarian
Party of Ohio v. Blackwell,
462 F.3d 579, 586 n.6 (6th Cir.
2006)(same); Council of Alt. Political Parties v. Hooks,
179
F.3d 64, 70 n.7 (3d Cir. 1999)(same).
C.
1.
We first address whether the filing deadline imposes a
severe burden on Plaintiffs’ constitutional rights. Plaintiffs
assert that the May 17 deadline, in combination with the
unchallenged two percent signature requirement, creates an
impermissible barrier to ballot access. 9 Specifically,
Plaintiffs contend that the May 17 deadline prevents them from
gathering signatures at the height of the presidential election
9
Plaintiffs place great emphasis on a 1988 letter from
North Carolina’s Office of the Attorney General that suggests
the May 17 deadline is unconstitutional. In that letter,
however, the Attorney General’s Office appears to have read
Anderson to require strict scrutiny review in all cases
challenging ballot access restrictions. The Court has since
clarified that Anderson does not compel strict scrutiny review
in all cases, but instead only when the burden imposed is
severe. See Burdick, 504 U.S. at 434. In any event, this
letter has no bearing on our resolution of this case.
16
season. According to them, early filing deadlines impose a
severe burden by requiring parties to gather signatures when the
election is remote, before voters focus on the campaigns.
Plaintiffs emphasize that the May 17 deadline comes before most
of the presidential candidates have been selected and before the
candidates’ political platforms are defined.
Plaintiffs’ argument ignores important alleviating factors
in North Carolina’s statutory framework. North Carolina does
not limit groups to a short time frame for gathering signatures,
and groups are on notice of the number of signatures they need
to collect three-and-one-half years before the deadline.
Plaintiffs thus have ample opportunity to collect signatures
when voters are engaged, such as during primaries and other
elections. And they have a large pool from which to collect
signatures, as the state does not preclude voters from signing
petitions based on their party affiliation or from signing
multiple petitions.
Plaintiffs also misconstrue the timeline for presidential
election cycles. Although the Republican and Democratic parties
did not officially nominate their candidates for president until
August and September of 2012, the names of potential recognized-
party candidates and their platforms were known well before the
May 17 deadline. Given that North Carolina held a primary on
May 8, 2012, the May 17 deadline allowed Plaintiffs to engage
17
voters during the height of the primary season. Indeed,
Plaintiffs could have collected signatures from registered
voters at polling locations during the early voting period and
on the day of the May primary.
The cases Plaintiffs cite, wherein courts have struck down
filing deadlines, are inapposite, principally because the
deadlines in those cases preceded the state’s primary. 10 See,
e.g., Anderson, 460 U.S. at 804 n.31, 806 (striking down Ohio’s
filing deadline for unaffiliated presidential candidates, which
fell in March--75 days before a June primary); Nader v. Brewer,
531 F.3d 1028, 1038-40 (9th Cir. 2008) (striking down Arizona’s
filing deadline for unaffiliated candidates, which fell in June-
-90 days before the primary); MacBride v. Exon,
558 F.2d 443,
446, 448-49 (8th Cir. 1977) (striking down Nebraska’s deadline
for the formation of new political parties, which fell in
February--90 days before the primary). As the Sixth Circuit has
explained, “the great weight of authority . . . has
distinguished between filing deadlines well in advance of the
primary and general elections and deadlines falling closer to
10
Plaintiffs cite one federal district court case that did
not address whether the filing deadline fell before or after the
presidential primary. See Nader 2000 Primary Comm., Inc. v.
Hazeltine, 110 F. Supp. 2d 1201, 1208-09 (D.S.D. 2000) (striking
down June 20 deadline for unaffiliated presidential candidates).
We do not find the reasoning of that case persuasive.
18
the dates of those elections.” Libertarian Party of Ohio, 462
F.3d at 590.
Election law schemes with modest signature requirements and
filing deadlines falling close to or after the primary election
are the relevant points of comparison. We, and several of our
sister circuits, have found that such schemes do not impose
severe burdens. See, e.g., Swanson v. Worley, 490 F.3d 894,
905-06, 910 (11th Cir. 2007) (upholding Alabama’s primary-day
filing deadline, in combination with a three percent signature
requirement, for unaffiliated candidates in local and statewide
elections); Lawrence v. Blackwell,
430 F.3d 368, 370, 375 (6th
Cir. 2005) (upholding Ohio’s primary-eve filing deadline for
unaffiliated congressional candidates, in combination with a one
percent signature requirement);
Wood, 207 F.3d at 713-14, 717
(upholding Virginia’s primary-day filing deadline, in
combination with a 0.5% signature requirement, for unaffiliated
candidates in local and statewide elections).
Plaintiffs have not shown that North Carolina’s scheme
burdens them in any meaningful way. In that respect, this case
is far different from Anderson, where the Supreme Court held
Ohio’s March 20 filing deadline for unaffiliated presidential
19
candidates unconstitutional. 11 See 460 U.S. at 806. There, the
deadline fell 75 days before a June primary.
Id. at 804 n.31.
Anderson’s supporters submitted a petition that satisfied all of
Ohio’s statutory requirements, but the state refused to accept
it solely because it was about two months late. 12
Id. at 782.
The Court explained that the March filing deadline burdened
unaffiliated candidates who decided to run before the deadline
because they were forced to gather signatures “[w]hen the
primary campaigns [were] far in the future and the election
itself [was] even more remote.”
Id. at 792. The deadline also
excluded any unaffiliated presidential candidate who decided to
run after the deadline.
Id. Ultimately, the Court concluded
11
Plaintiffs’ challenge is also far different from cases in
our circuit in which we have found that ballot-access
requirements impose a severe burden and fail strict scrutiny.
See, e.g., Libertarian Party of Va. v. Judd, 718 F.3d 308, 317-
19 (4th Cir. 2013) (holding that residency restrictions on
petition witnesses fail strict scrutiny because the restrictions
impose a severe burden and the state “produced no concrete
evidence of persuasive force explaining why the plaintiffs’
proposed solution . . . would be unworkable or impracticable”).
In Judd, we explained that there was a general consensus among
our sister circuits that residency restrictions on petition
witnesses created a severe burden.
Id. at 317. Here, there is
no such consensus, and the weight of authority cuts against
Plaintiffs’ position.
12
Anderson’s name nonetheless appeared on Ohio’s ballot
because the district court held that the filing deadline was
unconstitutional, and the state did not seek to stay the
district court’s order. Id. at 783-84. The appeal was pending
on the date of the presidential election.
Id. at 784.
20
that the burden the filing deadline imposed “unquestionably
outweigh[ed] the State’s minimal interest in imposing a March
deadline.” Id. at 806.
Unlike the March 20 deadline in Anderson, however, North
Carolina’s May 17 petition-filing deadline falls after the
state’s May primary. And although not dispositive, Plaintiffs
here did not come close to meeting the other petition
requirements for the 2012 general election--most notably the two
percent signature requirement. By April 17, 2012, the North
Carolina Constitution Party had submitted only 3,521 signatures-
-2,827 of which had been verified by the relevant counties--out
of a required 85,379. The North Carolina Green Party had
submitted no petitions by that date. Moreover, neither party
submitted any petitions between the date of the May primary and
the filing deadline.
In sum, we are not persuaded that the May 17 deadline,
considered in the context of North Carolina’s ballot-access
scheme, imposes a severe burden on Plaintiffs’ ability to form
new parties and nominate candidates. To the contrary, because
Plaintiffs have ample time and opportunity to collect the
reasonable number of required signatures, we conclude that the
burden on Plaintiffs is modest.
21
2.
Because the deadline does not impose a severe burden, we
decline to apply strict scrutiny to Plaintiffs’ claim. 13
Instead, we simply “balance the character and magnitude of the
burdens imposed against the extent to which the regulations
advance the state’s interests in ensuring that ‘order, rather
than chaos, is to accompany the democratic processes.’”
McLaughlin, 65 F.3d at 1221 (quoting Storer v. Brown,
415 U.S.
724, 730 (1974)). North Carolina’s “asserted regulatory
interests need only be sufficiently weighty to justify the
limitation imposed on the [plaintiffs’] rights.” See Timmons v.
Twin Cities Area New Party,
520 U.S. 351, 364 (1997) (internal
quotation marks omitted).
To support its choice of a May 17 deadline, North Carolina
relies on its general interest in regulating the election
process. There is “an important state interest in requiring
13
In its appellate brief, the state did not contest the
district court’s application of strict scrutiny to Plaintiffs’
challenge. We, however, are not bound by that concession but
rather must independently determine the proper standard of
review. See Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99
(1991) (“When an issue or claim is properly before the court,
the court is not limited to the particular legal theories
advanced by the parties, but rather retains the independent
power to identify and apply the proper construction of governing
law.”); see also United States ex rel. May v. Purdue Pharma
L.P.,
737 F.3d 908, 913 n.3 (4th Cir. 2013) (citing Kamen and
explaining that a party’s failure to raise a particular argument
“does not preclude our consideration and application of it”).
22
some preliminary showing of a significant modicum of support
before printing the name of a political organization’s candidate
on the ballot--the interest, if no other, in avoiding confusion,
deception, and even frustration of the democratic process at the
general election.” Jenness v. Fortson, 403 U.S. 431, 442
(1971). States are not required “to make a particularized
showing of the existence of voter confusion, ballot
overcrowding, or the presence of frivolous candidacies prior to
the imposition of reasonable restrictions on ballot access.” 14
Munro v. Socialist Workers Party,
479 U.S. 189, 194-95 (1986).
Indeed, states have an interest "in ensuring orderly, fair, and
efficient procedures for the election of public officials." See
S.C. Green
Party, 612 F.3d at 759. This interest necessarily
requires the imposition of some cutoff period “to verify the
validity of signatures on the petitions, to print the ballots,
and, if necessary, to litigate any challenges.” See Am. Party
of Tex. v. White,
415 U.S. 767, 787, n.18 (1974).
Plaintiffs concede the state’s interest in regulating
elections generally, but they argue that its interest in
regulating presidential elections is diminished. It is true
14
As the record shows, North Carolina’s ballot is often
lengthy, which has contributed to lines at the polls and
increased costs for additional tabulators in counties that use
paper ballots.
23
that “in a Presidential election a State’s enforcement of more
stringent ballot access requirements, including filing
deadlines, has an impact beyond its own borders.” Anderson, 460
U.S. at 795. Indeed, a state has a “less important interest in
regulating Presidential elections than statewide or local
elections, because the outcome of the former will be largely
determined by voters beyond the State’s boundaries.”
Id. Even
so, states maintain an interest in regulating presidential
elections.
We conclude that North Carolina’s choice of a May 17
deadline is reasonable, especially in context. The deadline
falls after the state’s May primary and precedes other important
deadlines. Notably, the counties need time to verify signatures
before the June 1 deadline. And even putting the June 1
deadline aside, North Carolina also requires qualifying new
parties to select their nominees by party convention and submit
their names by July 1. These deadlines permit the government to
verify signatures and prepare the ballot before the November
election. Accepting Plaintiffs’ argument would require us to
overturn all of North Carolina’s pre-election deadlines for new
parties. Having determined that the May 17 deadline is
reasonable, we decline this invitation.
Balancing “the character and magnitude of the burdens
imposed against the extent to which the regulations advance the
24
state’s interests,” McLaughlin, 65 F.3d at 1221, we find that
North Carolina’s choice of May 17 as the operative deadline
outweighs the modest burden imposed on Plaintiffs. Accordingly,
we hold that the May 17 petition-filing deadline is
constitutional as applied to Plaintiffs.
III.
For the reasons given, the district court’s judgment is
AFFIRMED.
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