GRITZNER, District Judge.
The Green Party of Arkansas, Rebekah Kennedy, a former candidate of the Green Party of Arkansas, and Mark Swaney, a member of the Green Party of Arkansas (collectively, the Green Party) brought this action against Arkansas Secretary of State Mark Martin
Individuals that desire to gain access to Arkansas's ballot as a candidate for elected
A candidate may alternatively gain access to the ballot as a nominee of a new political party. A prospective new political party and its slate of candidates secure ballot access by filing with the Arkansas Secretary of State a petition comprised of the signatures of any 10,000 registered Arkansas voters collected in a ninety-day period. See Ark.Code Ann. § 7-7-205.
A political group not recognized as either a certified or a new political party may still secure ballot access for its candidates for President and Vice President by filing with the Arkansas Secretary of State a petition comprised of the signatures of any 1000 registered Arkansas voters. Ark.Code Ann. § 7-8-302(5)(B). As with a party that gains access as a new political party under § 7-7-205(e)(4), a political party securing ballot access under § 7-8-302(5)(B) will be recognized as a political party for the next general election if it succeeds in securing for its candidate three percent of the vote for presidential electors. See Ark.Code Ann. § 7-1-101(21)(A).
A candidate may also gain access to the ballot as an independent candidate by petition. "If the person is a candidate for state office or for United States Senator in which a statewide race is required, the person shall file petitions signed by not less than three percent (3%) of the qualified electors of the state or which contain ten thousand (10,000) signatures of qualified electors, whichever is the lesser." Ark.Code Ann. § 7-7-103(b)(1)(B). Candidates seeking county, township, or district office need only file a petition "signed by not less than three percent (3%) of the qualified electors in the county, township, or district in which the person is seeking office, but in no event shall more than two thousand (2,000) signatures be required for a district, county, or township office." Ark.Code Ann. § 7-7-103(b)(1)(A). A candidate that gains access to the ballot through independent petition may not list his or her preferred party affiliation on the ballot. See Ark.Code Ann. § 7-5-207(d)(1)(B).
Finally, a candidate may gain access to the ballot as a write-in candidate by filing
The Green Party, seeking to be recognized as a certified political party in Arkansas, successfully petitioned to become a new political party in 2006, 2008, and 2010 by filing with the Arkansas Secretary of State petitions comprised of the signatures of 10,000 registered Arkansas voters. The Green Party spent $40,000 in 2006, $30,000 in 2008, and $14,000 in 2010 in order to complete its petition drives. Following certification as a new political party, the Green Party's slate of candidates was granted access to the ballot and experienced some successes.
The Green Party filed a declaratory judgment action in the U.S. District Court for the Eastern District of Arkansas, contending that (1) Section 7-1-101(21)(C) violates the Green Party's associational rights pursuant to the First and Fourteenth Amendments because it is not narrowly tailored to advance a compelling state interest, and (2) the Arkansas Secretary of State misinterpreted § 7-1-101(21)(C). The district court granted Arkansas's motion for summary judgment and denied the Green Party's requested declaratory and injunctive relief. On appeal, the Green Party challenges the district court's finding that § 7-1-101(21)(C) does not severely interfere with its right of association and therefore does not impermissibly burden the Green Party's First and Fourteenth Amendment rights.
"We review a district court's decision to grant a motion for summary judgment de novo, applying the same standards for summary judgment as the district court." Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 514 (8th Cir.2011). Because the facts are not in dispute, we determine whether the moving party is
"The States possess a `broad power to prescribe the "Times, Places and Manner of holding Elections for Senators and Representatives," Art. I, § 4, cl. 1, which power is matched by state control over the election process for state offices.'" Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 451, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) (quoting Clingman v. Beaver, 544 U.S. 581, 586, 125 S.Ct. 2029, 161 L.Ed.2d 920 (2005)). Therefore, it is beyond question that "States may condition access to the general election ballot by a minor-party or independent candidate upon a showing of a modicum of support among the potential voters for the office." Munro v. Socialist Workers Party, 479 U.S. 189, 193, 107 S.Ct. 533, 93 L.Ed.2d 499 (1986). Although the power of the States to regulate the electoral process is expansive, that power may not be implemented in a manner that violates the Constitution. See Wash. State Grange, 552 U.S. at 451, 128 S.Ct. 1184 (citing Williams v. Rhodes, 393 U.S. 23, 29, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968)). Thus, each State must "observe the limits established by the First Amendment rights of the State's citizens," Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 222, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989) (quoting Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 217, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986)), including "the right of citizens to associate and to form political parties for the advancement of common political goals and ideas," Timmons v. Twin Cities Area New Party, 520 U.S. 351, 357, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997) (citing Colorado Republican Federal Campaign Committee v. Federal Election Commission, 518 U.S. 604, 616, 116 S.Ct. 2309, 135 L.Ed.2d 795 (1996); Norman v. Reed, 502 U.S. 279, 288, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992); Tashjian, 479 U.S. at 214, 107 S.Ct. 544). Indeed, "[r]epresentative democracy in any populous unit of governance is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views. The formation of national political parties was almost concurrent with the formation of the Republic itself." Cal. Democratic Party v. Jones, 530 U.S. 567, 574, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000).
To determine whether a State overstepped the limitations of its broad regulatory powers by enacting a ballot access scheme that impermissibly infringes upon the rights of citizens to associate, we must
Timmons, 520 U.S. at 358, 117 S.Ct. 1364 (internal quotation marks and citations omitted). Thus, we observe that "not every electoral law that burdens associational rights is subject to strict scrutiny."
Because "[n]o bright line separates permissible election-related regulation from unconstitutional infringements on First Amendment freedoms," Timmons, 520 U.S. at 359, 117 S.Ct. 1364, we must first determine whether § 7-1-101(21)(C) imposes a burden upon the Green Party, and if so, the significance of that burden. The Green Party argues that § 7-1-101(21)(C) inflicts a severe burden because: (1) § 7-1-101(21)(C) infringes upon the Green Party's associational rights by effectively obligating the Green Party to either run candidates in the races for Governor and presidential electors, or else petition for ballot access biannually; (2) the petition process compels the Green Party to spend significant funds in order to secure ballot access; (3) alternative parties have struggled to avoid decertification; and (4) § 7-1-101(21)(C) was enacted for the discriminatory purpose of preventing alternative parties from gaining ballot access.
Arguing that § 7-1-101(21)(C) interferes with the Green Party's associational rights by obligating it to either run candidates in the races for Governor and presidential elections or face a petition drive biannually, the Green Party suggests that Arkansas's objective in maintaining ballot integrity would be adequately fulfilled were Arkansas to grant complete ballot access to any party whose candidate secured three percent or more of the vote in any statewide election. Such a scheme, the Green Party contends, would more consistently reflect the Green Party's desire to focus on local elections, and would allow it to avoid a decision to either field competitive candidates for the gubernatorial and presidential elections or to complete
Arkansas counters that the races for Governor and presidential electors consistently draw candidates from both the Republican and Democratic parties, in addition to candidates from a host of alternative parties, whereas many other statewide races in Arkansas are uncontested. By tying continued certification to the races for Governor and presidential electors, Arkansas argues that it is better able to measure the support of political parties by drawings its conclusions from fully contested races. Although the Constitution protects the Green Party's right to determine "the boundaries of its own association," and to formulate "the structure which best allows it to pursue its political goals," Tashjian, 479 U.S. at 224, 107 S.Ct. 544, Arkansas argues that any burden imposed by § 7-1-101(21)(C) does not severely infringe the Green Party's ability to organize itself.
The Supreme Court applied strict scrutiny in Jones, Eu, and Tashjian to determine whether state election laws violated associational rights. See Jones, 530 U.S. at 582, 120 S.Ct. 2402; Eu, 489 U.S. at 225, 109 S.Ct. 1013; Tashjian, 479 U.S. at 216, 107 S.Ct. 544. The laws at issue in Jones, Eu, and Tashjian regulated fundamental issues of political party autonomy, including who may participate in the primary process, see Jones, 530 U.S. at 581, 120 S.Ct. 2402 (analyzing California law that created blanket primary system in which a voter of any political party was permitted to vote for any candidate in any other political party); Tashjian, 479 U.S. at 216, 107 S.Ct. 544 (analyzing Connecticut law that prohibited political parties from inviting voters registered as independents to vote in party primaries), and whether a political party could publicly state its preference for a candidate, see Eu, 489 U.S. at 225, 109 S.Ct. 1013 (analyzing California law that regulated the internal affairs of political parties and prohibited official governing bodies of political parties from endorsing candidates in political party primary elections).
Section 7-1-101(21)(C) is distinguishable from those laws at issue in Jones, Eu, and Tashjian because § 7-1-101(21)(C) does not force the Green Party "to adulterate their candidate-selection process—the basic function of a political party,—by opening it up to persons wholly unaffiliated with the party," Jones, 530 U.S. at 581, 120 S.Ct. 2402 (internal quotation marks and citation omitted), does not "prevent[ ] [the Green Party] from promoting candidates at the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community," Eu, 489 U.S. at 224, 109 S.Ct. 1013 (internal quotation marks and citation omitted), and does not "place[] limits upon the group of registered voters whom the [Green] Party may invite to participate in the basic function of selecting the Party's candidates," Tashjian, 479 U.S. at 215-16, 107 S.Ct. 544 (internal quotation marks and citation omitted). Thus, while the state laws at issue in Jones, Eu, and Tashjian all interfered with central objectives of a political party, in contrast, § 7-1-101(21)(C) "does not regulate the [Green Party]'s internal processes, its authority to exclude unwanted members, or its capacity to communicate with the public." Clingman, 544 U.S. at 590, 125 S.Ct. 2029.
The Green Party also argues that § 7-1-101(21)(C) severely infringes upon its associational rights by effectively imposing the financial hardship of petitioning every two years. However, the Green Party may incur some cost in completing a petition drive without rendering the effects of § 7-1-101(21)(C) severely burdensome. Indeed, "[m]any features of our political system—e.g., single-member districts, `first past the post' elections, and the high costs of campaigning—make it difficult for third parties to succeed in American politics." Timmons, 520 U.S. at 362, 117 S.Ct. 1364. We note that Arkansas does not impose a fixed fee in order to gain access to its ballot. See, e.g., Lubin v. Panish, 415 U.S. 709, 718, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974) ("Selection of candidates solely on the basis of ability to pay a fixed fee without providing any alternative means is not reasonably necessary to the accomplishment of the State's legitimate election interests."). Further, we have previously concluded that a Missouri statute requiring an indigent, putative candidate for governor to submit a "petition signed by the number of registered voters in the state equal to at least one-half of one percent of the total number of votes cast in the state for governor at the last election," in lieu of paying a $200 filing fee provided a "constitutionally adequate alternative means of ballot access." Lindstedt v. Mo. Libertarian Party, 160 F.3d 1197, 1199 (8th Cir.1998) (per curiam). Although the Green Party may incur some costs because of its choice to hire individuals to collect signatures, the ballot access scheme does not impose severe burdens on the Green Party and Arkansas need not collapse every barrier to ballot access. See Am. Party of Texas v. White, 415 U.S. 767, 794, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974) (noting that the States need not "finance the efforts of every nascent political group seeking to organize itself").
Although the Green Party argues that alternative parties have experienced hardships in achieving access to the ballot, the Green Party's success in securing ballot access as a new political party in 2006, 2008, and 2010
The Green Party also urges us to apply strict scrutiny suggesting that § 7-1-101(21)(C) was enacted with the discriminatory purpose of preventing any party other than the Republican or Democratic party from gaining certified political party status. However, the Green Party's evidence that § 7-1-101(21)(C) was enacted with a discriminatory purpose is at best speculative. On this record, we discern no discriminatory intent. Rather, Arkansas's ballot access scheme is facially neutral and applies its requirements to every party, both nascent and established, in the same manner. Although the operation of Arkansas's ballot access scheme may in practice favor the established Republican and Democratic parties, "the States' interest permits them to enact reasonable election regulations that may, in practice, favor the traditional two-party system." Timmons, 520 U.S. at 367, 117 S.Ct. 1364 (internal citation omitted).
When considered as a whole, we conclude that Arkansas's ballot access laws "do not operate to freeze the political status quo," Jenness, 403 U.S. at 438, 91 S.Ct. 1970, because Arkansas's laws do not prevent the Green Party from participating in the electoral process. To the contrary, the Green Party retains the freedom to nominate and endorse candidates of its choice, to convey its message to voters, and to structure itself in the manner it prefers. Alternative parties not certified as a political party may secure ballot access for their entire slate of candidates by filing a petition comprised of the signatures of 10,000 registered Arkansas voters, or roughly six-tenths of one percent of all registered Arkansas voters. Candidates running for county, township, or district office may secure ballot access by filing a petition comprised of at most 2000 signatures, and candidates running for president may secure ballot access by filing a petition comprised of a mere 1000 signatures. Candidates may even run for office as a write-in candidate without filing any petition. Moreover, the Green Party's access to the ballot has not been merely theoretical. As we discussed, the Green Party secured ballot access for its entire slate of candidates in 2006, 2008, and 2010, each year exhausting fewer resources to complete the petition process. Therefore, we agree with the cogent analysis of the district court that although the burdens imposed by § 7-1-101(21)(C) are not trivial, they are not severe. See Timmons, 520 U.S. at 363, 117 S.Ct. 1364.
Because we conclude that the burdens Arkansas imposes on the Green Party's First and Fourteenth Amendment rights are not severe, Arkansas's "asserted regulatory interests need only be `sufficiently weighty to justify the limitation' imposed on the party's rights." Timmons, 520 U.S. at 364, 117 S.Ct. 1364 (quoting Norman, 502 U.S. at 288-289, 112 S.Ct. 698); see also Wash. State Grange, 552 U.S. at 458, 128 S.Ct. 1184 ("Because we have concluded that [the state law at issue] does not severely burden respondents, the State need not assert a compelling interest."); Clingman, 544 U.S. at 593, 125 S.Ct. 2029 ("When a state electoral provision places no heavy burden on associational rights, `a State's important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.'" (quoting Timmons, 520 U.S. at 358, 117 S.Ct. 1364)). "Accordingly, we have repeatedly upheld reasonable, politically neutral regulations that have the effect
Arkansas identifies its goals of preventing ballot overcrowding, frivolous candidacies, and voter confusion as important regulatory interests that justify § 7-1-101(21)(C)'s decertification requirement in light of Arkansas's entire ballot access scheme. The Green Party responds that no evidence exists that Arkansas currently suffers from voter confusion, ballot overcrowding, or frivolous candidacies, and thus the current ballot access scheme is unnecessary to maintain Arkansas's electoral integrity. However, the dictates of the Supreme Court "have never required a State 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." Munro, 479 U.S. at 194-95, 107 S.Ct. 533. Arkansas is not compelled to provide empirical evidence attempting to establish what may happen absent the disqualification provision found in § 7-1-101(21)(C). See id. at 195, 107 S.Ct. 533. As the Supreme Court reasoned in Munro, to require Arkansas to provide such empirical evidence by "prov[ing] actual voter confusion, ballot overcrowding, or the presence of frivolous candidacies as a predicate to the imposition of reasonable ballot access restrictions would invariably lead to endless court battles over the sufficiency of the `evidence' marshaled by a State to prove the predicate." Id. Arkansas need not allow itself to be harmed by such ills before enacting appropriate measures to prevent harm. See id. at 195-96, 107 S.Ct. 533 ("Legislatures, we think, should be permitted to respond to potential deficiencies in the electoral process with foresight rather than reactively, provided that the response is reasonable and does not significantly impinge on constitutionally protected rights.").
Weighed against the burdens placed upon the Green Party, the regulatory interests of Arkansas are significant. We agree with Arkansas that § 7-1-101(21)(C) furthers Arkansas's "interest in the stability of its political system," Storer, 415 U.S. at 736, 94 S.Ct. 1274, by preventing ballot overcrowding, frivolous candidacies, and voter confusion by ensuring that each political party given full access to the ballot maintains a modicum of support in each election cycle. Arkansas need not, as the Green Party advocates, provide automatic ballot access to any putative party that secures three percent or more of the vote in any statewide race. It is not unfair for Arkansas to tie the test for a political party's support to the races for governor and presidential electors, traditionally the two races in Arkansas that have garnered the most overall votes, thus furthering Arkansas's interests by providing the broadest basis on which to test a party's support. See Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983) ("We have recognized that, `as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.'" (quoting Storer, 415 U.S. at 730, 94 S.Ct. 1274)).
This conclusion gains additional support in that far more burdensome ballot access schemes have been approved by the Supreme Court and the First, Fourth, and Tenth Circuits. See Jenness, 403 U.S. at 433, 91 S.Ct. 1970 (upholding Georgia ballot access laws that defined a political party as "[a]ny political organization whose candidate received 20% or more of the vote at the most recent gubernatorial or presidential election," and required candidates
We conclude that Arkansas's ballot access scheme does not impermissibly burden the Green Party's constitutional rights.