In this ballot access case, we consider whether the district court erred in granting summary judgment to the Alabama Secretary of State on the Plaintiffs’ claim, pursuant to 42 U.S.C. § 1983, that Alabama’s ballot access statute violates their First and Fourteenth Amendment rights. After reviewing the record and having the benefit of oral argument, we affirm the district court’s judgment.
I. BACKGROUND
Alabama law provides that political parties must qualify to appear on the general election ballot, and they may do so by either performance or petition. The performance option grants statewide ballot access to parties that received at least twenty percent of the votes cast for any state officer in the last general election. AIa.Code § 17-13^40. This is how the Republican and Democratic Parties, for example, obtain ballot access.
For parties that do not qualify based on performance, the petition option is available. To qualify by this method, parties must submit the signatures of registered voters totaling at least three percent of the votes cast for the governor in the last general election, and they must do so by the date of the first primary for the general election. Id. § 17-6-22(a). The primary election date in presidential-election years is March; otherwise, the deadline is in June. See id. § 17-13-3.
In January 2012, the Plaintiffs
II. STANDARD OF REVIEW
“This Court reviews a district court’s grant of summary judgment de novo, applying the same legal standards
III. DISCUSSION
We conclude that the district court properly granted summary judgment to the Alabama Secretary of State, and we adopt much of the district court’s reasoning contained in its memorandum opinion and order. However, we add to its thorough analysis that neither the Supreme Court nor this court has articulated a clear standard of review for challenges to ballot-access restrictions in a presidential election. We note that nothing in this opinion does so. At the same time, we recognize that “the 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.” Anderson v. Celebrezze,
Regardless, based on the record in this case, we hold that the Plaintiffs’ constitutional claims fail. Like the district court, we conclude that the Plaintiffs did not present evidence showing that the legitimate, nondiscriminatory reasons for the State’s restrictions on petition-based ballot access unconstitutionally burdens their associational rights. Rather, the record shows that the burden on the Plaintiffs was slight. Thus, the State’s interests in treating all political parties fairly and in setting a deadline that provides sufficient time to verify the petition signatures outweigh the burden to the Plaintiffs’ associational rights.
Accordingly, for these reasons and for the reasons stated in the district court’s well-reasoned memorandum opinion and order filed on September 5, 2013, which we adopt and attach hereto as an appendix, we affirm the grant of summary judgment to the Alabama Secretary of State.
AFFIRMED.
“APPENDIX”
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF ALABAMA NORTHERN DIVISION
JILL STEIN, et al., Plaintiffs, V. JIM BENNETT, Alabama Secretary of State,
CASE NO. 2:12-CV-42-WKW[WO].
MEMORANDUM OPINION AND ORDER
Though the Alabama Green Party, the Constitution Party of Alabama, and the Libertarian Party of Alabama (collectively the “Party Plaintiffs”) all fielded candidates for the 2012 presidential election, none of those parties’ names appeared on Alabama’s ballots. Instead, their candidates (including Plaintiffs Jill Stein and Gary Johnson (collectively the “Candidate Plaintiffs”)) were listed on the ballot as independents. Along with four Alabama voters and one Florida voter (the “Voter Plaintiffs”), the Candidate Plaintiffs and the Party Plaintiffs sued the Alabama Secretary of State, to challenge the Alabama law they say kept the Party Plaintiffs’ names off the ballot.
The matter comes before the court on cross motions for summary judgment. For the reasons that follow, the Secretary’s motion is due to be granted and Plaintiffs’ denied.
Subject matter jurisdiction is proper under 28 U.S.C. § 1331.' Personal jurisdiction and venue are uncontested.
II.STANDARD OF REVIEW
To succeed on summary judgment, the movant must demonstrate “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The court must view the evidence and the inferences from that evidence in the light most favorable to the nonmovant. Jean-Baptiste v. Gutierrez,
The party moving for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion.” Celotex Corp. v. Catrett,
III.FACTUAL AND PROCEDURAL BACKGROUND
Party Plaintiffs Alabama Green Party, Constitutional Party of Alabama, and Libertarian Party of Alabama are unqualified political parties (as defined by Ala.Code § 17-13^40) that sought to have the nominees of their respective parties placed on the 2012 Alabama General Election ballot for the office of President of the United States. Voter Plaintiffs Robert Collins, Joshua Cassity, Steven Kneussle, and Mark Bodenhausen are members, officers, and supporters of Plaintiff Political Parties and Alabama residents who wished to vote for and support their chosen candidates for > president at the 2012 Alabama General Election. Voter Plaintiff Vicki Kirkland is a United States citizen and Florida resident and voter who wished to support and vote for the candidate of her political party, the Libertarian Party, the Alabama affiliate of which is a Party Plaintiff. Candidate Plaintiffs Jill Stein and Gary Johnson were presidential candidates of unqualified political parties who wished to appear on the Alabama General Election ballot as nominees of the Green Party and Libertarian Party, respectively. Defendant Jim Bennett is being sued in his official capacity as Secretary of State for the State of Alabama and Chief Elections Official for Alabama under Ala.Code § 17-l-3(a).
Alabama law distinguishes between candidates of parties who wish to appear on the ballot with their party identification and candidates who appear as independents with no party identification. For a candidate who wishes to appear on the ballot without party identification as an independent, all that is required is filing a petition with 5,000 signatures by September before the election. Ala.Code § 17-14-31(a). The requirements for a candidate to appear with printed party identification on the General Election ballot (essentially, for the party label to appear alongside the name of a candidate on the ballot) are significantly heightened. State laws place qualification requirements on the parties, not on the candidates themselves.
If a party does not secure 20% of the vote for a state official in the previous election, it must file a petition by the date of the first primary election for the next election, with the signatures of at least 3% of the qualified voters who cast a ballot for governor in the last general election. Ala. Code § 17 — 6—22(a)(1). Because none of the Party Plaintiffs’ candidates achieved 20% of the vote in 2010, they could only obtain placement on Alabama’s 2012 ballot by gathering 44,828 signatures from registered voters and submitting them to the Secretary by March 13, 2012.
Nevertheless, Candidate Plaintiffs Stein and Johnson’s names appeared on the General Election ballot in November 2012 because each gathered 5,000 signatures prior to September. But because their parties failed to meet the more onerous March signature deadline, Stein and Johnson did not bear their parties’ names on Alabama’s ballots. Instead, Stein and Johnson appeared as independents.
Plaintiffs asked the court for a preliminary injunction that would have allowed the Party Plaintiffs to put their names on the ballot without having to submit a ballot-access petition. The court denied the preliminary injunction because Plaintiffs “failed to provide an evidentiary basis to conclude” Alabama’s election law imposed an unconstitutional burden on them. (Doc. #64 at 19.) Plaintiffs’ Amended Complaint requests that this court enter a judgment declaring that Alabama Code §§ 17-14-32, 17-6-22, and 17-13-40 are unconstitutional, both facially and as applied to Plaintiffs, in violation of the First and Fourteenth Amendments. (Doc. # 77 at 6.)
As the following discussion will show, Plaintiffs’ case for declaratory relief fails.
IV. DISCUSSION
First Amendment challenges to state election laws are governed by Anderson v. Celebrezze,
Further, if the state election scheme imposes “severe burdens” on the plaintiffs’ constitutional rights, it may survive only if it is “narrowly tailored and advanee[s] a compelling state interest.” Timmons v. Twin Cities Area New Party,
A. Plaintiffs have not demonstrated a burden that would subject Alabama’s election law to strict scrutiny.
Because none of the Party Plaintiffs qualified for ballot access in 2012, none of their names appeared on the ballot. As a result, the Party Plaintiffs lost “the advantage of building [their] ranks” by associating their name with a popular candidate (Doc. # 98 at 9 (emphasis removed)) and their candidates lost “the advantage of the party label”
1. Supreme Court precedent suggests Alabama’s election law does not impose a severe burden on Plaintiffs’ constitutional rights.
The Supreme Court’s decision in Timmons v. Twin Cities Area New Party is
The Supreme Court rejected the New Party’s challenge and expressed skepticism that political parties have “a right to use the ballot itself to send a particularized message” about their support for a candidate. Id. at 363,
2. Plaintiffs cite no authority that suggests Alabama's election law severely burdens their constitutional rights.
Plaintiffs do not address Timmons, much less try to explain how this court could distinguish that case and hold that anyone’s rights were severely burdened when Alabama’s law (allegedly) kept the Party Plaintiffs’ names off the 2012 ballot.
First, Plaintiffs try to draw an analogy to Anderson v. Celebrezze,
But Alabama’s election law is different in two important ways. First, Alabama’s minor parties can wait until the major-party primaries before they submit their ballot access petitions, while the Ohio law in Anderson set a ballot-access deadline well before the primaries. The difference matters, because laws like Alabama’s “impose[ ] no discriminatory burden on ... minor party candidates,” Swanson v. Worley,
Plaintiffs ask the court to ignore these differences and focus on one similarity Alabama’s scheme has with the one in Anderson: a March deadline. But to do so, the court would have to ignore the part of Anderson that commands it to resolve this case “by an analytical process that parallels its work in ordinary litigation.” Id. at 789,
Similarly, the shaky analogy Plaintiffs draw to New Alliance Party of Alabama v. Hand collapses under its own mass.
But Plaintiffs ignore the parts of New Alliance where Judge Hobbs (whose opinion the Eleventh Circuit adopted as its own) expressly found that the challenged deadline made it only “moderately difficult for a minor party candidate to qualify to be on the ballot” and that “the burden [that deadline] imposed on minor parties [was] not insurmountable.” Id. at 1575-76. Thus, New Alliance does not go far toward helping Plaintiffs establish that Alabama’s new March deadline severely burdened their constitutional rights. If anything, that case suggests early filing
3. Plaintiffs have not shown a genuine issue of material fact that Alabama’s election law severely burdens their constitutional rights.
Because Plaintiffs cite no authority that resolves this case as a matter of law, the court must decide whether Plaintiffs have shown that Alabama’s election law severely burdened their rights as a question of fact. In doing so, the court looks for evidence that could lead a reasonable factfinder to believe a “reasonably diligent” political party could not have submitted its signatures by Alabama’s March deadline. Libertarian Party of Fla. v. Florida,
In 2012, Alabama’s signature requirement meant minor parties had to gather 44,828 signatures to secure a spot on the ballot. Plaintiffs say gathering that many signatures by the March deadline would have been impossible, even for a reasonably diligent political party. Unfortunately, there is no direct evidence on that point because none of the Party Plaintiffs made any reasonably diligent efforts (or any efforts at all) to meet Alabama’s signature requirement. Instead, the Party Plaintiffs argue that any efforts to secure ballot-access would have been futile, and they point to three problems that so “diseour-ag[ed] and demoraliz[ed]” (Doc. # 98 at 12) them that they “did not undertake any effort to comply with the March deadline” (Doc. # 81 at 1).
The first problem was cost. According to the Constitution Party of Alabama’s chairman, it would have cost at least $100,000 to pay signature gatherers for enough signatures to gain ballot access. The Alabama Libertarian Party’s chairman thought the figure exceeded $200,000. It is unclear, however, whether those estimates are entitled to any weight because the cost of signature gathering is a proper subject of expert testimony,
That leads to Plaintiffs’ second problem: low volunteer interest. According to Plaintiffs, it is hard to recruit volunteers in March because the minor parties had not selected their candidates at that time. (See Dec. # 98 at 8 (claiming that volunteers “can 'only be provided in significant numbers by the presidential campaign itself’)) But it is still unclear whether that amounts to a severe burden or a minor one because Plaintiffs submit no evidence that gives even a rough idea how many volunteers the Party Plaintiffs could have recruited before March, nor how dramatically that number increased after they selected their candidates. The difference matters; without that type of information, the court cannot tell how severe a burden the March deadline placed on the Party Plaintiffs’ ability to recruit volunteers.
Then there is Americans Elect (“AE”). As far as the record shows, AE is the only minor party that tried to secure a spot on the 2012 presidential ballot — and it succeeded. Plaintiffs downplay that achievement by pointing to AE’s deep pockets. (It raised over $1.1 million in the third quarter of 2010 alone.) But there is no evidence that AE spent any of that money paying signature gatherers. On this record, the court cannot write AE off as an anomaly; that party’s success supports the conclusion that Alabama’s election law regime does not pose an insurmountable barrier to the entry of third parties that make diligent efforts. Instead, the evidence shows that one'minor party (perhaps the only one that tried) managed to overcome all the purportedly insurmountable obstacles that prevented the Party Plaintiffs from even trying to get a spot on the ballot, including high cost, low interest, and an unknown candidate.
And there is no evidence that suggests the Party Plaintiffs could not emulate AE’s strategy of getting an early start. AE began submitting signature petitions in September 2011, but the Party Plaintiffs give no reason they could not have done the same. Cf. Swanson,
Finally, and most importantly, Plaintiffs have failed to offer any evidence that a later deadline would lessen their burden. Even if the minor parties had until election day to submit their petitions, there is no evidence that they could have gathered enough signatures to get on the ballot.
B. Alabama’s election law rationally serves important state interests.
These are unusual facts for a ballot-access case. Typically, minor parties challenging a state’s scheme go about their business collecting signatures and submitting them, which they can then use to prove they could have complied with less burdensome access requirements. See, e.g., Anderson,
Because Plaintiffs have not established a “severe” burden on any of their constitutional rights, Alabama need only show that its deadline for ballot-access petitions “rationally serves important state interests.” Swanson,
To start, it is beyond dispute that Alabama has an important interest in requiring minor parties to demonstrate some “modicum of support” before they are entitled to a spot on the ballot. Swanson,
But the question here is whether it can demand them in March. Alabama says it can, and that doing so is a rational way to promote two important interests; (I) Alabama’s interest in treating minor political parties “in a manner that is fair and appropriate relative to” the major ones (Doc. # 96 at 23), and (2) its interest in a deadline that leaves enough time to verify petition signatures.
On the first point, Alabama argues that it has an interest in providing a fair playing field for political parties, and Plaintiffs do not deny the importance of that state interest. (In fact, they do not address it at all.) And in light of Swanson’s approval of a ballot-access deadline tied to the primaries as a “nondiscriminatory restriction,”
On the second point, Alabama argues that its filing deadline ensures the state has enough time to verify the signatures on ballot-access petitions. (Doc. # 96 at 23.) Plaintiffs concede that point, agreeing that Alabama “undeniably” has a legitimate interest in a deadline that is early enough to verify petition signatures. (Doc. # 98 at 14.)
But Plaintiffs balk at the notion that the March deadline is necessary to advance that interest, quoting New Alliance for support: “No one can seriously contend that a deadline for filing for a minor party and its candidates seven months prior to the election is required to advance legitimate state interests.” New Alliance,
And it does. As Alabama points out, last year’s March deadline allowed the State to “reserve a window of time from early June until sometime in September (when the ballots must be printed) for checking the petitions of independent candidates.” (Doc. # 100 at 18.) Alabama wants to ensure that it has time to verify the signatures on ballot-access petitions, and one rational way to do that is to reserve a different block of time for each group — March to June for minor parties, June to September for independents.
Thus, the Alabama Secretary of State has shown that Alabama’s deadline for minor parties to submit their ballot access petitions rationally serves two important state interests. And because Plaintiffs have failed to raise a genuine issue of material fact that Alabama’s election law “completely insulate[s] the two-party system from minor parties’ ... competition and influence,” Timmons,
Y. CONCLUSION
Accordingly, it is ORDERED as follows:
(1) Plaintiffs’ motion for summary judgment is DENIED;
(2) Defendant’s motion for summary judgment is GRANTED.
An appropriate judgment will follow.
DONE this 5th day of September, 2013.
/s/ W. Keith Watkins
Notes
.The Plaintiffs are three political parties that did not qualify for ballot access in the State’s general election under § 17-13-40 — Alabama Green Party, Constitution Party of Alabama, and Libertarian Party of Alabama — as well as seven individuals — Jill Stein, Robert Collins, Joshua Cassity, Steven Rneussle, Mark Bo-denhausen, Vicki Kirkland, and Gary Johnson — who were either a party nominee for the Office of the President of the United States or a citizen interested in voting for such a nominee in the State’s 2012 general election.
. In their initial complaint, the Plaintiffs sought injunctive relief. The district court denied their request, and the Plaintiffs did not appeal that order.
. For the 2012 general election, political parties seeking ballot access had until early March to submit their petitions containing the signatures of 44,828 registered voters (three percent of the 1,494,273 votes cast for governor in the 2010 general election).
. This is how the Democratic and Republican parties earned their places on the 2012 General Election ballots.
. In previous election cycles where the first primary was held in June, unrecognized political parties essentially had an additional three months to gather signatures, because the deadline was tied to the date of the primary election. Alabama previously held two gener- ■ al election primaries, one for presidential primaries in February and primaries for all other offices in June. Under the old system, third parties could file their petitions by the date of either primary, giving them an effective deadline of June before the November election. In 2011, Alabama consolidated these two primaries into one, to be held in March of presidential election years, and in June of off-years/midterms. The purpose was to save money by avoiding multiple primaries. As a result of the March deadline adopted in 2011, an unrecognized party must now submit its petition eight months ahead of a General Election.
. The last time one of the Party Plaintiffs tried to get on the ballot was 2008, when the Constitution Party's current chairman took it upon himself to collect the signatures necessary (then 37,513 signatures (Doc. #96-1 ¶ 24)) to get his party, on the ballot. That initiative ended abruptly after the chairman collected approximately five (5) signatures in his neighborhood and decided to lower his sights to the more attainable target of helping his party's candidate qualify as an independent. (Doc. # 100 at 7-8.)
.No third party candidate has appeared on the presidential ballot with party identification in Alabama since Harry Browne. In 2000, Browne bore the Libertarian Party label because his party filed a petition with 39,535 signatures. The Libertarian Party also secured party identification using the 20% rule in 2000, for the 2002 election cycle, by votes for a state supreme court justice. In 1996, two parties achieved label status in Alabama: the Libertarian and Natural Law parties. The Libertarian Party did so through the petition system, but under the old 1% rule, which was changed in 1995.
. It is unclear whether that advantage is real or imagined. Defendant has an expert who insists party labels on the ballot do not help minor party-candidates at all.
. The problem there was that the candidate was already spoken for by another party, and Minnesota's law only allows candidates to list one party on the ballot. That difference does not matter here where the court is only trying to determine the "character and magnitude” of the burden on Plaintiffs' rights.
. It is worth noting that Plaintiffs have never maintained that Alabama's election law forecloses any other method of voter communication. Among the ways the Party Plaintiffs and Party Candidates could have communicated with voters were commercials, signs, speeches, debates, town-hall meetings, endorsements, canvassing, social networking, websites, newsletters, bumper stickers, handshaking, baby-kissing, robodialing, leafleting, good-old-fashioned stumping, etc. If any Alabama law restricted Plaintiffs rights to utilize those time-tested campaigning tools, they are not at issue in this case.
.In doing so, Plaintiffs are off to a bad start: The court has already decided neither of those cases establishes the severity of Plaintiffs' burden as a matter of law. (See Doc. # 64 at 15-19 (rejecting the same arguments the court is about to reject again).)
. See Green Party of Tenn. v. Hargett,
. This count comes courtesy of Wikipedia’s list of Republican Party Presidential Debates 2012, and is mentioned only to illustrate the sort of fact that would have been helpful in determining the level of voter interest last March, not as evidence of the conditions that actually prevailed at that time. Wikipedia is not a source that warrants judicial notice. See, e.g., Flores v. State, No. 14-06-00813-CR,
. AE never did get around to selecting a candidate.
.A September 1 deadline would have left 194 days to submit 44,828 signatures, meaning the minor parties could have gained ballot access by gathering 232 signatures a day.
. For the Constitution Party at least, the problem does not seem to lie so much with Alabama's laws as it does with the party's base: That party’s chairman testified that “efforts by volunteers would not contribute significantly to a statewide petitioning drive,” (Doc. # 98 at 7); that non-volunteer methods of gathering signatures are "prohibitively expensive” (Doc. # 98 at 8) (which does not mean much for a party whose annual donations have never surpassed $4,000 and whose members ."totally rejected” a recent attempt to impose membership fees as a way to raise funds for future ballot access drives (Doc. # 100 at II)); and that,“even if his state party could raise $100,000, it would likely not devote such resources to a statewide ballot effort without knowing who the presidential candidate was going to be” (Doc. # 98 at 8). It is hard to imagine any election policy that makes room for a party that is unable to muster any significant volunteer support and unwilling to raise or expend any substantial amount of money to support the party as opposed to a particular candidate. The fact that the Constitution Party has never come close to getting on the ballot, even when the deadline was later in the year, suggests the March deadline is not the part of Alabama’s election law that keeps the Constitution Party off the ballot.
. The court recognized this problem in an earlier order, noting that Plaintiffs had failed to offer any evidence suggesting their problem was with the March deadline rather than "the generic difficulty in gaining access to the ballot.” (Doc. # 64 at 19.)
.Before moving on, it is important to emphasize that the court's conclusion was compelled by Plaintiffs' failure of proof. When the Eleventh Circuit faced the same problem in Swanson, it wrote the following passage: ''[T]here is no evidence in the record in this case that any independent or minor party candidate sought and failed to gain access in any Alabama races since ... 2002. All we say here is that the evidence in this particular record does not establish any severe burden on rights.” Swanson,
. Swanson,
. Alabama does not present much evidence in support of these interests, but it does not have to. See Swanson,
. No matter what deadline Alabama sets, one might argue that a deadline a few days, or hours, or minutes later would serve its interests just as well. Cf. Libertarian Party of Fla.,