Lead Opinion
¶ 1. Independent candidate Gerald Trudell and voter Myron Dorfman challenge the constitutionality of Vermont’s schedule for filing candidate petitions, alleging that the uniform deadline for all party (major and minor) and independent candidates is discriminatory and impermissibly impinges upon the associational and voting rights of candidates and voters under the First Amendment to the United States Constitution. Because we conclude that the filing deadline is a reasonable, nondiscriminatory regulation, justified by Vermont’s regulatory interests, we affirm the decision of the lower court in declaring the deadlinе constitutional.
¶2. In 2009, Congress enacted the Military Overseas Voter Empowerment (MOVE) Act to address reports that U.S. troops stationed overseas had difficulties voting by absentee ballot. See 42 U.S.C. § 1973ff-l(a)(8)(A). The Act imposed fixed deadlines by which states had to prepare their ballots. For general elections, ballots are required to be completed 45 days in advance of the election. Id. Vermont previously held primary elections relatively late in the electoral cycle on the second Tuesday in September. To comply with the requirements of the MOVE Act, Vermont enacted Act 73. 2009, No. 73 (Adj. Sess.), § 1. Section 1 of Act 73 moved Vermont’s primary election date to the fourth Tuesday in August — theoretically the latest possible date by which the Secretary of State could receive the primary results from the towns, complete
¶ 3. The Legislature enacted an additional change: the Legislature moved the date by which independent candidates were required to file their statements of nomination to run in the general election so as to make that deadline coincide with the deadline by which party candidates were required to file their primary petitions. Compare 2009, No. 73 (Adj. Sess.), § 7 (codified at 17 V.S.A. § 2402(d)), with 17 V.S.A. § 2402(d) (prior to amendment). Independent candidates were previously permitted to file nominating petitions up tо three days after the primary election. The Director of Elections testified that a change was required to comply with the MOVE Act but believed that the Thursday before the primary (two working days plus the intervening weekend) would provide adequate time to review the independents’ petitions and identify all candidates, including those running on multiple tickets.
¶ 4. Instead of four calendar days before the primary election, the Legislature required independent candidates to register on the same day as primary candidates. That is, independents now have to file their petition for candidacy by the second Thursday after the first Monday in June, advancing the registration date by approximately seventy days. See 17 V.S.A. § 2356.
¶ 5. Plaintiff Gerald Trudell has a longstanding interest in politics and the environment. To bring attention to environmental issues, Trudell first ran for Vermont’s seat in the U.S. House of Representatives in 2006, claiming 1000 votes. He ran again in 2008 and acquired 10,000 votes. In 2010, Trudell decided to run again, two days before the newly-implemented June deadline but was unable to collect the requisite signatures for registration. In late August, he filed a petition anyway but was denied a place on the ballot duе to his delinquency. He ran instead as a write-in candidate.
¶ 6. Plaintiff Myron Dorfman is a Vermont resident and voter, and occasional supporter of Mr. Trudell. Dorfman voted for Trudell in 2006. Dorfman, like many Vermonters, is more attracted
¶ 7. It is beyond cavil that the “rights of qualified voters to cast votes effectively and the rights of individuals to associate for political purposes are of the most fundamental significance under our constitutional structure.” Council of Alt. Political Parties v. Hooks,
¶ 8. The U.S. Supreme Court has set forth the test for determining the constitutionality of ballot access restrictions:
A court considering a challenge to a state election law must 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.”
¶ 9. In Anderson, the Court overturned an Ohio statute requiring independent candidates to file petitions, signed by 5000 voters, five months before major parties chose their candidates, and nearly eight months before the general election.
¶ 10. Second, the Court emphasized that the Ohio statute regulated presidential elections, not state or local elections. Anderson,
¶ 12. While election laws will “invariably impose some burden upon individual voters,” not all restrictions are unconstitutional. Burdick,
¶ 13. Under Vermont law, for a candidate’s name to appear on the Vermont ballot, he or she must follow the primary election process or the petition process. The primary election process is only available to candidates representing a “major political party,” which is defined as any party garnering at least five percent of the votes cast for that office in the most recent general electiоn. 17 V.S.A. § 2103(23). In fact, the primary election, as explained by the Director of Elections in her testimony, serves only as a nomination process for the major political parties. In 2012, Vermont recognized three major political parties, namely Democrats, Republicans, and Progressives. See T. Hallanbeck, ‘Vermont’s Liberty Union Will Be Back As Major Party,” Burlington Free Press, Nov. 8, 2012, http://blogs.burlingtonfreepress.com/politics/ 2012/11/08/vermonts-liberty-union-will-be-back-as-maj or-party/.
¶ 14. Candidates participating in the primary election process start by filing nominating petitions with the Secretary of State around mid-Junе pursuant to 17 V.S.A. § 2356. As part of the petition, candidates for state and congressional offices must submit 500 signatures. Id. § 2355. County offices and state senate positions require only 100 signatures. Id. If the statutory requirements are met, candidates’ names appear on the primary election ballot, and if they are successful in winning their party’s nomination, their names are listed on the general election ballot.
¶ 15. Candidates not affiliated with one of the major political parties must use the petition process to appear on the ballot. Independent candidates, like the major party candidates, are required to obtain the requisite signatures for the desired office. See id. § 2401. Prior to the statutory change, independent candidates were required to file their petition three days after the primary election. Now, independents, along with all major party candidates, must submit their petition and nomination statement by mid-June. See id. § 2356; see also id. § 2402(d) (providing requisites of nomination statement). Nevertheless, if a candidate is unable to get on the ballot, there is always an opportunity for Vermont voters to write in their candidate of choice. See id. § 2472(c).
¶ 17. Plaintiffs allege that a uniform filing deadline makes all members of our society “bend their First Amendment, constitutional rights of association to a time table created for the benefit of two associational groups,” by which we assume they mean the two major national political parties. Yet, they fail to succinctly specify how the advanced deadline imposes a burden on candidates or voters. Plaintiffs do not complain of issues recruiting volunteers to help acquire the requisite 500 signatures. See, e.g., Anderson,
[T]he general public pаys limited attention to the primary races and virtually none to the independent candidates during the summer months. The primaries see low voter turnout in most years. Independent candidates obviously do not appear on primary ballots (unless they have registered as independents and primary candidates) and are rarely included in debates and candidate forums until after the primaries. An independent candidate lucky or skilled enough to attract some media attention could get a small bump from an early registration and an*524 nouncement. Most languish unnoticed until the generаl election season is underway.
¶ 18. While we agree that a June deadline requires a bit more foresight and advance planning from the independent candidates and can thwart candidates who decide to run in response to events arising after June and while we agree that Vermonters have a strong interest in maintaining a solid independent candidate base, nonetheless, as the Supreme Court has recognized, “some cut off period is necessary.” See Hooks,
¶ 19. As such, we conclude that the Vermont filing deadline applies equally to all candidatеs and does not place independents at a particular disadvantage for accessing the ballot. Rather, the registration deadline is a reasonable, nondiscriminatory regulation that imposes at most a minor burden on plaintiffs’ rights.
¶ 20. Even a minor burden requires an evaluation of the State’s proffered justifications for the advanced deadline. The State contends that its interests in advancing the deadline for independent candidates are to: 1) comply with federal election law; 2) enable the Secretary of State’s Office to physically completе and send ballots within the forty-five-day deadline; 3) promote voter education and transparency; and 4) deter “sore loser candidates.” “Because the burden is not severe, the State need not proffer a narrowly tailored regulation that advances a compelling state interest. Instead, important regulatory interests provide a sufficient justification.” Hooks,
¶ 21. The State need not provide empirical evidence justifying its interest; however, the State cannot rely on hollow or contrived arguments as justifications. See, e.g., Price v. N.Y. State Bd. of Elections,
¶ 22. We agree that the State has a legitimate interest in complying with the federal MOVE Act. However, the MOVE Act merely requires general election ballots to be complete forty-five days in advance of the election. The Act does not еxpressly require any change in the filing deadline for independent parties. While it is of great import for the State to ensure that the Secretary of State’s Office is able to physically complete and send ballots within the forty-five-day federal deadline, the Director of Elections testified that her office could sufficiently meet the federal mandate if independent candidates filed their petitions four days before the primary elections. In other words, the Secretary of State’s Office could process independent candidates’ petitions if
¶ 23. The State next suggests the new registration deadline will promote voter education and transparency “because voters learn the entire field of candidates before they have to make a decision about voting in the primary.” There is no debate that voter education is an important state interest. See Storer,
¶ 24. The State finally asserts that requiring independents to file their petition on the same day as major party candidates prevents sore-loser candidates. As noted above, a “sore-loser” candidate is one who loses in a major-party primary election and then seeks to run in the same election as an independent or minor party candidate. Other courts have held that various state interests are furthered by sоre-loser statutes. In Storer,
¶ 25. Vermont does not have a sore-loser statute. The State claims to have a legitimate interest in creating a system that precludes so-called sore losers and prevents intra-party feuding. Two of the legislators testifying at trial thought it “unfair” to give such candidates “two bites at the apple.” Since 1974, sore-loser candidates have affected almost one out of every five state-wide election. However, while the new registration deadline will generally deter the sore-losers, party candidates are still permitted to
¶ 26. In sum, the early registration is reasonable, nondiscriminatory, and places a de minimis burden on voters and independent candidates, such that we find that the State’s interests, though attenuated, are legitimate and sufficiently justify any mild burden imposed.
¶ 27. In addition to challenging the constitutionality of the statute, plaintiffs also contend that the trial court erred in relying on legislators’ testimony regarding the purpose for the change in deadline. Courts generally give little weight to an individual legislator’s interpretation of the law once enacted because it cannot reflect the thought processes of the entire Legislature. See Barber v. Thomas,
¶ 28. Erroneous admission of evidence is harmless, unless a party’s substantial right is affected. See V.R.C.P. 61. The burden rests with the plaintiff to show that the error resulted in prejudice. See In re B.S.,
¶29. It does not appear that the court gave considerable, if any, weight to these particular testimonies, merely noting the legislators’ opinions in its decision. In fact, it noted that “[t]his
¶ 30. Finally, plaintiffs assert that the alteration in deadlines for independent candidates violates their rights under Articles 7 and 8 of the Vermont Constitution. As this Court has previously held, a party’s failure to present any substantive analysis or argument on state сonstitutional issues constitutes inadequate briefing, which we decline to address. State v. Jewett,
¶ 31. Article 7 of the Vermont Constitution, or the Common Benefits Clause, is Vermont’s corollary to the Equal Protection Clause of the United States Constitution. Article 7 has been perceived as a more liberal analogue to the Fourteenth Amendment. Plaintiffs, without more, cite the Baker decision to assert that the registration deadline is unconstitutional under Vermont law. See Baker v. State,
¶ 32. With respect to Article 8, or the right-to-run provision, plaintiffs contend that because there is no constitutional corollary, the protections afforded by the Vermont Constitution are patently distinguishable from the U.S. Constitution and require no explanation. While plaintiffs correctly highlight that there is no federal counterpart to the right-to-run provision, such a void does not dispense with plaintiffs’ requirement to present their argument to this Court nor does it provide plaintiffs with a get-out-of-briefing-free card. In fact, the opposite would be true. Without demarcating how the statute at issue is repugnant to the spirit and law of the Vermont Constitution, plaintiffs fail to adequately brief their claim.
Affirmed.
Notes
We note that Anderson was decided thirty years ago and the speed with which information is disseminated today is stunning.
As the United States Supreme Court has recognized, “ ‘the rights of voters and the rights of candidates do not lend themselves to neat separation; laws that affect candidates always have at least some theoretical, correlative effect on voters.’ ” Anderson,
A “sore loser” candidacy is one in which an individual loses in a party primary and thеn seeks to run in the same election as an independent or minor party candidate. While the New Jersey statute in Hooks was not designed to prevent sore losers and therefore was not narrowly tailored to effectuate a compelling state interest, the Hooks court found that New Jersey’s interest in preventing “sore losers” rises to the level of a legitimate, important state interest.
Concurrence Opinion
¶ 33. concurring. I acknowledge that the permissive federal constitutional standard applied to nondiscriminatory ballot-access regulations compels the outcome we havе reached in this case. I write, however, to emphasize the common-sense observation that the advanced deadline for independent-candidate registration serves mainly to deprive Vermonters of potential choices at the ballot box. It goes almost without saying that a lot can change in the months and weeks leading up to an election. An early deadline will prevent or discourage from running otherwise qualified contenders whose candidacy arises in direct response to those changing circumstances, limiting the range of options available to Vermont citizens. That the earlier deadline accomplishes this reduction in choice with a nearly imperceptible benefit is added cause for concern.
¶ 34. I note also that I share my colleagues’ dismay at plaintiffs’ failure to adequately brief their claims under the Vermont Constitution. It is rapidly approaching three decades since we first clearly called the bar’s attention to the importance of our state charter as an independent and unique source of individual and collective rights. See State v. Jewett,
¶ 35. I am authorized to state that Judge Cohen joins this concurrence.