PISANO V. STRACH, NO. 13-1368
Decided: February 27, 2014
The Fourth Circuit Court of Appeals affirmed the district court’s conclusion that North Carolina’s May 17 petition-filing deadline for the formation of new political parties was justified, and any burden it imposes is ameliorated by other aspects of North Carolina’s statutory framework.
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. First, a “recognized” political party may nominate candidates. Second, unaffiliated candidates may petition to appear on a general election allot. Third, and most relevant here, a “new” political party may nominate candidates.
For a new party to nominate, it must select its candidates by party convention and submit its nominees by July 1. 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. A separate petition must be filed for each county in which the group gathers signatures. The petitioners 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. 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.
North Carolina held a primary election on May 8, 2012. The Republican presidential candidate was nominated in August, and the Democratic in September. The general election as held on November 6. To nominate candidates for North Carolina’s general election allot, 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.
On appeal, Al Pisano, Nichols Triplett, the North Carolina Constitution Party, and the North Carolina Green Party (“Plaintiffs”) alleged that the May 17 deadline violates the First and Fourteenth Amendments and the Equal Protection Clause because it severely burdens their ability to field presidential candidates. Although Plaintiffs did not challenge North Carolina’s two percent signature requirement, they argued that the deadline, in combination with the signature requirement, created an impermissible barrier to ballot access.
Plaintiffs first argued that the district court erred in denying their Rule 56(d) motion. 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. 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 deadlines. However, the record includes information regarding other minor parties’ efforts to gain ballot access in recent years. In addition, the State Board of Elections posts the status of current statewide petitions in each county on its website. In any event, 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. Second, the record provides justifications for the May 17 deadline. In a sworn declaration, Bartlett highlighted the problems that the state fears would arise without ballot-access requirements, including “tremendous voter confusion and chaos.” The fact that Plaintiffs believe North Carolina should say more goes to the merits of their claim—not to whether the district court properly denied the Rule 56(d) motion. Finally, the district court did not bar Plaintiffs from obtaining and presenting evidence they sought from officials in other states regarding possible alternatives to the May 17 deadline. However, Plaintiffs chose not to do so. The Fourth Circuit found no abuse of discretion on the record.
The Fourth Circuit then addressed whether the May 17 deadline violates Plaintiffs’ First and Fourteenth Amendment rights. In analyzing whether state election laws impermissibly infringe on such rights, the Supreme Court has instructed us to weigh the plaintiff’s asserted injury against the state’s interests in the rule. Election laws that impose a severe burden on ballot access are subject to strict scrutiny, and a court may uphold the restrictions only if they are “narrowly drawn to advance a state interest of compelling importance.” On the other hand, if a statute imposes only modest burdens, the state’s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.
The Fourth Circuit concluded that the district court erred in relying on the Fourth Circuit decision in McLaughlin for the appropriate level of scrutiny. McLaughlin involved a significantly more restrictive statutory framework in the context of a different type of challenge and, therefore, does not mandate strict scrutiny in this case. 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. Thus, the pre-1996 history in McLaughlin is immaterial to the question at hand: whether the current statutory framework imposes a severe burden. In addition, Plaintiffs challenge the filling deadline only in the context of presidential elections and, therefore, the concern in McLaughlin about the regulations’ effect on candidates in local elections is irrelevant.
In assessing the constitutionality of the May 17 petition-filing deadline, the Fourth Circuit first addressed whether the deadline imposed a severe burden on Plaintiffs’ constitutional rights. Plaintiffs alleged that the deadline created an impermissible barrier to ballot access, specifically by preventing them from gathering signatures at the height of the presidential election season. However, 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. In addition, given that North Carolina held a primary on May 8, 2012, the May 17 deadline allowed Plaintiffs to engage voters during the height of the primary season. The cases where courts have struck down filing deadlines involve deadlines that preceded the state’s primary, whereas the deadline here falls after. The Fourth Circuit has found that election law schemes with modest signature requirements and filing deadlines falling close to or after the primary election do not impose severe burdens. And although not dispositive, Plaintiffs 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 out of the required 85,379 and the North Carolina Green Party had submitted no petitions. Therefore, the Fourth Circuit concluded the deadline did not impose a severe burden on Plaintiffs; rather, the burden imposed was modest.
Because there was no severe burden, the Fourth Circuit declined to apply strict scrutiny and, instead, simply balanced the burdens imposed against the state’s interest in regulating the election process. 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.” Admittedly, a state has a less important interest in regulating Presidential elections than statewide or local elections, because voters beyond the State’s boundaries will largely determine the outcome of the former. However, states still maintain an interest in regulating presidential elections. Therefore, the Fourth Circuit concluded that North Carolina’s choice of May 17 as the operative deadline outweighed the modest burden imposed on Plaintiffs.
– Sarah Bishop