Woodruff, et al v. Herrera

Filing 920100909

Opinion

U n i t e d States Court of Appeals T e n t h Circuit

FILED

S e p t e m b e r 9, 2010
U N I T E D STATES COURT OF APPEALSl i s a b e t h A. Shumaker E F O R THE TENTH CIRCUIT
C l e r k of Court

A L A N WOODRUFF; DANIEL F E N T O N ; GREEN PARTY OF NEW MEXICO, Plaintiffs-Appellants, and L I B E R T A R I A N PARTY OF NEW M E X I C O ; DONALD HILLIS; R E F O R M PARTY OF NEW M E X I C O ; LA RAZA UNIDA, Plaintiffs, v. M A R Y HERRERA, New Mexico S e c r e t a r y of State, Defendant-Appellee. N o . 10-2076 ( D . C . Nos. 1:09-CV-00449-JCH-KBM, 1:10-CV-00123-JCH-KBM & 1:10-CV-00124-JCH-KBM) ( D . N.M.)

O R D E R AND JUDGMENT * B e f o r e HARTZ and PORFILIO, Circuit Judges, and BRORBY, Senior Circuit Judge.

A f t e r examining the briefs and appellate record, this panel has determined u n a n i mo u s l y that oral argument would not materially assist the determination of t h i s appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t h e r e f o r e ordered submitted without oral argument. This order and judgment is n o t binding precedent, except under the doctrines of law of the case, res judicata, a n d collateral estoppel. It may be cited, however, for its persuasive value c o n s i s t e n t with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

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A t times the Green Party of New Mexico has been a significant force in N e w Mexico politics, perhaps determining the outcome of races for major offices s u c h as Governor and member of Congress. Recently, however, its candidates h a v e not garnered sufficient votes for it to qualify for designation as a minor p o l i t i c a l party under state law. To requalify, it must file petitions with sufficient s i g n a t u r e s of voters declaring that they desire the party to be a qualified political p a r t y in the state. See N.M. Stat. Ann. § 1-7-2(A) (1978). In addition, the party's d e s i g n a t e d candidates must submit petitions with sufficient signatures of voters s u p p o r t i n g the candidate. See id. §§ 1-8-2(B), 1-8-3(C). D a n i e l Fenton, a New Mexico resident but not a registered voter, seeks to be a candidate for a seat in the United States House of Representatives. He and the G r e e n Party brought suit in the United States District Court for the District of New M e x i c o against the Secretary of State to challenge several provisions of the New M e x i c o Election Code. 1 Only two of the claims are relevant to this appeal. One c l a i m­ C o u n t II-A of the complaint­challenged the constitutionality of the Election C o d e requirement that a candidate for political office be a registered voter. See id. § 1-8-18. The other­raised in Count IV of the complaint­related to petitions for a mi n o r political party or its candidates. It challenged the constitutionality of

T h e lead plaintiff in the lawsuit, Alan Woodruff, is an attorney representing t h e other plaintiffs, but does not appear to have a personal issue on appeal. -2-

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E l e c t i o n Code provisions regarding the personal address to be placed on the p e t i t i o n s by a qualified voter who signs such a petition. 2 See id. §§ 1-7-2(A), 1 - 8 - 2 ( B ) , 1-8-31(C). T h e district court agreed with the plaintiffs regarding the constitutionality of t h e provisions. It held that "it is unconstitutional to require that a person running f o r U.S. Representative be registered to vote." R. at 890. And it held that the E l e c t i o n Code is inconsistent regarding "whether signers of petitions must state t h e i r address of residence or their address as registered," and is therefore u n c o n s t i t u t i o n a l l y vague. Id. at 899. T h o s e two holdings are not at issue on appeal. What plaintiffs are c h a l l e n g i n g is the district court's failure to give them the relief to which they c l a i m entitlement based on those holdings. Fenton contends that he should be p l a c e d on the ballot because the Election Code has no provisions relating to c a n d i d a t e s who are not registered voters. And the Green Party contends that it s h o u l d not have to file petitions to qualify as a minor political party. The district

I n the complaint, plaintiffs challenged the Election Code provisions only as t h e y relate to the addresses of voters who sign candidate nominating petitions. In i t s motion for summary judgment, however, the Green Party challenged the p r o v i s i o n s as they relate to the addresses of voters who sign minor-party q u a l i f y i n g petitions. The Secretary of State did not challenge the plaintiffs' right t o raise the issue, the district court's summary-judgment ruling decided the c o n s t i t u t i o n a l i t y of the Election Code provisions relating to signers of party q u a l i f y i n g petitions, and the Secretary's brief on appeal does not challenge the p r o p r i e t y of this ruling. -3-

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c o u r t disagreed with those contentions, and so do we. In particular, we hold: (1) The district court did not rewrite the Election Code by stating that Fenton must c o mp l y with all statutory requirements other than being a registered voter; the c o u r t simply held that one requirement was unconstitutional, leaving the other r e q u i r e me n t s in place. (2) The district court properly ordered that the address r e q u i r e me n t for petition signers could be satisfied by providing either the r e s i d e n c e address or the registration address; this was a suitable remedy for a c o n s t i t u t i o n a l violation and was required by the Code in any event. (3) The d i s t r i c t court's order did not contradict the law of the case established by its s u mma r y - j u d g me n t ruling, because that ruling did not state­and plaintiffs did not i n t e r p r e t it to state­that Fenton was ordered on the ballot or that the Green Party w a s ordered to be recognized as a qualified party. (4) The district court's order d i d not violate due process by depriving plaintiffs of adequate time to obtain p e t i t i o n signatures required under the Code. I. P R O C E D U R A L BACKGROUND A. T h e Complaint

C o u n t II-A of the complaint asserted that § 1-8-18 of New Mexico's E l e c t i o n Code is unconstitutional because it requires that all candidates for n o mi n a t i o n by political parties be registered voters. 3 Count IV raised two

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N . M . Stat. Ann. § 1-8-18(A) (1978) states: (continued...) -4-

c o n s t i t u t i o n a l challenges, the only one relevant to this appeal being that the E l e c t i o n Code provisions relating to the required address of a petition signer are u n c o n s t i t u t i o n a l l y vague. In particular, Count IV asserted that conflicting p r o v i s i o n s of the Code make it unclear whether petition signers are required to p r o v i d e their address of residence or their address as registered, which might not b e the same. See N.M. Stat. Ann. §§ 1-7-2(A), 1-8-2(B), 1-8-30(C), 1-8-31(B) (1978). B. R u l i n g on Motions for Summary Judgment

M r . Fenton moved for summary judgment on Count II-A, and the Green P a r t y moved for summary judgment on Count IV. The district court granted M r . Fenton summary judgment, holding (1) that it is undisputed that the Election C o d e requires anyone desiring to run for the U.S. House of Representatives,

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(...continued) N o person shall become a candidate for nomination by a p o l i t i c a l party or have his name printed on the primary election ballot u n l e s s his record of voter registration shows: ( 1 ) his affiliation with that political party on the date of the g o v e r n o r ' s proclamation for the primary election; and (2) his residence in the district of the office for which he is a c a n d i d a t e on the date of the governor's proclamation for the primary e l e c t i o n or in the case of a person seeking the office of United States s e n a t o r or United States representative, his residence within New M e x i c o on the date of the governor's proclamation for the primary election. -5-

w h e t h e r as a nominee of a major or minor party or as an independent candidate, to b e a registered voter, and (2) that under this court's opinion in Campbell v. D a v i d s o n , 233 F.3d 1229, 1234 (10th Cir. 2000), "it is unconstitutional to require t h a t a person running for U.S. Representative be registered to vote." R. at 890. Further, it held that "the portions of the Declaration of Candidacy [forms for c a n d i d a t e s ] that require voter registration are unconstitutional." Id. at 891. The c o u r t also granted summary judgment to the Green Party, concluding that "with r e g a r d to whether the signers of petitions must state their address of residence or t h e i r address as registered, the Election Code is internally inconsistent and u n c o n s t i t u t i o n a l l y vague." Id. at 899. 4

W e note that the district court's rationale relied exclusively on Election C o d e provisions in Article 8, which governs candidate nominating petitions. We a g r e e with the court that the Article 8 provisions regarding the address r e q u i r e me n t for candidate nominating petitions are in conflict. Compare N.M. S t a t . Ann. § 1-8-31(B) (1978) (requiring petition signer to provide his address of r e s i d e n c e or, lacking that, a mailing address) with id. § 1-8-30(C) (setting forth ma n d a t o r y petition form requiring petition signer to provide his address as r e g i s t e r e d ) . The court concluded that if a petition signer's registered and r e s i d e n c e addresses differed, the conflicting provisions would leave the signer to g u e s s which address is actually required, and the Code's provisions are therefore u n c o n s t i t u t i o n a l l y vague. W e question whether this rationale can also be applied to party qualifying p e t i t i o n s . Those petitions are governed by Article 7 of the Election Code, and § 1-7-2(A) clearly provides that "[t]o qualify as a political party in New Mexico, . . . the governing body of the political party shall . . . file with the secretary of s t a t e a petition containing the hand-printed names, signatures, addresses of r e s i d e n c e and counties of residence" of a designated number of voters. (Emphasis added.) Although the form for party qualifying petitions promulgated b y the Secretary of State appears to conflict with the statute by requiring a signer (continued...) -6-

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C.

R u l i n g on Motion for Entry of Final Judgment

O n December 23, 2009, two weeks after the district court's s u mma r y - j u d g me n t ruling, plaintiffs filed an emergency motion for entry of final j u d g me n t on Counts II-A, II-B and IV ("Emergency Motion"). Plaintiffs asserted t h a t the court's summary-judgment order entitled them to relief, but "until [ p l a i n t i f f s ] know the precise nature of their relief, they remain unable to e f f e c t i v e l y participate in the 2010 general election." R. at 994; see also id. at n.2 ( s t a t i n g that form of relief granted by court would determine what actions p l a i n t i f f s had to take). Plaintiffs asked that the court (1) direct the Secretary of S t a t e to include Mr. Fenton on the 2010 ballot as a candidate for the U.S. House of R e p r e s e n t a t i v e s ; (2) "[e]njoin the Secretary of State from enforcing NMSA § 1 - 7 - 2 ( A ) as a condition for `qualifying' minor political parties for ballot access"; a n d (3) direct the Secretary to recognize the Green Party as a "qualified" party. Id. at 994. T h e court entered final judgment on the three counts on April 5, 2010, but it d e c l i n e d to grant the relief that plaintiffs requested. The court rejected

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(...continued) t o provide his registered address, that form (unlike the candidate nominating f o r m) is not codified in the Election Code. Thus, there appears to be no conflict a mo n g Code provisions that would make the Code itself unconstitutionally vague w i t h respect to party qualifying petitions. Apparently, the sole problem is that the S e c r e t a r y ' s form unlawfully conflicts with the statute. Nevertheless, neither party h a s challenged on appeal the merits of the district court's summary-judgment r u l i n g on this matter. -7-

M r . Fenton's contention that he should be "place[d] on the ballot without s a t i s f y i n g any of the statutory requirements imposed upon other candidates." Id. a t 1380. It said: F e n t o n must determine whether he wants to run as a member of a p a r t y or as an independent, and then he must fulfill all of the statutory o b l i g a t i o n s of such candidates with the exception of the voter r e g i s t r a t i o n requirement. If the statute requires him to prove me mb e r s h i p in a party, Fenton must do so, though the Secretary of S t a t e may not require that he make such proof solely through voter r e g i s t r a t i o n . However, the Court will not excuse Fenton from meeting t h e other ballot access requirements set forth in the Election Code. I d . at 1381. T h e court also rejected the Green Party's contention that the Secretary s h o u l d be ordered to qualify it as a minor political party for the 2010 election, t h e r e b y relieving it of all petition requirements. It instead adopted the suggestion b y the Secretary that the remedy should be to order her to accept signatures a c c o mp a n i e d by either the address as registered or the residence address. The c o u r t said that any remedy would require some conflict with the Election Code but t h e Green Party's suggested remedy would do "the most violence" to it. Id. at 1 3 8 2 . The court concluded that its remedy would satisfy "the Legislature's intent t h a t in order to be qualified, parties must file signed petitions." Id. at 1383. II. DISCUSSION P l a i n t i f f s appeal the district court's remedial order, contending that they w e r e entitled to broader relief than the court provided. Our jurisdiction arises

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u n d e r 28 U.S.C. § 1291. 5 As the district court determined, there are no disputed f a c t s in this case. Thus, we need review only the district court's conclusions of l a w ; that review is de novo. See O'Toole v. Northrop Grumman Corp., 499 F.3d 1 2 1 8 , 1221 (10th Cir. 2007). A. M r . Fenton

M r . Fenton argues that by requiring him to meet the ballot-access r e q u i r e me n t s in the Election Code applicable to other candidates, the district court e f f e c t i v e l y rewrote the Election Code with respect to unregistered-voter c a n d i d a t e s . He maintains that because the Election Code's ballot-access r e q u i r e me n t s apply only to registered voters, none apply to candidates who are not r e g i s t e r e d to vote. Therefore, he reasons, the court improperly added provisions to t h e Election Code when it held that he had to meet the Code's ballot-access r e q u i r e me n t s despite his unregistered status. Mr. Fenton's argument mi s c h a r a c t e r i z e s the Code and the proceedings.

W e initially questioned whether we had jurisdiction over this appeal b e c a u s e the district-court order being appealed did not appear to be a final, a p p e a l a b l e order. The district court later entered an order certifying under F e d . R. Civ. P. 54(b) that the claims at issue on appeal are final and appealable a n d that there is no just reason for delay. Accordingly, we have jurisdiction over t h i s appeal. The district court's certification also included a third claim, but p l a i n t i f f s have not addressed it in their briefs on appeal. Their failure to do so w a i v e s any challenge to that claim. See Bronson v. Swensen, 500 F.3d 1099, 1 1 0 4 (10th Cir. 2007). -9-

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T h e Election Code contains different requirements for a candidate to get on t h e ballot depending on whether he is running as the nominee of a major party, as t h e nominee of a minor party, or as an independent candidate. The only b a l l o t - a c c e s s requirement underlying Mr. Fenton's appeal is the requirement that a c a n d i d a t e be a registered voter to run for the U.S. House of Representatives. 6 The d i s t r i c t court agreed that the Code unconstitutionally requires a congressional c a n d i d a t e to be registered to vote, so it invalidated that requirement. Moreover, t h e court held that if a ballot-access provision would require Mr. Fenton to prove me mb e r s h i p in a party, the Secretary of State could not require that he do so solely t h r o u g h voter registration. T h e court did not, however, invalidate any ballot-access requirement r e l a t i n g to major or minor party nominees or independent candidates except those r e q u i r i n g a candidate to be a registered voter. The course that Mr. Fenton would h a v e to take to get on the ballot was therefore clear. As the court explained in its r e me d i a l order, once Mr. Fenton determined whether he was going to run as a p a r t y nominee or as an independent candidate, he had to comply with the ballota c c e s s requirements related to that chosen status. The court's decision did not add n e w provisions to the Election Code. Rather than imposing new requirements on

I n district court Mr. Fenton also asserted challenges to other ballot-access r e q u i r e me n t s not at issue on appeal. -10-

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u n r e g i s t e r e d candidates, the court merely left intact all requirements except the r e g i s t r a t i o n requirement. L i k e w i s e unavailing is Mr. Fenton's contention that the court's remedial o r d e r ignored the law of the case established in the summary-judgment ruling. The court concluded on summary judgment only that New Mexico could not r e q u i r e Mr. Fenton to be a registered voter to qualify as a candidate for the U.S. H o u s e of Representatives. It did not hold that Mr. Fenton should automatically be p l a c e d on the ballot. For Mr. Fenton to argue otherwise is inconsistent with what h e said in the Emergency Motion, which sought further rulings from the district c o u r t that would have been unnecessary if he believed that he was already assured o f being on the ballot. Indeed, the Emergency Motion's premise for requesting an e x p e d i t e d ruling was that "[t]he period for petition collection is already well under w a y , and the date when ballot access petitions must be filed is rapidly a p p r o a c h i n g . " R. at 994 (footnote omitted). Mr. Fenton clearly understood that, a b s e n t further court action, he would need to collect the necessary petition signatures. We also are not persuaded by Mr. Fenton's argument that the district court's r e me d i a l order denied him due process because he had inadequate time to obtain p e t i t i o n signatures after the order was entered. Surely, a potential candidate for o f f i c e should not be permitted to gain access to the ballot by suing to invalidate t h e petition requirement, losing the suit, and then claiming that there was -11-

i n a d e q u a t e time after judgment to obtain petition signatures. The potential c a n d i d a t e should have been gathering petition signatures while pursuing the l i t i g a t i o n . The only difference between Mr. Fenton and such a potential candidate i s that he prevailed on one claim of his challenge to the Election Code. But the d i s t r i c t court never suggested to him that he did not need to gather petition s i g n a t u r e s , and his status as one not registered to vote was unrelated to the petition p r o c e s s . He had as much time as any other candidate to gather signatures. Finally, we reject Mr. Fenton's argument that the sole remedy for the u n c o n s t i t u t i o n a l i t y of the registered-voter requirement was to order his name p l a c e d on the ballot. He relies on two Supreme Court cases in which the Court o r d e r e d that a party or a candidate be placed on the ballot; but neither imposed an a b s o l u t e rule. Instead, each looked to the particular circumstances of the case in c r a f t i n g an appropriate remedy for the unconstitutional limitation. See Williams v. R h o d e s , 393 U.S. 23, 35 (1968) (concluding that "under the circumstances," Ohio w o u l d be required to print the name of the Ohio American Independent Party on t h e ballot, but the Socialist Labor Party would be limited to the relief previously g r a n t e d , namely space on the ballot for write-in votes); McCarthy v. Briscoe, 4 2 9 U.S. 1317, 1322­23 (1976) (Powell, J., in chambers) (concluding that when t h e State had precluded independent presidential candidates from gaining access to t h e ballot, the Court was not limited to allowing the candidate to collect petition s i g n a t u r e s to show support, but it could "properly look to available evidence or to -12-

ma t t e r s subject to judicial notice to determine whether there is reason to assume t h e requisite community support" to place the candidate's name on the ballot). T h e district court properly concluded that it was not necessary to place M r . Fenton's name on the ballot to remedy the unconstitutional limitation on his a c c e s s to the ballot. It was enough to permit him to qualify for the ballot through t h e petition process. B. T h e Green Party

T h e Green Party also challenges the district court's remedial order on s e v e r a l grounds. First, it contends that by ordering the Secretary of State to accept e i t h e r the address of residence or the address as registered of signers of party q u a l i f y i n g petitions, the court improperly rewrote the Election Code. We disagree.

The Party cites cases stating that a court cannot rewrite a statute to save its c o n s t i t u t i o n a l i t y . See, e.g., Colo. Right to Life Comm., Inc. v. Coffman, 498 F.3d 1 1 3 7 , 1155 (10th Cir. 2007). But that is not what the district court did. On the c o n t r a r y , it held that the Election Code was unconstitutional in one respect. It t h e r e f o r e had to construct a remedy. Any remedy would require "violating" the C o d e in some way. Certainly an order to declare the Party to be a qualified party, d e s p i t e its failure to comply with the requirements for that status, would "rewrite" t h e Code. In our view, the court's order was a proper exercise of its power to r e me d y a constitutional violation and was entirely consistent with the Election -13-

C o d e . See McCarthy, 429 U.S. at 1323 (fashioning remedy for unconstitutional d e n i a l of ballot access that carried out purpose of election law). I n d e e d , the district court's remedial order did nothing more than restate New M e x i c o law regarding petition signatures. The sole grounds for rejection of a s i g n a t u r e on a nominating petition are set forth in § 1-8-31(C). As relevant here, § 1-8-31(C) requires that a signature on a petition be counted unless the person s i g n i n g the petition failed to provide required information "sufficient to determine t h a t the person is a qualified voter of the state, district, county or area to be r e p r e s e n t e d . " 7 The address provisions in §§ 1-8-30(C) and 1-8-31(B) facilitate the d e t e r mi n a t i o n required by § 1-8-31(C), because either an address of residence or a n address as registered would suffice to determine whether the petition signer is a q u a l i f i e d voter. Cf. State ex rel Citizens for Quality Educ. v. Gallagher, 697 P.2d 9 3 5 , 939 (N.M. 1985) (requirement that signer of school-board recall petition i n d i c a t e address as registered was "obviously intended to enable a county clerk to d e t e r mi n e whether the signer is a `registered voter of the county and of the school d i s t r i c t ' " as required by N.M. Stat. Ann. § 22-7-10(E)(1) (1978)). But, as New M e x i c o Supreme Court precedent firmly establishes, those address provisions do n o t impose conditions for counting a signer beyond those set forth in § 1-8-31(C). The Supreme Court has said that it is "committed to examine most carefully, and

T h e statute contains other conditions for disqualification that are not at i s s u e on appeal. -14-

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r a t h e r unsympathetically any challenge to a voter's right to participate in an e l e c t i o n , and will not deny that right absent bad faith, fraud or reasonable o p p o r t u n i t y for fraud." Ruiz v. Vigil-Giron, 196 P.3d 1286, 1288 (N.M. 2008) ( i n t e r n a l quotation marks omitted)). In keeping with this commitment, settled N e w Mexico law provides that a signature on a petition will be counted if it gives t h e relevant government officer sufficient information to determine its validity, e v e n if it does not conform to the exact requirements of a statutory petition form. See Gallagher, 697 P.2d at 939 (failure of signature to conform with statutory f o r m would not invalidate signature so long as information provided was sufficient t o allow county clerk to determine that signer was qualified voter); Simmons v. M c D a n i e l , 680 P.2d 977, 978-99 (N.M. 1984) (refusing to invalidate petition s i g n a t u r e s that provided address other than registered address required by statutory f o r m, because lack of registered address was not a cause for disqualification listed i n what is now § 1-8-31(C)). T h u s , the district court did not improperly rewrite the Election Code when it o r d e r e d the Secretary to accept either the address of residence or the address as r e g i s t e r e d of petition signers. The Green Party also argues that the district court ignored the law of the c a s e when it ordered the Secretary to accept either the residence or registered a d d r e s s e s of petition signers, a remedy it allegedly had rejected in its s u mma r y - j u d g me n t order. The Green Party points to the district court's statement -15-

i n the order that "parties and candidates gathering signatures for their petitions s h o u l d not be forced to guess at which address is actually required from signers," o r to await a court challenge to the signatures to argue that the address provided w a s valid under one provision or another. R. at 899. But the court made this s t a t e me n t in explaining its rejection of the Secretary's suggestion that the Green P a r t y use the petition form that she had promulgated­which required the address a s registered­but have each signer write down his address of residence. Contrary t o the Green Party's contention, the remedy fashioned by the district court was not o n e that it had rejected on summary judgment. The court was concerned that p a r t i e s might be uncertain which address they should require people signing their p e t i t i o n s to provide and they might not know if they had chosen correctly until it w a s too late. The court's remedy eliminated this uncertainty by requiring the S e c r e t a r y to accept either address. The remedy therefore complemented, rather t h a n contradicted, the court's reasoning on summary judgment. In any event, this c o u r t is not bound by the law of the case set in district court, see Woods v. Kenan ( I n re Woods), 173 F.3d 770, 776 (10th Cir. 1999); and we hold that the remedial o r d e r was wholly proper. Like Mr. Fenton, the Green Party further contends that under Supreme Court a u t h o r i t y , the sole remedy for the unconstitutionally vague Election Code p r o v i s i o n s was to order that the Green Party be qualified as a minor party. We

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h a v e already discussed and rejected that argument with respect to Mr. Fenton. It i s similarly unavailing with respect to the Green Party. T h e Green Party also maintains that the district court's remedial order d e n i e d it due process. It contends that it relied on the court's summary-judgment o r d e r to discontinue its efforts to gather petition signatures, justifiably assuming t h a t the Election Code's petition requirements no longer applied to it. The Green P a r t y ' s alleged reliance was not justified, however, because the district court's s u mma r y - j u d g me n t order did not suggest that the Green Party could qualify as a mi n o r party without submitting the required petition signatures. And the Green P a r t y knew this. After the summary-judgment order was filed, not only did its E me r g e n c y Motion state that it did not know "the precise nature" of the relief that t h e court intended to grant, R. at 994, but it also filed a motion for preliminary i n j u n c t i o n seeking to enjoin the Secretary from enforcing the requirements relating t o minor-party qualifying petitions, see id. at 1107­1131, and it filed an e me r g e n c y motion for permanent injunction in which it acknowledged that "[t]he O r d e r granting summary judgment did not specify the relief to be granted for the c o n s t i t u t i o n a l violations identified therein," id. at 1283. The court's orders did not d e p r i v e the Green Party of sufficient time to collect the necessary signatures for its p a r t y qualifying petition. Nor was there any practical problem for the Green Party i n gathering petition signatures. It could have used the Secretary's form (which a s k e d for the address of registration) with full confidence under New Mexico law -17-

( a s set forth above) that the signer would not be rejected on the ground that the a d d r e s s was not the residence address. The Green Party makes two final arguments that are easily disposed of. First, it argues that in fashioning a remedy for the constitutional violation, the d i s t r i c t court failed to comply with the dictates of Anderson v. Celebrezze, 4 6 0 U.S. 780 (1983), "to identify specific state interests and weight state interests a g a i n s t the burdens imposed on the Green Party and to make specific factual d e t e r mi n a t i o n s regarding these interests and burdens." Aplt. Amended Br. at 2 6 - 2 7 (emphasis omitted). The Green Party's reliance on Anderson is misplaced. Anderson described the analysis a court should follow when determining whether a S t a t e ' s election laws are unconstitutional because they unduly or unfairly burden t h e voting and associational rights that the plaintiff seeks to vindicate. 460 U.S. at 7 8 9 . The decision did not speak to the appropriate remedy to be fashioned once a c o u r t finds an unconstitutional burden. Second, the Green Party argues that we may grant the remedial relief it s e e k s based on the Secretary's allegedly improper use of the term qualified elector r a t h e r than voter on her form for party qualifying petitions. But the Party did not s h o w the district court why use of the form would impair its petition-gathering e f f o r t s . At worst, a qualified elector who was not registered to vote (and therefore w a s statutorily ineligible to sign a petition) would sign the petition and the signer w o u l d not be counted. -18-

A p p e l l a n t s ' unopposed emergency motion in this court for expedited a r g u me n t and ruling and the supplement thereto are DENIED as moot. T h e judgment of the district court is AFFIRMED.

E n t e r e d for the Court H a r r i s L Hartz C i r c u i t Judge

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