Bryan Greene v. Gary Bartlett
Filing
UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 5:08-cv-00088-GCM. Copies to all parties and the district court/agency. [998699397]. [10-2068]
Appeal: 10-2068
Document: 40
Date Filed: 10/13/2011
Page: 1 of 5
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2068
BRYAN E. GREENE; JORDON M. GREENE; TODD MEISTER,
Plaintiff – Appellants,
and
BRADLEY D. SMITH,
Intervenor – Appellant,
v.
GARY O. BARTLETT, Director NCBOE; LARRY LEAKE; CHARLES
WINFREE; ROBERT CORDLE; ANITA S. EARLS; BILL W. PEASLEE,
Defendants – Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville.
Graham C. Mullen,
Senior District Judge. (5:08-cv-00088-GCM)
Argued:
September 22, 2011
Before TRAXLER, Chief Judge,
HAMILTON, Senior Circuit Judge.
Decided:
KEENAN,
October 13, 2011
Circuit
Judge,
and
Affirmed by unpublished per curiam opinion.
ARGUED: Robert Milton Bastress, Jr., Morgantown, West Virginia,
for Appellants.
Alexander McClure Peters, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.
ON BRIEF: Jason E. Huber, CHARLOTTE SCHOOL OF LAW, Charlotte,
North Carolina, for Appellants.
Roy Cooper, Attorney General,
Susan K. Nichols, Special Deputy Attorney General, NORTH
Appeal: 10-2068
Document: 40
CAROLINA DEPARTMENT
Appellees.
Date Filed: 10/13/2011
OF
JUSTICE,
Page: 2 of 5
Raleigh,
North
Carolina,
for
Unpublished opinions are not binding precedent in this circuit.
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Document: 40
Date Filed: 10/13/2011
Page: 3 of 5
PER CURIAM:
On August 6, 2008, Bryan Greene, Jordon Greene, and
Todd Meister brought this 42 U.S.C. § 1983 action against the
five members of the North Carolina Board of Elections and the
executive
alleging
director
that
of
North
the
North
Carolina
Carolina
General
Board
Statute
of
Elections
§ 163-122(a)(2)
violated the First Amendment of the United States Constitution,
because
§ 163-122(a)(2)
independent
candidates
severely
for
burdens
the
the
United
ability
House
States
of
of
Representatives to qualify for appearance on the general ballot.
In
their
complaint,
the
plaintiffs
also
alleged
that
§ 163-
122(a)(2) violated the Equal Protection Clause of the Fourteenth
Amendment.
intervened
On
in
July
the
15,
action,
2010,
Bradley
alleging
the
Smith
same
successively
claims
as
the
original plaintiffs.
In the district court, both the plaintiffs (including
the intervenor) and the defendants sought summary judgment.
The
district court granted the defendants’ motion, concluding that
§ 163-122(a)(2), which requires, among other things, a candidate
who
wishes
his
independent
or
her
candidate
name
to
for
appear
the
on
United
the
ballot
States
as
House
an
of
Representatives or any other district office to obtain petitions
signed
by
4%
of
the
registered
district, was not unconstitutional.
3
voters
in
their
respective
According to the district
Appeal: 10-2068
Document: 40
Date Filed: 10/13/2011
Page: 4 of 5
court, § 163-122(a)(2) was not unconstitutional under the First
Amendment, primarily because the Supreme Court of the United
States has upheld a more restrictive ballot access percentage
requirement.
See
Jenness
v.
Fortson,
403
U.S.
431,
438-39
(1971) (upholding Georgia statute requiring signatures of 5% of
registered voters before independent candidate could be placed
on
ballot).
additional
candidate
The
uncontroverted
for
obtained
district
the
access
requirement.
the
was
facts.
United
to
court
persuaded
First,
States
2010
also
House
ballot
one
of
by
by
two
independent
Representatives
meeting
the
4%
Second, since 1992, over eighty candidates for
other district offices had met the 4% requirement.
The district court also rejected the equal protection
claim raised by the plaintiffs (and intervenor).
According to
the district court, § 163-122(a)(2) did not run afoul of the
Equal Protection Clause of the Fourteenth Amendment, because the
plaintiffs
unaffiliated
and
the
intervenor
candidates
for
Representatives
were
the
similarly
did
not
United
situated
demonstrate
States
to
House
that
of
unaffiliated
candidates for statewide office or to new political parties.
Having reviewed the briefs, the joint appendix, and
the applicable law, and having had the benefit of oral argument,
we agree with the district court that the First Amendment claim
fails because there is no meaningful way in which to distinguish
4
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Document: 40
Jenness.
Date Filed: 10/13/2011
Moreover,
as
the
Page: 5 of 5
district
court
observed,
the
constitutionality of § 163-122(a)(2) under the First Amendment
is further supported by the two uncontroverted facts set forth
above.
We also agree that the equal protection claim founders,
because the plaintiffs and the intervenor did not demonstrate
that
unaffiliated
Representatives
candidates
were
for
similarly
the
United
situated
States
to
House
of
unaffiliated
candidates for statewide office or to new political parties.
Accordingly, like the district court, we conclude that § 163122(a)(2) does not run afoul of either the First Amendment or
the Equal Protection Clause of the Fourteenth Amendment.
The
judgment of the district court is affirmed.
AFFIRMED
5
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