Al Pisano v. Gary Bartlett

Filing

PUBLISHED AUTHORED OPINION filed. Originating case number: 3:12-cv-00192-GCM. [999305357]. [13-1368]

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-1368

AL
PISANO;
NORTH
CAROLINA
CONSTITUTION
CAROLINA GREEN PARTY; NICHOLAS TRIPLETT,

PARTY;

NORTH

Plaintiffs – Appellants,
v.
KIM WESTBROOK STRACH, as Executive Director of the North
Carolina Board of Elections; JOSH HOWARD, as Member of the
North Carolina Board of Elections; RHONDA AMOROSO, as
Member of the North Carolina Board of Elections; PAUL
FOLEY, as Member of the North Carolina Board of Elections;
MAJA KRICKER, as Member of the North Carolina Board of
Elections; JOSHUA MALCOLM, as Member of the North Carolina
Board of Elections,
Defendants – Appellees.

Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.
Graham C. Mullen,
Senior District Judge. (3:12-cv-00192-GCM)

Argued:

October 29, 2013

Decided:

February 27, 2014

Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge Diaz wrote the opinion, in
which Judge Niemeyer and Judge Motz joined.

ARGUED: Robert Milton Bastress, Jr., Morgantown, West Virginia,
for Appellants.
Susannah Porter Holloway, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.

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ON BRIEF: Jason E. Huber, CHARLOTTE SCHOOL OF LAW, Charlotte,
North Carolina, for Appellants.
Roy Cooper, North Carolina
Attorney General, Susan K. Nichols, Special Deputy Attorney
General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellees.

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DIAZ, Circuit Judge:
North

Carolina

provides

three

ways

for

a

candidate

to

appear on a general election ballot when running for a partisan
federal,

state,

county,

or

office. 1

municipal

First,

“recognized” political party may nominate candidates.
unaffiliated
election

candidates

ballot.

may

Third,

petition
and

to

most

appear

relevant

on

a

Second,
a

here,

general
a

“new”

political party may nominate candidates.
In this appeal, Al Pisano, Nicholas Triplett, the North
Carolina Constitution Party, and the North Carolina Green Party
raise

an

as-applied

petition-filing
parties. 2

challenge

deadline

for

to

the

North

Carolina’s

formation

of

new

May

17

political

They contend that the deadline violates the First and

Fourteenth Amendments because it imposes an unjustified, severe
burden on their ability to field presidential candidates.
also

assert

Clause

of

that
the

the

deadline

Fourteenth

violates

Amendment

the

because

Equal
it

They

Protection
places

an

additional, substantial burden on them that is not imposed on
unaffiliated candidates or recognized political parties.
1

An individual may also qualify as a write-in candidate for
a non-municipal, partisan office.
See N.C. Gen. Stat. § 163123.
2

Al Pisano is the chairperson of the North Carolina
Constitution Party. Nicholas Triplett is a vice chairperson of
the North Carolina Green Party.

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The district court held that discovery was not necessary to
determine the constitutionality of the deadline and upheld its
validity, noting that the deadline has no impact on Plaintiffs’
constitutional rights.

Even assuming that it did, however, the

court concluded that the deadline is justified, and any burden
it imposes is ameliorated by other aspects of North Carolina’s
statutory framework.

For the reasons that follow, we affirm.

I.
We

begin

with

a

brief

sketch

of

the

relevant

statutory

framework before turning to the issues presented.
A.
North

Carolina

election

law

provides

that

a

recognized

political party may nominate candidates for federal, state, and
local offices.

McLaughlin v. N.C. Bd. of Elections, 65 F.3d

1215, 1218 (4th Cir. 1995).

Recognized political parties must

nominate their candidates by primary election unless only one
candidate
office.

from

that

party

seeks

election

for

a

particular

Id. at 1219; see also N.C. Gen. Stat. § 163-110.

North

Carolina recognizes a political party if it polled at least two
percent of the entire votes cast in the state for governor or
for presidential electors.

See N.C. Gen. Stat. § 163-96(a)(1).

A new political party may also nominate candidates.
id. § 163-98.

See

To do so, a qualifying new party must select its
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candidates by party convention and submit its nominees by July
1.

Id.

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.
Id. § 163-96(a)(2), (b1).

A separate petition must be filed for

each county in which the group gathers signatures.

See id.

§ 163-96(b), (b1).
The petitions 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.
Id. § 163-96(a)(2).

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. 3

Id.

§ 163-96(b1).

3

The statute does not expressly say that May 17 is the
operative deadline.
Rather, it requires that the petitions be
submitted to the chairperson “of the county board of elections
in the county in which the signatures were obtained no later
than 5:00 P.M. on the fifteenth day preceding the date the
petitions are due to be filed with the State Board of
Elections.”
N.C. Gen. Stat. § 163-96(b1).
Although Plaintiffs
initially contended that the operative deadline was May 16, see
First Am. Compl. ¶ 19 , they now concede the additional day.

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Groups

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seeking

to

form

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new

political

parties

are

not

limited to a short time frame for gathering signatures and have
notice of the number of signatures required three-and-one-half
years before the deadline.

This is so because the number of

required signatures is based on the total number of votes cast
in the previous gubernatorial election.

See id. § 163-96(a)(2).

North Carolina does not preclude voters from signing petitions
based

on

their

party

affiliation

or

from

signing

multiple

petitions.
North Carolina held a primary election on May 8, 2012.

The

Republican presidential candidate was nominated in August, and
the

Democratic

nominate
ballot,

in
To

candidates
a

signatures,
number

nominated

The general election was held on November 6.

September.

presidential

of

group
a

needed

figure

votes

for

cast

candidate

North
to

in

Carolina’s

collect

amounting
North

was

to

and
two

general

timely
percent

Carolina’s

2008

election

submit
of

the

85,379
total

gubernatorial

election.
B.
The North Carolina Constitution Party and Al Pisano filed
suit

against

the

Executive

Director

of

the

Elections and its members on March 27, 2012.

State

Board

of

On April 6, they

filed an amended complaint, joined by the North Carolina Green
Party and Nicholas Triplett.

Plaintiffs allege that the May 17
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deadline violates the First and Fourteenth Amendments and the
Equal

Protection

Clause

because

it

severely

ability to field presidential candidates.
do

not

challenge

North

Carolina’s

two

burdens

their

Although Plaintiffs
percent

signature

requirement, they argue that the deadline, in combination with
the signature requirement, creates an impermissible barrier to
ballot access.
preliminary

Plaintiffs moved in the district court for a

injunction

petition-filing

to

deadline

prevent
in

the

enforcement
2012

of

the

presidential

May

17

election,

which the district court denied.
The parties subsequently held a conference in which they
agreed not to take discovery until the district court ruled on
Defendants’ motion for summary judgment or Plaintiffs’ motion
under Federal Rule of Civil Procedure 56(d) for discovery.

The

district court denied the Rule 56(d) motion on October 18, 2012,
concluding that discovery was not needed to decide whether the
May

17

deadline

is

unconstitutional.

The

court

allowed

Plaintiffs time to file additional affidavits before the court
ruled on the summary judgment motion, but Plaintiffs did not
take advantage of that opportunity.

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On March 1, 2013, the district court granted Defendants’
motion for summary judgment. 4

It first stated that the filing

deadline has no impact on Plaintiffs' rights and that it is
instead the unchallenged two percent signature requirement that
imposes a severe burden.
that

the

filing

impose a burden.

deadline

The court then concluded, however,
is

constitutional

even

if

it

does

Applying strict scrutiny, the court determined

that the deadline is narrowly tailored and that any burden it
imposes “is significantly lessened by the alleviating factors in
the overall statutory scheme.”

J.A. 96-97.

The district court

also rejected Plaintiffs’ equal protection claim, holding that
groups seeking to form new political parties are not similarly
situated

to

unaffiliated

candidates

parties.

or

recognized

political

This appeal followed.

II.
A.
Plaintiffs first argue that the district court erred in
denying

their

Rule

56(d)

motion.

4

Rule

56(d)

mandates

that

The district court ruled on the merits of Plaintiffs’
claims after the November 2012 general election.
The case is
not moot, however, because Plaintiffs’ challenge to the May 17
deadline falls under the “capable of repetition, yet evading
review” exception to the mootness doctrine. See Norman v. Reed,
502 U.S. 279, 287-88 (1992) (internal quotation marks omitted).

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summary judgment be denied when the nonmovant “has not had the
opportunity to discover information that is essential to his
opposition.” 5

Ingle ex rel. Estate of Ingle v. Yelton, 439 F.3d

191, 195 (4th Cir. 2006) (internal quotation marks omitted).

A

court should hesitate before denying a Rule 56(d) motion when
the nonmovant seeks necessary information possessed only by the
movant.

Id. at 196-97.

But 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.

Id. at 195.

We review a district

court’s denial of a Rule 56(d) motion for abuse of discretion.
Greater Balt. Ctr. for Pregnancy Concerns, Inc., 721 F.3d at
280.
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
5

“By amendment that took effect on December 1, 2010, former
Rule 56(f) was carried forward into subdivision (d) without
substantial change.” Greater Balt. Ctr. for Pregnancy Concerns,
Inc., v. Mayor of Balt., 721 F.3d 264, 275 n.6 (4th Cir. 2013)
(en banc).

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deadlines.

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They contend that this discovery was essential to

their ability to oppose summary judgment.
We

conclude

that

the

district

discretion on this issue.
information
ballot

regarding

access

Libertarian

in

Party

did

not

abuse

its

To begin with, the record includes

other

recent

court

minor

years.

qualified

as

parties’
Between

a

new

efforts

1996

party

to

gain

and

2012,

the

four

times

and

qualified once as a recognized political party based on previous
election results.

The Reform Party qualified as a new party

twice, and the Natural Law Party and the Americans Elect Party
each qualified as a new party once.

We also know that as of

April 17, 2012, five groups other than Plaintiffs had expressed
interest in forming new political parties but had not submitted
any signatures.

In addition, the State Board of Elections posts

the status of current statewide petitions in each county on its
website.

Plaintiffs

do

not

appear

to

dispute

this

record

evidence; they simply want more.
Plaintiffs complain that they do not know precisely how
many

groups

have

political parties.
information
material

by

fact

attempted

but

failed

to

qualify

as

new

True enough, but we are satisfied that this

itself

would

sufficient

to

not

create

preclude

a

genuine

summary

issue

judgment,

of

given

that the question before us is principally one of law, and there
is a wealth of case law assessing similar challenges.
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Second, with respect to North Carolina’s reasons for the
May 17 deadline, the record provides justifications.

In a sworn

declaration, Bartlett highlighted the problems that the state
fears would arise without ballot-access requirements, including
“tremendous voter confusion and chaos.”

J.A. 19.

At bottom,

Plaintiffs want to compel North Carolina to say more in support
of the May 17 deadline.

But the fact that Plaintiffs believe

the state has provided only ephemeral support for the deadline
goes to the merits of their claim--not to whether the district
court properly denied the Rule 56(d) motion.
Finally,

Plaintiffs

sought

information

from

officials

in

other states about possible alternatives to the May 17 deadline,
presumably to attack the merits of North Carolina’s choice.

The

district court, however, did not bar Plaintiffs from obtaining
and

presenting

Plaintiffs

that

ample

evidence.

opportunity

To

to

the

offer

contrary,

additional

it

gave

affidavits

before considering the summary judgment motion, but Plaintiffs
simply chose not to do so.
We find no abuse of discretion on this record.
B.
We
deadline
rights.

next

consider

violates
We

whether

Plaintiffs’

review

the

the

First

district

11

May
and

17

petition-filing

Fourteenth

court’s

grant

of

Amendment
summary

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judgment de novo.

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See S.C. Green Party v. S.C. State Election

Comm’n, 612 F.3d 752, 755 (4th Cir. 2010).
It

is

“implicate
rights

well

established

substantial

protected

McLaughlin,

65

by

voting,
the

F.3d

that

at

ballot-access

associational

First

and

1221.

In

and

Fourteenth
analyzing

restrictions
expressive
Amendments.”

whether

state

election laws impermissibly infringe on such rights, the Supreme
Court has instructed us to 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.’
Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson
v. Celebrezze, 460 U.S. 780, 789 (1983)).
Applying

the

Anderson/Burdick

framework,

we

have

stated

that election laws that impose a severe burden on ballot access
are

subject

to

strict

scrutiny,

and

a

court

applying

strict

scrutiny may uphold the restrictions only if they are “narrowly
drawn to advance a state interest of compelling importance.”
McLaughlin, 65 F.3d at 1220 (internal quotation marks omitted).
On the other hand, “if a statute imposes only modest burdens,
then a State’s important regulatory interests will usually be
enough to justify reasonable, nondiscriminatory restrictions.”

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S.C. Green

Filed: 02/27/2014

Party,

612

F.3d

at

whether

Pg: 13 of 25

756

a

(internal

quotation

marks

omitted).
When

deciding

state’s

filing

deadline

is

unconstitutionally burdensome, we evaluate the combined effect
of the state’s ballot-access regulations.

See Wood v. Meadows,

207 F.3d 708, 711 (4th Cir. 2000) (“When determining whether a
given

state’s

candidates’

filing

and

deadline

voters’

rights,

unconstitutionally
a

court

must

burdens

examine

that

state’s ballot access scheme in its entirety.”).
Although

the

district

court

relied

on

our

decision

in

McLaughlin when it applied strict scrutiny, we do not believe
that McLaughlin addresses the appropriate level of scrutiny that
we should apply here.
to

North

Carolina’s

There, we considered several challenges
then-applicable

statutory

framework,

including its retention requirement to qualify as a recognized
political party.

See 65 F.3d at 1220.

Then, as now, North

Carolina imposed a two percent signature requirement on groups
seeking to form new political parties.
time,

however,

affidavit
signature. 6

and

the
a

state

also

five-cent

Id. at 1218.

See id. at 1219.

required

verification

that
fee

a

At the

notarized

accompany

each

Furthermore, a political party could

6

The district court had invalidated the notarized affidavit
and five-cent verification fee requirements, and the state did
not cross appeal. Id. at 1220.

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only retain the right to field candidates if its nominee for
governor or for president received at least ten percent of the
votes

cast

in

president. 7
In

the

previous

election

for

governor

or

Id. at 1219.

McLaughlin,

percent

general

retention

the

Libertarian
as

it

challenged
had

the

ten

satisfied

the

requirements to form a new political party multiple times.

Id.

at 1219-20.

requirement,

Party

We recognized that the burden imposed by North

Carolina’s then-applicable restrictions was “undoubtedly severe”
because,

“as

history

extremely

difficult

electoral

reveal[ed],
for

politics.”

any

Id.

those

‘third

at

regulations

party’

1221.

to

ma[d]e

it

participate

in

Moreover,

we

expressed

concern about the regulations’ impact on candidates for local
offices.

In effect, the regulations prevented any third-party

candidates

for

local

offices

from

designating

their

party

affiliation on the ballot unless their group met the two percent
or ten percent requirements--even if the corresponding number of
signatures or votes far exceeded the number of people entitled
to vote for that local office.
strict

scrutiny

applied

because

Id. at 1224.
the

Concluding that

restrictions

imposed

a

severe burden, see id. at 1221, we nevertheless rejected the
7

The ten percent requirement has since been repealed. See
Electoral Fairness Act, 2006 N.C. Sess. Laws 234 § 1 (changing
the ten percent requirement to a two percent requirement).

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Libertarian

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Party’s

challenge

Pg: 15 of 25

in

light

Court precedent, id. at 1225-26.
however,

whether

North

of

applicable

Supreme

We did not expressly decide,

Carolina’s

filing

deadline

is

constitutional. 8
Nor does McLaughlin mandate that we apply strict scrutiny
in this case.

In McLaughlin, we considered a significantly more

restrictive statutory framework in the context of a different
type of challenge.
seeking

new

party

North Carolina no longer requires groups
status

to

submit

notarized

affidavits

and

verification fees, nor does it impose a ten percent retention
requirement.

See N.C. Gen. Stat. § 163-96.

Thus, the pre-1996

history that we discussed in McLaughlin is immaterial to the
question

at

hand:

whether

imposes a severe burden.

the

current

statutory

framework

In addition, Plaintiffs challenge the

filing deadline only in the context of presidential elections,
which

involve

concern

in

the

entire

McLaughlin

statewide

about

the

electorate.

Thus,

our

regulations’

effect

on

candidates in local elections is irrelevant here.
With

this

constitutionality

background
of

the

May

in
17

8

mind,

we

petition-filing

address
deadline

the
as

We note that since our 1995 decision in McLaughlin, minor
parties have met the two percent signature requirement eight
times in presidential election years, and the Libertarian Party
placed its candidate on the 2012 ballot by satisfying the ballot
retention provision.

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applied

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to

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Plaintiffs.

Pg: 16 of 25

Consistent

with

the

Supreme

Court’s

analytical framework, “we base our conclusions directly on the
First and Fourteenth Amendments and do not engage in a separate
Equal Protection Clause analysis.”

Norman, 502 U.S. at 288 n.8

(quoting Anderson, 460 U.S. at 786 n.7); see also Libertarian
Party of Ohio v. Blackwell, 462 F.3d 579, 586 n.6 (6th Cir.
2006)(same); Council of Alt. Political Parties v. Hooks, 179
F.3d 64, 70 n.7 (3d Cir. 1999)(same).
C.
1.
We

first

address

whether

the

filing

deadline

imposes

severe burden on Plaintiffs’ constitutional rights.
assert

that

the

May

unchallenged

two

percent

impermissible

barrier

17

to

deadline,
signature
ballot

in

Plaintiffs

combination

requirement,
access. 9

a

with

creates

the
an

Specifically,

Plaintiffs contend that the May 17 deadline prevents them from
gathering signatures at the height of the presidential election

9

Plaintiffs place great emphasis on a 1988 letter from
North Carolina’s Office of the Attorney General that suggests
the May 17 deadline is unconstitutional.
In that letter,
however, the Attorney General’s Office appears to have read
Anderson to require strict scrutiny review in all cases
challenging ballot access restrictions.
The Court has since
clarified that Anderson does not compel strict scrutiny review
in all cases, but instead only when the burden imposed is
severe.
See Burdick, 504 U.S. at 434.
In any event, this
letter has no bearing on our resolution of this case.

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season.

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According

to

them,

Pg: 17 of 25

early

filing

deadlines

impose

a

severe burden by requiring parties to gather signatures when the
election

is

remote,

before

voters

focus

on

the

campaigns.

Plaintiffs emphasize that the May 17 deadline comes before most
of the presidential candidates have been selected and before the
candidates’ political platforms are defined.
Plaintiffs’ argument ignores important alleviating factors
in North Carolina’s statutory framework.

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

Plaintiffs
when

thus

voters

elections.

three-and-one-half

are

have

ample

engaged,

years

opportunity

such

as

before
to

during

the

deadline.

collect

signatures

primaries

and

other

And they have a large pool from which to collect

signatures, as the state does not preclude voters from signing
petitions

based

on

their

party

affiliation

or

from

signing

multiple petitions.
Plaintiffs also misconstrue the timeline for presidential
election cycles.

Although the Republican and Democratic parties

did not officially nominate their candidates for president until
August and September of 2012, the names of potential recognizedparty candidates and their platforms were known well before the
May 17 deadline.

Given that North Carolina held a primary on

May 8, 2012, the May 17 deadline allowed Plaintiffs to engage
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voters

during

Plaintiffs

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the

could

height
have

of

Pg: 18 of 25

the

collected

primary

season.

signatures

from

Indeed,
registered

voters at polling locations during the early voting period and
on the day of the May primary.
The cases Plaintiffs cite, wherein courts have struck down
filing

deadlines,

are

inapposite,

principally

because

deadlines in those cases preceded the state’s primary. 10

the
See,

e.g., Anderson, 460 U.S. at 804 n.31, 806 (striking down Ohio’s
filing deadline for unaffiliated presidential candidates, which
fell in March--75 days before a June primary); Nader v. Brewer,
531 F.3d 1028, 1038-40 (9th Cir. 2008) (striking down Arizona’s
filing deadline for unaffiliated candidates, which fell in June-90 days before the primary); MacBride v. Exon, 558 F.2d 443,
446, 448-49 (8th Cir. 1977) (striking down Nebraska’s deadline
for

the

formation

of

new

political

February--90 days before the primary).
explained,

“the

great

weight

of

parties,

which

fell

in

As the Sixth Circuit has
authority

. . .

has

distinguished between filing deadlines well in advance of the
primary and general elections and deadlines falling closer to

10

Plaintiffs cite one federal district court case that did
not address whether the filing deadline fell before or after the
presidential primary.
See Nader 2000 Primary Comm., Inc. v.
Hazeltine, 110 F. Supp. 2d 1201, 1208-09 (D.S.D. 2000) (striking
down June 20 deadline for unaffiliated presidential candidates).
We do not find the reasoning of that case persuasive.

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the dates of those elections.”

Pg: 19 of 25

Libertarian Party of Ohio, 462

F.3d at 590.
Election law schemes with modest signature requirements and
filing deadlines falling close to or after the primary election
are the relevant points of comparison.

We, and several of our

sister

schemes

circuits,

severe burdens.

have

found

that

such

do

not

impose

See, e.g., Swanson v. Worley, 490 F.3d 894,

905-06, 910 (11th Cir. 2007) (upholding Alabama’s primary-day
filing deadline, in combination with a three percent signature
requirement, for unaffiliated candidates in local and statewide
elections); Lawrence v. Blackwell, 430 F.3d 368, 370, 375 (6th
Cir.

2005)

(upholding

Ohio’s

primary-eve

filing

deadline

for

unaffiliated congressional candidates, in combination with a one
percent signature requirement); Wood, 207 F.3d at 713-14, 717
(upholding

Virginia’s

primary-day

filing

deadline,

in

combination with a 0.5% signature requirement, for unaffiliated
candidates in local and statewide elections).
Plaintiffs

have

not

shown

that

burdens them in any meaningful way.

North

Carolina’s

scheme

In that respect, this case

is far different from Anderson, where the Supreme Court held
Ohio’s March 20 filing deadline for unaffiliated presidential

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candidates unconstitutional. 11

Pg: 20 of 25

See 460 U.S. at 806.

deadline fell 75 days before a June primary.

There, the

Id. at 804 n.31.

Anderson’s supporters submitted a petition that satisfied all of
Ohio’s statutory requirements, but the state refused to accept
it solely because it was about two months late. 12
The

Court

explained

that

the

March

filing

Id. at 782.

deadline

burdened

unaffiliated candidates who decided to run before the deadline
because

they

were

primary

campaigns

forced
[were]

to

gather

far

in

itself [was] even more remote.”

the

signatures
future

Id. at 792.

and

“[w]hen
the

the

election

The deadline also

excluded any unaffiliated presidential candidate who decided to
run after the deadline.

Id.

Ultimately, the Court concluded

11

Plaintiffs’ challenge is also far different from cases in
our
circuit
in
which we
have
found
that
ballot-access
requirements impose a severe burden and fail strict scrutiny.
See, e.g., Libertarian Party of Va. v. Judd, 718 F.3d 308, 31719 (4th Cir. 2013) (holding that residency restrictions on
petition witnesses fail strict scrutiny because the restrictions
impose a severe burden and the state “produced no concrete
evidence of persuasive force explaining why the plaintiffs’
proposed solution . . . would be unworkable or impracticable”).
In Judd, we explained that there was a general consensus among
our sister circuits that residency restrictions on petition
witnesses created a severe burden. Id. at 317. Here, there is
no such consensus, and the weight of authority cuts against
Plaintiffs’ position.
12

Anderson’s name nonetheless appeared on Ohio’s ballot
because the district court held that the filing deadline was
unconstitutional, and the state did not seek to stay the
district court’s order. Id. at 783-84. The appeal was pending
on the date of the presidential election. Id. at 784.

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the

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burden

the

filing

Pg: 21 of 25

deadline

imposed

“unquestionably

outweigh[ed] the State’s minimal interest in imposing a March
deadline.”

Id. at 806.

Unlike the March 20 deadline in Anderson, however, North
Carolina’s

May

17

petition-filing

deadline

falls

after

the

state’s May primary.

And although not dispositive, Plaintiffs

here

close

did

not

come

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-2,827 of which had been verified by the relevant counties--out
of

a

required

85,379.

The

North

submitted no petitions by that date.

Carolina

Green

Party

had

Moreover, neither party

submitted any petitions between the date of the May primary and
the filing deadline.
In sum, we are not persuaded that the May 17 deadline,
considered

in

the

context

of

North

Carolina’s

ballot-access

scheme, imposes a severe burden on Plaintiffs’ ability to form
new parties and nominate candidates.
Plaintiffs

have

ample

time

and

To the contrary, because

opportunity

to

collect

the

reasonable number of required signatures, we conclude that the
burden on Plaintiffs is modest.

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2.
Because the deadline does not impose a severe burden, we
decline

to

apply

strict

scrutiny

to

Plaintiffs’

claim. 13

Instead, we simply “balance the character and magnitude of the
burdens

imposed

against

the

extent

to

which

the

regulations

advance the state’s interests in ensuring that ‘order, rather
than

chaos,

is

to

accompany

the

democratic

processes.’”

McLaughlin, 65 F.3d at 1221 (quoting Storer v. Brown, 415 U.S.
724,

730

interests

(1974)).
need

only

North
be

Carolina’s

sufficiently

“asserted

weighty

to

limitation imposed on the [plaintiffs’] rights.”

regulatory
justify

the

See Timmons v.

Twin Cities Area New Party, 520 U.S. 351, 364 (1997) (internal
quotation marks omitted).
To support its choice of a May 17 deadline, North Carolina
relies

on

process.

its

general

interest

in

regulating

the

election

There is “an important state interest in requiring

13

In its appellate brief, the state did not contest the
district court’s application of strict scrutiny to Plaintiffs’
challenge.
We, however, are not bound by that concession but
rather must independently determine the proper standard of
review. See Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99
(1991) (“When an issue or claim is properly before the court,
the court is not limited to the particular legal theories
advanced by the parties, but rather retains the independent
power to identify and apply the proper construction of governing
law.”); see also United States ex rel. May v. Purdue Pharma
L.P., 737 F.3d 908, 913 n.3 (4th Cir. 2013) (citing Kamen and
explaining that a party’s failure to raise a particular argument
“does not preclude our consideration and application of it”).

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some preliminary showing of a significant modicum of support
before printing the name of a political organization’s candidate
on the ballot--the interest, if no other, in avoiding confusion,
deception, and even frustration of the democratic process at the
general

election.”

(1971).

States

showing

of

Jenness

are

the

not

v.

Fortson,

required

existence

of

“to

403

make

voter

U.S.

a

431,

442

particularized

confusion,

ballot

overcrowding, or the presence of frivolous candidacies prior to
the imposition of reasonable restrictions on ballot access.” 14
Munro v. Socialist Workers Party, 479 U.S. 189, 194-95 (1986).
Indeed, states have an interest "in ensuring orderly, fair, and
efficient procedures for the election of public officials."
S.C. Green Party, 612 F.3d at 759.

See

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.”

See Am. Party

of Tex. v. White, 415 U.S. 767, 787, n.18 (1974).
Plaintiffs
elections

concede

generally,

but

the

state’s

they

argue

interest
that

its

regulating presidential elections is diminished.

14

in

regulating
interest

in

It is true

As the record shows, North Carolina’s ballot is often
lengthy, which has contributed to lines at the polls and
increased costs for additional tabulators in counties that use
paper ballots.

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Pg: 24 of 25

that “in a Presidential election a State’s enforcement of more
stringent

ballot

access

requirements,

including

deadlines, has an impact beyond its own borders.”
U.S. at 795.
regulating

filing

Anderson, 460

Indeed, a state has a “less important interest in
Presidential

elections

than

statewide

or

local

elections, because the outcome of the former will be largely
determined by voters beyond the State’s boundaries.”
so,

states

maintain

an

interest

in

regulating

Id.

Even

presidential

elections.
We

conclude

that

North

Carolina’s

choice

of

deadline is reasonable, especially in context.

a

May

17

The deadline

falls after the state’s May primary and precedes other important
deadlines.

Notably, the counties need time to verify signatures

before

June

the

deadline

aside,

1

deadline.

North

And

Carolina

even

also

putting

requires

the

June

qualifying

1

new

parties to select their nominees by party convention and submit
their names by July 1.

These deadlines permit the government to

verify signatures and prepare the ballot before the November
election.

Accepting Plaintiffs’ argument would require us to

overturn all of North Carolina’s pre-election deadlines for new
parties.

Having

determined

that

the

May

17

deadline

magnitude

of

the

is

reasonable, we decline this invitation.
Balancing

“the

character

and

burdens

imposed against the extent to which the regulations advance the
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Pg: 25 of 25

state’s interests,” McLaughlin, 65 F.3d at 1221, we find that
North

Carolina’s

choice

of

May

17

as

the

operative

outweighs the modest burden imposed on Plaintiffs.
we

hold

that

the

May

17

petition-filing

deadline

Accordingly,
deadline

is

constitutional as applied to Plaintiffs.

III.
For the reasons given, the district court’s judgment is

AFFIRMED.

25