Stein et al v. Chapman

Filing 64

MEMORANDUM OPINION AND ORDER that Plaintiffs' 22 MOTION for Preliminary Injunction is DENIED. Signed by Chief Judge William Keith Watkins on 7/19/2012. (Attachments: # 1 Civil Appeals Checklist)(cc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JILL STEIN, et al.,
Plaintiffs,
v.
BETH CHAPMAN,
Alabama Secretary of State,
Defendant.

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MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This case involves a challenge to the Alabama election laws establishing the
dates for when political parties must file petitions with the secretary of state to appear
on the November presidential general election ballot. Plaintiffs include three political
parties, candidates of those parties who are running for the Presidency, out-of-state
voters supporting each political party, and an Alabaman supporter for each respective
political party who intends to vote for the nominee of that party. The Defendant is
Beth Chapman, Alabama’s Secretary of State, in her official capacity as the state
officer responsible for enforcing Alabama’s election laws.
On February 24, 2012, Plaintiffs filed a motion for preliminary injunction.
They assert that the deadlines in the Alabama statutes violate their First Amendment

rights and the Fourteenth Amendment’s Equal Protection Clause.1 They seek a
preliminary injunction which will enjoin Chapman and her agents and employees from
following and enforcing the provisions of Ala. Code §§ 17-6-22 and 17-13-40 for the
2012 Alabama General Elections, statutes which set deadlines by which parties
seeking identification on the ballot must file petitions with the Alabama Secretary of
State.2 Additionally, Plaintiffs seek attorneys’ fees and costs, and any additional relief
that is equitable and just. Only the deadline for filing a petition is being challenged
in this motion, and not the number of signatures required for a successful petition.
(See Docs. # 20, 43.)
Under consideration are Plaintiffs’ Motion for Preliminary Injunction (Doc.
# 22), filed pursuant to Rule 65 of the Federal Rules of Civil Procedure, Defendant’s
response (Doc. # 41), Plaintiffs’ Reply (Doc. # 42), Defendant’s supplemental
opposition (Doc. # 60), Plaintiffs’ Reply to the Supplemental Opposition (Doc. # 62),
Defendant’s Response in Opposition (Doc. # 63) and the evidentiary submissions filed
1

The allegations are that the statutes unconstitutionally burden Plaintiffs’ freedom of
association rights under the First and Fourteenth Amendments to the Federal Constitution.
While a violation of the Fourteenth Amendment is claimed, only association rights are
specifically argued, and not an equal protection violation. The motion can be fairly construed to
allege violations of both provisions.
2

It is impossible to grant all the relief Plaintiffs seek. The 2012 Alabama primary
already occurred, on Tuesday, March 13. However, the primary election is not at issue here. No
Plaintiff has alleged any harm to a party by not having access to the March 13 ballot. The
Alabama filing deadline is not alleged to have affected the parties’ nominating and selection
processes for candidates for president and other federal offices.
2

by the parties.3 After careful consideration of the arguments of counsel and the
relevant law, the court finds that Plaintiffs’ motion for preliminary injunction is due
to be denied.
II. JURISDICTION AND VENUE
Subject matter jurisdiction is properly invoked pursuant to 28 U.S.C. §§ 1331
and 1343(a)(4). Venue and personal jurisdiction are not contested, and there are
adequate allegations of both.
III. LEGAL STANDARDS
The decision to grant or deny a preliminary injunction “is within the sound
discretion of the district court.” Palmer v. Braun, 287 F.3d 1325, 1329 (11th Cir.
2002). To prevail on a motion for preliminary injunction, the plaintiff bears the
burden of demonstrating that
(1) it has a substantial likelihood of success on the merits; (2) irreparable
injury will be suffered unless the injunction issues; (3) the threatened
injury to the movant outweighs whatever damage the proposed
injunction may cause the opposing party; and (4) if issued, the injunction
would not be adverse to the public interest.
Am. Civil Liberties Union of Fla., Inc. v. Miami-Dade Cnty. Sch. Bd., 557 F.3d 1177,
1198 (11th Cir. 2009) (quoting Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir.

3

The parties have filed three joint stipulations of facts (Docs. # 38, 46, 50). Plaintiffs
have also filed three evidentiary submissions (Docs. # 24-34, 57, 59, 61) and Defendant has filed
three evidentiary submissions (Docs. # 39, 40, 58).
3

2000)). “‘A preliminary injunction is an extraordinary and drastic remedy not to be
granted unless the movant clearly establishes the burden of persuasion as to the four
requisites.’” Am. Civil Liberties Union of Fla., 557 F.3d at 1198 (quoting All Care
Nursing Serv., Inc. v. Bethesda Mem’l Hosp., Inc., 887 F.2d 1535, 1537 (11th Cir.
1989)). “[P]reliminary injunctions of legislative enactments—because they interfere
with the democratic process and lack the safeguards against abuse or error that come
with a full trial on the merits—must be granted reluctantly and only upon a clear
showing that the injunction before trial is definitely demanded by the Constitution and
by the other strict legal and equitable principles that restrain courts.” Northeastern
Fla. Chapter of Ass’n of Gen. Contractors of Am. v. City of Jacksonville, Fla., 896
F.2d 1283, 1285 (11th Cir. 1990).
Of course, the preliminary injunction rules assume a mantel of meaning only
when framed in the context of the substantive constitutional law applicable to the topic
at hand. Candidates possess constitutional rights under the First and Fourteenth
Amendments to associate for political ends and to participate equally in the electoral
process. See Burdick v. Takushi, 504 U.S. 428, 433 (1992); Anderson v. Celebrezze,
460 U.S. 780, 787–88 (1983).

Ballot access restrictions also implicate the

constitutional rights of voters, especially those with preferences outside the existing
parties, to associate and cast their votes effectively. See Williams v. Rhodes, 393 U.S.
4

23, 30 (1968). However, the Supreme Court ‘‘long has recognized that states have
important and compelling interests in regulating the election process and in having
ballot access requirements.’’ Green v. Mortham, 155 F.3d 1332, 1335 (11th Cir.
1998).
First Amendment challenges to state election law are governed by Anderson,
460 U.S. 780. See Swanson, 490 F.3d at 902. Under Anderson, a reviewing court
must first “consider the character and magnitude of the asserted injury to the rights
protected by the First and Fourteenth Amendment.” 460 U.S. at 789. Then the court
must “identify and evaluate the precise interests put forward by the State as
justifications for the burden imposed by its rule.” Id. Finally, the court must
“determine the legitimacy and strength of each of those interests,” while also
considering “the extent to which those interests make it necessary to burden the
Plaintiff’s rights.” Id.
Furthermore, if the state election scheme imposes ‘severe burdens’ on the
plaintiffs’ constitutional rights, it may survive only if it is “narrowly tailored and
advance[s] a compelling state interest.” Timmons v. Twin Cities Area New Party, 520
U.S. 351, 358 (1997). But when a state ballot access law provision imposes only
“reasonable, nondiscriminatory restrictions” upon the plaintiffs’ First and Fourteenth
Amendment rights, “a State’s ‘important regulatory interests’ will usually be enough
5

to ‘justify reasonable, nondiscriminatory restrictions.’” Id. (quoting Burdick, 504 U.S.
at 434). However, the intensity of the scrutiny applied to ballot access laws varies
based on the burden associated with those laws. “Lesser burdens trigger less exacting
review.” Id. The court should also consider if the burden has the effect of preventing
third party access to ballots, thereby “freez[ing] the status quo” which would make the
law’s constitutionality doubtful. Jenness v. Fortson, 403 U.S. 431, 441-42 (1971).
IV. BACKGROUND
Plaintiffs Alabama Green Party, Constitutional Party of Alabama, and
Libertarian Party of Alabama (“Plaintiff Political Parties”) are unqualified political
parties (under the definition from Ala. Code § 17-13-40) that seek to have the
nominees of their respective parties placed on the 2012 Alabama General Election
ballot for the office of President of the United States. Plaintiffs Matthew Hellinger,
Robert Collins, Joshua Cassity, Steven Kneussle, and Mark Bodenhausen (Plaintiff
Alabama Voters) are members, officers, and supporters of Plaintiff Political Parties
and Alabama residents who wish to vote for and support their chosen candidates for
president at the 2012 Alabama General Election. Plaintiff Jill Stein is a presidential
candidate of an unqualified political party who wishes to appear on the Alabama
General Election ballot as a nominee of the Green Party if she secures the nomination
of the Green Party at its nominating convention this summer. Plaintiff Vicki Kirkland
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is a United States citizen and voter who wishes to support and vote for the candidate
of her political party, the Alabama affiliate of which is a Plaintiff Political Party.
Defendant Chapman is being sued in her official capacity as Secretary of State for the
State of Alabama and Chief Elections Official for Alabama under Ala. Code § 17-13(a).
In Alabama, there is a bifurcation of the requirements for a candidate of a party
to appear with party identification on the ballot, and for an independent candidate to
appear on the ballot without party identification. For a candidate who wishes to
appear on the ballot without party identification as an independent, all that is required
is filing a petition with 5,000 signatures by September before the election.4 The
requirements for a candidate to appear with printed party identification on the General
Election ballot (essentially, for the party label to appear alongside the name of a
candidate on the ballot) are significantly heightened.

The state laws place

qualification requirements on the parties, not on the candidates themselves.
There are two ways for a party to qualify and appear with a label on the General
Election ballot:

4

The motion for preliminary injunction does not challenge the restriction on candidates
who appear on the ballot as an independent or without a party identification or logo on the ballot.
This restriction is an issue in the broader suit.
7

(1)

Performance. A political party becomes a recognized political party

(which allows its candidate to appear with party identification and/or a logo on the
general election ballot) by sufficient performance in the preceding election. Political
parties that earn statewide General Election ballot access based on past electoral
support do so by achieving at least 20% of the entire vote actually cast for a state
officer in the prior General Election. Ala. Code § 17-13-40. This qualification is only
good for the next election, so a party must continually get 20% of the vote for at least
one state officer on the ballot in order to qualify under § 17-13-40 for the next cycle.
(2)

Petition. If a party does not secure 20% of the vote for a state official in

the previous election, it must file a petition by the date of the first primary election for
the next election, with the signatures of at least 3% of the qualified voters who cast
a ballot for governor.5 Ala. Code § 17-6-22(a)(1).
Plaintiff Political Parties are currently unqualified for the General Election
ballot, and did not have sufficient success in the previous election to qualify based on
the performance provision.6 Thus, to secure statewide General Election ballot access
5

The petition requirement does not require the state to only accept signatures from voters
who actually voted in the previous gubernatorial election, but requires signatures from registered
voters that total 3% of the previous total vote for governor.
6

The last third party candidate to appear on the presidential ballot with party
identification was Harry Browne, in 2000, for the Libertarian Party, which filed a petition with
39,535 signatures. The Libertarian Party also secured party identification using the 20% rule in
2000, for the 2002 election cycle, by votes for a state supreme court justice. In 1996, two parties
achieved label status in Alabama: the Libertarian and Natural Law parties. The Libertarian Party
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for their presidential candidates, Plaintiff Political Parties must collect a number of
signatures equal to 3% of the number of voters for governor in the previous statewide
General Election and present those signatures to the Secretary of State by the date of
the first Primary Election. To secure such a spot in the 2012 General Election,
Plaintiff Political Parties would need to gather valid signatures from 44,828 registered
voters, which represents 3% of the votes cast for governor in the 2010 General
Election.7 Plaintiff Political Parties allege that they would need to spend at least
$100,000 to collect the required signatures in the time frame provided.8 They further
claim that sum exceeds the annual budget of all Plaintiff Political Parties.9
For the current election cycle, those signatures must have been collected and
presented to the Secretary of State by March 13, 2012, eight months before the
General Election. In previous election cycles where the first primary was held in
June, unrecognized political parties essentially had an additional three months to
gather signatures, because the deadline was tied to the date of the primary election.
Alabama previously held two general election primaries, one for presidential primaries
did so through the petition system, but under the old 1% rule, which was changed in 1995.
7

See “Alabama Sec’y of State Web Site,” http://www.sos.state.al.us/, last visited July 18,

2012.
8

It is unclear if this is the cost of collecting the signatures for all the parties, or if each
party would have to spend that much individually to gather the signatures.
9

It is also unclear if they mean the state party or national party.
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in February and primaries for all other offices in June. Under the old system, third
parties could file their petitions by the date of either primary, giving them an effective
deadline of June before the November election. In 2011, Alabama consolidated these
two primaries into one, to be held in March of presidential election years, and in June
of off-years/midterms. The purpose was to save money by avoiding multiple
primaries. Plaintiffs speculate that the March deadline resulted in unintended
consequences to non-qualified parties.
As a result of the March deadline adopted in 2011, the petition must be
submitted months before the nominating conventions for the Plaintiff Political Parties.
Plaintiffs contend the requirement (as they interpret it) that the petition include the
name of the individual nominee is unduly burdensome, in light of the fact that the
conventions that will select the presidential nominee occur after the March 13
primary. They argue that it creates a burden for the party, since a candidate of an
unrecognized political party might petition to gain ballot access in Alabama but fail
to earn his or her party’s nomination.
A key consideration is whether a third party is forced to name its presidential
nominee when the party submits its petition to become qualified under Alabama law.
(See Doc. # 23; see also Doc. # 41 at 16.) Alabama allows the eventual presidential
nominee of a recognized party to be substituted in order to appear on the General
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Election ballot. Ala. Code § 17-14-31. A political party may file a certificate of
nomination “no later than the 6th day of September next preceding the day fixed for
the election.” Ala. Code § 17-14-31(b). Section 17-14-31 makes no distinction based
on how a political party achieved ballot access, i.e., whether it is based on past
electoral support or via petition.
V. DISCUSSION
Plaintiffs’ motion for preliminary injunction only challenges enforcement of the
March 13 deadline for filing a party identification petition, Ala. Code §§ 17-6-22 and
17-13-40, for the 2012 Alabama Primary and General Elections. The 3% requirement
for the number of signatures required for a successful petition is not challenged in this
motion. (See Docs. # 20, 22, 23, 43.) As a result, the court will examine only whether
the deadlines imposed by the Alabama statutes violate Plaintiffs’ First Amendment
rights and the Fourteenth Amendment’s Equal Protection Clause. To secure relief,
Plaintiffs must prove it is the imposition of the earlier deadline that burdens their
rights in an unconstitutional manner, and that a preliminary injunction can issue on
that ground alone.
However, Plaintiffs’ attack on the deadlines misses the mark in a significant
way. Plaintiffs’ briefing focuses nearly exclusively on the alleged prejudice to the
candidates in having to be identified by March 13, and not on the requirements for
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parties. Plaintiffs allege that there is a requirement that individual candidates be
qualified for the November ballot by March 13, even if that candidate is not yet the
nominee of their respective political party, since those nominations typically occur
over the summer preceding the election. (Doc. # 23 at 8.) Thus, the burden alleged
is the inability to substitute the actual candidate selected by the party nomination
process. (Doc. # 23 at 8–9.)
However, Plaintiffs’ arguments on this point fail to demonstrate that the four
preliminary injunction factors, typically dominated by “substantial likelihood of
success on the merits” are met here. The reason is simple: Plaintiffs’ arguments are
built around clearly erroneous conclusions of Alabama law. The first erroneous
conclusion, stated variously but repeatedly in the briefing, is “if unqualified political
parties wish to have their nominee on the ballot as a party nominee, they must select
their candidate and successfully comply with the petition requirements by March 13
. . . .” (Doc. # 23 at 1–2.) In fact, if Plaintiffs had reviewed Ala. Code § 17-14-31, a
statute tellingly not cited by Plaintiffs in their complaint, motion, or (on this important
point) their briefing, it would have been obvious that the deadline for presidential
candidates to have ballot access is “the 6th day of September next preceding the day
fixed for the election.” Ala. Code § 17-14-31(b). The March 13 deadline is for
political parties qualification; indeed, the Secretary of State’s form for filing for the
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party deadline does not mention or require the name of a candidate for that party.
(Doc. # 39, Ex. 1 at 9.) The September 6 deadline applies to presidential candidates
for all political parties, and does not exclude minor parties or any party that has
fulfilled one of the ballot access mechanisms. This interpretation, to the extent that
interpretation is required, has been repeatedly affirmed by the Secretary of State in her
briefing and is binding upon her and the State of Alabama.
The second erroneous conclusion is related to the first: “Alabama does not
allow an unqualified political party to substitute the name of its presidential nominee
for the name of the petitioning candidate on the General Election ballot.” (Doc. # 23
at 4.) Plaintiffs cite as authority for this conclusion the 2004 opinion of the Alabama
Attorney General to a prior secretary of state with regard to independent candidates
for president. See A.G. No. 2004-106, dated March 30, 2004 (Doc. # 34). This
opinion is wholly inapplicable to the current situation. It deals with a different section
of the Alabama Code, § 17-19-2, and applies only to independent candidates, and not
candidates who would appear with the label of a party. Furthermore, this opinion
offers no interpretation of Ala. Code § 17-14-31, and, if it had, would clearly
contradict the plain language of that section.
Indeed, the record establishes that Alabama’s ballot entry system for
presidential races requires only that the parties, or “teams” for the purpose of this race,
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be identified, signed up, and qualified by March 13. Some parties will then have their
members engage in a primary, similar to teams holding try-outs for players. The
primary is one of several mechanisms to determine who will be selected at the
convention to participate in the final race for the presidency. The lineup for this final
race is required to be set by September 6, at which point the candidates for the parties
will be known, and the teams will have named players to participate in the final event,
the November General Election. Plaintiffs’ interpretation of this section directed the
bulk of Plaintiffs’ motion toward arguing against a factual situation that does not exist
in reality, and for which there can obviously be no substantial likelihood of success
on the merits.
A collateral effect of Plaintiffs’ defective attack is that it skirts the analysis of
the important constitutional issues that might have been raised and argued. The only
points of argument that have a basis in reality are two undeveloped paragraphs in
Plaintiffs’ initial motion (Doc. # 23 at 7) and a reference to circuit case law in a reply
brief that was intended to serve as a response to Defendant’s third evidentiary
submission (Doc. # 62 at 4). In those parts, Plaintiffs allege that the March 13
deadline itself imposes a significant burden on attempts to access the general election
ballot, and that there is no compelling state interest in maintaining this deadline.
Specifically, Plaintiffs allege that earlier in the political process, “[v]olunteers are
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more difficult to recruit and retain, media publicity and campaign contributions are
more difficult to secure, and voters are less interested in the campaign” and that this
demonstrates an unconstitutional burden. (Doc. # 23 at 7.) Plaintiffs also facially
challenge the March 13 date, claiming that it is an earlier date than has been found
constitutional, that the court is bound by Anderson, 460 U.S. 780, and New Alliance
Party v. Hand, 933 F.2d 1568 (11th Cir. 1991). Despite the weakness of these
allegations due to their lack of development, the analysis will now turn to whether
Plaintiffs have satisfied the preliminary injunction standard on this narrow point.
The analysis in election deadline cases consists of initially determining the
difficulty imposed by the challenged provision, in this case, the difficulty of meeting
the early deadline, and then weighing the interests advanced by the State as
justifications for any burden on those who seek ballot access against the burden
involved. See Anderson, 460 U.S. at 791 n.12. See also Bergland v. Harris, 767 F.2d
1551, 1554 (11th Cir. 1985). Such a careful balancing requires a searching inquiry
of present conditions that prevail in this jurisdiction during this election cycle.
Therefore, it would be inappropriate to rely on the factual findings of the balance of
burdens that prevailed in Ohio in 1980, when the challenged action in Anderson
occurred. The factual determinations in Anderson are immediately distinguishable.

15

The other case Plaintiffs raise as binding is New Alliance. In New Alliance, an
Alabama statute setting the deadline of a non-presidential general ballot access
petition for April 6th preceding the election was found to be unconstitutional.10 New
Alliance, 933 F.2d 1568. Each case turned on a careful balancing and analysis of the
burden faced by the particular parties to get ballot access weighed against the state
interests in the requirements.
While New Alliance facially seems to resolve the issue of the deadline, a careful
examination of the standard and the different record in this case reveal that the
outcome in New Alliance is not mandated here. New Alliance involved a challenge
to deadlines imposed in a midterm congressional election, and not a presidential
contest. The factual record in New Alliance was also much more developed. In New
Alliance, the court received evidence from an election law scholar, Dr. Lichtman,
which persuaded the court that the specific effect of the earlier deadline was to
preclude the parties from gathering signatures during the most critical part of the
election cycle. New Alliance, 933 F.2d at 1571–72. Dr. Lichtman offered an opinion
about the level of political activity and other unique characteristics of the April to June
time frame for the 1990 general election. He concluded that the political factors

10

The court viewed the burden of the earlier deadline as “not insurmountable . . . [but
not] adequately justif[ied] [by] the restriction imposed.” New Alliance, 933 F.2d at 1576.
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involved during a specific time frame with unique opportunities and characteristics.
This, in conjunction with the other witness testimony and the successful completion
of the plaintiffs’ petition drive in June, was instrumental in persuading the court that
the burden of not being able to gather signatures after April outweighed the state’s
interest in protecting its deadline. However, on this record, there is no such learned
analysis of the significance, if any, of the specific characteristics of the months of
March through August during this election cycle. Without such testimony, the burden
faced from lost opportunities cannot be evaluated, because the particular nature of this
election cycle cannot be determined. It would be inappropriate to rely on factual
findings from a case involving a non-presidential election that occurred over twenty
years ago, when the legal standards clearly establish that a careful balancing of factors
involving current conditions is required.
The allegations concerning the burden imposed by the timing of the March 13
deadline are insufficiently developed to demonstrate that there is any likelihood of
success on the merits. The evidence provided by Plaintiffs does not rise to the level
of the record in New Alliance. Plaintiffs’ affidavits from party members and
volunteers collecting signatures do not provide a sufficient basis to reach any of the
conclusions argued by Plaintiffs in their brief. Additionally, the expert opinions
offered by Plaintiff witness Richard Winger do not extend to the specific arguments
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concerning the unique factors, if any, about the months leading up to the 2012
November Election.11 References to previous cases, which conducted their own
factual findings to unique election cycles and localities, are distinguishable at best and
are most likely inapt to the current situation. Due to the paucity of analysis of the
cases cited by Plaintiffs, there are no grounds to extend any specific finding or general
holding to this facts of this case.
The parties have filed two new stipulations of fact (Docs. # 46, 50), which are
critical evidence on the issue of burden.

Most telling is that the third party

organization, Americans Elect, “has qualified for Statewide ballot access for
Alabama’s 2012 General Election,” (Doc. # 50 at ¶ 14).

This fact further

demonstrates that the State’s ballot access laws do not prevent a diligent political party
from achieving ballot access, and undermines Plaintiffs’ likelihood of being able to
prove that the March 13 deadline impermissibly freezes ballot access. Defendants
have presented substantial unrebutted evidence that the deadline is no barrier for a
11

Even if Mr. Winger’s opinion is considered broadly as supporting a conclusion of a
generic burden on the candidates, Defendant’s Third Evidentiary Submission (Doc. # 58)
included an expert report by Professor Hood specifically rebutting Mr. Winger’s Opinion Three,
which goes to the issue of whether political parties are burdened when their presidential
candidates appear without their party label. This was further substantiated by the Chairman of
the Alabama Republican Executive Committee, the Executive Director of the Alabama
Democratic Party, and an independent candidate who achieved ballot access to run for district
judge in Walker County, and a variety of persons involved in the election cycle have also
provided evidence arguing against an unconstitutional burden faced by Plaintiffs. The dispute on
this point counsels against relying on Mr. Winger’s opinion as grounds for issuing a preliminary
injunction.
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zealous party interested in gaining ballot access and expending the resources required
to get onto the ballot.
Plaintiffs have failed to distinguish the generic difficulty in gaining access to
the ballot with particular burdens that could be attributed to the March deadline.
Plaintiffs have failed to provide an evidentiary basis to conclude that the deadline is
providing unique burdens that are unconstitutional. Even without considering the
state’s interest, Plaintiffs cannot demonstrate that they are substantially likely to
prevail on the merits, based on this evidentiary record and the significant opposition
demonstrated by Defendant. Because of Plaintiffs’ failure to demonstrate a substantial
likelihood of success on the merits, the other parts of the preliminary injunction test
need not be addressed, and Plaintiffs’ motion for preliminary injunction is due to be
denied.
VI. CONCLUSION
For the forgoing reasons, it is ORDERED that Plaintiffs’ motion for preliminary
injunction (Doc. # 22) is DENIED.
DONE this 19th day of July, 2012.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE

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