Hall et al v. Bennett

Filing 81

OPINION. Signed by Honorable Judge Myron H. Thompson on 9/30/16. (djy, )

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION JAMES HALL and N.C. “CLINT” MOSER, JR., Plaintiffs, v. JOHN MERRILL, Alabama Secretary of State, in his official capacity, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) CIVIL ACTION NO. 2:13cv663-MHT (WO) OPINION Plaintiffs James Hall and N.C. “Clint” Moser, Jr. planned to run in the December 2013 special election to fill the vacant United States House of Representatives seat in Alabama’s First Congressional District. However, neither timely submitted a petition with the number of signatures required under state law, and, as a result, neither appeared on the ballot. Pursuant to 42 U.S.C. § 1983, Hall and Moser filed this case against Alabama’s Secretary of State, raising First and Fourteenth Amendment challenges to the constitutionality of Alabama’s ballot-access the context of such a special election.1 equal protection claim as well. laws in They raise an Jurisdiction is proper under 28 U.S.C. § 1331. Currently before the court are Hall and Moser’s motion for summary judgment and the Secretary’s motion for summary judgment. the oral arguments Based on the record, as well as conducted before this court, the court will grant summary judgment in favor of Hall on his First and Fourteenth Amendment claim, and grant summary judgment in favor of the Secretary on Hall’s equal-protection claim. Because the relief to be afforded to Hall is identical to the relief sought by Moser, the jurisdiction court to need hear, not or decide evaluate whether the it has merits of, Moser’s claims, and his claims will be dismissed as moot. The motions will be denied in all other 1. John Merrill has replaced Jim Bennett as Alabama’s Secretary of State and is automatically substituted as the official capacity defendant in this action. Fed. R. Civ. P. 25(d). 2 respects. I. Summary shows that SUMMARY-JUDGMENT STANDARD judgment is appropriate there no genuine is “if the dispute as movant to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56. The court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 56 standard is unaffected by cross-motions for summary judgment. the The Rule filing of See Gerling Global Reins. Corp. of Am. v. Gallagher, 267 F.3d 1228, 1233 (11th Cir. 2001). II. A. FACTS Alabama’s Ballot-Access Scheme Alabama law provides a prospective candidate with different routes onto the ballot, depending on whether the candidate runs as a member of a political party or 3 as an independent. A political party is defined as an organization whose candidate received more than 20 % of the votes cast in the last general election in the relevant political § 17-13-40. subdivision. Candidates who 1975 run as a Ala. Code member of a political party have their names placed on the ballot after they prevail in their party’s primary—election processes. 1975 Ala. Code § 17-9-3(a)(1). Independent candidates, on the other hand, must seek to have their names placed on the ballot through signature petitions. independent candidate signatures of Alabama to qualified gather law a requires certain electors--that number is, an of voters registered in the relevant political subdivision and therefore eligible to vote for the candidate. Alabama law sets this signature threshold at 3 % of the number of voters who cast ballots for the office of Governor in the last general election in the political subdivision in which the candidate seeks to qualify. 1975 Ala. Code § 17-9-3(a)(3). Any qualified elector 4 may sign a petition regardless Alabama’s of whether last the signer gubernatorial actually election or voted in intends to vote in the election in which the candidate wishes to appear on the ballot. signer be unaffiliated There is no requirement that a with a political party, no prohibition on signers voting in a party primary, and no prohibition on signing multiple petitions. no fee for signatures, the and Secretary there State no is of to requirement There is verify the that the signature petition be notarized or witnessed. Since not all signatures on petitions will be valid, there is no limit on the number of signatures that a candidate may submit, and petitions may be submitted in parts, although no part may be submitted after the deadline. State regulations require that any signature petition contain a header that with the “name of the prospective independent candidate, the date of the general election for which ballot access is sought, and the name of the office sought, including the district number, if applicable.” Ala. § 820-2-4-.05. 5 Admin. Code R. Independent candidates must file their signature petitions with the Secretary of State’s office by 5:00 p.m. on the date of the first primary election. 1975 Ala. Code § 17-9-3(a)(3). B. The December 2013 Special Election 1. On May 23, 2013, Representative Jo Bonner announced his retirement from the U.S. House of Representatives, effective August 15, 2013. moved up to August 2. That date was eventually His retirement left Alabama’s First Congressional District, which is in southwestern Alabama, without a representative. Although the Governor had not yet announced a date for a special election, candidates Democratic, filed Republican, statements of and independent organization from mid-June to early July. Hall contacted the Secretary of State’s office in early June to verify that he could begin collecting signatures for his independent candidacy in compliance with Alabama law. On June 7, Hall e-mailed the office 6 with a draft petition to verify that it conformed to Alabama laws and regulations. He was concerned that the header on his signature petition might not conform, since the Candidate Filing Guide published on the Secretary of State’s website, which he had consulted, stated that signature petitions must contain the “date of the general sought.” election for which ballot access is Hall Decl. (doc. no. 25-1) at 6; Sec’y of State’s Candidate Filing Guide (doc. no. 16-3) at 2; Ala. Admin. Code R. § 820-2-4-.05. contacted the Secretary of At the time Hall State’s office, sample petitions had been posted on its website for regularly scheduled elections, but not for the special election. As the date of the special election had not been announced, it was impossible for Hall to include it on his signature petition. On June 11, 2013, Alabama’s Director of Elections reviewed Hall’s draft petition and changed its header to indicate that it was a petition to place Hall on the ballot “in the Special General Election to be held on a date yet to be determined ....” 7 Packard Aff. (doc. no. 23-1) at 3-4. The revised signature petition was sent to Hall, and he acknowledged its receipt the same day. This revised header appeared on the completed signature petition he eventually submitted. On July 26, 2013, the dates for the special primary election and special general election were set by court order in United States v. Alabama, No. 2:12-cv-179-MHT (M.D. Ala.), a case seeking to compel Alabama to comply with the Voting Uniformed Act and (UOCAVA), Overseas 42 U.S.C. Citizens Absentee § 1973ff. UOCAVA provides that, no later than 45 days before a federal election, States must send ballots to overseas voters who have requested them. § 1973ff-1(a)(8)(A). primary election for military and See 42 U.S.C. The court order set the special September 24, 2013, and the special general election for December 17, 2013, because those dates would allow enough time to mail UOCAVA-compliant ballots for both elections. The Secretary of State’s office publicly announced the date of the special primary election and special general election three days later, on July 29, 2013. 8 Hall did not learn of the date of the special primary election--and, hence, the date his signature petition was due--until that announcement was made. The parties agree that meeting the 3 % signature requirement for Alabama’s First Congressional District required at that time 5,938 valid signatures. They dispute, however, how much time Hall had to collect those signatures. candidates had 56 Hall contends days to that obtain independent the necessary signatures; he arrives at this number by calculating the time between the July 29 announcement of election dates and the September 24 petition excluding both the start and end dates.2 deadline and Hall uses July 29 as the start date because that is the earliest date an independent candidate could have begun gathering signatures using a signature petition that included the date of the election in its header. The Secretary 2. Hall presumably excludes the start and end dates in order to reflect his belief that a candidate cannot reasonably be expected to gather signatures on either the day the election date is announced or the day on which the signatures are due by 5:00 p.m. 9 argues, however, that Hall had 106 days to collect signatures, beginning on the day of the June 11 e-mail correspondence between Hall and the Secretary of State’s office and ending on the September 24 petition deadline. On or around June 11, 2013, Hall began gathering signatures and worked “tirelessly throughout the months of June and July” to collect signatures for his ballot petition. Hall Decl. (doc. no. 25-1) at 2. He attempted to gather signatures at places of business and at public events such as “charity runs, festivals, yard sales, concerts, sporting events, a gun show, and others.” Id. He also used social and work contacts as well as friends to obtain signatures. went to approximately obtain signatures. 5,000 homes He and his wife in an effort to He was able to obtain roughly one signature for every 12 houses visited. Eventually, Hall placed an advertisement to hire someone to gather signatures received only one response. on his behalf, but he Employing that signature collector would have cost him approximately $ 4.00 per 10 signature, which he could not afford to pay. Hall attests were that his efforts to collect signatures impaired by his inability, given the short lead time, to organize an effective signature drive. Hall, his impaired efforts during announcement to obtain the the of period special According to signatures preceding were the election also July date 29 because voters were unaware of the election and had no interest in it. Hall timely filed a signature petition containing 2,835 signatures September 24, 2013. of the 5,938 with the Secretary’s office on Since this number was well short signatures required, the Secretary’s office informed him that it would not attempt to verify the signatures and that the number of signatures was insufficient to provide him with ballot access. After the September 24 deadline, Hall continued to collect signatures and was able to obtain an additional 451 signatures. 11 2. Moser, like independent Hall, in the also December wanted 2013 to run special as an election. After Representative Bonner announced his retirement, Moser met with a friend, who had been the campaign coordinator in Alabama for Ron Paul and had managed Paul’s signature campaign, to discuss strategies for Moser’s signature petition. According to Moser, this friend over attempted to contact 100 of his former contacts from the Paul campaign to collect signatures for Moser and to set up a Facebook petition page. Despite those efforts, however, Moser and his associate were able to find only one volunteer, and he was able to obtain only 750 signatures by September 24. Moser, like Hall, was concerned about collecting signatures before a date for the election had been announced because the Candidate Filing Guide from the Secretary of State’s website stated that a signature must include the date of the election. petition Moser and his associate feared that any signatures they might collect before the date of the election was announced would be 12 rejected as invalid upon submission. 3. Joshua Cassity, the Chairman of the Constitution Party of Alabama, has also submitted a declaration in this case. He states that the Constitution Party’s candidate was able to achieve ballot access for the 2010 general election for the House of Representatives in the First Congressional District. The Constitution Party knew that its signature petition was due in June of 2010 and began planning its signature petition in November 2009. results, the After early Constitution efforts Party provided spent $ 15,000 to hire signature gatherers. mixed $ 12,000 to With the help of the paid signature gatherers, the Constitution Party was able to meet the 3 % requirement and obtain ballot access for its candidate. Cassity wanted to place a Constitution Party candidate on the ballot for the special election to fill Representative Bonner’s seat but decided the party could not acquire the required 13 signatures in the shortened timeframe for the special election. Like Moser, Cassity was concerned about gathering signatures using a petition without the date of the election on it as required by the Candidate Filing Guide. employee of the Secretary of State’s Although an office told Cassity to begin gathering signatures and then add the date of the announced, election Cassity to did the not petition want to once rely it on was an employee’s suggestion when it was contradicted by the official materials State’s website. did not attempt contained on the Secretary of As a result, the Constitution Party to gather signatures for the 2013 special election. 4. Hall was the only independent candidate to submit signatures to the Secretary of State for the December 2013 special election. Because he did not meet the 3 % requirement, no independent candidate was on the ballot for the special election. 14 C. Procedural Background On September 17, 2013, Hall and Moser filed their complaint against the Secretary. later amended, they In the complaint, as requested (1) a declaratory judgment that the ballot-access scheme for the special election was unconstitutional, (2) a preliminary and permanent injunction enforcing the prohibiting ballot-access the laws Secretary for the from special election, (3) an order extending the filing deadline and decreasing the number of signatures required for them to be placed on the special-election ballot, (4) a preliminary and permanent injunction requiring the Secretary to certify Hall as an independent candidate on the special-election ballot, and (5) an award of attorney’s fees and costs. On pending, November 2, 2013, UOCAVA-compliant while this ballots for litigation the was December special general election were mailed to overseas voters as required by federal law; they did not include Hall’s name as a candidate. Since the Republican primary required a runoff on November 5, the UOCAVA-compliant 15 ballot included the names of all the candidates who participated in the Republican runoff, so that overseas voters could receive their ballots in compliance with federal law but still vote for the winner Republican runoff, should they so choose. of the On November 13, after the runoff, updated ballots containing only the names of the candidates who were to appear in the general election were finalized; mailed on November 19. these ballots were Overseas voters were permitted to use the later ballots, if they received them in time, or the earlier ballots, if they did not. Hall requested that the court enter an injunction requiring the placement of his name on the updated ballot. On November 13, the same day the updated ballots were sent to the printer, the court3 held a hearing on Hall and Moser’s motion for a temporary restraining 3. Until August 20, 2014, Judge Mark Fuller presided over this case. However, this court has reviewed the transcripts of all proceedings that took place before him. 16 order or argument preliminary from submissions the and parties made denying the motion. was that, because injunction.4 an based oral The on court their ruling from heard written the bench Among the reasons the court gave the UOCAVA-compliant ballots had already been mailed to overseas voters without Hall’s name on them, requiring the State to issue a new ballot containing election Hall’s having name to would be result in rescheduled. the The special court emphasized that rescheduling the special election would result in a great expense to the State, risk voter confusion, and increase the time Alabama’s First Congressional District went without representation in Washington. The next day, Hall and Moser filed an emergency appeal of the court’s oral order. On December 12, 4. At the hearing, the court also briefly addressed the Secretary’s motion to dismiss and, in the alternative, for summary judgment. The court denied that motion to the extent it sought dismissal of Hall and Moser’s claims, instead construing the motion as solely one for summary judgment and taking it under advisement. That motion is now before the court. 17 2013, the Eleventh Circuit Court of Appeals affirmed the court’s ruling on the ground “that the injury to the public from the issuance of an injunction would far outweigh any injury appellants might suffer.” Hall v. Sec’y of State, Ala., 547 F. App’x 962, 963 (11th Cir. 2013) (per curiam). Implicit in this court’s and the appellate court’s reasoning was the so-called Purcell principle. principle of election law essentially means This that, because of the risk of voter confusion, courts as a general rule should be reluctant to allow last-minute changes to the status quo. 549 U.S. 1 challenger (2006) seeks (per to See Purcell v. Gonzalez, curiam). maintain the If the status election quo, the Purcell principle could arguably weigh in favor of the challenger. And, of course, the Purcell principle should be considered along with all the other factors that courts temporary use in determining restraining order whether or a to grant a preliminary injunction. The special general election was held on December 18 17, 2013. Republican Bradley Byrne was elected as the Representative District. motion for Alabama’s First Congressional On December 26, 2013, the Secretary filed a to dismiss for lack of subject-matter jurisdiction, arguing that the case was mooted by the completion of the special election. The court rejected this argument, finding that the controversy fell within the “capable of repetition, yet evading review” exception to the mootness doctrine because there was a “demonstrated probability that the government will hold future special elections where independent candidates must comply with Alabama’s 3 % signature requirement under a truncated petition deadline,” and, therefore, that Hall and Moser had “established a reasonable expectation that future special elections in Alabama will burden the same constitutional interests at issue here.” Supp. 2d 1266, 1270 (M.D. rights and Hall v. Bennett, 999 F. Ala. 2014) (Fuller, J.). Furthermore, the court found that Hall and Moser met the mootness exception’s requirement--assuming, “same without 19 complaining deciding, that party” this requirement applied--because expectation that Hall independent and candidates or there was Moser vote Hall and Moser reasonable would for candidates in future special elections. III. a run as independent Id. at 1272. DISCUSSION challenge Alabama’s ballot-access scheme in the context of a special election timeframe. Specifically, they argue that Alabama’s 3 % signature requirement and the shortened timeframe for meeting it violated their First and Fourteenth Amendment rights as candidates to associate and to participate in the political process, and as voters to associate and to cast their votes for independent candidates, without serving any compelling state interest. also bring an Protection discriminated as-applied Clause, against challenge arguing that independent under the the candidates all They Equal Secretary such as themselves and in favor of major-party candidates in 20 various ways.5 These challenges are now before the court parties’ on the cross-motions for summary 2013 election judgment. Because the December special has already occurred, Hall’s and Moser’s earlier requests to be become placed moot. on the They ballot now for that request (1) election a have declaratory judgment stating that the 3 % signature requirement for independent candidates cannot constitutionally be enforced with respect to special elections to seats in the U.S. House of Representatives and (2) injunctive relief prohibiting the Secretary from enforcing the 5. The amended complaint also asserts that Alabama’s ballot-access scheme violates Hall’s and Moser’s rights as candidates and voters under the Fifteenth Amendment. Am. Compl. (doc. no. 13-1) at 2-3. During the preliminary-injunction hearing, their counsel advised the court that they would drop the Fifteenth Amendment claim in an effort to proceed expeditiously, but that they would pursue this claim and seek additional discovery should Hall not be placed on the ballot through a preliminary injunction. Schoen Decl. (doc. no. 26-3) at 8–9. However, after the court denied their request for a preliminary injunction, they agreed to submit the case for review without further argument or discovery on the Fifteenth Amendment claim. Accordingly, the court finds that they have abandoned their Fifteenth Amendment claim. 21 requirement with respect to a future special election to a House seat. A. Subject-Matter Jurisdiction Before proceeding to the merits of this case, the court will address whether it possessed, and retains, subject-matter claims. jurisdiction over Hall and Moser’s The Secretary identifies two facts that, he contends, bear on the court’s jurisdiction and warrant reconsideration of the court’s conclusion that Hall and Moser had presented controversies: when the (1) and Moser complaint was continued was not filed or to present registered when the to live vote special election was held, and (2), after the special election, Hall ran for office as a member of the Republican Party. 1. Moser Moser originally brought suit as a voter and as a prospective candidate. Compl. (doc. no. 2) at 3-4. The Secretary argues that he lacked standing in either 22 capacity. First, the Secretary argues that Moser lacked standing to bring this suit as a voter because, at the time the suit commenced and at the time of the December 2013 special election, he was not registered to vote in Alabama. According to the affidavit of Alabama Director of Elections Edward Packard, Moser had been registered to vote in Baldwin County before 2009, but was purged from the voter rolls in January 2009 because he had not voted since the general election in 2004. Moser disputes that he has not voted since 2004; however, he has not offered any evidence to suggest that his name was relevant time period. on the voter rolls during the Because Moser has presented no evidence to rebut this contention, the court credits it.6 As Moser was not registered to vote, it is open to question whether he had standing to proceed as a voter. 6. Moser re-registered to vote on January 15, 2014. However, that fact does not affect his standing to proceed when the complaint and amended complaint were filed during 2013. 23 Cf. Kelly v. Harris, 331 F.3d 817, 820 (11th Cir. 2003) (concluding that the appellant had no standing to challenge the requirement that candidates who wished to run in the Democratic Party primary take a loyalty oath when, as a registered Republican, he was ineligible to vote in that primary). Second, although the Secretary does not dispute that Moser did have standing to sue as a prospective candidate at the time the original complaint was filed, he argues amending that his Moser complaint abandoned to that explain claim that, by due later to the “insurmountable obstacle for his candidacy” created by the challenged provisions, he “ha[d] withdrawn from that effort and now [sought] to support the candidacy of Plaintiff Hall.” Am. Compl. (doc. no. 13-1) at 5. Additionally, the amended complaint removed the claim for relief requesting to have Moser certified as an independent candidate on the Special Election ballot.7 7. Moser argues that his original complaint, in which he brought suit as both a voter and a candidate, is the operative pleading for purposes of assessing (continued...) 24 Compare Am. Compl. (doc. no. 13-1) at 18, with Compl. (doc. no. 2) at 9. Additionally, the Secretary notes, Moser’s stated attorney preliminary-injunction at hearing the that November Moser’s 13 only “claims are his First and Fourteenth Amendment rights as a voter,” and his “equal protection right ... to vote for a candidate of his choice,” because “he is not a candidate anymore.” 2:17-4:1. been Mot. Hr’g Tr. (doc. no. 36) at That said, these representations may have intended to reflect only that Moser was not seeking a preliminary injunction placing him on that particular special election ballot, and not that he was no longer seeking any prospective relief as a prospective candidate, especially in light of Moser’s subsequent submissions to the court indicating his future intent to run as an independent. Moser also responds that, even if he does not have standing and that he had standing at that time to bring his claim as a candidate. This is true but quite beside the point; if he abandoned the claim he had standing to pursue, he cannot proceed on it or on another claim he did not have standing to pursue. 25 standing as a voter and has abandoned his claim as a candidate, he still has standing based on the violation of his “associational rights,” including his right “to express his positions, politics as candidate.” a and to advocate citizen, through for an political Independent Pls.’ Resp. to Defs.’ Suppl. Br. (doc. no. 65) at 5. While the court recognizes that Moser does have an interest in expressing his views and advocating for the candidate of his choice, Moser has not identified--and the court has not found--any authority for the alone proposition is sufficient that to injury confer to these standing to interests challenge ballot-access laws. Rather, a survey of the relevant case that law indicates individuals who challenge ballot-access laws can do so in one of two ways: as candidates or as voters. See, e.g., Clingman v. Beaver, 544 U.S. 581 (2005); Anderson v. Celebrezze, 460 U.S. 780 (1983); Storer v. Brown, 415 U.S. 724 (1974); Am. Party (1974); Jenness v. of Tex. v. Fortson, White, 403 U.S. 415 431 U.S. 767 (1971); Williams v. Rhodes, 393 U.S. 23 (1968); Baker v. Carr, 26 369 U.S. 186 (1962); Swanson v. Worley, 490 F.3d 894 (11th Cir. 2007); New Alliance Party of Ala. v. Hand, 933 F.2d 1568 (11th Cir. 1991); Bergland v. Harris, 767 F.2d 1551 (11th Cir. 1985). In any event the court need not resolve the issues that go to whether Moser has standing. Because Moser seeks exactly the same relief as Hall does, and because relief will be granted in Hall’s favor, Moser would have nothing to gain from adjudication of his claims that he has not obtained through the vindication of one or more of Hall’s. Moser’s claims are therefore moot and will be dismissed. 2. Hall The court turns next to Hall. The Secretary argues that Hall’s claims are moot because he is currently affiliated with the Republican Party and because he ran as a Republican in a local election held after the special election. Hence, the Secretary asserts, Alabama’s ballot-access laws for independent candidates no longer apply to Hall. 27 Although the court has already rejected dismissal on a mootness ground, see Hall v. Bennett, 999 F. Supp. 2d 1266 (M.D. Ala. 2014) (Fuller, J.), the Secretary continues to press the argument in light of changed circumstances, and so the court addresses it here. This court previously found that Hall’s claims fall within the narrow exception to the mootness doctrine for cases that are “capable of repetition, yet evading review.” See S. Pac. Terminal Co. v. ICC, 219 U.S. 498, 515 (1911). Election law cases routinely fall within this exception. A controversy is capable of repetition, yet evading review where two requirements are met. First, “the challenged action [must duration too short to be fully litigated.” be] in its Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam). The parties have never disputed that the first prong of this test applies. See Lawrence v. Blackwell, 430 F.3d 368, 371 (6th Cir. 2005) (“Challenges to election laws are one of the quintessential categories of cases which usually fit this prong because litigation has only a 28 few months before impossible by the the remedy sought occurrence of is the rendered relevant election.”). Second, and as pertinent here, a plaintiff must show a reasonable expectation or a demonstrated probability that the controversy will recur. See Honig v. There Doe, 484 conflicting U.S. 305, authority 319-23 regarding (1988). whether a is plaintiff must also establish a reasonable expectation that the controversy will recur election-law cases. as to the same plaintiff in Compare Van Wie v. Pataki, 267 F.3d 109, 114 (2nd Cir. 2001), with Majors v. Abell, 317 F.3d 719, 723 (7th Cir. 2003), and Lawrence, 430 F.3d at 372. The Eleventh Circuit has recently, and without any discussion of this conflict, stated that it was applying the ‘same complaining party’ requirement in an election-law case, Arcia v. Florida Secretary of State, 772 F.3d 1335, 1343 (11th Cir. 2014) (explaining that the requirement had been met because the defendant had “not offered complained-of to refrain voter-roll-purging 29 from” reprising practice in the the future, and concluding, apparently on this basis alone, that “there is a reasonable expectation that the plaintiffs will be subject to the same action again”). This court will follow Arcia’s lead and require Hall to show a reasonable expectation that he will again be subject, either as a candidate or as a voter, to the 3 % signature requirement for independent candidates during a special election. Previously, argument that the the court rejected passage of the the Secretary’s special election rendered the case moot, assuming without deciding that the ‘same complaining party’ requirement applied, and holding that Hall met it because it was reasonable to expect that Hall would run as an independent candidate in future special elections. That decision was based, in part, on a declaration submitted by Hall, wherein he stated that he intended to seek public office in Alabama as an independent candidate in a future special election. Hall Decl. (doc. no. 48-1) at 1 (“I intend to continue to seek elective office in Alabama in the future, including, but not limited to, the office of 30 U.S. Representative, and I intend to seek such elective office as election an is election.”). independent a Special candidate, Election whether or a such regular Hall also stated that he intends to vote for independent candidates in future special elections. Id. (“I also intend to cast my vote in Alabama for an independent candidate for elective office in each Special Election and regular election in which I am eligible to vote.”). Since then, however, Hall has affiliated himself with the Republican Party and has run for office on the Republican ticket. The Secretary presents evidence that, according to Republican Party guidelines, members may not simultaneously be a Republican member of another party or an independent. and also a Therefore, the Secretary argues, Hall can no longer establish a reasonable expectation that he will run as an independent candidate in a future special election and, consequently, cannot show that he will be subject to the same challenged ballot-access laws in the future. Hall’s decision to run as a Republican in a local 31 election held though, after does declaration not of independent. the a court’s analysis. election significantly intent As special to run result, in it at issue, undermine the future does not his as alter an the Hall is certainly free to affiliate with the Republican Party for now while retaining his right and persisting in his independent in the future. believe this Accordingly, sort the of desire to run as an Nor is there any reason to party-swapping court finds that is it unusual. is still reasonably likely that the controversy will recur as to Hall. However, even if Hall were unlikely to run as an independent in the future, this still would not defeat the court’s amended subject-matter complaint, candidate but also Hall as jurisdiction. brought a suit voter. not In only Republican his as a Party guidelines do not preclude registered Republicans from voting likely for independent that they do candidates; so with indeed, some it seems frequency. Considering Hall’s declaration that he intends to vote 32 for independent candidates in future special elections, the court finds it reasonably likely that his First and Fourteenth Amendment rights as a voter in future special elections would be burdened by the challenged laws. Moreover, courts of appeals have found election-law controversies respect to to be individual ‘capable of plaintiffs repetition’ even without with any explicit statement by those plaintiffs (such as Hall has made) that they intended to run or vote again. See Lawrence, 430 F.2d at 371 (“Although Lawrence has not specifically stated that he plans to run in a future election, he is certainly capable of doing so, and under the circumstances it is reasonable to expect that he will do so. Neither is an explicit statement from Shilo necessary in order to reasonably expect that in a future election she will wish to vote for an independent candidate who did not decide to run until after the early filing deadline passed. The law at issue is still valid and applicable to both Lawrence and any independent candidate Shilo might wish to vote 33 for in future election years. Therefore, controversy is capable of repetition.”). the This court agrees with the Seventh Circuit that, “in an election case[,] the plaintiff court to will assess not the keep likely interrogating trajectory the of his political career,” Majors, 317 F.3d at 723, at least so long as the challenged another plaintiff law in running candidate, statement, that could and he for tells again office the anticipates confront or court, doing the voting in a so. for sworn Hall’s professed intention to run again as an independent and to vote again election--both for of an which independent he is in perfectly a special capable of doing--is enough to survive a mootness challenge. Having found that this case continues to fall within the ‘capable of repetition, yet evading review’ exception to the mootness doctrine, the court proceeds to the merits of Hall’s claims. 34 B. First and Fourteenth Amendment Political Association and Participation 1. The First Constitutional Framework and Fourteenth Amendments afford all candidates vying for elected office, and their voting constituencies, the fundamental right to associate for political purposes and to participate in the electoral process. See, e.g., Clingman, 544 U.S. at 586; Burdick v. Takushi, 504 U.S. 428, 433 (1992); Anderson, 460 U.S. at 787–88; Williams, 393 U.S. at 30. restrictions on candidates’ and Placing political parties’ access to the ballot interferes with their right to associate for political purposes and the rights of qualified voters to cast their votes for the candidates of their choice. Munro v. Socialist Workers Party, 479 U.S. 189, 193 (1986) (citing Williams, 393 U.S. at 30); see also Norman v. Reed, 502 U.S. 279, 288 (1992); Anderson, 460 U.S. at 786; Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979). Ballot-access requirements that place more burdensome restrictions on certain types 35 of candidates than on others implicate Clause as well. States, interests rights the have regulating “important the election having ballot access requirements.” 490 F.3d 902 Equal Protection See Williams, 393 U.S. at 30–31. however, in under (11th Cir. and compelling process and in Swanson v. Worley, 2007) (quoting Green Mortham, 155 F.3d 1332, 1335 (11th Cir. 1998)). v. Most significantly, States have an “important state interest in requiring some preliminary showing of a significant modicum of political support before organization’s printing candidates the on name the of ballot.” Jenness v. Fortson, 403 U.S. 431, 442 (1971). And, similarly, cases have “establish[ed] with unmistakable clarity that States have an ‘undoubted right to require candidates to make a preliminary showing of substantial support in ballot.’” order to qualify deception, a place on the Munro, 479 U.S. at 194 (quoting Anderson, 460 U.S. at 788-89, n.9). preliminary for showings and even Ballot-access laws requiring serve to frustration process at the general election.” 36 prevent of the “confusion, democratic Jenness, 403 U.S. at 442. The framework parties, political Supreme for Court has balancing candidates, process the and with established interests voters the an in analytical of political engaging interests of in the States conducting fair and effective elections. in Under this framework, a court must first “consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate.” at 789. the Second, the court must “identify and evaluate precise interests justifications Id. Anderson, 460 U.S. for the put forward burden by imposed the by State its as rule.” Third, “the court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff’s rights.” Id. In this analysis, “the burden is on the state to ‘put forward’ the ‘precise interests ... [that are] justifications for the burden imposed by its rule,’” 37 and to “explain the relationship between interests” and the challenged provision. these Fulani, 973 F.2d at 1544 (quoting Anderson, 460 U.S. at 789). State must introduce evidence to justify “The both the interests the State asserts and the burdens the State imposes on those seeking ballot access.” Bergland, 767 F.2d at 1554. Courts are to determine the appropriate level of scrutiny based imposed. “Regulations imposing severe burdens ... must be narrowly interest,” exacting on tailored while review, the seriousness and advance “[l]esser and a a burdens State’s of the burden compelling ... state trigger important less regulatory interests will usually be enough to justify reasonable, nondiscriminatory Cities Area New restrictions.” Party, 520 U.S. Timmons 351, v. 358–59 Twin (1997) (citations and internal quotation marks omitted).8 8. Hall suggests that the court should not apply the approach outlined in Timmons. He contends that, because the ballot-access restriction at issue here imposes a greater burden on independent candidates during a special election (and its collapsed timeframe) (continued...) 38 than during a general election, the State must show that the interests justifying the restriction are commensurately greater in the context of a special, as opposed to a regular, election. In support of this argument, Hall cites Jones v. McGuffage, 921 F. Supp. 2d 888 (N.D. Ill. 2013) (Tharp, J.). In Jones, the plaintiffs raised a claim similar to the one Hall advances here, challenging the application of a signature requirement during the special election held to fill Representative Jesse Jackson, Jr.’s congressional seat in Illinois. For a regular election, independent candidates were required to submit petitions with the signatures of at least 5 % of voters within a 90-day petitioning window. Id. at 898. However, during the special election, independent candidates were afforded only 62 days to collect the same number of signatures. Id. The court preliminarily enjoined the State from enforcing the law and reduced the number of signatures required, in order to lessen the burden, explaining that although the 5 % requirement was constitutional during a regular election, “because of the increased burden [during a special election], the state necessarily must offer some increased justification for its decision to truncate the signature-gathering period while leaving all other requirements in place.” Id. Hall’s argument (and this language drawn from Jones) would make sense only if Hall had shown that Alabama’s ballot-access scheme for independent candidates during regular elections represented a constitutional boundary-line, such that any greater burden or any lesser justification would tip the law into unconstitutional territory. He has not shown, and no court has held, as much. It is true that a particularly burdensome requirement must be met by a particularly significant justification. It is nonsensical, though, to contend that each and every (continued...) 39 Eleventh Circuit case law offers helpful direction as to what sorts of ballot-access laws impose severe burdens, and what sorts do not. A ballot-access law imposes a severe burden if it “‘freeze[s]’ the status quo by effectively barring all candidates other than those of the major parties” and does not “provide a realistic means of ballot access.” Libertarian Party of Fla., 710 F.2d at 793 (quoting Jenness, 403 U.S. at 439). [can] If, however, a “reasonably diligent [] candidate be expected to satisfy the signature requirements,” then the burden is not severe, and the State’s interests justification. will generally be a sufficient Id. (quoting Storer, 415 U.S. at 742). time a State prevails in defending a ballot-access law by offering up a strong justification for the restriction, the constitutional floor is ratcheted upwards. See Libertarian Party of Fla. v. State of Fla., 710 F.2d 790,793 (11th Cir. 1983) (recognizing that any given signature threshold is “‘necessarily arbitrary’” and “impossible to defend ... as either compelled or least drastic” (citation omitted)); see also Green v. Mortham, 155 F.3d 1332, 1339 (11th Cir. 1998) (“There is a range of fees and signature requirements that are constitutional, and the ... legislature is free to choose its ballot access requirements from that constitutional spectrum.”). 40 2. Burden Imposed Under this framework, the court must first assess whether the 3 % signature requirement for independent candidates constitutes in a the context severe of burden a or special whether election it is a reasonable, non-discriminatory regulation. The parties requirement context of agree does a not that impose regularly Alabama’s a severe scheduled 3 % signature burden in election. the See Swanson, 490 F.3d at 896 (recently upholding Alabama’s ballot-access scheme in regular elections). Because Alabama’s election scheme has not meaningfully changed since the decision in Swanson, the Eleventh Circuit’s application of the Supreme Court’s balancing test to Alabama’s 3 % signature requirement in Swanson provides a good starting point for the court’s analysis in this case. In Swanson, the Eleventh Circuit held that Alabama’s 3 % signature requirement, by itself and in combination with Alabama’s June filing deadline, did not violate the First and Fourteenth Amendments. 41 Id. at 903–10. In reaching this conclusion, it focused on Jenness v. Fortson, in which the Supreme Court upheld Georgia’s 5 % signature requirement for regular elections in combination with a June filing deadline. Id. at 906. The Eleventh Circuit reasoned that Alabama’s ballot-access scheme was permissible because it was example, less restrictive whereas than Georgia Georgia’s. required Id. For prospective independent candidates to submit the signatures of 5 % of all registered voters, Alabama required signatures of only 3 % of actual voters. relative timeframe for collecting Id. signatures the The in Georgia, 180 days, also was significantly shorter than the timeframe in Alabama, which the court characterized as being “unlimited.” for filing Id. signatures Finally, the June deadline did not put independent candidates at a disadvantage as compared to major-party candidates, who faced a primary election on that date. Id. The appellate court placed significant weight on the Alabama law’s inclusion 42 of many of the same “alleviating factors”--factors that eased the burden of gathering signatures--as were present in a previously upheld Florida Libertarian scheme Party of for regular Fla., 710 elections. F.2d at See 793. The Swanson court particularly emphasized that the Alabama scheme, unlike the schemes in Florida and Georgia, imposed a submission deadline but no start date, and, therefore, no limit on the time period for gathering signatures. diligent This “unlimited petition window” meant “a independent or minor party candidate could meet the filing deadline by collecting signatures many months” in advance, thus significantly lessening the scheme’s burden. Thus, regular the Swanson, 490 F.3d at 909. Swanson elections requirement regulation was that court that a held in Alabama’s reasonable, fell within the 3 % context of signature non-discriminatory the “spectrum of constitutional legislative choices” and did not impose a “severe burden.” Id. at 907, 910. The Secretary does acknowledge that the truncated special-election schedule increased the burden imposed 43 by Alabama’s 3 % signature requirement--as compared to the burden deemed not “severe” in Swanson--by reducing the time Hall could gather signatures. However, according to the Secretary, reducing the time Hall had to petition imposed not necessarily the by did 3 % signature render the requirement burden severe. Rather, the Secretary argues that the burden imposed by the ballot-access requirements was less severe than the burdens at issue in Jenness and Libertarian Party of Florida and, therefore, permissible as a matter of law. To reach this conclusion, the Secretary urges the court to compare the percentages of voters’ signatures required per day requirements in Florida the to to satisfy Jenness and percentage the ballot-access Libertarian of voters’ Party of signatures required per day to get on the ballot in Alabama’s special election. In Jenness, the Supreme Court upheld a regime requiring independent candidates in regular elections to obtain signatures from 5 % of registered voters in Libertarian 180 days, Party of 403 U.S. Florida, 44 at the 440-42, Eleventh and, in Circuit upheld regular a regime requiring elections to independent obtain candidates signatures from 3 % in of registered voters in 188 days, 710 F.2d at 790, 794. In this case, Hall was required to obtain signatures from 3 % of qualified electors who voted in the last gubernatorial election--the Secretary calculates this to amount to 1.4 % of registered voters--in 106 days, the amount of time the Secretary argues Hall had to petition. The Secretary argues that, even taking Hall’s contention--that he had only 56 days--as true, the burden still less imposed during onerous than the special that ballot-access law upheld in Jenness. election imposed by was the Thus, according to the Secretary, the Alabama regime does not, as a matter of law, impose a severe burden. See Swanson, 490 F.3d at 907 (upholding a 3 % signature requirement because a 5 % requirement, in combination with an even earlier deadline, had been upheld in Jenness). The Secretary’s calculation, however, ignores the Supreme Court decision in Anderson, which requires the court to consider cumulatively the burdens imposed by 45 the overall scheme, percentages of and not signatures mechanically required to per compare day. See Anderson, 460 U.S. at 788; see also Clingman, 544 U.S. at 607-08 (“A panoply of regulations, each apparently defensible when considered alone, may nevertheless have the combined participation effect and concurring). of severely competition.”) restricting (O’Connor, J., The Secretary’s approach is precisely the sort of “litmus-paper test” analysis the Supreme Court prohibits. Anderson, 460 U.S. at 789; see also id. at 789-90 (“The results of this evaluation will not be automatic; as we have recognized, there is no substitute for the hard judgment that must be made.” (citation and internal quotation marks omitted)). Such address a mechanical the elections. often approach significant interest There are not adequately differences between In other words, there are 'elections,' and there are 'elections.' elections does for and President voting election As everyone knows, there are and Governor, likelihood for other 46 are where likely statewide voter highest. federal and state offices likelihood may where be voter lower interest but still and relatively voting great. There are elections for non-statewide federal and state offices and for local offices were voter interests and voting likelihood may significantly lower. be, relatively speaking, There are elections held on the Tuesday after the first Monday in November, that is, ‘election day,’ when voters are most likely accustomed to voting. And there are elections in other months when voters are likely much less accustomed, and thus less likely, to vote. There are also regular elections that recur at stated intervals fixed by law, and thus when voters are more likely accustomed to voting, and there are special elections, for which there are no predetermined dates. When it comes to voter interest and voting likelihood in a special election, therefore, it is one piggybacked thing onto for a the special regular election election for a to be statewide federal or state office on ‘election day’; it is quite another thing when it is held by itself ‘off season,’ that is, on a day other than election day. 47 The general circumstances in which the signature requirement can occur are many and can vary significantly. And it is against this backdrop that the court now considers the specific circumstances presented. This court must undertake an examination of the evidence in the record, and draw a full picture, to determine whether a reasonably diligent candidate could have been expected to satisfy the 3 % signature requirement within the petitioning time allotted for the special election here; if not, the law imposes a severe burden. Applying the proper test, the court finds that the challenged ballot-access laws, in the context of the special election set here, did impose a severe burden. First, the 3 % signature requirement imposed a substantially heavier burden on Hall than it would have during a regular election like the ones at issue in Swanson and the cases it discusses. In addition to the truncated petitioning window, the lack of preparation time and off-season low voter special as interest compared 48 characteristic to regular of elections combined to make it impossible for a reasonably diligent candidate, such as Hall, to satisfy the 3 % requirement. To begin with, the evidence is clear that Hall was a reasonably diligent candidate. Within three weeks of Representative Bonner’s announcement of his retirement, Hall had begun to collect petition signatures (indeed, he contacted the Secretary of State’s office to begin the process two weeks after the announcement). worked “tirelessly” requisite number of for two months signatures by to obtain visiting Hall the numerous businesses and soliciting at public events including “charity runs, festivals, yard sales, sporting events, a gun show, and others.” (doc. no. 25-1) at 2. concerts, Hall Decl. He received assistance from social and work contacts and friends, and he and his wife knocked on about 5,000 doors. Although the response rate was far from insubstantial--he obtained one signature for every dozen houses visited--he would have had to knock on over 71,000 doors to obtain the required number of signatures from canvassing alone. 49 Although Hall placed an ad for a paid signature-gatherer, the only person who responded would have charged about $ 4.00 per signature; at this rate, it would have cost him a prohibitive sum--over $ 23,000--to get the bare minimum number of signatures. See Hall Decl. (doc. no. 25-1) at 3. Moreover, the amount of time Hall had to collect signatures was dramatically reduced from available in the regular-election context. the time Although the parties dispute how many days Hall had to petition in the December 2013 special election, it is undisputed that his time was not unlimited. regularly scheduled election, In contrast, in a there is no required start date or limited period for collecting signatures, and such regular elections are held at regular intervals with the dates and deadlines predetermined. See Swanson, 490 F.3d at 904. Indeed, it appears that an independent candidate wishing to run in a regular election begin a decade petitioning however, a from now today. prospective can, In under a independent 50 Alabama special law, election, candidate cannot begin collecting announced. signatures until a vacancy is Further, because the Secretary of State’s regulations state that the petition used must have the date of the special election on it, candidates seeking to comply with the letter of the law must wait until the date for the special election is revealed to begin petitioning. In upholding the 3 % signature requirement in the context of a regular election, the Swanson court singled out the unlimited petitioning time as a particularly important factor alleviating the burden imposed. 490 F.3d at 910. The truncated timeframe in this special election, whether it was 56 or 106 days, materially distinguishes this case from Swanson.9 9. Cassity, the Chairman of the Alabama Constitution Party, concurred that this short period for signature-collection would make it very difficult for an independent candidate to meet the threshold. “Notwithstanding our great desire to run a Constitution Party candidate in the Special Election for the seat Mr. Bonner vacated, we ultimately concluded that the combination of the short time frame and the number of signatures required would make it virtually impossible for any small party [or] independent candidate to gain access to the ballot and certainly made it impossible (continued...) 51 Second and relatedly, Hall’s ability to petition was further burdened by the lack of preparation time in advance of the off-season special election. The preparation required for a successful signature drive can be significant and take many months; candidates must raise funds, organize their campaigns, and recruit and train campaign staff, including volunteer or paid signature-gatherers. Prospective independent candidates in a regular petitioning election time--they prepare to petition. independent not also only have have unlimited unlimited time to In a special election, however, candidates, who cannot rely on party infrastructure to support their efforts, do not have “any period of time ... to meaningfully prepare for the arduous signature drive.” at 4.10 Winger Decl. (doc. no. 25-4) This was certainly the case in the December for our Party and we abandoned our efforts, based solely on this very severe burden imposed by the signature requirement and the short time frame (a time frame which we could not even ascertain until the very end of July or beginning of August).” Cassity Decl. (doc. no. 25-3) at 4. 10. The Secretary challenges Winger’s expert (continued...) 52 2013 special election; Hall could not have predicted Bonner’s resignation and, therefore, could not have begun to prepare until a short time before the special election. He and Moser specifically stated that this hampered their efforts to collect signatures. Third, Hall signatures because interested in the encountered voters election were difficulty less before the obtaining aware date of of special election was announced on July 29, 2014. or the Hall testimony. The court declines to consider Winger’s testimony to the extent he engages in legal analysis or draws legal conclusions. However, the court disagrees with the Secretary that the remainder of Winger’s testimony fails to satisfy Federal Rule of Evidence 702. Since 1960, Winger has devoted considerable time to researching and to writing about state election laws. Winger is the editor of Ballot Access News, in which he documents the history and application of ballot-access laws in the United States, and he is the author of numerous articles on the topic. Courts around the country, including courts in this district, have qualified Winger as an expert to testify about the effect of ballot-access laws. See, e.g., Swanson, 490 F.3d at 898. Based on his knowledge and experience, Winger is certainly qualified to discuss the history of ballot-access laws in Alabama, how they compare to ballot-access laws in other States, and how a truncated special-election schedule affects prospective independent candidates’ access to the ballot, both generally and in this special election. 53 stated in his declaration that low voter interest was particularly campaign. (“When I burdensome early in his signature See Hall Suppl. Decl. (doc. no. 26-1) at 2 first started trying to obtain signatures before the Governor announced that the Special Election would be general held and Special on what Election dates would the be primaries held, I and found it especially hard to obtain signatures because people did not seem to know about the Special Election or have any interest in it. further explain I had to explain the situation and that we did not yet know when the election I was asking to be on [the] ballot for would be held. without Suppl. This led many any interest Decl. (doc. in no. people just signing.”); 26-2) at to see 7 dismiss also me Winger (“[B]efore the Special Election and its dates were announced by the Governor, gathering ballot signatures for an independent candidate in Mr. Hall’s situation would be much more difficult because of the lack of interest and focus among citizens in general.”). have noted, voter apathy 54 is high As other courts months before a primary election and, especially for independent and minor party candidates, support may not “coalesce until comparatively late in the cycle.” Clingman, 544 U.S. at 607 (citing Anderson, 450 U.S. at 791–92). apathy may impose less of a burden in a Voter regular election, where independent candidates have unlimited time to petition. However, in an off-season special election, where prospective candidates are under time pressure to collect signatures, the lack of interest or awareness early in a signature drive is especially burdensome. Finally, the court looks to history--whether any independent enough candidates signatures to have succeeded appear on a in gathering special election ballot--as an indicator of whether the 3 % requirement “‘freeze[s]’ the status quo by effectively barring all candidates other than those of the major parties” when applied in a special election. See Libertarian Party of Fla., 710 F.2d at 793 (quoting Jenness, 403 U.S. at 439). “Past experience always unerring guide: will it 55 be will a be helpful, one if thing not if independent candidates have qualified with regularity and quite a different matter if they have not.” Storer, 415 U.S. at 742. The ballot-access history here supports the conclusion that the 3 % requirement imposes a severe burden in the context of special elections. While an independent or minor-party candidate has been able to comply with the signature requirement in general elections in the First Congressional District in the past, no signature independent and deadline candidate requirement has in met Alabama’s either of the last two special congressional elections, including in 1989, when the signature requirement was only 1 %. Indeed, since ballots were first printed by the State in 1893, no independent candidate has ever appeared on the ballot in any congressional special election in the State.11 Winger Second Suppl. Decl. (doc. no. 29-1) at 11. Hall also brings the court’s attention to the ballot-access laws of Alabama’s neighboring States. According to Winger, in a special election for Congress, Georgia and Florida require no signatures for independent candidates, and in Mississippi and (continued...) 56 1-3. The Secretary has not offered any evidence to rebut the testimony submitted by Hall demonstrating that the burden severe. of Alabama’s 3 % signature requirement was All the Secretary offers is the suggestion, unsupported by any evidence, that Hall’s inability to obtain the consistent requisite with the number of signatures possibility “significant modicum of support.” that he is also lacked a State Defs.’ Mot. to Dismiss or for Summ. J. (doc. no. 23) at 27 (quoting Jenness, 403 U.S. at 442). The court does not agree. Hall’s efforts were futile not because he was a particularly unappealing candidate--indeed, he was able to obtain over 2,000 Tennessee, only 25 signatures are required. Winger Decl. (doc. no. 25-4) at 4. While the contrast is stark, the Eleventh Circuit has repeatedly rejected the argument that the ballot-access regimes of other States are relevant when inquiring into the constitutionality of the regime at issue. See, e.g., Swanson, 490 F.3d at 910 (disregarding Winger’s testimony that Alabama has the “second toughest ballot access restrictions” among all States in the 2002 election, because “the legislative choices of other states are irrelevant” (citing Libertarian Party of Fla., 710 F.2d at 794)). 57 signatures--but because a truncated petitioning window, lack of preparation time, and low voter interest combined to create a severely burdensome ballot-access scheme offering reasonably diligent independent candidates no realistic means of ballot access. Because the “Constitution requires that access to the electorate be real, not ‘merely theoretical,’” requirements for ballot access “demanded [by the State] may not be so excessive or impractical as to be in reality a exclude parties ballot.” mere device with to always, significant or almost support always, from the Party of Tex. v. White, 415 U.S. 767, 783 (1974) (quoting Jenness, 403 U.S. at 439). In light of the evidence Hall has presented--that he was diligent in attempting to gather signatures, but unsuccessful in light of the dramatically shortened timeframe, the lack of preparation interest time, before announced--the the court and date low of concludes voter awareness and the election was that Alabama’s 3 % signature requirement, in the context of an off-season special election, imposes a severe burden, and, indeed, 58 does not afford independent candidates “real” access to the ballot. 3. The State’s Interests Having found the burden on Hall’s constitutional rights to regulation be in severe, the the context court of can special uphold elections the as presented here only if it is “narrowly tailored and advance[s] a compelling state interest.” U.S. at 358. interests as requirement The Secretary justification (and advances for accompanying the Timmons, 520 the following 3 % deadline signature for petition submission) in the context of special elections: (1) ensuring that independent and minor-party candidates have a significant modicum of support, (2) eliminating party fair splintering treatment and between factionalism, (3) encouraging independent and minor-party candidates and major party candidates, and (4) having sufficient time to verify signatures. The interests put undoubtedly important. 912. forth by the Secretary are See Swanson, 490 F.3d at 910– However, the court need not decide whether these 59 interests are ‘compelling’ because, even if they are, the Secretary requirement has is interests. not shown narrowly that tailored the 3 % signature to advance these The Secretary need not prove that it would be impossible to serve these interests without the 3 % signature requirement; however, he must justify “the extent to which [these] interests make it necessary to burden the plaintiff’s rights.” Anderson, 460 U.S. at 789; see also Munro, 479 U.S. at 194-96. The Secretary has failed to provide any evidence or explanation as to why requirement in the applying context of the 3 % special signature elections as presented here is necessary to achieve the interests articulated. Although he need not prove that this is the precise threshold below which the State’s interests would not be served, see Libertarian Party of Fla., 710 F.2d at 793, he has offered no evidence to suggest that even dramatically lower thresholds (such as the 1 % signature requirement previously in place) would not adequately have served these interests during a special election. Because he has failed to meet his burden, 60 Fulani, 973 F.2d at 1544, the court finds that the ballot-access laws are not narrowly tailored to advance a compelling interest. Thus, summary judgment will be granted in favor of Hall on his First and Fourteenth Amendment claim. C. Equal Protection Hall also asserts that his constitutional right to equal protection was violated by the Secretary’s actions, although he gives this argument short shrift in his briefing. In the Eleventh Circuit, “equal protection challenges to state ballot-access laws are considered under the Anderson test”--that is, “a balancing test that ranges from strict scrutiny to a rational-basis analysis, depending” on whether or not the burden imposed by the laws is severe. F.2d at 1543. Fulani, 973 As explained below, Hall has failed to show the existence of a genuine dispute as to whether his right to equal protection was violated. It is well established that providing ballot access to political parties through 61 the primary-election process and to independent candidates through signature petitions does not violate the Equal Protection Clause of the Fourteenth Amendment. 42. Rather, such laws Jenness, 403 U.S. at 440– provide two constitutionally permissible alternative means of ballot access; neither method “can be assumed to be inherently more burdensome than the other.” Id. at 441. Perhaps in light of this case law, Hall does not appear to argue that the shortened timeframe rendered the ballot-access process for independent candidates inherently more burdensome than that available to party candidates. Instead, he points to discrete actions by the Secretary that he contends discriminated in favor of political candidates. parties Hall and contends against that the independent Secretary discriminated against independent candidates, first, by allowing Democratic candidates to be certified one hour past their deadline, and, second, by creating a special “Instant Primary Ballot” for UOCAVA voters. Hall first notes that the Secretary allowed the Democratic Party to certify candidates one hour after 62 the deadline had passed, but did not agree to reduce the number candidates reasonably, of to signatures needed qualify. that he The made for independent Secretary the exception explained, for the Democratic Party because the party head had not been informed of the exact deadline. In any case, the extension the Democratic Party received was de minimis, and Hall nowhere suggests that such marginal flexibility was denied to, or would have benefited, any independent candidate. If he had been a few signatures short and was denied an extra hour to gather them, Hall’s equal protection argument might hold more water. Here, differential treatment (if indeed there was any) did not impose a significant burden and had a rational basis. Indeed, the record also demonstrates that the Secretary’s office made an accommodation for Hall as well by providing him with a unique signature petition header, instead of requiring him to submit petitions with the election date on them. The creation of the “Instant Primary Ballots” likewise did not impermissibly discriminate in favor of 63 political party candidates. These absentee ballots, sent to military and overseas voters, had to list the names of all Republican candidates participating in the primary runoff because federal law required the ballots to be mailed before the winner of the runoff was known. Although the candidates inclusion on the of ballot multiple undoubtedly Republican placed the eventual party nominee at a significant disadvantage, it is true obtained, in independent that a the eventual technical candidates in losers sense, that some they of the runoff advantage were over allowed to appear on the ballot despite not being their party’s nominee and without submitting the petition signatures required of an independent candidate. In a practical sense, however, the eventual losers of the runoff were not given a free pass; they had already demonstrated a (very) significant modicum of support by receiving a sufficient share of the votes in the initial primary to warrant participation in the runoff. If mere affiliation with a major party ordinarily earned a candidate other than that party’s nominee a 64 place on the UOCAVA ballot, that significant equal protection concerns. might raise The court need not decide whether the burden imposed on independent candidates in such a case would be severe, however, because in the context of the primary runoff, the actions of the Secretary were unquestionably justified and would pass strict scrutiny. Including Republican runoff candidates on the instant ballot permitted the State to comply with federal law. Had all the Republican candidates participating in the runoff not been included, military and overseas voters wishing to cast their have had election votes to for write the in administrators numerous write-in doubtful that ballots the Republican that candidate’s would by federal candidate have hand). court name had to Indeed, then tasked would (and count it is with protecting the UOCAVA rights of military and overseas votes would have accepted this alternative. Other than by applying the 3 % signature requirement, there is no indication that the Secretary acted in an unconstitutional manner towards independent 65 candidates in general or towards Hall in particular. Thus, summary judgment will be granted in favor of the Secretary on Hall’s equal protection claim. IV. Appropriate Relief Hall requests a declaratory judgment that the 3 % signature requirement for independent candidates cannot constitutionally be enforced with respect to future off-season special elections to seats in the U.S. House of Representatives. prohibiting the He also Secretary from seeks an enforcing injunction the 3 % requirement. According to his filings, Hall seeks both facial and as-applied relief. extending and not to all just Facial relief--that is, relief prospective to independent Hall--is candidates, appropriate Nevertheless, that facial relief is limited. here. The court does not hold that the 3 % signature requirement can never be enforced, only that it cannot be enforced in the context of an off-season special election occurring on a similarly limited 66 timeframe. Given the Secretary’s concession at oral argument that, typically, off-season special elections will be held on an even shorter timeline than occurred in the December 2013 election in which Hall attempted to stand as a candidate, this may prove to be a distinction without a difference. 33:18-23. election lead See Mot. Hr’g Tr. (doc. no. 71) at However, the court recognizes that a special could time, and theoretically that this be held might with alter much the more court’s analysis as to the severity of the burden imposed on independent candidates seeking access to the ballot. (Nevertheless, it is evident that this is a problem that should be addressed legislatively, either to accommodate the specific but typical off-season special election presented reasonably here conceivable or, types more of generally, special all elections, including the one here.) In the court’s view, declaratory relief is sufficient, in light of the court’s confidence that the Secretary will act accordingly. 67 An appropriate judgment will be entered. DONE, this the 30th day of September, 2016. /s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE

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