De La Fuente et al v. Merrill (JOINT ASSIGN)
MEMORANDUM OPINION. Signed by Chief Judge William Keith Watkins on 10/7/16. (djy, )
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
ROQUE “ROCKY” DE LA
FUENTE and ADANYS
JOHN H. MERRILL, Secretary of
State for the State of Alabama,
CASE NO. 2:16-CV-755-WKW
Before the court is Plaintiffs’ Amended Complaint (Doc. # 7), which has been
construed as containing a motion for a preliminary injunction. Plaintiffs challenge
the constitutionality of Alabama’s “sore loser” election statute, Ala. Code § 17-93(b), and seek declaratory and injunctive relief against its application. The parties
briefed the matter on an expedited schedule (Docs. # 13, 14, 22), and an on-therecord telephonic hearing was conducted on September 27, 2016 (see Docs. # 19,
Faced with a looming deadline to reprint and distribute the ballots, on
September 30 the court issued a truncated order denying injunctive relief. (Doc.
# 23.) This Memorandum Opinion gives the reasoning behind that order.
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I. JURISIDCTION AND VENUE
The court has subject-matter jurisdiction under 28 U.S.C. § 1331, and the
parties do not contest personal jurisdiction. Venue is proper under 28 U.S.C.
The Alabama Electoral Process
Alabama has enacted comprehensive legislation governing access to the
ballot. Ala. Code § 17-1-1 et seq. The complexities of ballot access and ballot
printing bear on the context and equities of this case, and therefore merit in-depth
Accessing the Alabama Ballot: Certification and Sore Losers
Would-be independent presidential candidates seeking access to the Alabama
ballot turn to Title 17 of the Alabama Code for guidance. See Ala. Code § 17-1-1 et
seq. Chapter 9 of that title sets out the procedure for getting an independent
candidate’s name on the ballot. See id. § 17-9-3. Candidates who wish to run in
statewide elections must file with Defendant Secretary of State1 (“the Secretary”) a
petition with a certain number of signatures of registered voters, due by a certain
Plaintiffs’ claims implicate legal analyses that hinge on the showing of various interests
claimed by Defendant or by the State. “[A] suit against a state official [like the Secretary] in his
or her official capacity is not a suit against the official but rather is a suit against the official’s
office. As such, it is no different from a suit against the State itself.” Will v. Mich. Dep’t of State
Police, 491 U.S. 58, 70 (1989) (internal citation omitted). For purposes of clarity, the court
occasionally refers to Defendant as the State, and to Defendant’s interests as State interests.
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date. Id. § 17-9-3(a)(3). Once the petition is received, the Secretary sends a
certification of the individual’s candidacy to each of the state probate judges, who
are tasked with “prepar[ing] the ballot[s]” bearing the names of the certified
candidates. Id. § 17-9-3(b).
There is a catch, though: In addition to the signature requirement, an
independent candidate may not appear on the general-election ballot if he or she
“was a candidate in the primary election of that year.” Id. Under § 17-9-3(b),
[t]he judge of probate may not print on the ballot the name of any
independent candidate who was a candidate in the primary election of
that year and the name of any nominee of a political party who was a
candidate for the nomination of a different political party in the primary
election of that year.
This provision, known as a “sore loser” law, requires candidates who compete in
party primaries to stand by their commitment to that party.
Such laws are
surprisingly common: A recent academic study counted forty-seven states that
“effectively bar[ ]” sore loser candidacies. Michael S. Kang, Sore Loser Laws and
Democratic Contestation, 99 Geo. L.J. 1013, 1043 (2011).
Alabama’s sore loser law has been consistently applied for at least twentyfour years. (See Doc. # 21 at 1.) However, in 1992 Lyndon LaRouche was allowed
to run for president in the general election as an independent candidate, despite
participating in the Democratic primary earlier that year. (Docs. # 1 at 9; 21 at 1; 22
at 5); Fed. Election Comm’n, Federal Elections ’92, at 15 (1992). The Secretary has
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not offered any justification for Mr. LaRouche’s inclusion on the ballot, other than
the fact that it happened “a long time ago and [under] a different secretary of state.”
(Tr. at 25.) Neither party has brought to the court’s attention another sore-loser
candidate who was allowed on an Alabama ballot (Tr. at 24–25), and the court’s own
research has not uncovered any other such candidacies.
The Ballot-Printing Process
Once the Secretary’s certified ballots reach the probate judges, the judges
complete the ballots with the addition of local races for their respective counties,
then order the printed ballots for that county. (Doc. # 13-1 at 2.) These orders go to
Election Systems & Software (“ES&S”), a Nebraska company “specializing in
election equipment, software, and services designed to support fair and efficient
elections.”2 (Doc. # 13-1 at 1.) In the 2016 election cycle, “ES&S is providing
equipment programming, ballot coding, ballot production, and ballot printing
services” to the sixty-seven counties in Alabama. (Doc. # 13-1 at 2.) In addition to
Alabama, ES&S also handles ballot-printing requests for “the majority of State
governments in the United States,” and several city governments as well. (Doc.
# 13-1 at 1.)
Some counties handle certain aspects of the ballot-preparation process on their own.
Jefferson County, for example, prints its own absentee ballots and programs its own election
equipment. (Doc. # 13-1 at 3–4.) However, ES&S is the sole entity responsible for printing
Alabama’s Election Day ballots. (See Doc. # 13-1 at 3.)
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On receipt of the ballot order, ES&S begins the time-consuming process of
preparing that county’s ballots. First, “ES&S performs equipment coding as well as
ballot[ ] layout based on the election requirements and ballot style(s) requested by
the county.” (Doc. # 13-1 at 2.) This year, the sixty-seven counties in Alabama have
ordered a total of 1066 styles of ballots, further complicating and extending the
printing and preparation process. (Tr. at 31.) ES&S then “provides the county with
its equipment coding election definition, test ballots to be used in testing the election
definition, and a proof ballot or ballots(s) [sic] for the county’s review and approval.”
(Doc. # 13-1 at 2.) After county approval of the election materials, “ES&S finalizes
the equipment coding election definition and sends an electronic ballot file to [the]
ES&S ballot production facility” in Birmingham. (Doc. # 13-1 at 2.) The facility
then “prints the required quantity of each ballot style requested and approved by the
county,” packages the ballots by precinct as specified by the ordering county, wraps
them in shrink wrap, and ships them to the county. (Doc. # 13-1 at 2–3.)
As of September 19, 2016, ES&S had completed a significant portion of the
ballots ordered by Alabama counties. (Doc. # 13-1 at 3–4.) All 218,300 absentee
ballots had been printed and delivered to the counties; 2,388,350 Election Day
ballots had been printed, representing the total order for fifty-six of the sixty-seven
counties; and the ballots for fifteen counties had been packed and prepared for
(Doc. # 13-1 at 3.)
ES&S had also completed the equipment
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programming for twenty-eight counties, which entailed the printing of 47,775 test
ballots. (Doc. # 13-1 at 4.) All of this printing is done on ballot stock, a “specialized
paper” that must be “ordered well in advance of elections and delivered to the
printing facility ahead of time.” (Doc. # 13-1 at 5.)
The United States v. Alabama Remedial Order
Further muddying the pre-election waters is the remedial order entered in
United States v. Alabama, No. 2:12-CV-179-MHT-WC (M.D. Ala. Jan. 17, 2014),
ECF No. 119, (“the Remedial Order”) to enforce the requirements of the Uniformed
and Overseas Citizens Absentee Voting Act (“UOCAVA”). UOCAVA protects the
right of overseas citizens and members of the military to vote by absentee ballot in
federal elections. See 52 U.S.C. § 20301 et seq. As amended by the Military and
Overseas Voter Empowerment Act, Pub.L. No. 111-84, 123 Stat. 2190, 2318–35
(2009), UOCAVA requires in federal elections that each State “transmit a validly
requested absentee ballot to an absent uniformed services voter or overseas voter . . .
not later than 45 days before the election.” 52 U.S.C. § 20302(a)(8). Alabama’s
repeated failures to comply with the law led the Department of Justice to file suit
against the State in 2012. After years of negotiation, the parties agreed to the terms
of the Remedial Order.
Two of the deadlines in UOCAVA and the Remedial Order are important to
this case. First, Alabama is required under the Order to ensure “that any electronic
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ballot transmission system be fully operational not later than 55 days before any
Federal primary or general election.” Remedial Order, at 9. Second, under the terms
of the Act itself, absentee ballots must be mailed to UOCAVA voters at least 45 days
before the election—provided, of course, that the voter requested the ballot in
question. 52 U.S.C. § 20302(a)(8)(A). To that end, the Remedial Order requires the
State to conduct surveys and otherwise confirm that the counties have mailed their
requested ballots. Remedial Order, at 11–12. The deadlines for all these efforts
range from 55 to 41 days prior to the election. Counting backwards from the
November 8, 2016 general election, the 41-day deadline passed on September 28,
the 45-day deadline on September 24, and the 55-day deadline on September 14.
Accordingly, any change to the ballot that affects the federal elections will
jeopardize the State’s compliance with UOCAVA and the Remedial Order. This
action was filed 57 days before the election, only two days before the earliest of
The Emergency Re-Print
A final element of confusion was thrown into the mix on September 26, when
the Secretary learned that the language on the already-printed ballots did not comply
with Alabama law. One of the measures on the 2016 ballot is Act No. 2016-145, a
proposed amendment to the Alabama Constitution. The Act specified that three
paragraphs were to be printed on Alabama ballots, but by mistake only one
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paragraph was included. (Doc. # 16 at 1.) Upon learning of the omission, the
Secretary certified the two missing paragraphs for inclusion on the ballot, thus
requiring a reprint. (Doc. # 16 at 1.)
Because of the misprint, all the election equipment must be re-programmed
and the Election Day ballots discarded. (Doc. # 16 at 2.) To avoid confusion, the
Secretary decided that paper absentee ballots that have already been mailed to voters
will not be replaced; electronic absentee ballots, on the other hand, have already
been corrected. (Doc. # 16 at 2.) Notwithstanding the financial and administrative
headaches occasioned by the reprint, the parties contend that it does not affect an
“election for Federal office” and accordingly does not call Alabama’s UOCAVA
compliance into question. See 52 U.S.C. §§ 20302(a), 20310(3); (Tr. at 13–14).
Mr. De La Fuente’s Run for President
Plaintiff Roque “Rocky” De La Fuente ran for nomination as one of the
Democratic Party’s candidates for President of the United States in Alabama’s
primary election on March 1, 2016. (Doc. # 7 at 2.) Unfortunately for the
businessman-cum-politician, his performance in the primary did not match his
ambition—Mr. De La Fuente garnered only 818 votes and lost the nomination to
Hillary Clinton. (See Doc. # 14 at 1); Alabama Democratic Party, Amended
Certificate of Election Results for the Democratic Presidential Candidates,
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Certified-Amended-Democratic-2016-06-27.pdf (last visited Sept. 30, 2016)
(“Democratic Primary Results”). Undeterred, Mr. De La Fuente continued his push
for the White House, this time as an independent candidate. (Doc. # 7 at 1.) In that
pursuit, Mr. De La Fuente collected the necessary signatures and prepared the
required paperwork, ultimately submitting to the Secretary a petition to appear on
the general election ballot. (Docs. # 7 at 4, 5; 13-3 at 1.)
Mr. De La Fuente submitted his petition at the proverbial “last minute” on the
August 18 deadline.
(Doc. # 13-3 at 1.)
The Secretary’s office, apparently
overlooking Mr. De La Fuente’s participation in the Democratic primary, initially
added his name to the certification. (Doc. # 13-2 at 2.) On that basis, the Secretary’s
office called a representative of Mr. De La Fuente on August 24 or 25 to inform him
that his name would be placed on the ballot. (Doc. # 13-3 at 1–2.) But on August
26, before the certifications were sent to the respective probate judges, the Director
of Elections at the Secretary’s office, Ed Packard, remembered that Mr. De La
Fuente had competed in the primary. (Doc. # 13-2 at 2.) Accordingly, he removed
Mr. De La Fuente’s name from the certification on the basis that the sore loser law
precluded his independent candidacy. (Doc. # 13-2 at 2.) Mr. Packard tried to
contact Mr. De La Fuente that day to apprise him of his removal from the ballot, but
was unable to reach him until August 29. (Docs. # 13-2 at 2; 13-3 at 2.) At Mr. De
La Fuente’s request, the Secretary’s office sent him an email on the 29th, reflecting
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the decision not to certify his name on the ballot. The parties communicated for
another couple of days, until the Secretary determined on or around September 1
that “the ballot printing should go forward without Mr. De La Fuente’s name.” (Doc.
# 13-2 at 2.)
Mr. De La Fuente—along with Plaintiff Adanys Clerch, a “qualified and
registered Alabama voter and an elector for Plaintiff De La Fuente”—filed a
complaint under 42 U.S.C. § 1983 on September 12, 2016, alleging constitutional
violations arising from his exclusion from the ballot under Alabama’s sore loser law.
(Doc. # 1 at 3, 12–13.)3 The date of filing the suit was a full 195 days after Mr. De
La Fuente’s primary loss. Plaintiffs alleged violations of their rights of free speech
and association as protected by the First and Fourteenth Amendments, their
Fourteenth Amendment right of equal protection under the law, and Article II,
Section 1, clause 5 of the United States Constitution (the Qualifications Clause),
insofar as the statute imposes additional qualifications on presidential candidates.
(Doc. # 7 at 12–13.) Plaintiffs sought a declaratory judgment holding the sore loser
law unconstitutional, as well as preliminary and permanent injunctive relief
enjoining Defendant from denying Mr. De La Fuente’s placement on Alabama’s
Two days later, on September 14, Plaintiffs filed an amended complaint to correct a
typographical error in the caption and first page of the complaint. (See Doc. # 7.)
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ballot as an independent presidential candidate in the November 8, 2016 general
election.4 (Doc. # 7 at 13.)
Two days after suit was filed, the court construed Plaintiffs’ request for
injunctive relief as including a motion for preliminary injunction and ordered
Defendant to respond to the motion by September 23, 2016, nine days later (Doc.
# 9), which he did (Doc. # 14). Upon review of the response and an emergency
notification filed by Defendant three days later (Doc. # 16), the court ordered an onthe-record telephone status conference which was held at 11:00 a.m. on September
27—a mere fifteen days after suit was filed and three days before Plaintiffs’ reply
brief was due. During the status conference, the parties argued their respective
(early) positions, agreed on a few basic facts, and informed the court of the
exigencies and complications of reformatting, reprinting, and redistributing 1066
ballot styles in time for the November general election. The parties also informed
the court of the potential interplay of the UOCAVA Remedial Order, which further
complicated matters. In view of the extremely tight deadlines for reformatting and
reprinting the ballots, the court committed to a ruling on the motion for preliminary
Probate judges are the “chief election official[s]” in their respective counties, see Ala.
Code § 17-1-3, and Defendant lacks legal authority to order these judges to print or not print their
ballots in a certain way. However, Plaintiffs’ counsel made clear in the September 27 telephone
hearing that Mr. De La Fuente is merely seeking an order that the Secretary certify his name on
the ballot. (Tr. at 22.) Accordingly, the sixty-seven counties in Alabama are not necessary parties
in this action. See Fed. R. Civ. P. 19(a)(1).
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injunction no later than Friday, September 30. That ruling, denying a preliminary
injunction, was filed at 5:33 p.m. on September 30. (Doc. # 23.)
Preliminary Injunction Standard
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 a preliminary injunction, the moving party 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 Cty. Sch. Bd., 557 F.3d 1177,
1198 (11th Cir. 2009) (quoting Siegel v. LePore, 234 F.3d 1163, 1167 (11th Cir.
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
Plaintiffs argue that “irreparable injury”—namely, Mr. De La Fuente’s
exclusion from the Alabama general-election ballot—would result unless an
injunction issued. (See Doc. # 7 at 11.) Assuming without deciding that Plaintiffs
meet that second element, the court’s analysis will focus on (A) the equitable
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considerations of the third and fourth elements of the preliminary-injunction
standard, and (B) whether Plaintiffs have shown a substantial likelihood of success
of the merits, in that order.
The third and fourth elements of the preliminary-injunction standard ask the
court to balance the equities of the case. The third element looks to “the competing
claims of injury,” requiring the court to “consider the effect on each party of the
granting or withholding of the requested relief.” Winter v. Nat. Res. Defense
Council, Inc., 555 U.S. 7, 24 (2008) (quoting Amoco Prod. Co. v. Village of Gambell,
480 U.S. 531, 542 (1987)). The fourth element looks to the effect of an injunction
on the public interest, and commands courts to give “particular regard for the public
consequences in employing the extraordinary remedy of injunction.” Id. (quoting
Weinberger v. Romero–Barcelo, 456 U.S. 305, 312 (1982)).
Plaintiffs’ injury, should the injunction not issue, would be Mr. De La
Fuente’s exclusion from the Alabama general-election ballot.
significant resources into Mr. De La Fuente’s appearance on the 2016 ballot—
resources that would be wasted if the presidential hopeful were barred by the sore
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Moreover, interested voters like Ms. Clerch would be denied the
opportunity to vote for their candidate of choice.5
If the requested injunction were granted, Defendant’s injuries would include
the declaration of a voting law to be unconstitutional, and the court-ordered
reprinting of ballots bearing Mr. De La Fuente’s name. Reprinting ballots would
ordinarily pass “significant additional costs” onto the shoulders of the counties (Doc.
# 13-1 at 5–6) and jeopardize the State’s compliance with UOCAVA, see Part
II.A.3., supra. But, because of the emergency reprint already ordered by the
Secretary, see Part II.A.4., supra, the State of Alabama would likely suffer no
additional harm if Mr. De La Fuente’s name were added to the reprinted ballots.6
However, declaring unconstitutional an otherwise validly adopted state
election statute that is part of an interrelated legislative scheme would be a more
serious intrusion into the affairs of a state. Mr. De La Fuente’s assertion that
Plaintiffs did not favor the court with an explanation of the hardships they hoped to avoid.
Instead, they analyzed the burden placed on their associational rights and argued that Defendant
would suffer “virtually no[ ]” prejudice if the injunction were granted. (Doc. # 22 at 27–30.)
Neither argument bears on Plaintiffs’ hardship: the former goes to the merits of Plaintiffs’
challenge, and the latter goes to Defendant’s hardship if the injunction were granted. Regardless,
the court is satisfied that Plaintiffs would be injured if Mr. De La Fuente were excluded from the
The Secretary does not plan to reprint the absentee paper ballots already placed in the
mail (Doc. # 16 at 2), so an injunction requiring the reprinting of these absentee ballots would
cause the State some additional injury. To avoid such a result, during the September 27 telephone
hearing Plaintiffs’ counsel offered to waive the reprinting of these ballots, and have Mr. De La
Fuente’s name certified for addition to the electronic ballots and Election Day ballots only. While
such a waiver would likely be ineffective—after all, Mr. De La Fuente cannot waive the rights of
the UOCAVA voters—the issue is not before the undersigned.
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“virtually no[ ]” prejudice would result to Alabama if one of its statutes were to be
declared unconstitutional shortchanges the principles of comity and balance between
state and federal powers. Injunctions are “drastic remed[ies]” not to be entered
lightly; an injunction declaring a state statute unconstitutional requires even greater
caution by a federal court. See Am. Civil Liberties Union of Fla., Inc., 557 F.3d at
Declaring such, on short notice with little briefing, would be highly
prejudicial to the state, and inflict significant injury if it were in error.7 Thus, when
considered along with potential UOCAVA compliance problems, granting the
requested injunction would potentially cause the State significant injury, clearly
outweighing the harm to Plaintiffs.
Turning to the public-interest inquiry, “the injunction would not [have] be[en]
adverse to the public interest” if constitutionally sound and timely issued. Am. Civil
Liberties Union of Fla., Inc., 557 F.3d at 1198. This late in the election process, the
greatest concern with respect to the public is whether any newly printed ballots could
reach the electorate in time for an orderly November 8 election; adding an 818-vote
candidate to the ballot does not outweigh the risk of confusing or even
disenfranchising thousands of Alabama voters. In the September 27 telephone
hearing, counsel for Defendant represented to the court that ES&S could print and
As will be seen, this idea bears on the public-interest discussion and the likelihood-ofsuccess analysis as well.
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ship the ballots in time for the election if it received notice by the “drop-dead date”
of Friday, September 30. (Tr. at 32.) This representation was not challenged by
Plaintiffs. Additionally, ES&S already had to reprint the ballots because of the
Secretary’s error in omitting a substantial portion of a proposed state constitutional
amendment, so a court-ordered reprint to include Mr. De La Fuente would not create
a heightened risk of failing to distribute the ballots by November 8. Accordingly,
the court finds that injunctive relief would not add additional harm to the public
interest, so long as the injunction issued on or before September 30.
However, Mr. De La Fuente’s delay in filing this action is another matter, one
of great import. While it is true that Alabama, for reasons unrelated to this case, will
have to reprint and distribute over 2.7 million ballots before November 8, that does
not relieve Mr. De La Fuente of all the equitable baggage created by his delay in
filing this challenge. True, Alabama must reprint the ballots, with or without Mr.
De La Fuente being listed. But also true, the Secretary can point to significant injury
if a state statute is wrongly declared unconstitutional, and to the prejudice the State
could suffer as a result of unresolved UOCAVA issues related to the Remedial
Order. And the equities extend further. The court was compelled to rule on a
preliminary injunction as to the constitutionality of a state statute in, essentially, a
week—including briefing and a rushed telephone hearing. Mr. De La Fuente was
defeated in the Democratic primary on March 1, 2016. As early as March 2,
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Plaintiffs knew that the sore loser law would apply on its face to bar Mr. De La
Fuente’s independent candidacy.8 See Reform Party of Ala. v. Bennett, 18 F. Supp.
2d 1342, 1356 (M.D. Ala. 1998) (“[C]andidates for office have a responsibility to
ascertain what the law is and follow it.”). Instead of filing suit then, Plaintiffs waited
until September 12—a 195-day delay that left the court only eighteen days to rule
before the drop-dead date. (See Tr. at 32.) Granting an injunction “is the exception
rather than the rule,” owing to the “extraordinary and drastic” nature of the remedy.
United States v. Lambert, 695 F.2d 536, 539 (11th Cir. 1983). Given the stakes,
which include invalidating a state law under the federal constitution and ordering the
timely reprinting of millions of ballots, Plaintiffs’ requested injunction could only
be granted after careful and deliberative reasoning. Plaintiffs’ delay denied the court
the opportunity to conduct such a searching review, and accordingly harmed the
public interest in well-reasoned and accurate judicial decision-making. Relatedly,
Defendant was unable to marshal law and facts in support of its position—on a
In the September 27 telephone hearing, Plaintiffs’ counsel argued that Mr. De La Fuente
was aware that the law had not been enforced against Lyndon LaRouche in 1992, and accordingly
assumed it would not be applied against him. (Tr. at 25–26; see also Doc. # 22 at 10–12.) This
logic ignores a fundamental canon of statutory interpretation: Desuetude does not rob a statute of
its legal effect. District of Columbia v. John R. Thompson Co., 346 U.S. 100, 113–14 (1953) (“The
failure of the executive branch to enforce a law does not result in its modification or repeal.”); see
also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 339
(2012) (“A statute is not repealed by nonuse or desuetude.”). Similarly, a state trooper who lets a
speeding motorist pass has not just repealed the state traffic laws; he can still pull over the next
driver who breaks the speed limit. Whether Mr. De La Fuente’s delay resulted from a mistaken
view of the law or bad faith, “[h]e who comes into equity must come with clean hands.” See
Keystone Driller Co. v. Gen. Excavator Co., 290 U.S. 240, 241 (1933).
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facially valid statute—on such short notice. And a bond would not cure these
On denial of Plaintiffs’ injunction, Mr. De La Fuente remained off the ballot;
months of his work were wasted, and voters like Ms. Clerch were denied the
opportunity to vote for their favored candidate. But the potential injury to Defendant
outweighed the potential injury to Plaintiffs, in view of the public interest. See
Winter, 555 U.S. at 24. By delaying the filing of suit, Plaintiffs asked the court to
make a slapdash determination that a state law violated the federal Constitution—a
result that, as far as the court can tell, is unparalleled in the federal sore loser law
jurisprudence. An error in judgment brought about by the hurried decision-making
process would deny the public its interest in enforcement of its election laws, and in
having federal courts properly apply the Constitution. This is one of the rare “public
interest[s] for whose impairment, even temporarily, an injunction bond cannot
compensate,” and accordingly the court is justified in “withhold[ing] relief until a
final determination of the rights of the parties, though the postponement may be
burdensome to the plaintiff.” Weinberger, 456 U.S. at 312–13 (quoting Yakus v.
United States, 321 U.S. 414, 440 (1944)). The court therefore finds that Plaintiffs
have not “clearly establishe[d] the burden of persuasion” on the fourth element of
the injunction standard, and accordingly the motion for preliminary injunction was
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Likelihood of Success on the Merits
Even were the balance of hardships to weigh in favor of injunctive relief, an
“injunction should never issue if there is no chance that the movant will eventually
prevail on the merits.” Texas v. Seatrain Int’l, S.A., 518 F.2d 175, 180 (5th Cir.
1975).9 Plaintiffs have alleged claims arising under the Qualifications Clause, the
First Amendment (as incorporated by the Fourteenth Amendment, see Near v.
Minnesota ex rel. Olson, 283 U.S. 697, 707 (1931)), and the Equal Protection Clause
of the Fourteenth Amendment. (Doc. # 7 at 12–13.) The court will address
Plaintiffs’ likelihood of success on each claim, but will start with Plaintiffs’ two
easily dismissed ancillary claims.
First, the court addresses the so-called “due process/reliance/waiver/estoppel
argument.” (Doc. # 22 at 7 n.3.) Plaintiffs have argued for a species of estoppel
based on Lyndon LaRouche’s inclusion on Alabama’s 1992 general-election ballots
despite his defeat in the Democratic presidential primary of that year. (Doc. # 22 at
10–12.) In support of this argument, Plaintiffs cite cases for the proposition that it
is unconstitutional to “change the rules of the game and apply them retroactively.”
(Doc. # 22 at 12.) But in this argument Plaintiffs injure their own feet. At all relevant
times, Alabama’s sore loser statute has remained on the books and in effect; to deem
Decisions handed down by the former Fifth Circuit prior to October 1, 1981 are binding
precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981).
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it inapplicable would be the sort of unconstitutional rule-changing that Plaintiffs
decry. Plaintiffs point to Mr. LaRouche’s candidacy and complain that “there has
been no announcement of or explanation for a different policy for 2016 or for M.r
[sic] De La Fuente.” (Doc. # 22 at 7 n.3.) This logic is upside-down. Mr.
LaRouche’s unexplained general-election candidacy did not invalidate the sore loser
law or establish a policy of non-enforcement that had to be rolled back by
announcement. John R. Thompson Co., 346 U.S. at 113–14; Dep’t of Public Safety
v. Freeman Ready-Mix Co., 295 So. 2d 242, 247 (Ala. 1974) (“[P]opular disregard
of a statute, or a custom opposed to it, will not repeal it.”) (citation omitted). If
Plaintiffs seek an announcement of Alabama’s 2016 policy on sore loser
candidacies, it can be found in § 17-9-3.
Second, Plaintiffs contend that “Defendant’s application of the [sore loser]
statute is erroneous . . . because the true candidates in presidential primaries are
candidates for Delegate to a national presidential convention, whereas the true
candidates on the general election ballot in November are candidates for Presidential
Elector.” (Doc. # 7 at 10; see also Doc. # 22 at 10; Doc. # 22-2 at ¶ 7.) This overly
formalistic approach has been rejected by multiple courts. “Notwithstanding the
involvement of the electoral college in the process, the individual whose name
appears on the ballot . . . is the only ‘candidate.’” Libertarian Party of Mich. v.
Johnson, 905 F. Supp. 2d 751, 761 (E.D. Mich. 2012); see also Ala. Code § 17-1420
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31(c) (requiring electors to certify that they will only cast their ballots for the
candidates with whom they are associated). The Supreme Court’s treatment of a
similar argument provides further support for this position. Storer v. Brown, 415
U.S. 724, 738 n.9 (1974) (rejecting argument that only presidential electors, not
presidential candidates, had standing to challenge election law).10 Accordingly,
Plaintiffs have failed to demonstrate a substantial likelihood of success on the
estoppel and candidate-versus-electors arguments.
The Qualifications Clause lays down the sole qualifying criteria for the office
of President of the United States. U.S. Const., art. II, § 1, cl. 5. Set out in full, the
No Person except a natural born Citizen, or a Citizen of the United
States, at the time of the Adoption of this Constitution, shall be eligible
to the Office of President; neither shall any Person be eligible to that
Office who shall not have attained to the Age of thirty five Years, and
been fourteen Years a Resident within the United States.
Id. As explained by the Supreme Court, “the Qualifications Clauses were intended
to . . . fix as exclusive the qualifications in the Constitution.” U.S. Term Limits, Inc.
And even if Plaintiffs were correct in their reading of the statute, the court lacks the
power to command state officials to obey a federal interpretation of state law. Pennhurst State
Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984) (“[I]t is difficult to think of a greater intrusion
on state sovereignty than when a federal court instructs state officials on how to conform their
conduct to state law.”).
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v. Thornton, 514 U.S. 779, 806 (1995).11 States do not “possess the power to
supplement the exclusive qualifications set forth in the text of the Constitution.” Id.
at 827. But the jurisprudence also draws a thick, if sometimes blurry, line between
permissible ballot-access regulations and unconstitutional qualifications for office.
E.g., Storer, 415 U.S. at 746 n.16 (rejecting as “wholly without merit” the argument
that a California disaffiliation statute, characterized as a ballot-access regulation,
violated the Qualifications Clause as applied to federal congressional elections).
Term Limits did not give qualifications a precise definition. 514 U.S. at 829.
In that case, the Court heard a challenge to an Arkansas constitutional amendment
that imposed term limits on candidates for federal congressional office.
petitioners argued, citing Storer, that the amendment did not create an absolute legal
bar because candidates could still win election through a write-in campaign;
therefore, the amendment did not run afoul of the Qualifications Clauses. Id. at 830–
31. The Court used the petitioners’ definition of qualifications to strike down the
amendment, but expressly reserved judgment on the definition’s validity. Id. at 829
(“We need not decide whether petitioners’ narrow understanding of qualifications is
correct because, even if it is, Amendment 73 may not stand.”).
The Term Limits decision dealt with the congressional Qualifications Clauses, U.S.
Const. art. I, § 2, cl. 2; U.S. Const. art. I, § 3, cl. 3. 514 U.S. at 782–83. But the decision’s rationale
applies with equal force to the presidential Qualifications Clause, which is nearly identical to the
congressional clauses in language and scope. Compare U.S. Const. art. II, § 1, cl. 5 with U.S.
Const. art. I, § 2, cl. 2 and U.S. Const. art. I, § 3, cl. 3.
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Keying on the “absolute bar” analysis and other language in Term Limits
referring to the “handicapping [of] a class of candidates,” the Ninth Circuit fashioned
a two-part test to analyze Qualifications Clause challenges. Schaefer v. Townsend,
215 F.3d 1031, 1035 (9th Cir. 2000), cert. denied sub nom Jones v. Schaefer, 532
U.S. 904 (2001). But the Eleventh Circuit rejected this test, reasoning that the
standard was rooted in the Term Limits petitioners’ proposed definition of
qualifications that the Court declined to adopt. Cartwright v. Barnes, 304 F.3d 1138,
1143 (11th Cir. 2002). Rather, the Cartwright decision looked to Term Limits and
Storer for the principle that the “certain types of ballot access restrictions that are
election procedures” do not impose unconstitutional qualifications for office. Id.
Cartwright guides the court’s Qualifications Clause inquiry. Not only is the
Cartwright procedural-substantive distinction binding precedent, it accurately
captures the election-law jurisprudence in light of the Term Limits decision. See
Term Limits, 514 U.S. at 835 (“The provisions at issue in Storer and our other
Elections Clause cases were thus constitutional because they regulated election
procedures and did not even arguably impose any substantive qualification
rendering a class of potential candidates ineligible for ballot position.”) (emphasis
in original); accord Libertarian Party of Ill. v. Rednour, 108 F.3d 768, 777 (7th Cir.
1997) (“[W]here requirements are procedural in nature and do not add substantive
qualifications, they do not violate the Qualifications Clause.”) (citing Term Limits,
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514 U.S. at 835). Under this rubric, the Alabama sore loser statute does not reach,
let alone cross, the constitutional line.
To start, the sore loser law does not address itself to any substantive
characteristic like residency or prior felony convictions.12 Rather, the law looks only
to the candidate’s participation in the primary elections of that specific election
cycle. Storer offers an instructive comparison. At issue in Storer was a California
statute that excluded from the ballot any independent or party-sponsored candidate
who had been affiliated with a different political party in the twelve months
preceding the primary election. 415 U.S. at 727. The Supreme Court upheld this
so-called disaffiliation law, id. at 737, a result that Term Limits noted with approval.
514 U.S. at 835 (reasoning that the disaffiliation statute “did not even arguably
impose any substantive qualification rendering a class of potential candidates
ineligible for ballot position”). If the disaffiliation statute passes constitutional
muster, so must the sore loser law. The disaffiliation statute was based on mere
party membership, which can reflect actions taken well before the election that are
grounded in personal beliefs rather than preparations to run for office. The sore loser
law is based on the candidate’s performance in primary elections—something that
Cf., e.g., Tex. Democratic Party v. Benkiser, 459 F.3d 582 (5th Cir. 2006) (invalidating
residency requirement under the Qualifications Clause); Schaefer, 215 F.3d 1031 (same);
Application of Ferguson, 294 N.Y.S.2d 174 (Super. Ct. 1968) (invalidating restriction on
candidacy of convicted felons); Danielson v. Fitzsimmons, 44 N.W.2d 484 (Minn. 1950) (same).
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only results from taking an affirmative step down a certain route to the generalelection ballot. Whereas the sore loser law looks to how the candidate has proceeded
in the instant election, the disaffiliation statute looks more broadly to the candidate’s
recent political history. See Storer, 415 U.S. at 735 (explaining that primaries “[are]
not merely an exercise or warm-up for the general election but an integral part of the
entire election process”). Thus, if the disaffiliation statute does not impose a
substantive qualification on candidacy, neither does the sore loser law. Rather, the
sore loser law “no more establishes an additional requirement for the office of
[President] than the requirement that the candidate win the primary to secure a place
on the general ballot or otherwise demonstrate substantial community support.” Id.
at 746 n.16.
This brings the inquiry to another important characteristic of the sore loser
law: its basis in electoral support. The law’s exclusive effect kicks in only after a
candidate tries and fails to win nomination in a primary election. Ala. Code § 17-93(b). In this way, the law is not so different from Alabama’s requirement that
independent candidates submit a certain number of signatures to qualify for office—
an unquestionably constitutional requirement, see Munro v. Socialist Workers Party,
479 U.S. 189, 193 (1986) (“States may condition access to the general election ballot
by a minor-party or independent candidate upon a showing of a modicum of support
among the potential voters for the office.”).
Candidates who wish to run as
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independents must gather signatures; candidates who wish to run as party affiliates
must gather enough votes to win the primary. If either candidate fails this test of
electoral support, he or she cannot access the general-election ballot. The sore loser
law is not a “measure[ ] that exclude[s] candidates from the ballot without reference
to the candidates’ support in the electoral process.” Term Limits, 514 U.S. at 835.
Rather, the law is a “permissible procedural regulation of the manner in which
candidates may obtain ballot placement,” Cartwright, 304 F.3d at 1144, and
accordingly is not an unconstitutional qualification. Plaintiffs therefore failed to
show a substantial likelihood of success on their Qualifications Clause argument.13
First and Fourteenth Amendments
It is beyond cavil that “[t]he impact of candidate eligibility requirements on
voters implicates basic constitutional rights.” Anderson v. Celebrezze, 460 U.S. 780,
786 (1983). Voting rights are “heavily burdened” if voters may only choose between
major-party candidates when other candidates “are clamoring for a place on the
ballot.” See Williams v. Rhodes, 393 U.S. 23, 31 (1968). Similarly, excluding a
candidate from the ballot burdens voters’ associational rights “because an election
campaign is an effective platform for the expression of views on the issues of the
In support of their Qualifications Clause argument, Plaintiffs cite Benesch v. Miller, a
state-court case from Alaska, for the proposition that a sore loser law violates the Qualifications
Clause when applied to a U.S. Senator. 446 P.2d 400 (Alaska 1968); (see Doc. # 22 at 16). The
perfunctory analysis in Benesch does not persuade, and the case was arguably overruled by the
later-decided Storer opinion. See 415 U.S. at 746 n.16. Regardless, Benesch does not compel a
different result here.
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day, and a candidate serves as a rallying-point for like-minded citizens.” Anderson,
460 U.S. at 788. “It does not follow, however, that the right to vote in any manner
and the right to associate for political purposes through the ballot are absolute.”
Burdick v. Takushi, 504 U.S. 428, 433 (1992). “[A]s a practical matter, there must
be a substantial regulation of elections if they are to be fair and honest and if some
sort of order, rather than chaos, is to accompany the democratic process.” Id.
(quoting Storer, 415 U.S. at 730).
“States may, and inevitably must, enact
reasonable regulations of parties, elections, and ballots to reduce election- and
campaign-related disorder.” Timmons v. Twin Cities Area New Party, 520 U.S. 351,
There is no bright-line rule or “litmus-paper test” to determine whether a state
election law violates the associational rights guaranteed by the First and Fourteenth
Amendments. Storer, 415 U.S. at 730. Rather, courts “weigh the ‘character and
magnitude’ of the burden the State’s rule imposes on those rights against the interests
the State contends justify that burden, and consider the extent to which the State’s
concerns make the burden necessary.” Timmons, 520 U.S. at 358 (quoting Burdick,
504 U.S. at 434). If the burden is too severe, strict scrutiny will apply—the
regulation must be narrowly tailored and advance a compelling state interest.
Burdick, 504 U.S. at 434. But a lesser burden will be reviewed under an intermediate
standard of review, under which “a State’s ‘important regulatory interests’ will
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usually be enough to justify ‘reasonable, nondiscriminatory restrictions.’” Timmons,
520 U.S. at 358 (quoting Burdick, 504 U.S. at 434).
Alabama’s sore loser statute does not impose a severe burden that would
trigger strict scrutiny; rather, it is the sort of “evenhanded restriction[ ]” that the
Supreme Court has upheld time and again. See Anderson, 460 U.S. at 788 n.9;
accord Johnson, 905 F. Supp. 2d at 760 (finding Michigan’s substantially similar
sore loser statute did not impose a severe burden on associational rights when
applied to bar presidential candidacy); Nat’l Comm. of U.S. Taxpayers Party v.
Garza, 924 F. Supp. 71, 74 (W.D. Tex. 1996) (finding the same for Texas’s sore
loser statute). It cannot be over-emphasized that Mr. De La Fuente is only barred
from the ballot because of his voluntary participation in the Democratic Primary.
Plaintiffs claim that Mr. De La Fuente’s “goal at all times was to be on Alabama’s
general election ballot for President in .14” He could have achieved this goal
by following the independent-candidate procedures for ballot access, without fear of
being barred from the ballot by a lack of support. The court declines to find a severe
burden here, where the burden stems from the candidate’s own choices in how to
best manage his bid for President. Moreover, Alabama’s sore loser law does not
discriminate against independent candidates—if anything, these candidates face an
Plaintiffs’ brief reads, “His goal at all times was to be on Alabama’s general election
ballot for President in 1992.” (Doc. # 22 at 6.) The court assumes that Plaintiffs mean 2016, and
that 1992 was a typographical error caused by this case’s expedited schedule.
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easier path to the ballot, as the 5,000 required signatures will almost always be lower
than the votes necessary to win a primary election.15 See Ala. Code § 17-14-31(a).
Therefore, the court’s inquiry is limited to whether the State’s “important regulatory
interests” justify this “reasonable, nondiscriminatory restriction[ ].” Timmons, 520
U.S. at 358 (citation omitted).
Defendant has asserted several State interests: “promoting fair and honest
elections”; “maintaining the integrity of various routes to the ballot”; “attracting the
national political parties to participate in the Alabama’s [sic] primary elections”; and
“temper[ing] the destabilizing effects of party splintering.” (Doc. # 14 at 9–10
(citations and internal quotation marks omitted).) Each of these interests has been
recognized as valid in the election-law jurisprudence. See, e.g., Timmons, 520 U.S.
at 358; Burdick, 504 U.S. at 433; Storer, 415 U.S. at 730. But Plaintiffs challenge
the sufficiency of this assertion, citing Eleventh Circuit cases requiring a
particularized showing of State interests in the presidential-election context so that
the court can analyze their weight and legitimacy. (Doc. # 22 at 11, 28–29); see
Green Party of Ga., 551 F. App’x 982 (11th Cir. 2014) (unpublished); Fulani v.
By contrast, in Alabama’s 2016 primary election Donald Trump received 373,721 votes
and Hillary Clinton received 311,141 votes. Alabama Republican Party, Certification of Results,
http://www.alabamavotes.gov/downloads/election/2016/primary/primaryResultsCertifiedRepublican-2016-03-11.pdf (last visited Sept. 30, 2016) (“Republican Primary Results”);
Democratic Primary Results, supra. Five other candidates received significantly more than 5,000
votes: Ted Cruz, with 181,479 votes; Marco Rubio, with 160,606; Ben Carson, with 88,094; Bernie
Sanders, with 76,878; and John Kasich, with 38,119. Republican Primary Results, supra;
Democratic Primary Results, supra.
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Krivanek, 973 F.2d 1539 (11th Cir. 1992); Bergland v. Harris, 767 F.2d 1551 (11th
Cir. 1985). However, the Supreme Court has also stated that it “ha[s] never required
a State to make a particularized showing” of common State interests like “voter
confusion, ballot overcrowding, or the presence of frivolous candidacies prior to the
imposition of reasonable restrictions on ballot access.” Munro, 479 U.S. at 194–95;
see also Swanson v. Worley, 490 F.3d 894, 912 (11th Cir. 2007). Moreover, to the
extent Plaintiffs complain of Defendant’s lack of evidentiary support for the sore
loser law, Plaintiffs are charged with the creation of time-sensitive deadlines
resulting in less than a full development of the facts and final consideration of their
claims.16 In sum, Defendant has asserted important State interests, which have been
honored repeatedly by the federal judiciary, and which justify the sore loser law’s
reasonable regulation of ballot access.
Finally, Plaintiffs argue that “history shows no problem caused by allowing
presidential candidates who have run and lost in a party primary election to get on
the general election ballot for President,” and that the State therefore lacks an interest
in enforcing the sore loser law. (Doc. # 22 at 26.) This position puts blinders on the
A contrary result would incentivize the late filing of challenges to ballot-access laws. If
the court were to find that Defendant’s hurried evidentiary production failed to show a State
interest justifying the sore loser law, it would write a blueprint to success for weak or baseless
challenges to ballot-access regulations. A plaintiff could file suit on the eve of the general election,
angling for a favorable judgment on the basis of the State’s rushed submissions in support of its
regulatory interests rather than the validity of the law itself. Such a result would stretch thin the
court’s already scarce resources, and will not be condoned.
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State legislature, forcing it to think retrospectively and not prospectively. Rather,
the State “should be permitted to respond to potential deficiencies in the electoral
process with foresight rather than reactively, provided that the response is reasonable
and does not significantly impinge on constitutionally protected rights.” Burson v.
Freeman, 504 U.S. 191, 209 (1992) (quoting Munro, 479 U.S. at 195–96).
Arguably, allowing Mr. De La Fuente on the general-election ballot would not cause
significant problems (if one ignores the invalidation of an election statute), largely
due to his minor political stature. See Democratic Primary Results, supra (tallying
the 818 votes cast for Mr. De La Fuente). But if Ted Cruz, Marco Rubio, or Bernie
Sanders asked the court to do the same thing, Alabama would undergo the chaotic
political “splinter[ing],” “feud[ing],” and “factionalism” that sore loser laws seek to
avoid. See Storer, 415 U.S. at 736.17
Justice White explained in Storer the importance of sore loser laws in the greater context
of the American political arena:
The direct party primary . . . is not merely an exercise or warm-up for the general
election but an integral part of the entire election process, the initial stage in a twostage process by which the people choose their public officers. I[t] functions to
winnow out and finally reflect all but the chosen candidates. The State’s general
policy is to have contending forces within the party employ the primary campaign
and primary election to finally settle their differences. The general election ballot
is reserved for major struggles; it is not a forum for continuing intraparty feuds.
The provision against defeated primary candidates running as independents
effectuates this aim, the visible result being to prevent the losers from continuing
the struggle and to limit the names on the ballot to those who have won the
primaries and those independents who have properly qualified. The people, it is
hoped, are presented with understandable choices and the winner in the general
election with sufficient support to govern effectively.
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Notwithstanding Plaintiffs’ arguments to the contrary, the State’s regulatory
interests justify the reasonable burdens imposed by the sore loser law. Accordingly,
Plaintiffs cannot show a substantial likelihood of success on the merits of the First
and Fourteenth Amendment claims.
Equal Protection Clause
Plaintiffs’ equal-protection claim suffers the same fate as their associationalrights claim, because both are reviewed under the same standard. In Anderson, the
415 U.S. at 735 (emphasis added).
Moreover, sore loser statutes protect
[t]he direct primary process by refusing to recognize independent candidates who
do not make early plans to leave a party and take the alternative course to the ballot.
It works against independent candidacies prompted by short-range political goals,
pique, or personal quarrel. It is also a substantial barrier to a party fielding an
‘independent’ candidate to capture and bleed off votes in the general election that
might well go to another party.
. . . California apparently believes with the Founding Fathers that splintered
parties and unrestrained factionalism may do significant damage to the fabric of
government. See The Federalist, No. 10 (Madison). It appears obvious to us that
the one-year disaffiliation provision furthers the State’s interest in the stability of
its political system. We also consider that interest as not only permissible, but
compelling and as outweighing the interest the candidate and his supporters may
have in making a late rather than an early decision to seek independent ballot status.
Nor do we have reason for concluding that the device . . . was not an essential part
of its overall mechanism to achieve its acceptable goals. As we indicated in Rosario
[v. Rockefeller, 410 U.S. 752 (1973)], the Constitution does not require the State to
choose ineffectual means to achieve its aims. To conclude otherwise might
sacrifice the political stability of the system of the State, with profound
consequences for the entire citizenry, merely in the interest of particular candidates
and their supporters having instantaneous access to the ballot.
Id. at 735–36.
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touchstone associational-rights opinion, the Supreme Court cribbed its analysis from
prior equal-protection analyses of voting-rights issues. See 460 U.S. at 786 n.7 (“We
rely . . . on the analysis in a number of our prior election cases resting on the Equal
Protection Clause of the Fourteenth Amendment.”). The Anderson standard proved
so useful in the associational-rights context that the Court ultimately closed the loop
and began using Anderson to analyze whether state election laws violated the Equal
Protection Clause of the Fourteenth Amendment. E.g., Crawford v. Marion Cty.
Election Bd., 553 U.S. 181, 189–91 (2008); Fulani, 973 F.2d at 1543 (“In [the
Eleventh] Circuit . . . equal protection challenges to state ballot-access laws are
considered under the Anderson test.”); see also Reform Party of Allegheny Cty. v.
Allegheny Cty. Dep’t of Elections, 174 F.3d 305, 314 (3d Cir. 1999) (concluding that
“burdens [on voting rights] require the same level of scrutiny in an equal protection
analysis that they do in an associational rights analysis”). As a result, an analysis
under the Equal Protection Clause follows the same lines as an analysis under the
First and Fourteenth Amendments. Therefore, because Plaintiffs have failed to show
a substantial likelihood of success on their First and Fourteenth Amendment claims,
they similarly cannot meet this burden with respect to their Equal Protection claim.
Plaintiffs failed to “clearly establish[ ] the burden of persuasion” as to the
elements of the preliminary injunction standard. Am. Civil Liberties Union of Fla.,
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Inc., 557 F.3d at 1198. Accordingly, on September 30, 2016, Plaintiffs’ motion for
preliminary injunction (Doc. # 7) was denied (Doc. # 23).
DONE this 7th day of October, 2016.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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