Vulliet v. State of Oregon et al

Filing 57

ORDER: Denying plaintiff's Motion for Partial Summary Judgment 44 ; Finding as Moot Motion for Partial Summary Judgment 45 ); Granting defendant's Cross Motion for Summary Judgment 50 ; Denying plaintiff's Motion to Strike 55 . Signed on 3/6/2013 by Chief Judge Ann L. Aiken. (lg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

C.F. (Frank) Vulliet, a/k/a
Charles F. Vulliet,
Plaintiff,
v.

STATE OF OREGON, et al.
Defendants.
C. F. (Frank) Vulliet,
P.O. Box 4667, 23 Rogue Lane
Sunriver, OR 97707-1667
Plaintiff appearing Pro Se
Ellen F. Rosenblum
Attorney General
Sarah Weston
Matthew J. Merritt
Assistant Attorneys General
Oregon Department of Justice
1515 SW Fifth Ave., Suite 410
Portland, OR 97201
Attorneys for defendants

1 - OPINION AND ORDER

Civ. No. 6:12-cv-00492-AA
OPINION AND ORDER

AIKEN, Chief Judge:
Remaining in this action are plaintiff Charles F. Vulliet's
claims alleged against defendant Steven N. Trout in his official
capacity

as

the

Director

of

Secretary of State's Office.
enforcement of the
under Or.

Rev.

Clause

of

2

the

First

in

the

Oregon

Plaintiff alleges that defendant's

§ 249.046 violates Article 1,

U.S.

Constitution,

"Qualifications Clause."
violates

Division

18 0-day major party affiliation requirement

Stat.
the

Elections

and

commonly

Section 2,

known

as

the

Plaintiff also alleges that § 249.046
Fourteenth Amendments

by

impermissibly

infringing on his right to freely associate with the Democratic
Party of Oregon (DPO). Plaintiff moves for partial summary judgment
invalidating

§

249.046

on

both

grounds

and

seeks

an

order

immediately enjoining further enforcement of§ 249.046 and awarding
costs,

attorney's fees,

and other relief as may be appropriate.

Defendant opposes plaintiff's motion and likewise moves for summary
judgment on both the Qualifications Clause and First Amendment
claims.
BACKGROUND
Plaintiff is a resident of Deschutes County, Oregon, within
the Second Congressional District.

On January 19, 2012,

plaintiff registered as an Oregon voter and subsequently received
a voter registration card.
affiliation at that time.

2 - OPINION AND ORDER

Plaintiff did not specify a party

On February 22, 2012, plaintiff changed his party
affiliation to "Democratic Party" through the Oregon Secretary of
State's internet website.

Plaintiff also sent a hard copy of his

amended voter registration to the Deschutes County Clerk via
mail.
Plaintiff decided to run for a seat in the United States
House of Representatives from Oregon's Second Congressional
District as a candidate of the Democratic Party.

After making

his decision, plaintiff contacted members of the Oregon Elections
Division regarding his eligibility to run as an affiliated or
unaffiliated candidate.

Plaintiff alleges that he was told the

following information:
1.

A candidate need not be an Oregon resident until the day of
the election;

2.

An unaffiliated candidate is immediately eligible to run for
Congress after registering as an Oregon voter; and

3.

A candidate is not eligible to run in a major party primary
election unless he or she becomes affiliated with that party
at least 180 days prior to the primary filing deadline, as
required by§ 249.046.

See Compl.

~

3.7.

The filing deadline for the Democratic primary was March 6,
2012.

Plaintiff did not become affiliated with the Democratic

Party until February 22, 2012; thus, under § 249.046, he was
ineligible to run as a Democratic candidate.

3 - OPINION AND ORDER

See Or. Rev. Stat.

§

249.046 ("If a candidate has not been a member of the major

political party for at least 180 days before the deadline for
filing a nominating petition or declaration of candidacy, the
candidate shall not be entitled to receive the nomination of that
major political party.").
On February 29, 2012, plaintiff emailed the Oregon Secretary
of State, the Oregon Attorney General, officers of the DPO, and
two Congressional candidates, giving notice of his intent to run
as a Democratic candidate in the primary election.

Plaintiff

attached to his email a draft Declaration of Candidacy and a
memorandum analyzing his eligibility to run.

Plaintiff received

no response or acknowledgment of receipt from any party.
On March 1, 2012, plaintiff completed and signed a
Declaration of Candidacy for the Democratic nomination as
Oregon's Congressional Representative for the Second District.
Plaintiff made amendments to the candidacy form,

stating "I am a

member of said political party" and striking all references to
the statutory 180-day party affiliation requirement.

Plaintiff

delivered his candidacy declaration, along with the $100 fee, to
the Secretary of State's office.
On March 2, 2012, plaintiff contacted the Elections Division
and was informed that his Declaration of Candidacy had been
refusedi

Plaintiff eventually spoke to defendant Trout who

advised plaintiff that the filing was refused for two reasons: 1)

4 - OPINION AND ORDER

plaintiff had not complied with

§

249.046 by failing to register

as a Democrat by September 8, 2011, 180 days prior to the filing
deadline; and 2) plaintiff had made unauthorized changes to the
filing form.

Trout also informed plaintiff that the Elections

Division would not change its position absent a court order
requiring such action.

On March 5, 2012, plaintiff received a

letter from the Elections Division refusing his candidacy.
On March 19, 2012, plaintiff filed this lawsuit, naming the
State of Oregon, Kate Brown in her official capacity as Oregon's
Secretary of State, and Steven N. Trout in his official capacity
as Director of the Elections Division as defendants. October 10,
2012, this Court issued an order dismissing plaintiff's claims
against the State of Oregon and Secretary of State Brown pursuant
to Fed. R. Civ. P. 12 (b) (6).
On October 28, 2012, plaintiff moved for partial summary
judgment against defendant Steven N. Trout.

Defendant opposed

plaintiff's motion, and on November 21, 2012 moved for summary
judgment.
SUMMARY JUDGMENT STANDARDS
Summary judgment is appropriate if "the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a).

A movant's assertion that there is no genuine issue of

material fact must be supported by "citing to particular parts of

5 - OPINION AND ORDER

materials in the record, including depositions, documents,
electronically stored information, affidavits or declarations,
stipulations ... admissions, interrogatory answers, or other
rna t e ria 1 s . " Fed . R . Ci v . P . 56 (c) ( 1 ) (A) .
The materiality of a fact is determined by the substantive
law on the issue.

T.W. Elec. Serv., Inc. v. Pac. Elec.

Contractors Ass'n., 809 F.2d 626, 630 (9th Cir. 1987).

The

authenticity of a dispute is determined by whether the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.
248

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

(1986).
The moving party bears the burden of establishing the

absence of a genuine issue of material fact.
Catrett, 477 U.S. 317, 323 (1986).

Celotex Corp. V.

If the moving party shows the

absence of a genuine issue of material fact, the nonmoving party
must go beyond the pleadings and identify facts which show a
genuine issue for trial.

Id. at 324.

Here, the parties do not dispute the salient facts as
alleged in plaintiff's complaint.

Rather, the issue is whether§

249.046 and its enforcement by defendant Trout violated the
Qualifications Clause and plaintiff's First Amendment rights as a
matter of law.
DISCUSSION
A. Qualifications Clause

6 - OPINION AND ORDER

Plaintiff asserts that § 249.064 violates the Qualifications
Clause by imposing a 180-day affiliation requirement before a
candidate may seek election as a major party candidate. According
to plaintiff, this requirement adds three qualifications to hold
office as a U.S. Representative in addition to what the
Qualifications Clause already requires: Oregon residency, Oregon
voter registration, and political party registration.
Accordingly, plaintiff insists that§ 249.046 violates the
Qualifications Clause and should be invalidated.
Defendant responds that § 249.046 imposes no additional
qualifications to holding office as a U.S. Representative and is
valid under the Elections Clause of the U.S. Constitution. See
U.S. Const. art. 1, §4, cl.1. Defendant argues that § 249.046
merely forecloses one route to the primary ballot without
presenting a categorical bar to holding congressional office;
thus, it does not implicate the Qualifications Clause.
The Qualifications Clause provides: "No person shall be a
Representative who shall not have attained the Age of twenty five
years, and been seven Years a Citizen of the United States, and
who shall not, when elected, be an Inhabitant of that State in
which he shall be chosen."

U.S. Const. art. 1, §2, cl.2.

These

three requirements are an exhaustive list; any additional
qualifications imposed by state or federal law are
unconstitutional.

U.S. Term Limits v. Thornton, 514 U.S. 779,

7 - OPINION AND ORDER

827

(1995); Powell v. McCormack, 395 U.S. 486, 550 (1969).
However, the Elections Clause gives states substantial power

to regulate the "time, place, and manner" in which elections for
federal office are conducted.

U.S. Const. art I, §4, cl.1. "The

Elections Clause gives States authority "'to enact the numerous
requirements as to procedure and safeguards which experience
shows are necessary in order to enforce the fundamental right
involved.'" Thornton, 514 U.S. at 834
285 U.S. 355, 366 (1932)).

(quoting Smiley v. Holm,

Defendant claims § 249.046 does this

by streamlining the electoral process in Oregon and preventing
confusion, delay, and fraud.
No bright line rule separates permissible laws under the
Elections Clause from unconstitutional laws and regulations under
the Qualifications Clause. Rather, valid procedural regulations
protect "the integrity and regularity of the electoral process,"
whereas an unconstitutional qualification establishes a
categorical bar to an entire class of candidates seeking office.
Thornton, 514 U.S. at 835.

"The Framers intended the Elections

Clause to grant States authority to create procedural
regulations, not to provide the state with license to exclude
classes of candidates from federal office."

Id. at 832-33. Thus,

an absolute bar to holding office "'cloaked in ballot access
clothing'" constitutes an unconstitutional additional
qualification.

Id. at 830 (quoting Gomillion v. Lightfoot, 364

8 - OPINION AND ORDER

u.s.

339, 345 (1960)).

In other words, a state election law "is

unconstitutional when it has the likely effect of handicapping a
class of candidates and has the sole purpose of creating
additional qualifications."

Id. at 836 (emphasis added).

It is undisputed that plaintiff satisfies the Qualifications
Clause's three requirements: he is older than twenty five,

is a

natural born citizen of the United States, and was an inhabitant
of Oregon at the time he attempted to register as a Democratic
candidate.

It is also undisputed that § 249.046 prevented

plaintiff from running as a DPO candidate on the primary ballot,
because he did not meet the 180-day affiliation requirement and
was ineligible to be listed as a Democrat.
Significantly, plaintiff was not precluded from seeking
election to Congress by§ 249.046; he was precluded from seeking
election as a Democratic candidate.

Election laws which bar non-

compliant individuals from holding office, without more, are
valid regulations under the Elections Clause.

"It seems to us

that limiting the choice of candidates to those who have complied
with state election law requirements is the prototypical example
of a regulation that, while it affects the right to vote, is
eminently reasonable."
792, n.12

(1983).

Anderson v. Celebrezze, 460 U.S. 780,

Further, "[a]lthough a disaffiliation

provision may preclude voters from supporting a particular
ineligible candidate, they remain free to support and promote

9 - OPINION AND ORDER

other candidates who satisfy the state's disaffiliation
requirements." Timmons v. Twin Cities Area New Party, 520 U.S.
351, 359 (1997)

(quoting Anderson, 460 U.S. at 793, n.15)

Moreover, § 249.046 does not handicap any class of
candidates or create a categorical bar to ballot eligibility; it
simply requires compliance with a time limit before running as a
major party candidate.

Otherwise qualified candidates are not

barred from seeking a minor party's nomination.

See Or. Rev.

Stat. § 249.075. Non-eligible individuals can also seek a major
party's nomination through a write-in campaign during the primary
or general election phase.

See Or. Rev. Stat. § 249.046 ("the

requirement that the candidate be qualified by length of
membership does not apply ... to a write-in candidate.").
When viable alternative methods of obtaining access to the
ballot exist, an election regulation enjoys a strong presumption
of constitutionality.

Storer v. Brown, 415 U.S. 724, 746, n.16

(1974). Because§ 249.046 forecloses only one of many potential
routes to the ballot in Oregon, the statute does not create a de
facto "qualification."

No "class" is affected by the law and

anyone barred from being seeking election as a major party
candidate can seek election in a number of different ways.
Accordingly, I find no violation of the Qualifications Clause.
Plaintiff's motion for partial summary judgment is denied, and
defendant's cross-motion for summary judgment on this issue is

10 - OPINION AND ORDER

granted.
B. Freedom of Association
Plaintiff next argues that enforcement of§ 249.046 violated
the First and Fourteenth Amendments by abridging his fundamental
rights of political association, political speech, and fair,
equal participation in the electoral process. 1

According to

plaintiff, § 249.046 must pass strict scrutiny because it
impinges on his First Amendment rights.
statute fails to do so.

Plaintiff claims the

Consequently, he seeks summary judgment

invalidating the law as applied to all state and federal
elections.
Defendant asserts the State of Oregon has a constitutionally
protected interest in promulgating statutes like § 249.046 as a
means of safeguarding the electoral process.

Defendant claims §

249.046 achieves this objective by promoting efficiency and
predictability in the electoral process while reducing the
likelihood of voter confusion and occurrences of interparty
raiding. Defendant maintains that § 249.046 should be analyzed
under a more flexible test than strict scrutiny because § 249.046

1

Plaintiff additionally claims that § 249.046 violates the
DPO's associational rights under the First Amendment.
The Court
declines to consider this argument; third-party standing in a
First Amendment claim requires a demonstration that a litigant
and the third party whose rights they seek to adjudicate have
completely consistent First Amendment interests.
Sec'y of State
of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 958 (1984).
Plaintiff fails to demonstrate this and does not have standing to
assert the DPO's rights in this litigation.
11 - OPINION AND ORDER

is a minimally intrusive election regulation designed to
safeguard the integrity of elections conducted within the State
of Oregon. Thus, it is a reasonable regulation of the electoral
process which does not unconstitutionally infringe plaintiff's
First Amendment rights.
The First Amendment indisputably protects the right of free
political association. Colo. Republican Fed. Campaign Comm'n v.
Fed. Election Comm'n, 518 U.S. 604, 616 (1996).

The Fourteenth

Amendment extends the First Amendment's protections to the
actions of state governments. NAACP v. Alabama, 357 U.S. 449,

460

(1958); Gitlow v. New York, 268 U.S. 652, 666 (1925).
State action infringing upon a fundamental right usually
warrants the application of strict scrutiny. To satisfy this tier
of review, the state must demonstrate that a challenged law
advances a compelling state interest and is narrowly tailored to
be the least restrictive possible means of implementation. City
of Cleburne v. Cleburne Living Ctr, 473 U.S. 432,

440

(1985).

While political association is a fundamental right protected by
the First Amendment, "to subject every state voting regulation to
strict scrutiny and require that the regulation be narrowly
tailored to advance a compelling state interest ... would tie the
hands of States seeking to assure that elections are operated
equitably and efficiently."
434

(1992).

12 - OPINION AND ORDER

Burdick v. Takushi, 504 U.S. 428,

Courts reviewing election laws must balance the "character
and magnitude" of the burden imposed on an aggrieved party's
First Amendment associational rights against the interests the
state claims as justification. Timmons, 520 U.S. at 358

(citing

Burdick, 504 U.S. at 434). Further, courts must consider "the
extent to which the State's concerns make the burden necessary."
Id.

A regulation imposing "severe burdens on plaintiff's rights"

must pass strict scrutiny while a lesser burdening of rights will
be analyzed under a much more permissive standard.

Id.

Defendant contends that plaintiff's First Amendment rights
were minimally burdened by § 249.046; defendant highlights the
fact that plaintiff could have obtained the DPO nomination
through a write-in campaign, regardless of§ 249.046's
requirement that barred him from running as a major party
candidate.

Defendant also notes that§ 249.046's affiliation

period for major party candidacies is inherently time-limited;
any non-eligible individual in one election cycle can always meet
the statutory requirement for the next election.
I agree that § 249.046 does not impose a "severe" burden.
Indeed, a state can create barriers to ballot access in a primary
election which do no more than limit the available field of
candidates from which voters may choose without triggering strict
scrutiny.

Bullock v. Carter, 405 U.S. 143, 143 (1972)

Accordingly,

I do not find strict scrutiny warranted.

13 - OPINION AND ORDER

When an electoral regulation is analyzed under the more
flexible standard, a State's important regulatory interests will
usually be enough to justify the burden imposed, assuming they
are "reasonable, non-discriminatory restrictions." Burdick, 504
U.S. at 434

(quoting Anderson, 460 U.S. at 788).

Further, these

regulatory interests must only be "sufficiently weighty to ustify
the limitation" imposed. Id.

"Legislatures ... should be permitted

to respond to potential deficiencies in the electoral
process ... provided that the response is reasonable and does not
significantly impinge on constitutionally protected rights."
Munro, 479 U.S. at 195-96.

State election laws "aimed at

maintaining the integrity of the various routes to the ballot"
are likely permissible.

Storer, 415 U.S. 733.

Defendant asserts that§ 249.046 is a reasonable, minimally
burdensome regulation which safeguards the electoral process by
averting confusion and fraud and ensuring that candidates running
as a member of a major party are legitimate members of that
party. Defendant first maintains that § 249.046 reduces campaign
disorder by preventing nonmembers from entering a primary and
disrupting the legitimacy of the process.

Trout Dec.

~

5.

Reducing and preventing campaign-related disorder is one
legitimate regulatory interest that states enjoy when putting
forth electoral regulations; furthering this interest necessarily
involves substantial regulation of parties and ballots.

14 - OPINION AND ORDER

Timmons,

520 U.S. at 358.
Further, defendant contends that

§

249.046 ensures

opportunistic unaffiliated candidates cannot throw their hat in
the ring just before a primary and win election on the coattails
of a major party.

Trout Dec.

~

6. The Supreme Court has long

recognized the prevention of fraudulent candidacies as a
compelling state interest.
also maintains

§

Munro, 479 U.S. at 194-95. Defendant

249.046 achieves efficiency and reduced

confusion by requiring a reasonable affiliation period of 180
days for major party primary candidates.

Trout Dec.

~

4.

Reducing the number of candidates on the ballot has been
recognized as an important state interest; overcrowded ballots
frustrate attempts to efficiently administer elections and can
lead to mass voter confusion and frustration.

Bullock, 405 U.S

at 145 (citing Jenness v. Fortson, 403 U.S. 431, 442 (1971)).
Thus, I find that

§

249.046 serves important regulatory

interests.
I find the Supreme Court's decision in Storer v. Brown
particularly instructive.

There, a prospective independent

candidate raised a First Amendment challenge to a California
statute declaring those registered as members of a qualified
political party within the prior 365 days ineligible to run as
independent candidates. Storer, 415 U.S. at 726. The Court found
the statute constitutional, reasoning that it protected the

15 - OPINION AND ORDER

legitimacy of the election process:
[By] refusing to recognize the ... candidates who do not
make early plans to leave a party ... 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.
Storer, 415 U.S. at 735.
Though§ 249.046 implements an affiliation requirement as
opposed to the statute at issue in Storer, the principle remains
the same: Oregon has a compelling interest in preventing
electoral fraud, confusion, and disruption. Notably, the 180-day
affiliation period required by§ 249.046 is significantly shorter
than California's year-long disaffiliation period in Storer.
Enforcement of § 249.046 in no way barred plaintiff from
associating with the DPO as a member or voter, nor does it
prevent him from seeking its nomination in any election once he
complies with the 180-day requirement.

Further, he could have

pursued the Democratic nomination via a write-in campaign.

See

Or. Rev. Stat. § 249.046 ("the requirement that the candidate be
qualified by length of time does not apply ... to a write-in
candidate.").
Plaintiff's reliance on Tashjian v. Connecticut, 479 U.S.
208

(1986) and Cal. Democratic Party v. Jones, 530 U.S. 567

(2000) is misplaced.

In Tashjian, the Supreme Court struck down

Connecticut's closed primary statute that required political

16 - OPINION AND ORDER

party primary voters to be registered members of that political
party after the Republican Party sought to allow independent
voters to vote in the Republican primary. 479 U.S. at 210-11.
The Court remarked that if the State of Connecticut "provide[d]
that only Party members might be selected as the Party's chosen
nominees for public office, such a prohibition of potential
association with nonmembers would clearly infringe upon the
rights of the Party's members under the First Amendment to
organize with like-minded citizens in support of common political
goals."

Id. at 215-216. According to plaintiff, this language

established that "a state cannot control who a party nominates,"
and that

§

249.046 is unconstitutional because it "infringes both

personal and party rights of political association."

Pl.'s Mot.

Sum. J. at 13.
However, as the quoted language demonstrates, Tashjian dealt
with the associational rights of party members, not prospective
party candidates. This is not in dispute here; rather, the issue
in this matter is whether the slight infringement on plaintiff's
ability to run as a DPO candidate is justified under the
circumstances by sufficiently weighty state interests.

As in

Storer, the answer here is yes. And as previously noted,
plaintiff does not have standing to assert the rights of the DPO
or its members.
In Jones, the Court invalidated California's "blanket

17 -OPINION AND ORDER

primaryn system as violating individual and party rights to
freely associate and exclude. 2 Plaintiff asserts that Jones
"reaffirm[s] that the party and the individual, not the state,
determines party association (or not) both as to who may vote in
its primary, and who may be a party candidate.n
Jones stands for no such thing.

Pl. Mem. 12-13.

Rather, the Court explicitly

held that "in order to prevent 'party raiding' - a process in
which dedicated members of a party formally switch to another
party to alter the outcome of that party's primary- a state may
require party registration a reasonable period of time before a
party election.n

Jones, 530 U.S. at 572.

Thus, Jones, Storer,

and Tashjian explicitly contradict plaintiff's position: states
are permitted to promulgate election laws affecting the
associational rights of both prospective party voters and
candidates.
In sum, the Elections Clause permits the enforcement of
249.046's 180-day affiliation requirement.

§

The statute minimally

burdens plaintiff's First Amendment rights, and the State has
asserted numerous legitimate interests in guarding the electoral

2

A blanket primary is a primary election where a registered
voter can vote for any listed candidate, regardless of the
voter's party affiliation.
The voter may vote for each office
listed and can vote for candidates of any party for any position.
See Jones, 530 U.S. at 570.
Blanket primaries are distinguished
from "openn primary systems, which allow any voter to vote for
the candidates of any party with the caveat that the voter may
vote only for that party's candidates for each position.
See id.
at 603, n.6.
18 - OPINION AND ORDER

process which outweigh the minimal burden placed on plaintiff.
CONCLUSION
For the foregoing reasons, plaintiff's Motion for Partial
Summary Judgment (doc. 44)
for Summary Judgment

is DENIED and defendant's Cross-Motion

(doc. 50) is GRANTED. Plaintiff's Motion to

Strike (doc.55) is DENIED.

The Clerk is directed to enter

Judgment accordingly.
IT IS SO

ORDERE~

Dated this

~

day of March, 2013.

Ann Aiken
United States District Judge

19 - OPINION AND ORDER