Libertarian Party of Alabama v. John Harold Merrill ( 2021 )

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[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13356
____________________
LIBERTARIAN PARTY OF ALABAMA,
Plaintiff-Appellant,
versus
JOHN HAROLD MERRILL,
Secretary of State for the State of Alabama,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:19-cv-00069-ECM-JTA
____________________
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2 Opinion of the Court 20-13356
Before JILL PRYOR, LUCK, and BRASHER, Circuit Judges.
LUCK, Circuit Judge:
Alabama maintains a list containing the name and registra-
tion information of every registered voter in the state. Each polit-
ical party with ballot access gets a copy of the voter list for free.
But political parties without ballot access have to pay for it. The
issue before us is whether this distinction—between political par-
ties with ballot access and those without it—unconstitutionally
burdens the Libertarian Party of Alabama’s First and Fourteenth
Amendment rights.
We hold that it does not. The Libertarian Party has not met
its burden to demonstrate that the distinction drawn by Alabama’s
voter list law is discriminatory or severely burdens the Party’s con-
stitutional rights. Rather, it’s rationally related to and furthers im-
portant state interests in supporting political parties with a modi-
cum of popular support and alleviating administrative burdens.
Thus, after careful review and with the benefit of oral argument,
we affirm the district court’s summary judgment for John Harold
Merrill, the Alabama Secretary of State.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
The Alabama Voter List Law
Under Alabama law, a political party isn’t entitled to a spot
on the ballot just because it calls itself a political party. Instead, a
political party must satisfy the state’s ballot access requirements.
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20-13356 Opinion of the Court 3
There are two ways that a political party can earn a place on the
ballot: petition and performance.
Under the first way, a party receives ballot access if it sub-
mits a petition with “a list of the signatures of at least three percent
of the qualified electors who cast ballots for the office of Governor
in the last general election for the state, county, city, district, or
other political subdivision in which the political party seeks to qual-
ify candidates for office.” Ala. Code § 17-6-22(a)(1). There are
slightly over three-and-a-half million registered voters in Alabama,
and turnout in the 2018 gubernatorial election was about fifty per-
cent. Thus, a successful petition for statewide ballot access in 2020
required signatures from 51,588 registered voters.
Under the second way—performance—a political party
qualifies for statewide ballot access if it received at least twenty per-
cent of the vote cast for an officer in the most recent statewide elec-
tion. Id. § 17-13-40. The Republican and Democratic parties, for
example, both consistently maintain ballot access by getting at least
twenty percent of the statewide vote each election.
Now for the state’s voter list. Alabama keeps a “computer-
ized statewide voter registration list” containing “the name and
registration information of every legally registered voter in the
state.” Id. § 17-4-33(a), (a)(9). This information includes “the
name, address, . . . voting location,” and “voting history of each
registered voter.” Id. § 17-4-33(a)(2), (4). The voter list is an im-
portant tool for effectively locating voters, petitioning for ballot ac-
cess, and campaigning for elected office.
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Several entities get the voter list free of charge. State legis-
lators receive the voter list for free within 90 days of assuming of-
fice, which helps them provide services to their constituents. Id.
§ 17-4-38(e). The Alabama Administrative Office of Courts is enti-
tled to the list for free, which it uses to produce the state’s master
jury list. Id. § 17-4-38(f). The chief elections officers from other
states are also entitled to a free copy of the list, which helps the
states identify voters who have left Alabama. Id. § 17-4-38(g). Ala-
bama also sends the voter list to the Electronic Registration Infor-
mation Center (a non-profit group) for free on a monthly basis.
And, relevant to this appeal, each political party with ballot access
gets an electronic copy of the voter list for free:
Following each state and county election, the Secre-
tary of State shall provide one electronic copy of the
computerized voter list free of charge to each political
party that satisfied the ballot access requirements for
that election. The electronic copy of the computer-
ized voter list shall be provided within 30 days of the
certification of the election or upon the completion of
the election vote history update following the elec-
tion, whichever comes first. In addition, upon writ-
ten request from the chair of a political party, the Sec-
retary of State shall furnish up to two additional elec-
tronic copies of the computerized voter file during
each calendar year to each political party that satisfied
the ballot access requirements during the last
statewide election held prior to that calendar year.
The electronic copies provided pursuant to this
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section shall contain the full, editable data as it exists
in the computerized voter list maintained by the Sec-
retary of State.
Id. § 17-4-33(a)(10).
Entities that don’t fall within these categories—including
political parties without ballot access—have to pay “for the produc-
tion of” the voter list. Id. § 17-4-38(b). Because the secretary
charges one penny per voter record, in 2020 it would have cost
$35,912.76 to buy the records for every registered voter in the state.
But purchasing the voter list isn’t all or nothing; one can buy a “sub-
set” of the list for just the voters in a specific county or district.
A person paying for the list out of pocket can request it from
an online portal. Each request for a free copy of the list is processed
by one of the six employees in the secretary’s elections division. It
takes about fifty minutes to compile and email the voter list be-
cause the file is “very large,” and while the employee’s computer is
processing the file it generally can’t be used to perform other tasks.
The Libertarian Party of Alabama
In the 2000 general election, one of the Libertarian Party of
Alabama’s candidates earned over twenty percent of the vote in a
statewide race. As a result, the Party obtained statewide ballot ac-
cess for the 2002 general election. But the Party failed to replicate
this success in the 2002 general election and lost statewide ballot
access. It has yet to regain statewide ballot access and its support
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in elections rarely exceeds single digits. Since 2002, only twenty-
eight candidates have run in Alabama under the Party’s banner.
In 2012, the Party’s then-chair estimated that the Party had
between 250 and 300 members, “give or take a dozen.” By 2020,
the Party had only 134 official members. No one in the Party is
formally responsible for candidate recruitment or achieving ballot
access. Its candidates are selected at an annual convention—usu-
ally attended by about fifty party members—where there are never
enough candidates in any given race to force a contested choice.
The Party’s fundraising is “extremely limited,” even when com-
pared to political parties in Alabama other than the Republican and
Democratic parties. The Party currently has about $13,000 in its
coffers, and its main expense is the annual convention.
Although the Party hasn’t had statewide ballot access for
two decades, it achieved ballot access in four local races in 2018
and, with it, free access to the subset of the voter list in those dis-
tricts and counties.
The Party Sues for Free Voter List Access
In January 2019, the Party sued the secretary in the Middle
District of Alabama, bringing First and Fourteenth Amendment
claims under 42 U.S.C. section 1983. The Party alleged that sec-
tions 17-4-33 and 17-4-38 discriminated between major and minor
political parties by giving a free copy of the voter list only to the
major parties. (We will sometimes refer to sections 17-4-33 and 17-
4-38, together, as the voter list law). This discrimination, the
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Libertarian Party alleged, violated its right to associate and advance
its political beliefs and therefore violated the First Amendment and
the Equal Protection Clause of the Fourteenth Amendment. The
Party sought declaratory relief and an injunction requiring the sec-
retary to give it a free copy of the statewide voter list.
Following discovery, the secretary moved for summary
judgment, which the district court granted. The district court ap-
plied the Anderson-Burdick balancing test, which governs chal-
lenges to ballot access laws. See Anderson v. Celebrezze, 460 U.S.
780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992). The district
court concluded that sections 17-4-33(a)(10) and 17-4-38(b) didn’t
impose a severe burden on the Party because it could receive the
voter list for free if it had ballot access, which the Party had previ-
ously achieved at the statewide level in 2000. Thus, strict scrutiny
didn’t apply, the district court explained, and Alabama had to show
only that using ballot access as the criterion for a free copy of the
voter list rationally served important state interests. The secretary
had identified in discovery twenty important state interests that
justified giving the voter list for free to political parties that had bal-
lot access (by virtue of satisfying the three-percent petition require-
ment or the twenty-percent performance requirement). The dis-
trict court grouped these interests into two categories: the state’s
interest in supporting parties with a modicum of popular support
and the state’s administrative interests.
As to the state’s modicum-of-support interest, the district
court said that even the Libertarian Party of Alabama agreed that
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the state didn’t have to give the voter list for free to every entity
calling itself a political party. A line had to be drawn somewhere,
the district court reasoned, and drawing the line for a free copy of
the voter list at having ballot access was the same as the line to get
access to the ballot. The district court explained that one of the
important interests served by Alabama’s ballot access laws was en-
suring that only political parties with a modicum of support get a
spot on the ballot. This, in turn, minimized voter confusion and
frustration of the democratic process. The district court concluded
that, similar to the important state interests furthered by the state’s
ballot access laws, the voter list law also furthered Alabama’s im-
portant interests in supporting entities which perform important
public functions, stabilizing the political system, and reducing
fraud.
As to the state’s administrative interests, the district court
concluded that they too were rationally served by giving a free
copy of the voter list to political parties with ballot access. The
district court said that the state had an administrative burden to
determine which entities get free access to the voter list. The state
also had an administrative burden, the district court said, to pro-
vide the voter list for free to anyone that qualified for it, which was
a time-consuming task that imposed significant “demands on elec-
tions staff.” The district court explained that relying on the state’s
ballot access rules to determine who gets the voter list for free pro-
vided a definite, objective, and constitutional standard, which
spared election officials from having to spend a significant amount
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20-13356 Opinion of the Court 9
of time figuring out which entities were and weren’t entitled to a
free copy of the voter list.
The district court concluded that, because Alabama’s deci-
sion to provide the voter list for free to political parties with ballot
access rationally served important state interests and didn’t impose
a severe and unconstitutional burden on the Libertarian Party, the
Anderson-Burdick balancing test weighed in the state’s favor and
the voter list law didn’t violate the First and Fourteenth Amend-
ments. The Party now appeals from the district court’s summary
judgment.
STANDARD OF REVIEW
We review de novo the district court’s grant of summary
judgment. Hardigree v. Lofton, 992 F.3d 1216, 1223 (11th Cir.
2021). Summary judgment is appropriate where “there is no gen-
uine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). “All evidence
and factual inferences are viewed in the light most favorable to the
non-moving party, and all reasonable doubts about the facts are re-
solved in favor of the non-moving party.” Hardigree, 992 F.3d at
1223.
DISCUSSION
“In our Circuit, the balancing test of Anderson and Burdick
controls challenges to ballot access requirements.” Indep. Party of
Fla. v. Sec’y, State of Fla., 967 F.3d 1277, 1281 (11th Cir. 2020) (ci-
tations and quotation marks omitted). “This test applies whether
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a plaintiff challenges a ballot-access requirement under the First
Amendment or the Equal Protection Clause of the Fourteenth
Amendment.” Id. But this isn’t a ballot access case. The Libertar-
ian Party hasn’t challenged either of Alabama’s two ways of achiev-
ing ballot access. It doesn’t argue that the three-percent signature
requirement in section 17-6-22(a)(1) is unconstitutional. And it
doesn’t argue that the twenty-percent performance requirement in
section 17-13-40 is unconstitutional. The Party only challenges sec-
tions 17-4-33(a)(10) and 17-4-38(b), which give each political party
with ballot access a free copy of the voter list but require a political
party without ballot access to pay for it.
Whether the Anderson-Burdick test applies to a challenge to
a voter list law is an issue of first impression for us. But we can
resolve this appeal without resolving that question. This case has
been litigated from the beginning under the assumption that the
Anderson-Burdick test applies to the voter list law. Both the Party
and the secretary argued to the district court, and to us on appeal,
that the Anderson-Burdick test applies. The district court agreed
and applied that test. We will do the same and assume that the
Anderson-Burdick test applies to the Party’s challenge to Alabama’s
voter list law. See United States v. Sineneng-Smith, 140 S. Ct. 1575,
1579 (2020) (explaining that under the party presentation principle,
“we rely on the parties to frame the issues for decision”). We now
apply that test.
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The Anderson-Burdick Test
Under the Anderson-Burdick test, “the level of scrutiny we
apply to a ballot-access law depends on the severity of the burdens
it imposes.” Indep. Party of Fla., 967 F.3d at 1281. Severe re-
strictions on ballot access must be narrowly tailored to advance a
compelling state interest. See Timmons v. Twin Cities Area New
Party, 520 U.S. 351, 358 (1997). “But reasonable, nondiscrimina-
tory restrictions are usually justified by a state’s important regula-
tory interests in conducting orderly elections.” Indep. Party of Fla.,
967 F.3d at 1281 (cleaned up). “However severe the burden, we
must ensure it is warranted by relevant and legitimate state inter-
ests sufficiently weighty to justify the limitation.” Id. at 1281–82
(quotation marks omitted). We can only decide whether the chal-
lenged law is constitutional after “weigh[ing] all these factors.”
Swanson v. Worley, 490 F.3d 894, 903 (11th Cir. 2007).
Our analysis follows these three steps. We first examine the
burdens imposed by sections 17-4-33(a)(10) and 17-4-38(b) on the
Libertarian Party’s constitutional rights. We then examine the
state’s regulatory interests advanced by these statutes. Finally, we
weigh the burdens on the Libertarian Party’s rights against the le-
gitimate interests identified by the state.
The burden on the Libertarian Party’s constitutional rights
We begin by “consider[ing] the character and magnitude of
the asserted injury to the rights protected by the First and Four-
teenth Amendments that the plaintiff seeks to vindicate.”
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Anderson, 460 U.S. at 789. The Libertarian Party maintains that
Alabama’s voter list law is discriminatory—“expressly” and in
“practice”—and therefore subject to strict scrutiny because it
“clearly discriminate[s] against minor parties . . . in favor of major
parties by definition.” The Party also argues that denying it unfet-
tered access to the voter registration list “severely burdens” its First
and Fourteenth Amendment rights by impairing its ability to get
ballot access signatures, educate voters, and campaign effectively.
The key statutory text refutes the claim that the voter list
law expressly discriminates against minor political parties. Section
17-4-33(a)(10) doesn’t include the words “minor party,” “major
party,” “Republican Party,” or “Democratic Party.” Rather, it pro-
vides that the state will provide the voter list for free “to each po-
litical party that satisfied the ballot access requirements for that
election,” and “to each political party that satisfied the ballot access
requirements during the last statewide election held prior to that
calendar year.” Ala. Code § 17-4-33(a)(10) (emphases added). Be-
cause “each” political party with ballot access is treated the same,
section 17-4-33(a)(10) doesn’t expressly discriminate against minor
parties. All political parties have an equal right to get a free copy
of the list if they meet the standard provided by the voter list law—
not just the Republican and Democratic parties.
The voter list law is also not discriminatory in practice.
True, the Republican and Democratic parties get ballot access
every election, while the Libertarian Party of Alabama has lacked
statewide ballot access since 2002. But disparate outcomes aren’t
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necessarily the result of discrimination. “Discrimination,” in a gen-
eral sense “is the failure to treat all persons equally when no rea-
sonable distinction can be found between those favored and those
not favored.” CSX Transp., Inc. v. Ala. Dep’t of Revenue, 562 U.S.
277, 286 (2011) (quotation marks omitted); see also Lofton v. Sec’y
of Dep’t of Child. & Fam. Servs., 358 F.3d 804, 817–18 (11th Cir.
2004) (“Equal protection . . . does not forbid legislative classifica-
tions. It simply keeps governmental decisionmakers from treating
differently persons who are in all relevant respects alike.” (citation
and quotation marks omitted)). That the major parties consistently
get ballot access—and therefore the voter list for free—is easily ex-
plained by the popular support the major parties receive from vot-
ers; the Libertarian Party of Alabama does not have the same de-
gree of popular support. The voter list law isn’t discriminatory in
practice just because there are differences between the major and
minor political parties. Cf. Jenness v. Fortson, 403 U.S. 431, 442
(1971) (“Sometimes the grossest discrimination can lie in treating
things that are different as though they were exactly alike[.]”).
In any event, in practice, minor political parties in Alabama,
like the Republican and Democratic parties, have achieved ballot
access in local races and at the statewide level. In 2018, four Liber-
tarian Party candidates secured ballot access in local races and
therefore received free access to the portion of the voter list corre-
sponding to those races. Two other political parties—the Consti-
tution Party and the Independence Party—achieved ballot access
in local races in 2010 and 2014, satisfying the standard to get free
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access to the voter list for those districts. A third political party, the
Freedom Party, got ballot access in two local races in 2006 but one
of its candidates withdrew from the race. And in 2002, the Liber-
tarian Party enjoyed statewide ballot access because one of its can-
didates obtained over twenty percent of the vote in a statewide race
in the 2000 general election.
We also conclude, for two reasons, that the voter list law
doesn’t severely burden the Party’s constitutional rights. First, in
determining whether a ballot access law severely burdens a plain-
tiff’s constitutional rights, the Supreme Court has asked whether
the regulation “freeze[s] the political status quo.” Jenness, 403 U.S.
at 438. We have said that a ballot access law does not “severely”
burden a political party’s constitutional rights where it “does not
pose an insurmountable barrier” to the party getting on the ballot.
Stein v. Ala. Sec’y of State, 774 F.3d 689, 698–98 (11th Cir. 2014).
Alabama’s voter list law does neither of these things: it does not
freeze the political status quo, nor does it provide an insurmounta-
ble barrier to ballot access.
We know that the voter list law does not freeze the political
status quo or pose an insurmountable barrier to ballot access be-
cause minor parties have successfully obtained ballot access. As we
have already explained, in 2018 four Libertarian Party candidates
achieved ballot access in local races; three other minor political par-
ties obtained ballot access in local races in 2006, 2010, and 2014; and
the Libertarian Party had statewide ballot access during the 2002
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general election. The minor parties’ success in gaining ballot access
indicates that the barrier is not insurmountable. See id. at 698.
Second, we have held that Alabama’s ballot access petition
law—requiring a candidate to get “signatures of at least three per-
cent of qualified electors” who voted in the last gubernatorial elec-
tion—is not a severe burden on the rights of independent or minor
party candidates. Swanson, 490 F.3d at 896. Instead, we concluded
that this ballot access law is “a reasonable, nondiscriminatory re-
striction.” Id. at 903. If the state’s nondiscriminatory restriction on
ballot access doesn’t severely burden the Party’s rights, then a re-
striction one step removed from ballot access that also uses the
same criterion is also reasonable and nondiscriminatory.
The state’s important regulatory interests
We next turn to the “important regulatory interests” prof-
fered by the secretary to justify Alabama’s voter list law. See An-
derson, 460 U.S. at 788. The Libertarian Party argues that because
the state’s claimed regulatory interests—supporting only political
parties with a “modicum of support” and “administrative inter-
ests”—are “baseless,” the district court erred by crediting them.
We disagree.
In examining the state’s regulatory justifications, we must
“determine the legitimacy and strength of the state’s interests and
consider the extent to which those interests make it necessary to
burden the [plaintiff’s] rights.” Swanson, 490 F.3d at 903 (cleaned
up). But where, like here, the burden on the plaintiff’s rights isn’t
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severe, “the test is not whether the regulations are necessary”; it’s
whether “they rationally serve important state interests.” Id. at
912.
As a threshold matter, the Party complains that the secretary
“never explains the source” of the state interests justifying the de-
cision to give a free copy of the voter list to political parties with
ballot access. But we don’t “require elaborate, empirical verifica-
tion of the weightiness of the [s]tate’s asserted justifications.” Tim-
mons, 520 U.S. at 364; see also Common Cause/Ga. v. Billups, 554
F.3d 1340, 1353 (11th Cir. 2009) (“Anderson does not require any
evidentiary showing or burden of proof to be satisfied by the state
government.”). Rather, the Anderson-Burdick test only asks a
court to “identify and evaluate the interests put forward by the
[s]tate as justifications for the burden imposed by its rule[.]” Com-
mon Cause/Ga., 554 F.3d at 1352 (quoting Crawford v. Marion
Cnty. Election Bd., 553 U.S. 181, 190 (2008)). That is what the dis-
trict court did based on the summary judgment record developed
by the parties. That is what we will do too.
As to the state’s interest in supporting political parties with
a modicum of popular support, we have long recognized that this
is an important state interest rationally served by ballot access laws.
We previously considered a challenge to a Florida law requiring
minor political parties seeking ballot access to submit a petition
“signed by [three percent] of the state’s registered voters.” Liber-
tarian Party of Fla. v. Florida, 710 F.2d 790, 792 (11th Cir. 1983).
The Libertarian Party of Florida “concede[d]” that “the state ha[d]
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an interest in regulating the election process and avoiding voter
confusion.” Id. We agreed with this concession. “That these, and
the other interests asserted, are compelling,” we explained, “has
been well established under decided cases.” Id. (citing three Su-
preme Court cases). We said that “a state has an important interest
‘in requiring some preliminary showing of a significant modicum
of support before printing the name of a political organization’s
candidate on the ballot—the interest, if no other, in avoiding con-
fusion, deception, and even frustration of the democratic process
at the general election.’” Id. at 793 (quoting Jenness, 403 U.S. at
442).
In Swanson, we concluded that Alabama’s ballot access pe-
tition law rationally served the state’s important interest “in requir-
ing independent candidates to show they had a significant modi-
cum of support before printing their names on the ballot.” 490 F.3d
at 911 (citation omitted). “[R]equiring candidates to demonstrate
a modicum of support,” we said, “discourages frivolous candida-
cies” and “ensur[es] that only bona fide independent candidates
with a measure of support gain ballot access,” preventing the ballot
from being “clogg[ed].” Id. We also concluded that “reasonable
ballot access regulations promote important state interests in pre-
serving political stability by ‘temper[ing] the destabilizing effects of
party-splintering and excessive factionalism.’” Id. (quoting Tim-
mons, 520 U.S. at 367). Thus, it is now “beyond dispute that Ala-
bama has an important interest in requiring minor parties to
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18 Opinion of the Court 20-13356
demonstrate some ‘modicum of support’ before they are entitled
to a spot on the ballot.” Stein, 774 F.3d at 700.
Just like we did in the ballot access law context, we conclude
that Alabama’s voter list law is rationally related to and furthers the
state’s important interest in supporting political parties with a mod-
icum of popular support. The voter list law furthers this important
interest by ensuring that only political parties with ballot access—
in other words, a modicum of support—get the voter list for free.
This, in turn, “discourages frivolous candidacies,” ensures that
“only bona fide” candidates “with a measure of support” get the
list, and promotes the state’s important interest in “preserving po-
litical stability” by tempering the destabilizing effects of party-splin-
tering and excessive factionalism. See Swanson, 490 F.3d at 911.
Because free access to the voter list depends on ballot access, it fol-
lows that the voter list law serves the same important regulatory
interests served by the state’s ballot access requirements.
The district court also identified two other important state
interests subsumed within the modicum-of-support category of in-
terests: Alabama’s interest in “preventing access” to the voter list
“by groups intent on fraud,” and its interest “in supporting political
entities which perform important public functions” like “nominat-
ing candidates, contesting elections, and putting forward a plat-
form of proposed policies for consideration by voters.” As to fraud-
deterrence, a state has an important regulatory interest in “deter-
ring” election fraud. Crawford, 553 U.S. at 191; see also Greater
Birmingham Ministries v. Sec’y of State for State of Ala., 992 F.3d
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1299, 1327 (11th Cir. 2021) (explaining that “combatting voter
fraud” was a valid neutral justification for a voter ID law). The
voter list law serves this important interest because the standard
used to determine who gets a copy of it for free—ballot access—
helps ensure that the list will go to groups who will use it for legit-
imate political purposes.
As to the State’s interest in supporting political entities that
perform public functions, we conclude that a state has an im-
portant interest in supporting political parties that perform valua-
ble public functions like assisting in the conduct of elections, part-
nering with the state in primaries, recruiting candidates for public
office, registering voters, and encouraging public engagement. All
of these functions help the state run efficient and reliable elections.
And Alabama’s voter list law furthers this important interest by re-
warding political parties that perform these functions.
The Libertarian Party of Alabama maintains that we
shouldn’t import the “modicum of support” interest from the bal-
lot access cases into this case because doing so amounts to “circu-
lar” reasoning. The voter list is “the most valuable tool to gain
ballot access” and attain a modicum of popular support, the Party
argues, and so the voter list law “makes it impossible” for minor
parties to achieve statewide ballot access. But the results don’t bear
this out. The Party’s success in the 2000 election, which earned it
statewide ballot access in 2002, shows that it is not “impossible” for
a minor party to get statewide ballot access without free access to
the voter list. Likewise, the Party’s success in local races in 2018 (as
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20 Opinion of the Court 20-13356
well as the Freedom Party, Constitution Party, and Independence
Party’s successes in local races in 2006, 2010, and 2014) shows that
it is not “impossible” to get ballot access without free access to the
voter list.
The Party also argues that in Fulani v. Krivanek, 973 F.2d
1539 (11th Cir. 1992), we “expressly condemned” tying an election-
related fee “to the concept of a modicum of support.” This too is
wrong. Fulani involved the intersection of two Florida election
laws. Florida’s ballot access law required a minor-party candidate
running for President to submit a petition signed by one percent of
registered voters to get ballot access. Id. at 1540. The minor party
was also required to have the supervisor of elections from each
county where signatures were collected certify the signatures, at a
cost of ten cents per signature. Id. Although the verification stat-
ute allowed a candidate to obtain a fee waiver by showing an un-
due financial burden, the statute forbade a “minor party” from get-
ting the fee waiver. Id. We held that this “discriminatory classifi-
cation” was a “significant burden” on the plaintiff that “the state
has failed to justify.” Id. at 1547. We rejected Florida’s claim that
it had an “interest of avoiding voter confusion by ensuring that a
party has a significant modicum of support.” Id. This was because
“discriminating as to which financially burdened candidates may
waive the verification fee is not necessary to demonstrating a mod-
icum of support,” which was already met when a minor-party can-
didate submitted a petition signed by one percent of registered vot-
ers. Id. We explained that “it is constitutionally impermissible for
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20-13356 Opinion of the Court 21
a state to measure a party’s level of support by the state of its fi-
nances.” Id.Fulani doesn’t apply here for three reasons. First, that case
involved a discriminatory statute that explicitly singled out minor
political parties. But, as we explained above, Alabama’s voter list
law does not single out minor political parties. Second, we con-
cluded in Fulani that Florida’s certification law imposed “a signifi-
cant burden” on the plaintiffs’ First and Fourteenth Amendment
rights. Id. Here, as we explained above, the voter list law doesn’t
significantly burden the Libertarian Party’s rights. And third, the
candidate in Fulani had secured “the requisite number of signa-
tures” to obtain ballot access—one percent of registered voters—
and therefore had already established a modicum of popular sup-
port but was still subject to the discriminatory fee. Id. at 1540. A
state obviously can’t use the “modicum of support” interest to jus-
tify a discriminatory regulation burdening a minor party that has
already established a modicum of support. That’s not the situation
here. Conditioning free voter list access on showing popular sup-
port isn’t analogous to refusing to waive a certification fee for a
candidate that’s already met the popular support requirements for
ballot access.
As to the state’s “administrative interests,” we conclude that
they too are important regulatory justifications rationally served by
the voter list law in two ways. First, providing the voter list for free
to each political party with ballot access gives the state an objective
standard that is easy to apply. When a political party requests a
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22 Opinion of the Court 20-13356
free copy of the voter list, the state has to confirm that the entity is
eligible for a free copy. Linking eligibility to ballot access makes
this a simple task. Under the voter list law, all the state has to do is
check whether or not the political party has ballot access. This
brightline standard is straightforward, leaves no room for guess-
work, and relies on a criteria that we have already upheld as con-
stitutional. See Swanson, 490 F.3d at 912 (“Alabama has articulated
important interests justifying its reasonable, nondiscriminatory bal-
lot access restrictions. Accordingly, we conclude that Alabama’s
election scheme, with a three-percent signature requirement and
filing deadline on the primary election date, does not abridge plain-
tiffs’ First and Fourteenth Amendment rights.”).
Even the Party has conceded, before the district court and
on appeal, that it’s “not claiming [that] every requestor must get”
the voter list “for free.” If everyone doesn’t get the list for free,
where’s the line? A line has to be drawn somewhere and any line
will be “necessarily arbitrary.” See Libertarian Party, 710 F.2d at
793. We cannot say that the clear-cut line the state has drawn—
the line of ballot access which we upheld in Swanson—is an irra-
tional one.
Second, limiting free access to the voter list only to political
parties with ballot access rationally furthers the state’s administra-
tive interests because it eases the logistical burdens on the secre-
tary’s office. Giving the voter list for free only to political parties
with ballot access cuts down on the number of requests the state
gets for a free copy, which reduces how much time the state has to
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20-13356 Opinion of the Court 23
spend on complying with those requests. The Party maintains that
the state’s interest in reducing administrative hardship is “dramati-
cally undercut” because it already provides the voter list to other
groups for free. The “only extra time required to provide” the list
“free of charge,” the Party claims, “would be the amount of time
required to send” one more e-mail. But the summary judgment
evidence says otherwise. The secretary explained that every single
time the state gets a request for a free copy of the voter list, one of
the six employees in the elections division of the secretary’s office
has to export the list from a program called PowerProfile; import
the data into Microsoft Access; export the data from Access to a
text file; and then email the list to the party requesting it. This pro-
cess takes about fifty minutes and, because of the demands of pro-
cessing this very large file, prevents the employee’s computer from
doing other tasks. That is the uncontested summary judgment ev-
idence in this case. The voter list law rationally serves an important
state administrative interest by reducing the burdens on the secre-
tary that come with complying with a request for a free copy of the
list.
Weighing the Anderson-Burdick factors
The third and final step of the Anderson-Burdick balancing
test requires us to “weigh” the above “factors”—the character and
magnitude of the asserted injury to the Libertarian Party’s consti-
tutional rights weighed against the state’s regulatory justifica-
tions—“to determine if the statute is constitutional.” Swanson, 490
F.3d at 902–03. When a state ballot access law imposes only
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24 Opinion of the Court 20-13356
“reasonable, nondiscriminatory restrictions” upon a plaintiff’s First
and Fourteenth Amendment rights, a state’s “important regulatory
interests will usually be enough to justify reasonable, nondiscrimi-
natory restrictions.” Timmons, 520 U.S. at 358 (cleaned up); Swan-
son, 490 F.3d at 903. That is the case here. As we explained above,
Alabama’s voter list law doesn’t severely burden the Party’s rights,
and the secretary has offered important, nondiscriminatory reasons
justifying the line the state has drawn—complying with the ballot
access requirements—for a free copy of the voter list. Thus, “Ala-
bama has articulated important interests justifying its reasonable,
nondiscriminatory [voter list] access restrictions,” and the voter list
law “does not abridge [the Party’s] First and Fourteenth Amend-
ment rights.” See Swanson, 490 F.3d at 912.
The Party argues that the district court erred by failing to
consider, “in combination,” “all of Alabama’s onerous ballot access
burdens on minor parties.” In other words, the Party maintains
that the district court should have examined the “cumulative bur-
dens” imposed on it by the state’s voter list law and the ballot ac-
cess laws. This argument fails for two reasons.
First, in its opposition to summary judgment, the Party
didn’t argue that the district court should conduct a cumulative
analysis. The Party likewise didn’t argue that, even if sections 17-
4-33(a)(10) and 17-4-38(b) were constitutional in a vacuum, their
combined effect with Alabama’s ballot access laws rendered them
a severe burden on the Party’s First and Fourteenth Amendments
rights. Because the Party failed to present this argument to the
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20-13356 Opinion of the Court 25
district court, it can’t raise it now for the first time. See, e.g., Access
Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004)
(refusing to consider issue “raised for the first time” on appeal).
Second, unlike the plaintiffs in Swanson who challenged two
election regulations (the three-percent signature requirement and
the filing deadline for ballot access), here the Party challenged only
a single election regulation in its complaint: Alabama’s voter list
law. Having attacked only a single statutory scheme, the Party can-
not argue now that the cumulative effect of other, unchallenged
ballot access regulations renders the voter list law constitutionally
infirm.
Ultimately, the test we apply here—the test the parties have
asked us to apply—“is one of ‘reasonableness, i.e., whether the stat-
ute unreasonably encroaches on ballot access.’” Swanson, 490 F.3d
at 904 (quoting Libertarian Party, 710 F.2d at 793). Alabama has
passed the test. Because the Anderson-Burdick weighing comes
out in the state’s favor, the voter list law does not violate the First
Amendment or the Equal Protection Clause of the Fourteenth
Amendment.
Socialist Workers Party Does Not Control
Finally, the Party argues that the Supreme Court’s summary
affirmance in Rockefeller v. Socialist Workers Party, 400 U.S. 806(1970) is “dispositive” and “binding” precedent that resolves this
case. Not so. Socialist Workers Party involved different facts and
a different state’s voter list law. Because that case didn’t involve
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26 Opinion of the Court 20-13356
the precise issue that we address here—whether a voter list law like
Alabama’s violates the First and Fourteenth Amendments under
the Anderson-Burdick balancing test—the Supreme Court’s sum-
mary affirmance isn’t dispositive or binding.
In Socialist Workers Party v. Rockefeller, a three-judge dis-
trict court panel heard challenges to New York’s election laws
brought by two “minority parties.” 314 F. Supp. 984, 986–88
(S.D.N.Y. 1970). One law provided that a voter list would “be sent
free of charge to those parties which polled more than 50,000 votes
in the last gubernatorial election.” Id. at 987. Political parties that
didn’t meet this threshold had to pay for the list. Id. at 995. This
law was unconstitutional, the three-judge panel held, because it
“den[ied] independent or minority parties which have succeeded in
gaining a position on the ballot but which have not polled 50,000
votes for governor in the last preceding gubernatorial election an
equal opportunity to win the votes of the electorate.” Id. (emphasis
added). The Supreme Court summarily affirmed. Socialist Work-
ers Party, 400 U.S. at 806.
We aren’t bound by this summary affirmance. Although the
“Supreme Court’s summary dispositions are of course entitled to
full precedential respect,” Picou v. Gillum, 874 F.2d 1519, 1521 n.3
(11th Cir. 1989), the “Court has cautioned that we must not
overread its summary affirmances,” Jacobson v. Fla. Sec’y of State,
974 F.3d 1236, 1267 (11th Cir. 2020). “[T]he precedential effect of
a summary affirmance extends no further than the precise issues
presented and necessarily decided by those actions. A summary
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20-13356 Opinion of the Court 27
disposition affirms only the judgment of the court below, and no
more may be read into [the Supreme Court’s] action than was es-
sential to sustain that judgment.” Id. (quoting Anderson, 460 U.S.
at 784–85 n.5).
The precise issue in Socialist Workers Party that the Su-
preme Court summarily affirmed is different than the issue here.
The voter list law in that case was unconstitutional because it de-
nied minor political parties free access to the voter list even if they
had “succeeded in gaining a position on the ballot.” 314 F. Supp.
at 995. But here, “each” political party in Alabama with ballot ac-
cess gets a copy of the voter list for free. Ala. Code. § 17-4-33(a)(10).
Thus, the New York law imposed burdens on political parties be-
yond simply obtaining ballot access. The Alabama law does not
impose this burden; rather, it gives “each” political party with bal-
lot access—major and minor alike—a free copy of the voter list. Id.
In other words, Alabama’s voter list law gives minor parties
“the same benefit granted to major political parties.” Socialist
Workers Party, 314 F. Supp. at 996. Because Socialist Workers
Party does not involve the “precise issues presented” here, it
doesn’t control this case. See Jacobson, 974 F.3d at 1267. We de-
cline to read more into Socialist Workers Party than what “was es-
sential to sustain that judgment.” Anderson, 460 U.S. at 784 n.5.
CONCLUSION
The district court did not err in its application of the Ander-
son-Burdick test to the Libertarian Party’s challenge to Alabama’s
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28 Opinion of the Court 20-13356
voter list law. The voter list law did not discriminate against the
Party or severely burden its constitutional rights. It rationally
served two categories of important state interests—Alabama’s in-
terest in supporting political parties with a modicum of popular
support and its administrative interests. And the non-severe bur-
dens on the Party’s rights did not outweigh the state’s regulatory
interests. The district court’s summary judgment for the secretary
is therefore AFFIRMED.