Bryan Greene v. Gary Bartlett ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-2068
BRYAN E. GREENE; JORDON M. GREENE; TODD MEISTER,
Plaintiff – Appellants,
and
BRADLEY D. SMITH,
Intervenor – Appellant,
v.
GARY O. BARTLETT, Director NCBOE; LARRY LEAKE; CHARLES
WINFREE; ROBERT CORDLE; ANITA S. EARLS; BILL W. PEASLEE,
Defendants – Appellees.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Graham C. Mullen,
Senior District Judge. (5:08-cv-00088-GCM)
Argued: September 22, 2011 Decided: October 13, 2011
Before TRAXLER, Chief Judge, KEENAN, Circuit Judge, and
HAMILTON, Senior Circuit Judge.
Affirmed by unpublished per curiam opinion.
ARGUED: Robert Milton Bastress, Jr., Morgantown, West Virginia,
for Appellants. Alexander McClure Peters, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.
ON BRIEF: Jason E. Huber, CHARLOTTE SCHOOL OF LAW, Charlotte,
North Carolina, for Appellants. Roy Cooper, Attorney General,
Susan K. Nichols, Special Deputy Attorney General, NORTH
CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
On August 6, 2008, Bryan Greene, Jordon Greene, and
Todd Meister brought this 42 U.S.C. § 1983 action against the
five members of the North Carolina Board of Elections and the
executive director of the North Carolina Board of Elections
alleging that North Carolina General Statute § 163-122(a)(2)
violated the First Amendment of the United States Constitution,
because § 163-122(a)(2) severely burdens the ability of
independent candidates for the United States House of
Representatives to qualify for appearance on the general ballot.
In their complaint, the plaintiffs also alleged that § 163-
122(a)(2) violated the Equal Protection Clause of the Fourteenth
Amendment. On July 15, 2010, Bradley Smith successively
intervened in the action, alleging the same claims as the
original plaintiffs.
In the district court, both the plaintiffs (including
the intervenor) and the defendants sought summary judgment. The
district court granted the defendants’ motion, concluding that
§ 163-122(a)(2), which requires, among other things, a candidate
who wishes his or her name to appear on the ballot as an
independent candidate for the United States House of
Representatives or any other district office to obtain petitions
signed by 4% of the registered voters in their respective
district, was not unconstitutional. According to the district
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court, § 163-122(a)(2) was not unconstitutional under the First
Amendment, primarily because the Supreme Court of the United
States has upheld a more restrictive ballot access percentage
requirement. See Jenness v. Fortson, 403 U.S. 431, 438-39
(1971) (upholding Georgia statute requiring signatures of 5% of
registered voters before independent candidate could be placed
on ballot). The district court was also persuaded by two
additional uncontroverted facts. First, one independent
candidate for the United States House of Representatives
obtained access to the 2010 ballot by meeting the 4%
requirement. Second, since 1992, over eighty candidates for
other district offices had met the 4% requirement.
The district court also rejected the equal protection
claim raised by the plaintiffs (and intervenor). According to
the district court, § 163-122(a)(2) did not run afoul of the
Equal Protection Clause of the Fourteenth Amendment, because the
plaintiffs and the intervenor did not demonstrate that
unaffiliated candidates for the United States House of
Representatives were similarly situated to unaffiliated
candidates for statewide office or to new political parties.
Having reviewed the briefs, the joint appendix, and
the applicable law, and having had the benefit of oral argument,
we agree with the district court that the First Amendment claim
fails because there is no meaningful way in which to distinguish
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Jenness. Moreover, as the district court observed, the
constitutionality of § 163-122(a)(2) under the First Amendment
is further supported by the two uncontroverted facts set forth
above. We also agree that the equal protection claim founders,
because the plaintiffs and the intervenor did not demonstrate
that unaffiliated candidates for the United States House of
Representatives were similarly situated to unaffiliated
candidates for statewide office or to new political parties.
Accordingly, like the district court, we conclude that § 163-
122(a)(2) does not run afoul of either the First Amendment or
the Equal Protection Clause of the Fourteenth Amendment. The
judgment of the district court is affirmed.
AFFIRMED
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