Gregory Buscemi v. Karen Brinson Bell

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-2355
GREGORY BUSCEMI; KYLE KOPITKE; WILLIAM CLARK,
Plaintiffs - Appellants,
v.
KAREN BRINSON BELL, in her official capacity as Executive Director of the
North Carolina State Board of Elections,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Wilmington. Terrence W. Boyle, Chief District Judge. (7:19-cv-00164-BO)
Submitted: May 18, 2020 Decided: July 6, 2020
Before MOTZ, KEENAN, and HARRIS, Circuit Judges.
Affirmed as modified by published opinion. Judge Keenan wrote the opinion, in which
Judge Motz and Judge Harris joined.
Alan P. Woodruff, LAW OFFICES OF ALAN WOODRUFF, Southport, North Carolina,
for Appellant. Joshua H. Stein, Attorney General, Paul M. Cox, Special Deputy Attorney
General, Nicholas S. Brod, Assistant Solicitor General, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.
BARBARA MILANO KEENAN, Circuit Judge:
To regulate its elections and the placement of candidates’ names on election ballots,
North Carolina has established certain qualification requirements for candidates not
affiliated with a political party (unaffiliated candidates) and for candidates whose names
are not printed on the ballot (write-in candidates). See N.C. Gen. Stat. §§ 163-122, -123. 1
Unaffiliated candidates who wish to have their names appear on the general election ballot
in North Carolina must (1) be “qualified voter[s],” (2) collect a certain number of signatures
of other qualified voters, and (3) submit those signatures to the state Board of Elections by
the date of the primary election. Id. § 163-122(a). Write-in candidates also must collect a
minimum number of voters’ signatures before the general election, and any votes cast for
a write-in candidate who has failed to collect the required number of signatures will not be
counted. Id. § 163-123.
The plaintiffs, two unaffiliated candidates and one voter seeking to cast votes for
write-in candidates, argue that these requirements violate their First and Fourteenth
Amendment rights. The district court dismissed the complaint for failure to state a claim.
The court concluded that the challenged requirements impose only a modest burden on the
rights of candidates and voters, which is justified by the state’s important interest in
regulating elections.
Upon our review, we hold that the plaintiffs lack standing to challenge two
requirements at issue, namely, that an unaffiliated candidate be a “qualified voter” and that
1
The North Carolina statutes at issue were recodified after the complaint was filed.
We cite the current versions of the relevant state statutes.
2
a write-in candidate submit a certain number of signatures before votes cast for that write-
in candidate will be counted. And, although two plaintiffs have standing to challenge North
Carolina’s signature requirements and filing deadline for unaffiliated candidates, we agree
with the district court that these election laws impose only a modest burden that is justified
by the state’s interest in regulating elections. We therefore affirm the district court’s
judgment dismissing the plaintiffs’ claims, relying in part on different reasons than those
expressed by the district court.
I.
We begin with an overview of the North Carolina election laws that are material to
this case. To be placed on the general election ballot as a candidate for public office, an
unaffiliated candidate must satisfy three requirements. See N.C. Gen. Stat. § 163-122.
First, the candidate must be a “qualified voter” (the qualified voter requirement). Id. § 163-
122(a). Although the statute does not define the term “qualified voter,” the plaintiffs allege
in their complaint that the term refers to a person who lives, and is registered to vote, in
North Carolina.
Second, an unaffiliated candidate must collect a minimum number of signatures
from individuals who are qualified to vote for a given office. See id. § 163-122(a)(1)-(2).
An unaffiliated candidate in a statewide election, including an election for President of the
United States, must collect the signatures of at least 1.5% of the total number of voters who
voted in the last gubernatorial election. Id. § 163-122(a)(1). An unaffiliated candidate in
a districtwide election, including an election for the United States House of
3
Representatives, must collect the signatures of at least 1.5% “of the total number of
registered voters in the district.” Id. § 163-122(a)(2). Third, an unaffiliated candidate must
submit these signatures by the date of the primary election, which this year was held on
March 3, 2020. Id. §§ 163-1(b), -122(a)(1)-(2), -213.2.
Write-in candidates for public office in North Carolina face different requirements.
See id. § 163-123. Among those requirements, the state only will count votes cast for
candidates who have collected a certain number of voter signatures before the general
election (the write-in candidate signature requirement). Id. § 163-123(f). These numerical
requirements fall in a range between 100 and 500 signatures, depending on the office at
issue. Id. § 163-123(c).
Three individuals initiated the present case in the district court. Plaintiff Kyle
Kopitke is a Michigan resident seeking placement on the 2020 general election ballot in
North Carolina as an unaffiliated candidate for President of the United States. Plaintiff
Gregory Buscemi is a North Carolina resident seeking placement on the same ballot as an
unaffiliated candidate for the United States House of Representatives. And finally, plaintiff
William Clark is a North Carolina resident who wishes to cast votes for write-in candidates
for every office in North Carolina’s general election.
Kopitke, Buscemi, and Clark (collectively, the plaintiffs) filed a complaint in the
district court under 42 U.S.C. § 1983 against Karen Bell, in her official capacity as the
Executive Director of the North Carolina State Board of Elections (the Board). The
complaint contained three main allegations. First, Kopitke and Buscemi alleged that the
signature requirements and the filing deadline for unaffiliated candidates place an
4
unconstitutional burden on their First and Fourteenth Amendment rights. Next, Kopitke
asserted separately that the qualified voter requirement violates the Constitution by
effectively barring out-of-state residents from running for federal office. See U.S. Const.
art. II, § 1, cl. 5; U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 805 (1995). Finally,
Clark alleged that the signature requirement for write-in candidates places an
unconstitutional burden on Clark’s right to vote.
The plaintiffs moved for a preliminary injunction, asking the district court to enjoin
the Board from enforcing the challenged requirements and to direct the Board to include
Kopitke and Buscemi on the November 2020 general election ballot. In response, the
Board moved to dismiss the case for lack of jurisdiction and for failure to state a claim.
The district court granted the Board’s motion to dismiss. The court held that the plaintiffs
had standing but had failed to state a valid claim. Because the court found that the plaintiffs
could not succeed on the merits of their claims, the court also denied the plaintiffs’ motion
for a preliminary injunction. The plaintiffs now appeal from the district court’s dismissal
of their electoral law challenges; they have not appealed the court’s denial of their request
for injunctive relief.
II.
We begin with the question whether the plaintiffs have standing to bring their
claims. Although typically we will not address issues raised by an appellee that has not
filed a cross-appeal, see Am. Roll-On Roll-Off Carrier, LLC v. P & O Ports Balt., Inc., 479
F.3d 288, 295-96 (4th Cir. 2007), we must assure ourselves of subject matter jurisdiction
5
and may address standing sua sponte, 2 see Benham v. City of Charlotte, 635 F.3d 129, 134
(4th Cir. 2011). Accordingly, we review de novo the legal question whether a plaintiff has
standing to bring a claim. South Carolina v. United States, 912 F.3d 720, 726 (4th Cir.
2019). In making this assessment, we accept all allegations in the complaint as true and
construe those allegations “in the light most favorable to the plaintiff.” Wikimedia Found.
v. Nat’l Sec. Agency, 857 F.3d 193, 208 (4th Cir. 2017).
Article III of the Constitution provides that federal courts may consider only
“[c]ases” and “[c]ontroversies.” U.S. Const. art. III, § 2. To establish an injury sufficient
to confer standing to bring suit under Article III, a plaintiff must plausibly allege: (1) “an
injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3)
that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136
S. Ct. 1540, 1547 (2016). These requirements for standing ensure that the plaintiff has “a
personal stake in the outcome of the controversy.” Gill v. Whitford, 138 S. Ct. 1916, 1929
(2018) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). In the present case, we focus
on the first and third requirements for Article III standing, namely, injury in fact and
redressability.
First, the plaintiff’s “injury in fact” must be “concrete and particularized” and
“actual or imminent, not conjectural or hypothetical.” Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992) (internal quotation marks and citations omitted). The “threatened
injury must be certainly impending,” and “[a]llegations of possible future injury” are
2
In its response brief, the Board argues that the plaintiffs lack standing, but has not
filed a cross-appeal on that basis.
6
insufficient. Whitmore v. Arkansas, 495 U.S. 149, 158 (1990) (internal quotation marks
and citation omitted). An injury “reli[ant] on a highly attenuated chain of possibilities[]
does not” qualify as being “certainly impending.” Clapper v. Amnesty Int’l USA, 568 U.S.
398, 410 (2013).
When a plaintiff challenges the constitutionality of a statute, the plaintiff must show
that “there is a ‘realistic danger’ that” the plaintiff “will ‘sustain[] a direct injury’ as a result
of the terms of the” statute. Curtis v. Propel Prop. Tax Funding, LLC, 915 F.3d 234, 241
(4th Cir. 2019) (alteration in original) (quoting Babbitt v. United Farm Workers Nat’l
Union, 442 U.S. 289, 298 (1979)). “[A] credible threat of enforcement is critical” to
establishing an injury in fact. Abbott v. Pastides, 900 F.3d 160, 176 (4th Cir. 2018). And
prior enforcement of the challenged statute is “[t]he most obvious way to demonstrate a
credible threat of enforcement in the future.” Id.Next, regarding redressability, a plaintiff must show that the court has the power to
grant the plaintiff’s requested relief, and that such relief would redress the plaintiff’s injury.
See K.C. ex rel. Africa H. v. Shipman, 716 F.3d 107, 116-17 (4th Cir. 2013) (concluding
that the appellant’s injury was not redressable, because the Court was “powerless to
provide the very relief” the appellant requested, namely, reversing a preliminary injunction
directed against both the appellant and a non-appealing party); see also Franklin v.
Massachusetts, 505 U.S. 788, 802-03 (1992) (plurality opinion); M.S. v. Brown, 902 F.3d
1076, 1083 (9th Cir. 2018) (“[T]here is no redressability if a federal court lacks the power
to issue [the plaintiff’s requested] relief.”). When determining the scope of a “court’s
remedial power,” “we assume that [a] claim has legal merit.” M.S., 902 F.3d at 1083
7
(citation omitted); see White Tail Park, Inc. v. Stroube, 413 F.3d 451, 460-61 (4th Cir.
2005). With these principles in mind, we turn to address each of the plaintiffs’ claims.
A.
We look first to whether Michigan resident and aspiring presidential candidate
Kopitke has alleged a sufficiently concrete injury to challenge the qualified voter
requirement. Kopitke argues that North Carolina General Statute § 163-122(a), which
requires that an unaffiliated candidate be a “qualified voter,” is unconstitutional as applied
to his candidacy for the presidency. Although the statute does not define the term
“qualified voter,” see id. § 163-122, Kopitke alleges that a “qualified voter” is an individual
“who satisfies the statutory requirements to vote in North Carolina and has registered to
vote.” Kopitke is registered to vote in Michigan and, thus, maintains that he is not a
“qualified voter” who can satisfy the requirements for being placed on the ballot as an
unaffiliated candidate for President. Kopitke accordingly contends that the qualified voter
requirement conflicts with the candidacy requirements for federal office enumerated in the
Constitution. See U.S. Const. art. II, § 1, cl. 5; U.S. Term Limits, Inc., 514 U.S. at 805.
In response, the Board agrees that if Kopitke’s definition of “qualified voter” is
accurate, the statute would be unconstitutional because states may not impose requirements
on candidates for federal office other than those mandated by the Constitution. However,
the Board submits that the term “qualified voter,” as used in Section 163-122(a), is not
limited only to voters registered to vote in North Carolina. And the Board further contends
8
that Kopitke lacks standing, 3 because the Board never has enforced the qualified voter
requirement to exclude unaffiliated candidates from appearing on the ballot due to their
nonresident status.
We agree with the Board that Kopitke lacks standing to challenge the qualified voter
requirement as applied to him, because he has failed to allege “a credible threat of
enforcement.” Abbott, 900 F.3d at 176. The Board has stipulated that it has not prevented,
and will not prevent, Kopitke from appearing on the ballot because of his nonresident
status. The Board already has accepted Kopitke’s request for a petition to collect voters’
signatures, despite his nonresident status. And, crucially, Kopitke has not alleged that the
Board ever has interpreted the qualified voter requirement to exclude nonresident,
unaffiliated presidential candidates. To the contrary, Ross Perot, an unaffiliated candidate
for President in 1992, appeared on North Carolina’s general election ballot, although he
was not a North Carolina resident. Given this history, as well as the Board’s present
assurances that it will not enforce such a requirement against Kopitke, Kopitke has failed
to allege “a credible threat of enforcement” to demonstrate standing to challenge the
qualified voter requirement. Abbott, 900 F.3d at 176. Thus, we conclude that Kopitke
lacks standing to assert this claim.
3
The Board did not challenge Kopitke’s standing to pursue this claim in the district
court, and the court did not address this issue. Instead, the court credited the Board’s
assertion that individuals other than North Carolina residents may run for federal office as
unaffiliated candidates, and dismissed Kopitke’s claim. We ordered supplemental briefing
addressing the question whether Kopitke has standing to challenge the qualified voter
requirement.
9
B.
Next, we consider whether Clark, a registered voter who wishes to cast his votes for
write-in candidates, has standing to challenge the signature requirement for such
candidates. Under North Carolina General Statute § 163-123, only write-in candidates who
have collected a certain number of voter signatures will be approved to have their votes
counted. Clark argues that this requirement infringes on his constitutional rights generally,
and suggests that he has a right to cast a “protest vote” that will be counted.
We conclude that Clark lacks standing to advance this claim. Clark’s generalized
allegation of harm is too speculative to constitute an “actual or imminent” injury necessary
to confer Article III standing. Lujan, 504 U.S. at 560. Notably, Clark does not allege that
he wishes to vote for any particular write-in candidates who have failed to secure the
required number of signatures. Nor does Clark allege that votes he previously cast were
not counted because he voted for specific write-in candidates who failed to comply with
state law requirements. Thus, Clark’s claim of injury fails because it depends on the
speculative proposition that he may wish to support yet unknown candidates who might
fail to secure the number of signatures required by Section 163-123.
Our conclusion that Clark lacks standing is not affected by the Supreme Court’s
decision in Burdick v. Takushi, 504 U.S. 428 (1992). There, the Supreme Court addressed
the merits of a plaintiff’s claim that his inability to cast a “‘protest vote’ for Donald Duck”
infringed on his right to vote. Id. at 438. The plaintiff in Burdick had standing to make
that claim because Hawaii had banned all write-in votes and, thus, the plaintiff’s vote for
Donald Duck would not be counted. Id. at 430, 432. In rejecting the merits of the plaintiff’s
10
claim, the Court explained that the plaintiff’s right to vote was unaffected because a
“protest vote” is not cast for the purpose of electing a candidate, but merely “to voice . . .
generalized dissension from the electoral process.” Id. at 441.
Unlike the plaintiff in Burdick, Clark has not alleged that all write-in votes will not
be counted. And, based on the allegations in his complaint, Clark ultimately may cast his
votes for candidates who have complied with the write-in candidate signature requirement,
eliminating any claimed injury. 4 Therefore, we conclude that Clark’s alleged injury is too
speculative to constitute an “actual or imminent” injury in fact to establish standing. Lujan,
504 U.S. at 560. Accordingly, we conclude that Clark has failed to plead sufficient facts
to establish standing.
Dismissal for lack of standing, however, requires that a complaint be dismissed
without prejudice because a court that lacks jurisdiction necessarily lacks the “power to
adjudicate and dispose of a claim on the merits.” S. Walk at Broadlands Homeowner’s
Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013).
Accordingly, we affirm the district court’s judgment, but modify the dismissal of Clark’s
claim and Kopitke’s “qualified voter” claim to reflect a dismissal without prejudice. See
Moore v. Frazier, 941 F.3d 717, 725 (4th Cir. 2019) (“[W]e can affirm [the district court’s]
decision to dismiss the complaint on any ground apparent on the record.”); Thomas v.
4
Because Clark does not allege a past injury, we need not address his reliance on
our decision in Dixon v. Md. State Admin. Bd. of Election Laws, 878 F.2d 776 (4th Cir.
1989), abrogated in part by Burdick, 504 U.S. at 432. The plaintiffs in Dixon had suffered
the injury of having their write-in votes rejected, id. at 778, whereas Clark’s injury may
never occur.
11
Salvation Army S. Territory, 841 F.3d 632, 642 (4th Cir. 2016) (modifying a judgment to
reflect a dismissal without prejudice).
C.
We next consider the claims of Kopitke and Buscemi challenging North Carolina’s
signature requirements and filing deadline for unaffiliated candidates. They seek a court
order directing the Board to place their names on the general election ballot without
meeting any signature requirement or filing deadline, contending that a lesser signature
requirement and a later filing date would be inadequate remedies for their injuries.
As an initial matter, we reject the Board’s contention that the plaintiffs lack standing
to assert these claims. Contrary to the Board’s contention, the asserted injuries are
redressable, because the district court has the power to grant the relief sought. 5 It is well-
settled that a court has equitable authority to order that a candidate’s name be placed on an
election ballot. See McCarthy v. Briscoe, 429 U.S. 1317, 1322-23 (1976); Williams v.
Rhodes, 393 U.S. 23, 34-35 (1968). Although a court should consider whether a candidate
has “community support” before ordering that the candidate’s name be added to a ballot,
the court has broad equitable authority to order such relief. McCarthy, 429 U.S. at 1323.
The appropriateness of any remedy will be decided after a determination of the merits of
the claim. See id. at 1322-23; Williams, 393 U.S. at 34-35. Accordingly, regardless
5
We agree with the parties that, with respect to these claims, Kopitke and Buscemi
have satisfied the other two requirements for standing, namely, that they have alleged
injuries in fact, and that their injuries are traceable to the Board’s conduct.
12
whether Kopitke and Buscemi ultimately obtain relief on the merits, we conclude that their
injuries are redressable for purposes of establishing standing.
Addressing the merits of their claims, Kopitke and Buscemi contend that North
Carolina’s signature requirements and filing deadline for unaffiliated candidates place an
unconstitutionally severe burden on their First and Fourteenth Amendment rights to run for
office. Conceding that they cannot meet any reduced signature requirement by any date,
they contend that the signature requirement of 1.5% of the relevant voter population is too
high, and that the filing deadline on the date of the primary election is too early. They
argue that the Board has failed to advance precise state interests that would justify
imposition of these burdens.
In response, the Board contends that the challenged requirements for unaffiliated
candidates impose only a modest burden, because courts have upheld higher signature
requirements and equivalent filing deadlines. According to the Board, this modest burden
is justified by the state’s important regulatory interest in preventing ballot overcrowding.
We agree with the Board’s position.
We review de novo a district court’s ruling on a motion to dismiss for failure to state
a claim. 6 McCaffrey v. Chapman, 921 F.3d 159, 163 (4th Cir. 2019). In conducting our
analysis, we construe all “facts in the light most favorable to the plaintiff[s].” Id. at 164(citation omitted).
6
The plaintiffs argue that the district court improperly treated the motion to dismiss
as a motion for summary judgment by addressing the merits of the plaintiffs’ claims. We
disagree with the plaintiffs’ assessment of the record and conclude that the district court
applied the correct standard for a motion to dismiss.
13
We begin with a review of the relevant legal principles. Any restrictions on access
to the ballot necessarily “implicate substantial voting, associational[,] and expressive rights
protected by the First and Fourteenth Amendments.” McLaughlin v. N.C. Bd. of Elections,
65 F.3d 1215, 1221 (4th Cir. 1995). However, states have the power to regulate the time,
place, and manner of their own elections, see U.S. Const. art. 1, § 4, cl. 1, to ensure that
“some sort of order, rather than chaos, . . . accompan[ies] the democratic processes,”
Burdick, 504 U.S. at 433 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)).
Accordingly, in evaluating a challenge to a ballot-access law, courts
must weigh the character and magnitude of the asserted injury to the rights
protected by the First and Fourteenth Amendments that the plaintiff seeks to
vindicate against the precise interests put forward by the State as
justifications for the burden imposed by its rule, taking into consideration the
extent to which those interests make it necessary to burden the plaintiff’s
rights.
Id. at 434 (citation omitted).
When election laws “impose a severe burden on ballot access,” those laws “are
subject to strict scrutiny,” and will be upheld only if the laws are “narrowly drawn” to
support a compelling state interest. Pisano v. Strach, 743 F.3d 927, 933 (4th Cir. 2014)
(citation omitted). Election laws that impose only a “modest” burden will be upheld if the
state can “articulate” its “important regulatory interests.” Libertarian Party of Va.
v. Alcorn, 826 F.3d 708, 716, 719 (4th Cir. 2016) (citations omitted). A “state’s important
regulatory interests are generally sufficient to justify reasonable, nondiscriminatory
restrictions.” Anderson v. Celebrezze, 460 U.S. 780, 788 (1983). “When deciding whether
14
a state’s filing deadline is unconstitutionally burdensome, we evaluate the combined effect
of the state’s ballot-access regulations.” Pisano, 743 F.3d at 933.
In Pisano, we upheld a North Carolina law requiring a group of voters seeking to
establish a new political party (1) to obtain signatures of at least 2% of the total number of
voters who voted in the last gubernatorial election, and (2) to meet this requirement by
mid-May, one week after the state’s primary election. Id. at 929-30. We held that, when
viewed together, these two requirements were permissible because they imposed only a
“modest” burden on ballot access. Id. at 936. In explaining our decision, we drew a
distinction “between filing deadlines [occurring] well in advance of the primary and
general elections[,] and deadlines falling closer to the dates of those elections,” and noted
that courts more often have invalidated filing deadlines that well precede the state’s
primary election. Id. at 935 (citation omitted). With these principles in mind, we turn to
address the parties’ arguments.
i.
We first address the challenges brought by Kopitke and Buscemi to the filing
deadline for unaffiliated candidates. North Carolina’s filing deadline for unaffiliated
candidates was March 3, 2020, the date of the primary election. N.C. Gen. Stat. §§ 163-
1(b), -122(a)(1)-(2), -213.2. We evaluate the appropriateness of a filing deadline in relation
to the date of the primary election. See Pisano, 743 F.3d at 935. The March filing deadline
at issue here fell early in the calendar year, but the deadline was not “well in advance of
the primary [election].” Id. Instead, the March filing deadline ensured that unaffiliated
15
candidates in North Carolina were able “to engage voters during the height of the primary
season” when voters had greater awareness of the upcoming election. Id.
Although a filing deadline on the day of a primary election may place a burden on
unaffiliated candidates who decide to run after the primary has occurred, see Lawrence v.
Blackwell, 430 F.3d 368, 373 (6th Cir. 2005) (upholding a signature filing deadline for
unaffiliated candidates the day before the March primary election), the Supreme Court has
placed “little weight” on “the interest the candidate . . . may have in making a late rather
than an early decision to seek independent ballot status.” Id. (quoting Storer, 415 U.S. at
736). Accordingly, under the circumstances presented, we conclude that North Carolina’s
filing deadline posed only a modest burden on unaffiliated candidates and that, therefore,
the district court did not err in holding that Kopitke and Buscemi failed to state a claim on
this basis. See Wood v. Meadows, 207 F.3d 708, 712 (4th Cir. 2000) (upholding Virginia’s
requirement that independent candidates file petitions on primary election day).
ii.
Next, we consider North Carolina’s requirement that unaffiliated candidates for
statewide office obtain the signatures of at least 1.5% of voters who voted in the last
gubernatorial election. N.C. Gen. Stat. § 163-122(a)(1). We also consider the requirement
that unaffiliated candidates for districtwide office obtain the signatures of 1.5% of
registered voters in that district. Id. § 163-122(a)(2).
Such signature requirements generally are justified by the “important state interest
in requiring some preliminary showing of a significant modicum of support before
printing” a candidate’s name on the ballot. Jenness v. Fortson, 403 U.S. 431, 442 (1971).
16
The Supreme Court has held that requiring unaffiliated candidates to submit petitions with
“signatures equal in number to 3% or 5% of the vote in the last election is not invalid on
its face.” Am. Party of Tex. v. White, 415 U.S. 767, 789 (1974); see also Jenness, 403 U.S.
at 438-39 (upholding statute requiring unaffiliated candidates to collect signatures of at
least 5% of registered voters for the candidates’ names to be placed on the ballot). And, as
discussed above, we recently upheld a 2% signature requirement for new political parties
in Pisano, 743 F.3d at 929-30. Because North Carolina’s 1.5% signature requirement falls
below these acceptable thresholds, the state’s signature requirement by itself does not
constitute a severe burden. See White, 415 U.S. at 789.
The present election format includes several of the same “alleviating factors” that
we relied on in Pisano in concluding that the ballot-access laws at issue were only modestly
burdensome. 743 F.3d at 934. For example, both new political parties and unaffiliated
candidates for statewide office can begin collecting signatures after the previous
gubernatorial election, a time period that provides those candidates more than three years
to accomplish this task. See N.C. Gen. Stat. §§ 163-96(a)(2), -122(a)(1); Pisano, 743 F.3d
at 930, 934. Also, voters in North Carolina may sign a candidate’s petition regardless of
the voters’ party affiliation and may sign multiple petitions. Pisano, 743 F.3d at 930, 934-
35. These liberal requirements set by North Carolina support a conclusion that the state’s
election format poses only a modest burden on unaffiliated candidates.
Notably, the challenged restrictions contain none of the additional requirements that
prompted us in 1995, in our decision in McLaughlin, to label North Carolina’s prior
election scheme as severely burdensome. 65 F.3d at 1221. There, the Libertarian Party of
17
North Carolina challenged the statutory requirement that a political party must receive at
least 10% of the votes cast in the previous election to retain its status as an established
political party. Id. at 1219-20. Under that provision, if a party failed to receive the required
number of votes in the previous election, the party had to become certified again as a new
political party by submitting a petition with signatures of at least 2% of voters. Id. at 1219.
At that time, North Carolina law also required the petitioner to submit a notarized affidavit
and a verification fee accompanying each signature. Id. at 1218. We categorized these
election requirements existing before Pisano as severe burdens. Id. at 1221. None of these
former requirements presently constrain unaffiliated candidates seeking ballot placement
in North Carolina. See N.C. Gen. Stat. § 163-122; see also Pisano, 743 F.3d at 934.
Kopitke and Buscemi argue, nevertheless, that the current 1.5% signature
requirements for unaffiliated candidates impose a severe burden when considered in
comparison to the current .25% signature requirement for new political parties. Compare
N.C. Gen. Stat. § 163-122(a)(1)-(2), with § 163-96(a)(2). This comparison is unavailing
because it essentially asks us to compare apples to oranges. The attempt to form a new
political party and the act of seeking office as an unaffiliated candidate “are entirely
different” endeavors. Storer, 415 U.S. at 745. A new political party “contemplates a
statewide, ongoing organization with distinctive political character,” id., whereas an
unaffiliated candidate merely seeks election for one office.
Because of these differences, a group of voters seeking recognition as a new political
party must satisfy additional requirements to attain and retain such recognition. See N.C.
Gen. Stat. § 163-96. For example, new political parties must “inform the signers of the
18
general purpose and intent of the new party.” Id. § 163-96(b). Also, candidates of a new
political party must receive at least 2% of the vote in the next general election or the party
will be terminated. Id. §§ 163-96(a)(1), -97. These additional burdens on new political
parties help explain why new political parties have an initial signature requirement lower
than the signature requirement for an unaffiliated candidate. And, despite these additional
burdens, we approved a 2% signature requirement for new political parties in our decision
in Pisano, 743 F.3d at 929-30.
We conclude that, taken together, the present filing deadline and signature
requirements pose only a modest burden on unaffiliated candidates. As we stated in
Pisano, “[e]lection law schemes with modest signature requirements and filing deadlines
falling close to or after the primary election . . . do not impose severe burdens.” 7 Id. at 935;
see also Swanson v. Worley, 490 F.3d 894 (11th Cir. 2007) (upholding election scheme as
not severely burdensome when it required unaffiliated candidates to file a petition with
signatures of at least 3% of qualified voters by its primary election date). Therefore, we
do not apply strict scrutiny, and instead ask whether the Board has articulated an “important
regulatory interest[]” to justify the modest burden. 8 Pisano, 743 F.3d at 933.
7
This Court in Wood held open the possibility that “a filing deadline for independent
candidates on the day of the party primaries could pose an unconstitutional burden when
operating in conjunction with a very early primary date, very high signature requirements,
or other particularly burdensome provisions.” 207 F.3d at 713. However, as discussed
above, the March 3, 2020 primary date is not “very early,” the 1.5% signature requirement
is not “very high,” and there are no “other particularly burdensome provisions.” Id.8
To the extent that the plaintiffs argue that this election scheme is not necessary to
satisfy the state’s interests, the plaintiffs apply the wrong standard of review. The Board
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The requirement that states articulate their asserted regulatory interests “is not a high
bar.” Alcorn, 826 F.3d at 719. The Supreme Court has “expressly approved a state’s
interest in limiting the number of candidates on the ballot . . . and in conditioning ballot
access on a showing of a modicum of support among the potential voters for the office.”
Wood, 207 F.3d at 715. 9 Similarly, we have upheld “the important state interest of reducing
voter confusion.” Alcorn, 826 F.3d at 719. Under this precedent, the Board’s stated
interests in preventing ballot overcrowding and voter confusion easily constitute important
regulatory interests sufficient to justify the modest burden of the state’s election scheme. 10
Accordingly, the Board adequately has articulated its interests in protecting the integrity of
its elections, and we affirm the district court’s judgment that Kopitke and Buscemi failed
to state a claim regarding the election law signature requirements for unaffiliated
candidates.
III.
In summary, we hold that Kopitke lacks standing to challenge North Carolina’s
“qualified voter” requirement, and that Clark lacks standing to challenge the signature
is not required to show that less restrictive means could advance its interests. See Wood,
207 F.3d at 716-17.
9
Citing Munro v. Socialist Workers Party, 479 U.S. 189, 193 (1986); Anderson,
460 U.S. at 788 n.9; Lubin v. Panish, 415 U.S. 709, 714-15 (1974); Bullock v. Carter, 405
U.S. 134, 145 (1972); Jenness, 403 U.S. at 442; Williams, 393 U.S. at 32-34.
10
Although “a state has a less important interest in regulating Presidential elections
than statewide or local elections, . . . states maintain an interest in regulating presidential
elections.” Pisano, 743 F.3d at 937 (citation omitted).
20
requirement for write-in candidates. Although we conclude that Kopitke and Buscemi have
standing to challenge North Carolina’s election law signature requirements for unaffiliated
candidates, we hold that they have failed to state a claim challenging those requirements,
which impose only a modest burden advancing important regulatory interests.
Accordingly, we affirm the district court’s order dismissing this action, but modify the
dismissal of Clark’s claim and Kopitke’s “qualified voter” claim to reflect a dismissal
without prejudice.
AFFIRMED AS MODIFIED ∗
∗
This opinion is published without oral argument pursuant to this Court’s Standing
Order 20-01, www.ca4.uscourts.gov/docs/pdfs/amendedstandingorder20-01.pdf (amended
Apr. 7, 2020).
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