Robert Johnston, III v. Linda Lamone

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-1783
ROBERT S. JOHNSTON, III; LIBERTARIAN PARTY OF MARYLAND,
Plaintiffs - Appellants,
v.
LINDA H. LAMONE, in Her Official Capacity as Administrator of the Maryland
State Board of Elections,
Defendant - Appellee.
Appeal from the United States District Court for the District of Maryland at Baltimore.
Catherine C. Blake, District Judge. (1:18-cv-03988-CCB)
Argued: January 29, 2020 Decided: March 3, 2020
Before AGEE, DIAZ, and HARRIS, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Mark Daniel Davis, HARRIS, WILTSHIRE & GRANNIS LLP, Washington,
D.C., for Appellants. Andrea William Trento, OFFICE OF THE ATTORNEY GENERAL
OF MARYLAND, Baltimore, Maryland, for Appellee. ON BRIEF: Mark A. Grannis,
HARRIS, WILTSHIRE & GRANNIS, LLP, Washington, D.C., for Appellants. Brian E.
Frosh, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF MARYLAND,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
This case involves a constitutional challenge to the process by which Maryland
recognizes political parties, so that they may place their preferred candidates on the ballot.
The Libertarian Party of Maryland and its State Chairman sued the Maryland State Board
of Elections (“the Board”), alleging that Maryland’s party-recognition system
unconstitutionally burdens the Party’s access to the ballot in two ways: first, by requiring
the Libertarian Party to submit the signatures of 10,000 registered voters, even though more
than 22,000 Maryland voters already are affiliated with the Party; and second, through
certain applications of the statutory standard used to evaluate the validity of those
signatures.
The district court granted the Board’s motion to dismiss, finding that the burden
imposed by the 10,000-signature requirement was modest and justified by an important
regulatory interest, and that the challenge to the Board’s signature-validation practices was
not ripe for adjudication. Johnston v. Lamone, 401 F. Supp. 3d 598 (D. Md. 2019).
Substantially for the reasons given by the district court, we affirm.
I.
Like many states, Maryland maintains a two-tier system for the recognition of
political parties which, once recognized, are entitled to ballot access. See Mathers v.
Morris, 515 F. Supp. 931, 937 (D. Md.), aff’d, 454 U.S. 934 (1981) (approving an earlier
and more exacting version of Maryland’s two-tier system); McLaughlin v. N.C. Bd. of
Elections, 65 F.3d 1215, 1222–23, 1226 (4th Cir. 1995) (approving North Carolina’s
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two-tier system). The defining feature of these two-tier systems is that the requirements
for initial recognition, at the first tier, are relatively modest, while “somewhat higher levels
of support” must be shown under the second “in order to maintain political party status.”
Mathers, 515 F. Supp. at 937.
Specifically, for initial recognition, Maryland law requires the submission to the
Board of a petition signed by at least 10,000 registered Maryland voters, collected within
two years of the filing date. Md. Code, Elec. Law § 4-102(b)(2). Those signatures must
satisfy what the district court referred to as Maryland’s “name standard,” Johnston, 401 F.
Supp. 3d at 606, which requires a close match between a voter’s signature and that voter’s
name as it appears on the statewide voter registration list. See Md. Code, Elec. Law
§§ 6-203(a)(1), 6-207(a)(1). 1 Once granted, a party retains this initial recognition, and thus
its access to the ballot, for two statewide general election cycles. Md. Code, Elec. Law
§ 4-103(a)(1).
At that point, the party becomes subject to the second tier of Maryland’s
ballot-access system. To maintain its official status, the party must demonstrate continued
voter support in one of two ways: by winning at least one percent of the vote for its
candidate for the highest office (either President or Governor) in the last statewide general
election; or by securing the party affiliation of at least one percent of all registered
1
Specifically, the Board may deem a petition signature to be valid only if the
signature either matches “the individual’s name as it appears on the statewide voter
registration list” or includes “the individual’s surname of registration and at least one full
given name and the initials of any other names.” Md. Code, Elec. Law § 6-203(a)(1).
4
Maryland voters. Md. Code, Elec. Law §§ 4-103(a)(2)(i), (ii). If a party cannot satisfy
either of those tier-two metrics of support, then it must go back to tier one and submit a
new petition for recognition with 10,000 signatures. Md. Code, Elec. Law § 4-103(c); see
Mathers, 515 F. Supp. at 936–37 (describing and approving an earlier version of
Maryland’s two-tier system, with a three-percent support requirement under the second
tier).
As the district court explained, the Libertarian Party has had considerable success
under Maryland’s two-tier system, obtaining recognition as a political party and extending
that status multiple times. See Johnston, 401 F. Supp. 3d at 602. But in 2018, the Party’s
gubernatorial candidate received less than one percent of the votes cast, and the Party’s
number of affiliated voters – over 22,000 – amounted to less than one percent of all
registered Maryland voters. As a result, the Party could not satisfy either standard for
continued support under the second tier, and was scheduled to lose its status as a
state-recognized party on December 31, 2018 – which would make its future ballot access
contingent on requalifying as a party by meeting tier one’s 10,000-signature requirement.
To avoid that result, the Libertarian Party of Maryland and its State Chairman,
Robert S. Johnson, III, filed the two-count complaint at issue in this appeal, naming as the
defendant Linda H. Lamone, the Board’s Administrator. 2 In Count One, the plaintiffs
2
After filing the complaint, the Party and Johnston sought a temporary restraining
order and preliminary injunction to prevent the Board from removing the Party from the
list of state-recognized political parties on Maryland’s voter-registration application and
associated forms. The district court quickly held a hearing and denied the motion. The
Party and Johnston have not appealed that decision.
5
sought relief from the 10,000-signature requirement for party requalification. The gist of
their position, as the district court described it, was that Maryland’s two-tier ballot-access
protocol was unconstitutional as presently applied to the Party “because over 22,000
Marylanders remain registered as Libertarians, and requiring new signatures would be a
costly but gratuitous exercise advancing [an] insufficient state interest.” Id. In Count Two,
the plaintiffs challenged certain potential applications of the Board’s signature-validation
standard to any petition for recognition that the Party might file in the future. The plaintiffs
alleged, based on past experience, that the Board sometimes disqualifies signatures under
this standard even when it can identify the relevant voter and then use the signature for
other administrative purposes, such as updating a voter’s status from “inactive” to “active.”
So applied, the plaintiffs argued, the “name standard” is unconstitutional. See id. at 606
(describing plaintiffs’ claim that the name standard is “unconstitutional as applied to Party
petitions to the extent that the state invalidates names despite matching them to the voter
registration[] rolls and otherwise using” them for administrative purposes).
In a thorough and well-reasoned opinion, the district court granted the Board’s
motion to dismiss the complaint. As the court explained, challenges to state election laws
are governed by the Anderson-Burdick framework, which balances a state’s asserted
interest in regulating its elections against a plaintiff’s voting, associational, and expressive
rights under the First and Fourteenth Amendments. See Johnston, 401 F. Supp. 3d at 602–
03; see also Burdick v. Takushi, 504 U.S. 428 (1992); Anderson v. Celebrezze, 460 U.S.
780 (1983). Under that framework, the severity of the burden imposed “dictates the level
of justification” required: “Severe” burdens trigger strict scrutiny, but if the burden is only
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“modest,” then a state’s “important regulatory interests will usually be enough to justify
reasonable, nondiscriminatory restrictions.” Johnston, 401 F. Supp. 3d at 603 (quoting
Pisano v. Strach, 743 F.3d 927, 933 (4th Cir. 2014)).
As to the 10,000-signature requirement for requalification, the court determined,
first, that it imposed only a modest burden on the state Libertarian Party. The court
accepted the plaintiffs’ allegations about the time and expense that would be involved in
meeting that requirement. Id. at 603. But similar or more onerous requirements already
had been deemed “modest” and approved in other cases, the court reasoned. Id. at 604
(citing, e.g., Mathers, 515 F. Supp. at 937 (holding that Maryland’s “statutory requirement
of 10,000 signatures statewide for initial qualification . . . is a relatively minor restriction
[that] does not unduly burden the rights of those seeking status as a political party”), and
Pisano, 743 F.3d at 934 (finding a North Carolina requirement amounting to 85,739
signatures to be a “modest” burden). Nor, the court noted, had the 10,000-signature
requirement “prevented the Party from reacquiring recognition time and again” in
Maryland. Id. at 603. Accordingly, the court concluded, further factual development was
unnecessary, and the burden imposed, “as a matter of law, is modest.” Id. at 604.
The district court also held that the 10,000-signature requalification requirement
advances “important regulatory interests” sufficient to justify a modest burden under
Anderson-Burdick. The heart of the plaintiffs’ case, the district court recognized, was the
contention that any burden – modest or otherwise – imposed by the 10,000-signature
requirement was “wholly superfluous” as applied to a party with 22,000 registered-voter
affiliates: 10,000 new petition signatures would tell the Board nothing it did not know
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already about statewide support for the Libertarian Party. Id. But as the district court
explained, two-tier systems like Maryland’s, requiring a higher level of support for
maintenance of party status than for initial recognition, 3 already have been upheld:
Because of the initial “lower ballot access requirement” at tier one, those policies are
“inclusive, not . . . exclusive,” and “[i]t is not unfair to expect a party to improve its showing
of support” in order to retain ballot access. Id. at 605 (quoting McLaughlin, 65 F.3d at
1222). The district court also rejected the plaintiffs’ claim that their 22,000 voter
affiliations rendered a 10,000-signature requirement entirely redundant. Here, the court
emphasized the “temporal axis” of the requirement: Because tier-one’s voter signatures
must be collected in the two-year period before submission, they are a “gauge of
contemporaneous support” in a way that voters’ party affiliations, which remain until
affirmatively changed and may be outdated, are not. Id. at 605–06 (emphasis added).
The district court then turned to the plaintiffs’ challenge to the Board’s application
of the signature-validation standard and concluded, in agreement with the Board, that it
was not ripe for review. Whether a case is ripe, the court explained, turns on a “balance”
of “the fitness of the issues for judicial decision with the hardship to the parties of
withholding court consideration.” Id. at 607; see also Miller v. Brown, 462 F.3d 312, 319
(4th Cir. 2006). Here, the court concluded, “uncertainties surrounding the submission of
3
According to the Board, the Libertarian Party would need approximately 42,500
party affiliations under tier two – well above the 10,000 signatures required under tier one,
and more than the 22,000 secured by the Party – to qualify for continued recognition on
that ground.
8
a new political party petition” by the Libertarian Party – including whether one would be
submitted at all, how many signatures on the hypothetical petition would be invalidated,
and for what reason – made the plaintiffs’ claim “insufficiently clean cut and concrete” for
adjudication. Johnston, 401 F. Supp. 3d at 607 (internal quotation marks omitted). Given
the remaining “contingencies,” the court concluded, “the name standard would be better
litigated if and when there are concrete signature invalidations in the record.” Id. at 608.
Moreover, the court found, delaying resolution of the claim until it was more sharply
presented would impose “comparatively little hardship” on the Party. Id. at 608 n.6. The
plaintiffs were not challenging the name standard on its face, and however a court might
resolve their claim about the Board’s use of disqualified signatures for other purposes, they
would be required to collect the same 10,000 valid signatures. See id. And because the
Party may submit signatures in stages – supplementing its petition with additional
signatures if the number of signature disqualifications makes it necessary to do so, see Md.
Code, Elec. Law § 6-205(d) – it might choose to litigate specific applications of the name
standard as they arose or simply to submit additional valid signatures. See Johnston, 401
F. Supp. 3d at 608 n.6. Finally, the court emphasized the constitutional nature of the
plaintiffs’ claims, reasoning that “prudential doctrines of judicial restraint counsel
particular caution in the face of factually underdeveloped constitutional questions.” Id. at
608.
In a subsequent order, the district court dismissed the plaintiffs’ action with
prejudice. This timely appeal followed.
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II.
We review de novo a district court’s dismissal of a complaint for lack of jurisdiction
and for failure to state a claim. See Berkley v. Mountain Valley Pipeline, LLC, 896 F.3d
624, 629 (4th Cir. 2018); Andon, LLC v. City of Newport News, 813 F.3d 510, 513 (4th Cir.
2016). On appeal, the parties advance substantially the same arguments they presented to
the district court. And for substantially the same reasons given by the district court in its
opinion, we now affirm the dismissal of the plaintiffs’ action.
With respect to the 10,000-signature requalification requirement, the plaintiffs
emphasize on appeal their contention that whether an election-law burden is “modest” or
“severe” is a sufficiently “fact-intensive inquiry” that dismissal at the pleadings stage under
Rule 12(b)(6) is inappropriate. But as the district court explained, that “argument is
squarely foreclosed by precedent.” Johnston, 401 F. Supp. 3d at 604. The question of a
burden’s severity, we have held, is “principally one of law,” which may be resolved by
reference to “case law assessing similar challenges,” Pisano, 743 F.3d at 932 – precisely
the approach taken by the district court here, see Johnston, 401 F. Supp. 3d at 604
(comparing the 10,000-signature requirement to other signature requirements evaluated
and approved by courts). Indeed, we recently recognized that while “the severity of the
burden imposed by an electoral regulation is a context-dependent inquiry[, t]hat inquiry
may nevertheless be resolved on a motion to dismiss because its resolution generally
depends on legal – rather than factual – sources and considerations.” Fusaro v. Cogan,
930 F.3d 241, 259 (4th Cir. 2019). Accordingly, we find no error in the district court’s
determination that further factual development was not required here.
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We also agree with the district court on the merits of the plaintiffs’ challenge to the
10,000-signature requirement. First, notwithstanding the plaintiffs’ protestations to the
contrary, theirs is indeed a challenge to the very notion of a two-tier system: The entire
gravamen of their complaint is that because Maryland requires no more than 10,000
signatures to qualify for initial recognition at tier one, they should be entitled to continued
recognition if they have more than 10,000 affiliated voters at tier two. But as we noted in
McLaughlin, in approving North Carolina’s two-tier system, courts both within and outside
this circuit have “upheld two-tier ballot access schemes that require a party to exhibit a
greater showing of support to remain on the ballot than that party needed to place a
candidate in the first place.” 65 F.3d at 1222–23 (emphasis added). That precedent by
itself effectively forecloses the heart of the plaintiffs’ claim.
In any event, we find no error in the district court’s analysis of the particulars of the
plaintiffs’ challenge under the Anderson-Burdick framework. Considering the “combined
effect” of Maryland’s party-recognition regulations, see Pisano, 743 F.3d at 933, we agree
with the district court that the 10,000-signature requirement for requalification, with
signatures to be collected within two years of submission, qualifies as a “modest” burden,
given case law deeming “modest” other signature requirements that are more onerous than
Maryland’s, see Johnston, 401 F. Supp. 3d at 604 (citing cases); Pisano, 743 F.3d at 936
(finding that a “modest” burden was imposed by North Carolina’s requirement of 85,739
signatures – two percent of the total votes cast in the state’s last general election – to be
collected over a three-and-a-half-year period). And for the reasons given by the district
court, we think there is the requisite “reasonable” fit between the 10,000-signature
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requirement and Maryland’s undoubtedly important interest in ensuring “a significant
modicum of support” for parties that will appear on its ballot. See Pisano, 743 F.3d at 933
(outlining standard of review for modest burdens); Jenness v. Fortson, 403 U.S. 431, 442
(1971) (recognizing as “important” the state interest in ensuring a “significant modicum of
support”). In particular, we agree with the district court that the two-year limit on the
collection of signatures at the first tier of Maryland’s system means that those signatures
are not interchangeable with party affiliations at the second, which may include outdated
party registrations that do not reflect current voter sentiment. See Johnston, 401 F. Supp.
3d at 605–06.
Finally, we agree with the district court that the plaintiffs’ challenge to certain
signature disqualifications under the name standard – those that occur even when the Board
is able to match a signature to the voter-registration roll and uses it for other purposes – is
not yet ripe for review. First, as the district court explained, is the fact that the claim may
never require judicial resolution at all. Cf. Miller, 462 F.3d at 319 (issue is “fit for judicial
decision” if it is not “dependent on future uncertainties”). The Party might not submit a
new petition for recognition, for instance; or the Board may accept as valid at least 10,000
of a hypothetical petition’s supporting signatures; or the Board could disqualify a critical
number of signatures but not use any of them for other administrative purposes, meaning
that those disqualifications would fall outside the scope of the plaintiffs’ claim. Under any
of these circumstances, there will be no need for a court to wade into this constitutional
dispute. See Johnston, 401 F. Supp. 3d at 608 (especially in constitutional cases, courts
should “tread lightly to avoid premature adjudication”). Second, the nature of the
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plaintiffs’ claim – focused on the potential that the Board could rely on some uncertain
number of disqualified signatures for some other administrative purpose – means that there
is a particular lack of factual concreteness here. No statute or regulation sanctions or guides
the practice to which the plaintiffs object, so a court would find it difficult to define and
evaluate that practice without more information – information that will develop only if and
when the Party submits a new petition for recognition. See id. at 607–08.
And like the district court, we think that withholding consideration of this issue until
it is presented more sharply will present only a minimal hardship to the Party. See Miller,
462 F.3d at 319 (considering “hardship to the parties of withholding court consideration”).
As the court explained, however their challenge to certain applications of the name
standard is resolved, the plaintiffs still will be required to collect at least 10,000 signatures.
And because they cannot know in advance which signatures, though technically deficient,
might later be verified by the Board and used for some other administrative purpose,
whether they prevail on their claim or not, the plaintiffs have the same incentive to ensure
that every signature they gather meets the formal requirements of Maryland law. See Md.
Code, Elec. Law §§ 4-102(b)(2), 6-203(a). Finally, as the district court pointed out,
Maryland law allows the Party to submit signatures for a future petition in stages, so that
it may submit additional qualifying signatures as necessary or, if there have been
disqualifications that fall within the scope of its as-applied challenge, litigate those specific
invalidations as they occur. See Johnston, 401 F. Supp. 3d at 608 n.6. Given the dispatch
with which the district court has handled this litigation to date, we do not doubt that it will
be possible for the Party to challenge particular applications of the name standard, should
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that become necessary, before an election is imminent. Cf. Miller, 462 F.3d at 320
(allowing election-law challenge to go forward where a law was causing “immediate harm”
and postponement might leave challengers without a remedy or cause disruption on the
“eve of [a] pending election[]”).
Accordingly, for the reasons given by the district court, we affirm the dismissal of
the plaintiffs’ claims. 4
AFFIRMED
4
We note that when a court dismisses a claim on ripeness grounds, that dismissal
generally is without prejudice. See Scoggins v. Lee’s Crossing Homeowners Ass’n, 718
F.3d 262, 276 (4th Cir. 2013). We therefore amend the district court’s dismissal with
prejudice to reflect that the dismissal of Count Two for lack of ripeness is without
prejudice. Cf. United States v. Watlington, 381 F. App’x 309 (4th Cir. 2010).
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