IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA CIVIL ACTION NO. 3:12-CV-00192

Transcription

1 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA NORTH CAROLINA CONSTITUTION PARTY, AL PISANO, NORTH CAROLINA GREEN PARTY, and NICHOLAS TRIPLETT, Plaintiffs, VS. CIVIL ACTION NO. 3:12-CV GARY O. BARTLETT, as Executive Director of e Nor Carolina Board of Elections; and LARRY LEAKE, ROBERT CORDLE, CHARLES WINFREE, and RONALD G. PENNY, as Members of e Nor Carolina Board of Elections, Defendants. MEMORANDUM IN OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT INTRODUCTION For e reasons stated in Part I, infra, and in e supplemental declarations of Albert Pisano and Nicholas Triplett, plaintiffs urge is Court to invoke Rule 56(d) of e Federal Rules of Civil Procedure and eier deny e defendants motion for summary judge on e merits (or at least defer ruling on e merits). Rule 56(d) auorizes e Court to take such action to allow [nonmovants] to obtain affidavits or declarations or to take discovery[.] Parts II and III of is memorandum explain why e Court must deny e summary judgment 1

2 motion to e extent at e defendants seek dismissal of e case on standing and laches grounds. Part IV provides some correction to e misleading chart defendants filed wi eir summary judgment memorandum. I. THE DEFENDANTS MOTION IS PREMATURE. Defendants motion for summary judgment must be denied. First, and most obvious, e motion is premature. The case raises issues of grave constitutional importance touching on plaintiffs fundamental political rights under e First Amendment as well as on e State s interests in administering fair and effective elections. The applicable constitutional analysis is e sliding scale balancing approach set for in Anderson v. Celebrezze, 460 U.S. 780 (1983), Burdick v. Takushi, 504 U.S. 428, 434 (1992), and Norman v. Reed, 502 U.S. 279, 289 (1992), which requires a careful sifting of e particular facts relating to e burdens on plaintiffs individual rights, e 1 specific state interests invoked to justify e burden, and possible, less restrictive alternatives. Such 1 Plaintiffs fully explained e analysis in eir preliminary injunction memorandum, and defendants agreed wi its applicability. Anderson held at a court assessing e legitimacy of a ballot regulation must first consider e character and magnitude of e asserted injury to e rights protected by e First and Fourteen Amendments at e plaintiff seeks to vindicate. It en must identify and evaluate e precise interests put forward by e State as justifications for e burden imposed by its rule. In passing judgment, e Court must not only determine e legitimacy and streng of each of ose interests, it also must consider e extent to which ose interests make it necessary to burden e plaintiff's rights. 460 U.S. at 789. Later cases have made clear at e analysis adjusts according to e degree of interference wi e individual rights e greater e imposition on candidates and voters interests, e weightier must be e state's justification wi due consideration given to less burdensome alternatives. Thus, when e First and Fourteen Amendment rights are subjected to severe restrictions, e responsible "regulation must be 'narrowly drawn to advance a state interest of compelling importance.'" Burdick, 112 S.Ct. at 2063 (quoting Norman, 112 S.Ct. at 705); accord, e.g., Dixon v. Maryland State Administrative Board of Election Laws, 878 F.2d 776 (4 Cir. 1989). This Court, in ruling on e preliminary injunction motion, concurred at 2

3 an analysis is necessarily fact-specific. Given e gravity of e competing interests and e nature of e requisite inquiry, a resolution of e constitutional issues in is case cannot, and certainly should not, be made wiout an opportunity for e parties to develop a full and complete record. Put simply, e plaintiffs have not had at opportunity. The only evidence of record relating to Nor Carolina s justification for its early presidential filing deadline is contained in two cursory and self-serving declarations from defendant Gary Bartlett, Executive Director of e State s Board of Elections. Plaintiffs have had no opportunity to question Mr. Bartlett about any of his assertions. (Defendants did not produce him at e preliminary injunction hearing and would not agree to discovery preceding e Court s resolution of e summary judgment motion. See Rule 26(f) Report, 3(b).) At a minimum, plaintiffs have e right to examine Mr. Bartlett. In addition, plaintiffs should be afforded e opportunity to submit counter depositions or affidavits from elections officials in states at have reasonable presidential candidate deadlines to refute whatever justifications Nor Carolina might come up wi to support its mid- May date. (The State has yet to articulate why such an early deadline is needed.) In terms of e burdens on plaintiffs rights, plaintiffs have previously submitted e declarations of Nicholas Triplett and Al Pisano, which described how Nor Carolina s early deadline imposes distinct burdens on e abilities of minor party candidates to satisfy e State s steep signature requirement. Those declarations, at a minimum, created issues of fact at need to developed to enable e proper application of Anderson v. Celebrezze. Supplemental declarations from plaintiffs Triplett and Pisano describe e necessity of affording plaintiffs e opportunity to Anderson-Burdick controls. 3

4 gaer and submit additional testimony and data to demonstrate e burdensomeness of Nor Carolina s mid-may deadline. Plaintiffs, for example, intend to offer testimony from minor party candidates and canvassers who have sought ballot access in oer states. And plaintiffs have had no opportunity in is case to create a record concerning what oer minor political parties have experienced in Nor Carolina working under its early deadlines. The record, and e Court s decision-making, could benefit from learning what successfully petitioning minor parties had to expend to get on e ballot and what unsuccessful minor parties have experienced. Indeed, plaintiffs have not even had e opportunity yet to engage in discovery as to what records e State itself might have relating to ballot access attempts by ird party presidential candidates. Deciding is case wiout such information, or at least wiout affording plaintiffs an opportunity to gaer it, is simply no way to decide e important constitutional questions at are presented. Rule 59(d) of e Federal Rules of Civil Procedure specifically provides at a Court may deny a motion for summary judgment to allow [nonmovants] time to obtain affidavits or declarations or to take discovery. As aptly stated by is Court (rough Magistrate Howell) in Bogan v. Hawksnest Ski and Snow Tubing, Inc., 2005 WL (W.D.N.C. 2005): [T]he Federal Rules of Civil Procedure do not allow [summary judgment] motions to go forward where relevant discovery has not been taken. Fed. R. Civ. P. 56(f) [now Rule 56(d)]. Simply put, premature motions for summary judgment waste limited judicial sources [sic] in reviewing what is, at best, an incomplete record. Courts do not take on e task of winnowing down issues where ere are obviously pending issues of material fact at have not even been inquired into by e parties. Where summary judgment is sought before e conclusion of discovery, e Court of Appeals for e Four Circuit held in Evans v. Technologies Applications & Service Co., 80 F.3d 954 (4 Cir.1996), as follows: As a general rule, summary judgment is appropriate only after adequate time for discovery. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 4

5 Id., at 961. L.Ed.2d 265 (1986); Temkin v. Frederick County Comm'rs, 945 F.2d 716, 719 (4 Cir.1991), cert. denied, 502 U.S. 1095, 112 S.Ct. 1172, 117 L.Ed.2d 417 (1992). [S]ummary judgment must be refused where e nonmoving party has not had e opportunity to discover information at is essential to his opposition. Anderson [v. Liberty Lobby, Inc., 477 U.S. 242,] 250 n. 5, 106 S.Ct. [2505,] 2511 n. 5 [1986]. This is really common sense operating. How can a defendant be entitled to a judgment on e merits of a case at turns on e careful sifting of e competing concerns under e Anderson v. Celebrezze analysis when e plaintiffs have had no opportunity to conduct discovery? Stating e question supplies e answer. II. PLAINTIFFS HAVE STANDING TO CHALLENGE THE EARLY FILING DEADLINE FOR MINOR PARTY PRESIDENTIAL CANDIDATES. Defendants maintain at, because plaintiffs have submitted few or no signatures, e early deadline is not e cause of eir failure to obtain general election ballot access and at, erefore, ey cannot assert e causation elements (traceability and redressability) of standing. The defendants fundamentally misread e plaintiffs claims as well as e law of standing. In eir complaint, e plaintiffs sought preliminary and permanent injunctive relief and declaratory relief concerning e constitutionality of Nor Carolina s mid-may deadline for minor party presidential candidates. This Court denied e plaintiffs request for preliminary relief, and ere is no practical possibility at is litigation can complete discovery and reach judgment prior to e time (September) at which e 2012 general election ballots must be printed. As a consequence of at fact, of e Court s ruling on e preliminary injunction motion, and of e plaintiffs decision not to appeal at ruling, it ought to be obvious at any argument relating to injunctive relief for e 2012 presidential election is moot. What is left in e case, en, is e 5

6 plaintiffs request for permanent injunctive and declaratory relief. Plaintiffs have alleged in eir amended complaint, and stated in eir declarations, at ey intend to put forward presidential candidates in Nor Carolina in e future, as ey have consistently done in e past and as ey have done and are doing in oer states. Thus, e issue before e Court is wheer Nor Carolina s continued future insistence on a mid-may minor party presidential deadline is constitutional. Resolution of at issue will have no effect on e 2012 election nor on anying else until e presidential election cycle of 2016 four years from now. Thus, whatever effort, or lack ereof, at plaintiffs expended to get on e ballot in 2012 is simply irrelevant to eir standing to challenge e early deadline as applied to future presidential elections. More fundamentally, however, e defendants standing argument is seriously flawed in its conception of e constitutional injury at e plaintiffs allege, have suffered, and will continue to suffer and seek to prevent in e future. Their alleged injury is not e failure to obtain ballot status. 2 Raer, e injury at plaintiffs suffer is e (current and future) denial of e ability to seek ballot access in a process at is free of unduly burdensome requirements, like a totally unnecessary early filing deadline. Numerous decisions of e United States Supreme Court recognize is crucial distinction. Turner v. Fouche, 396 U.S. 346 (1970), for example held at a person who did not own property could challenge a freeholder requirement for membership on a school board even ough ere was 2 Defendants continue to assert, despite e plaintiffs clear explanation to e contrary at e preliminary injunction hearing and in prior memoranda, at e plaintiffs in is case seek to circumvent e State s legitimate efforts to insist on a modicum of support by candidates before placing em on e ballot. As explained in e text, plaintiffs seek only to participate in an election process free of burdensome obstacles. They do not seek relief placing em on e ballot. 6

7 no assurance at he would have been appointed to e board in e absence of e requirement. Accord, Quinn v. Millsap, 491 U.S. 95 (1989) (challenge to a freeholder requirement for membership on a municipal charter board). Similarly, in Regents of University of California v. Bakke, 438 U.S. 265 (1978), e Court allowed a twice-rejected white medical school applicant to challenge e school s admissions policy at set aside sixteen out of one hundred seats in each class for minority students. Even ough ere was no certainty at Bakke would have been admitted in e absence of e affirmative action program, he had standing to challenge it to remedy his injury, which was e denial of e opportunity to compete for all one hundred seats in a process free of discrimination. Following Bakke, e Court held in Noreastern Florida Chapter of e Associated General Contractors of America v. City of Jacksonville, 508 U.S. 656 (1993), at construction companies had standing to challenge a city s set aside program at required at a minimum percentage of city construction contracts go to minority business enterprises. The companies had standing to mount eir challenge even if ere was no showing at ey would ultimately have been awarded e contracts. The Court rendered e following principle: When e government erects a barrier at makes it more difficult for members of one group to obtain a benefit an it is for members of anoer group, a member of e former group seeking to challenge e barrier need not allege at he would have obtained e benefit but for e barrier in order to establish standing. The injury in fact in an equal protection case of is variety is e denial of equal treatment resulting from e imposition of e barrier, not e ultimate inability to obtain e benefit. Id. at 666. Finally, in Clements v. Fashing, 457 U.S. 957 (1982), a case virtually on point for present purposes, e Court confronted a challenge to Texas s resign-to-run rule, which required e immediate resignation of certain state officers upon e announcement of eir candidacies for some 7

8 oer state office. The Court held at e plaintiffs had standing based on eir contention at ey would have exercised eir rights of candidacy to run for political offices but for e State s rule and regardless of wheer ey would have ultimately been elected to e sought-after office. The Court emphasized at e plaintiffs injury was e obstacle to [eir] candidacy, id. at 962, not eir failure to achieve e office. Similarly, in is case, e plaintiffs injury is having to overcome e burdensome and unnecessary obstacle of e mid-may deadline in order to place eir parties presidential candidates on e ballot. Given e above Supreme Court decisions, it is not surprising at e lower federal courts have routinely reached e merits of challenges to ballot access laws even ough e challenger made little or no attempt to try to meet e law s requirements. The cases include: Lee v. Kei, 463 F.3d 763 (7 Cir. 2006). Rainbow Coalition of Okla. v. Oklahoma St. Bd. of Elections, 844 F.2d 740 (10 Cir. 1988). Stevenson v. State Board of Elections, 794 F.2d 1176 (7 Cir. 1986). McLain v. Meier, 637 F.2d 1159 (8 Cir. 1980). Green Party of Tennessee v. Hargett, 2012 WL (M.D. Tenn. Feb. 3, 2012). Libertarian Party of Tennessee.v Goins, 793 F. Supp 2d 1064 (M.D. Tenn 2010). Nader 2000 Committee v. Hazeltine, 110 F. Supp 2d 1201 (S.D. 2000). Libertarian Party of Kentucky v. Ehrler, 776 F. Supp 1200 (E.D. Ky 1991). LaRouche v. Burgio, 594 F. Supp 614 (D.N.J. 1984). Greaves v. Nor Carolina State Board of Elections, 508 F. Supp 78 (E.D. 1980). See also Williams v Rhodes, 393 U.S. 23 (1968) (co-plaintiff Socialist Labor Party did not petition to get on e ballot). 8

9 III. THE DOCTRINE OF LACHES DOES NOT APPLY. Plaintiffs filed is lawsuit in March, 2012, seeking to invalidate e mid-may ird party presidential filing deadline for 2012 and for all future presidential election cycles. As explained above, is Court s denial of e preliminary injunction motion effectively removed from e case any issue relating to e 2012 election. Therefore, e only remaining question is e constitutionality of e mid-may deadline in future presidential elections, e next one being in Obviously, plaintiffs have not sat on eir hands to e last minute in challenging an election procedure whose next application is four years hence. Nor can ere possibly be any contention at e State will suffer any prejudice in is litigation because plaintiffs did not file eir law suit sooner March, Any argument from laches wi regards to permanent injunctive and declaratory relief in is case is, frankly, ludicrous. IV. DEFENDANTS CHART, STATE LAWS FOR NEW PARTY BALLOT ACCESS, CONTAINS MISLEADING AND INCORRECT INFORMATION. Defendants have attached to eir memorandum supporting summary judgment a chart at purports to set for e final filing deadlines for ird party presidential candidates and to supplement eir Exhibit 1 from e preliminary injunction hearing. Alough it is not necessary to assess e validity and significance of ese charts to deny e summary judgment motion as bo premature and ill-founded, plaintiffs feel compelled to point out at e defendants version accompanying eir memorandum has serious flaws. First, defendants chart fails to take into account alternative procedures provided in many states at permit presidential candidates to use eir party s labels to gain access to e general election ballot. Those alternative mechanisms have later deadlines an many of e procedures cited 9

10 by e defendants in eir chart. In addition to at major oversight, e chart includes, at least, e following specific problems: (1) e California entry fails to acknowledge e May decision in Constitution Party v. Bowen at enjoined e deadline; (2) Missouri law requires e petition be filed no later an fifteen Mondays before e general election and not, as defendants have apparently calculated, fifteen weeks before e rd election us, e deadline is July 30, not July 23 ; (3) e Ohio entry fails to acknowledge last year s decision invalidating e deadline, Libertarian Party of Ohio v. Husted, 2011 U.S. Dist. Lexis (S.D. Ohio 2011); (4) e Oregon entry is incorrect August 28, not August 8 is e deadline, see Ore. Rev. Stat. Ann (1); (5) e Tennessee entry fails to acknowledge e decision earlier is year in Green Party of Tennessee v. Hargett, supra, which struck down e listed deadline; (6) e Texas listing overlooks recent changes in at State s laws. The chart on e following page provides e accurate information regarding petition deadlines for minor party presidential candidates. A quick perusal of at chart reveals at only a handful of states have earlier deadlines an Nor Carolina and at a clear majority of e states now set eir deadlines at or after July 28, wi most of em falling in August and September. CONCLUSION This Court should deny e defendants motion for summary judgment on e merits to afford e plaintiffs e opportunities to conduct discovery and gaer evidence. The Court should deny e defendants motion for summary judgment on standing and laches grounds as lacking any basis in law or fact. 10

11 2012 PETITION DEADLINES FOR MINOR PARTY PRESIDENTIAL CANDIDATES State 2012 Deadline Election Code Citation Formula for Determining Date Ala March (a) date of primary election Alas August days before general election Az September G 60 days before general election Ark August (5) date named in law Cal undetermined Constitution Party v. Bowen state likely to set an August date Colo August (1),amended days before general election Ct August & 9-453i 6 days before primary election Del August 21 Title 15, sec days before primary election Fla July (4) date named in law Ga August first Tuesday in August Hi February days before primary election Id August date named in law Il June ILCS 5/ days before general election In July date named in law (weekend goes to Monday) Io August days before general election Kan June a & date named in law Ky September (6) first Tuesday in September La September first Tuesday in September Me August 9 Tit. 21A, date named in law Md August 6 Art. 33, 703(f) first Monday in August Ma July 31 Ch. 53, sec. 7,10 14 weeks before general election Mi July days before general election Mn August B days before general election Ms January & Sec. of State rule 1 week bef. primary candidate deadline Mo July last Monday in July Mt August days before general election Neb August date named in law Nev April work days before 3rd Fri in May N H August 8 655:43 34 days before primary election N J July 30 19: days before general election N M April , 1-8-2, first Tuesday in April N Y August 21 Election code weeks before general election N C May days before June 1 N D September days before general election Oh undetermined Libertarian Pty of Oh v. Blackwell undetermined Ok July date named in law (weekend goes to Monday) Ore August (1) 70 days before general election Pa August 1 Libt Pty v. Davis court order date named in court order R I September days before general election S C May mons before general election S D March last Tuesday in March Tn August 8 SB 3700, 2012 session 90 days before general election Tx June 29 Perez v. State court order date named in court order Ut August 15 20A-9-503(3)(b)(I) date named in law Vt June 14 Title 17, sec & 2356 nd 2 Thursday after first Monday in June Va August days before general election Wa July 28 29A (2) 4 Saturday in July W V August date named in law Wis August (8)(a) first Tuesday in August Wy June (e) date named in law DC August days before general election All procedures listed above permit e party label on e ballot next to e candidate s name, as long as e label is not too long and doesn t mimic e name of a qualified party. 11

12 s/ Jason E. Huber Jason E. Huber, N.C. Bar # Charlotte School of Law 2145 Suttle Avenue Charlotte, NC (704) jhuber@charlottelaw.edu s/ Robert M. Bastress, Jr. Robert M. Bastress (WV Bar ID # 263) P.O. Box 1295 Morgantown, W.Va (304) robert.bastress@mail.wvu.edu Counsel for Plaintiffs CERTIFICATE OF SERVICE I have served a copy of e foregoing memorandum on defendants counsel, Susan K. Nichols and Susannah P. Holloway, Special Deputy Attorneys General, rough e EM/ECF electronic filing system on is e day of July, s/ Robert M. Bastress, Jr. 12