United States v. Bryan Boneshirt

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-3212
___________
Libertarian Party of North Dakota; *
Richard Ames; Thommy Passa; *
Anthony Stewart, * Appeal from the United States
* District Court for the
Appellants, * District of North Dakota.
*
v. *
*
Alvin Jaeger, *
*
Appellee. *
___________
Submitted: May 11, 2011
Filed: October 17, 2011
___________
Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.
___________
BYE, Circuit Judge.
The Libertarian Party of North Dakota and three party candidates from the
2010 North Dakota state elections challenge the constitutionality of North Dakota
Century Code § 16.1-11-36. The party and candidates contend this statute as applied
to them violates the First and Fourteenth Amendment and the Equal Protection Clause
because it prevented the candidates’ names from appearing on the 2010 general
election ballot despite their winning the party’s primary. The party and candidates
sought a preliminary injunction, which the North Dakota Secretary of State Alvin
Jaeger, who was named in the suit in his official capacity, opposed by filing a motion

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to dismiss under Federal Rule of Civil Procedure 12(b)(6). The district court granted1
Secretary Jaeger’s motion and dismissed the complaint, therein denying the motion
for a preliminary injunction. The Libertarian Party of North Dakota and the three
candidates appeal the dismissal of their claims. We affirm.
I
In North Dakota’s elections for state legislature, a candidate is listed on the
primary election ballot based on one of two qualifying methods: filing a petition or
receiving a party endorsement. A candidate filing a petition is required to include a
number of signatures equal to the lesser of 1% of the legislative district’s population
or 300 people. A candidate entering the ballot by endorsement need only file a
Certificate of Endorsement from the party, which does not require any number of
signatures from the electorate. N.D. Cent. Code § 16.1-11-11(1)-(2) (hereinafter
“N.D.C.C.”). However, following the primary election, the candidate receiving the
highest number of votes within his or her party designation in the primary election
will be named on the general ballot only if the number of votes the candidate received
equals the number of signatures which was, or would have been, required to have the
candidate’s name placed on the primary election ballot through petition—that number
being the lesser of either 1% of the district population or 300 votes. N.D.C.C.
§§ 16.1-11-36 and 16.1-11-11(2)(c)(4)-(5).2
The Honorable Ralph R. Erickson, Chief Judge, United States District Court1
for the District of North Dakota.
North Dakota Century Code § 16.1-11-36 states:2
A person may not be deemed nominated as a candidate for any office at
any primary election unless that person receives a number of votes equal
to the number of signatures required, or which would have been required
had the person not had the person's name placed on the ballot through
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Thommy Passa, Anthony Stewart, and Richard Ames are members of the
Libertarian Party of North Dakota (“LPND”). Each pursued seats in the North
Dakota State Legislature in 2010 and was named on the primary election ballot
pursuant to nominations by the LPND: Passa was nominated for the House of
Representatives, 43rd District; Stewart for the House of Representatives, 17th
District; and Ames for the Senate, 25th District. During the primary election each
received the highest number of votes within the LPND for his respective seat: Passa
received four votes, Stewart received six votes, and Ames received eight votes. The
North Dakota Secretary of State Alvin Jaeger declined to include Passa, Stewart, and
Ames on the general election ballot because they failed to obtained the required
number of votes under N.D.C.C. § 16.1-11-36. Based on the respective district
populations, Passa needed 132 votes, Stewart needed 130 votes, and Ames needed
142 votes.
On July 20, 2010, after Secretary Jaeger refused to place their names on the
general election ballot, the LPND, Passa, Stewart, and Ames (“the LPND and
candidates” collectively) filed a complaint with the district court, naming Secretary
Jaeger, in his official capacity, as defendant. In the complaint, the LPND and
candidates challenged the constitutionality of N.D.C.C. § 16.1-11-36, alleging it
unduly burdens their rights under the First and Fourteenth Amendment and violates
the Equal Protection Clause. The LPND and candidates then filed a motion for a
preliminary injunction. Secretary Jaeger opposed the preliminary injunction and filed
a certificate of endorsement, on a petition to have a candidate's name for
that office placed on the primary ballot.
In addition, North Dakota Century Code § 16.1-11-11(2)(c)(4)-(5) provides the
number of signatures required for a person who had not had his name placed on the
ballot through a certificate of endorsement, which requires “the signatures of at least
one percent of the total resident population of the legislative district as determined
by the most recent federal decennial census. In no case may more than three hundred
signatures be required.”
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a motion to dismiss the complaint under Federal Rule of Civil Procedure 12(b)(6).
The LPND and candidates responded to the motion to dismiss, requesting oral
argument. On September 3, 2010, the district court issued its order granting the
motion to dismiss, and denying both the motion for a preliminary injunction and the
request for oral argument. The LPND and candidates appealed challenging the
district court’s order dismissing their complaint.
II
We review de novo a dismissal for failure to state a claim. Fed. R. Civ. P.
12(b)(6); Detroit Gen. Ret. Sys. v. Medtronic, Inc., 621 F.3d 800, 804 (8th Cir. 2010).
In reviewing a dismissal, “[w]e accept the factual allegations of the complaint as true,
but the allegations must supply sufficient ‘facts to state a claim to relief that is
plausible on its face.’” O’Neil v. Simplicity, Inc., 574 F.3d 501, 503 (8th Cir. 2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Thus, on appeal,
we must determine whether the LPND and candidates failed to state a claim upon
which relief could be granted, construing the complaint in their favor.
III
A. First and Fourteenth Amendment Challenge
The LPND and candidates first challenge the constitutionality of N.D.C.C.
§ 16.1-11-36 claiming it unduly burdens their First and Fourteenth Amendment
rights. In considering a challenge to a ballot access statute, we are reminded “[b]allot
access statutes are not susceptible of easy analysis, nor is the appropriate standard of
review always easy to discern.” McLain v. Meier, 637 F.2d 1159, 1163 (8th Cir.
1980) (hereinafter “McLain I”). Although several cases address ballot access issues,
no opinion from either the United States Supreme Court or the Eighth Circuit has
clearly defined the appropriate standard for reviewing these constitutional challenges.
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Instead, each provides for a case-by-case assessment of the burdens and interests
affected by a disputed statute, focusing on the statute as part of a ballot access scheme
in its totality. McLain v. Meier, 851 F.2d 1045, 1049 (8th Cir. 1988) (hereinafter
“McLain II”). We may uphold a specific ballot access statute as constitutional so
long as the restrictions it imposes are reasonable, justified by reference to a
compelling state interest, and do not go beyond what the state’s compelling interests
actually require. McLain I, 637 F.2d at 1163. In other words, we review the statute
under a form of strict scrutiny referred to as the “compelling state interest test” by
first determining whether the challenged statute causes a burden of some substance
on a plaintiff’s rights, and if so, upholding the statute only if it is “narrowly drawn to
serve a compelling state interest.” McLain II, 851 F.2d at 1049.
Despite this rigid standard, not all restrictions on the right to vote or the right
to associate are necessarily invalid. Storer v. Brown, 415 U.S. 724, 729 (1974). The
states must ensure elections are fair, honest, and orderly, which necessarily requires
“substantial regulation.” Id. at 730. And, over time, “the States have evolved
comprehensive, and in many respects complex, election codes regulating in most
substantial ways, with respect to both federal and state elections, the time, place, and
manner of holding primary and general elections, the registration and qualifications
of voters, and the selection and qualification of candidates.” Id. “It is very unlikely
that all or even a large portion of the state election laws would fail to pass
muster . . . .” Id. As explained by the United States Supreme Court in Anderson v.
Celebrezze, 460 U.S. 780, 789 (1983):
Constitutional challenges to specific provisions of a State’s
election laws . . . cannot be resolved by any “litmus-paper test” that will
separate valid from invalid restrictions. . . . Instead, a court must resolve
such a challenge by an analytical process that parallels its work in
ordinary litigation. It must first consider the character and magnitude of
the asserted injury to the rights protected by the First and Fourteenth
Amendments that the plaintiff seeks to vindicate. It then must identify
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and evaluate the precise interests put forward by the State as
justifications for the burden imposed by its rule. In passing judgment,
the Court must not only determine the legitimacy and strength of each
of those interests; it also must consider the extent to which those
interests make it necessary to burden the plaintiff's rights. Only after
weighing all these factors is the reviewing court in a position to decide
whether the challenged provision is unconstitutional.
(internal citations omitted). Thus, we begin by reviewing the LPND and candidates’
alleged injury, the state’s asserted interest, and the necessity of the statute in
furthering that interest.
In application, the crux of this analysis is to determine whether the challenged
statute “‘freezes the status quo’” of a two-party system, or whether “[i]t affords
minority political parties a real and essentially equal opportunity for ballot
qualification.” Am. Party of Tex. v. White, 415 U.S. 767, 787-88 (1974); see also
Storer, 415 U.S. at 728 (noting the state must provide a “feasible means for other
political parties and other candidates to appear on the general election ballot”) (citing
Williams v. Rhodes, 393 U.S. 23 (1968)). Restated, the need for fair and orderly
elections requires states to enact restrictions on the election process, even though the
restrictions may be “necessarily arbitrary.” McLain II, 851 F.2d at 1050 (internal
quotation marks omitted). When this is the case, our inquiry evolves from strict and
exacting scrutiny into “one of reasonableness: Do the challenged laws freeze the
status quo by effectively barring all candidates other than those of the major parties.”
Id.
1. Undue Burden
For a ballot access restriction to be found unconstitutional, a challenger first
must establish that the law imposes a substantial burden. McLain II, 851 F.2d at
1049. North Dakota Century Code § 16.1-11-36 limits candidates’ access to the
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general ballot, which affects both the “right of individuals to associate for the
advancement of political beliefs, and the right of qualified voters, regardless of their
political persuasion, to cast their votes effectively.” Williams, 393 U.S. at 30;
Libertarian Party v. Bond, 764 F.2d 538, 541 (8th Cir. 1985). “These rights rank
among our most precious freedoms,” Libertarian Party, 764 F.2d at 541, and are thus
protected against federal encroachment by the First Amendment and state
infringement by the Fourteenth Amendment, Williams, 393 U.S. at 30-31. The
Supreme Court has emphasized the fundamental nature of these rights: “‘No right is
more precious in a free country than that of having a voice in the election of those
who make the laws under which, as good citizens, we must live. Other rights, even
the most basic, are illusory if the right to vote is undermined.’” Id. at 30 (quoting
Wesberry v. Sanders, 376 U.S. 1, 17 (1964)). Consequently, we conclude N.D.C.C.
§ 16.1-11-36 imposes a substantial burden on the LPND and candidates’ First and
Fourteenth Amendment rights by restricting their access to the general elections
ballot.
However, this substantial burden is not necessarily undue or excessive. An
undue burden, which essentially removes all realistic chance for a minor party or
independent candidate to ever access the general election ballot, cannot be justified
by any state interest, regardless of how compelling the interest may be. Am. Party of
Tex., 415 U.S. at 787-88; MacBride v. Exon, 558 F.2d 443, 449 (8th Cir. 1977).
Thus, a ballot access statute imposing an undue burden is necessarily
unconstitutional. In alleging N.D.C.C. § 16.1-11.36 is unduly burdensome, the LPND
and candidates focus not on the requirement for “candidates [to] show a ‘modicum’
of support prior to their placement on the ballot.” Appellant’s Br. at 10. Instead, they
specifically challenge as undue and excessive the percentage of support they are
required to show under the statute. Id. (“[T]he issue in this case is whether the
modicum of support that Section 16.1-11-36 actually requires—more than 15 percent
of the eligible pool for some candidates—is constitutional.”).
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The Supreme Court often focuses on the amount of support a candidate is
required to show when determining whether a ballot access restriction is
constitutional, specifically considering the percentage of signatures or votes required.
See, e.g., Munro v. Socialist Workers Party, 479 U.S 189, 190 (1986) (holding as
constitutional a 1% vote requirement in a blanket primary); Am. Party of Tex., 415
U.S. at 774-75, 783 (holding a 1% signature requirement as “within the outer
boundaries of support the State may require before affording political parties ballot
position”); Jenness v. Fortson, 403 U.S. 431, 432 (1971) (holding a 5% signature
requirement constitutional because it “in no way freezes the status quo”); Williams,
393 U.S. at 24-26 (holding a 15% signature requirement unconstitutional because it
eliminated any realistic chance of a third party accessing the ballot, effectively
freezing the two-party status quo). Significantly, though, the Supreme Court does not
merely consider the percentage stated in a challenged law. Rather, it determines the
percentage of support based on the “eligible pool.” See Storer, 415 U.S. at 739. In
Storer, the statute required candidates to receive signatures totaling 5% of the number
of votes cast in the previous general election. However, candidates could only
receive signatures from those who had not voted in the primary or signed petitions for
any other party. Id. at 727-28. While the 5% requirement did not appear to be
excessive on its face, the Court found it unclear on the record whether the “eligible
pool” was so diminished by the number of people that voted in the primary as to make
the signature requirement impractical. Id. at 739. Thus, the Court remanded the case
for further fact finding so the lower court could determine the exact percent of the
“eligible pool” required for the independent candidates, and noted concern if the
percent was found to be substantially more than 5%. Id.
The LPND and candidates cite Storer to implore this court to ignore the plain
language of N.D.C.C. § 16.1-11-36 requiring a vote total equal to 1% of the general
population in the primary election, and ask us to look instead at the percentage in
terms of actual votes cast in the primary election. With regard to the numbers from
the 2010 election, a candidate receiving votes equal to 1% of the general population
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is equivalent to the candidate receiving as high as 15% of actual votes cast in the
primary. While we heed the LPND and candidates’ caution as to relying solely on the
1% figure stated in the statute, we are not persuaded the correct consideration is the
percent of actual votes cast. Essentially, the LPND and candidates asks us to define
the “eligible pool” in a way unsupported by precedent.
In Storer, the Supreme Court looked beyond the plain language of the statute
and attempted to reconcile whether a requirement for signatures equal to 5% of the
number of votes cast in the previous gubernatorial election remained reasonable when
converted to a percentage of the eligible pool. 415 U.S. at 739. Because voters were
limited to either voting in a primary or signing one nominating petition, an
independent candidate did not have access to all persons who voted in the previous
election and instead had to work with the remaining personswho did not vote in the
primary. Id. This eligible pool in Storer was consequently defined as those who were
available to sign a petition after the primary elections were concluded. Id. Notably,
the eligible pool in Storer was not based on the number of people who actually signed
petitions following the primaries. Equally so, in the present case, we see no reason
to define the eligible pool as those who voted in the actual primary. Instead, as was
the case in Storer, the eligible pool should be the number of people who were eligible
to vote for the candidates in the primary regardless of whether they cast a vote or not,
not the number who actually voted.
The number of people eligible to vote in the primary election is not in the
record, but Secretary Jaeger provides some evidence estimating that number to be
about 75% of the general population, which in turn means the vote requirement of 1%
of the general population would become 1.33% of the eligible pool of adults who can
vote—a percent still well below the upper threshold of reasonable under Supreme
Court precedent. Even more, considering this is an as applied challenge, even if the
eligible pool was the number of actual primary voters, none of the candidates
received 1% of actual votes cast: Passa received 0.24%, Stewart received 0.20% and
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Ames received 0.86%. Thus, regardless of which “eligible pool” the court uses, these
three candidates still have failed to show any indication of a modicum of support
entitling them access to the general ballot. As Secretary Jaeger stated in his brief,
“not only did the plaintiff candidates not receive the number of votes equal to 1% of
the population of their legislative districts, and not only did they not receive the
number of votes equal to 1% of the number of eligible voters in their legislative
districts, they did not even receive 1% of the actual votes cast.” Appellee’s Br. at 20.
The LPND and candidates also attempt to demonstrate that regardless of which
eligible pool is relied upon, N.D.C.C. § 16.1-11-36 creates an unrealistic burden for
minor parties because no minor party candidate has been included on the general
election ballot for a state legislature position since 1976. This information could
certainly be concerning, but in this case, the LPND and candidates have failed to tie
the absence of minor party candidates to the challenged statute or its requiring
candidates to show a modicum of support during the primary election. The mere fact
such candidates have been absent from the general election ballot does not, alone,
prove the unconstitutionality of the statute. As Secretary Jaeger observed, the
historical absence of minor parties on ballots has not been shown to be directly
attributable to this statute, because it could instead be from any one of the other
hurdles a party and candidate must overcome in North Dakota’s election scheme to
be placed on the general ballot. Because the LPND and candidates have failed to
provide evidence of any other minor party candidates who have been placed on the
primary ballot but have failed to meet the challenged statute’s 1% requirement for
reaching the general ballot, we are unpersuaded by the mere absence of minor party
candidates on the ballot. There is no historical evidence N.D.C.C. § 16.1-11-36 has
prevented any candidate from reaching the general ballot by imposing an
insurmountable and undue burden.
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For these reasons, we conclude N.D.C.C. § 16.1-11-36 imposes a substantial,
but not undue or excessive, burden on the LPND and candidates’ First and Fourteenth
Amendment rights.
2. State’s Interest
To justify this substantial but not undue burden, Secretary Jaeger contends
N.D.C.C. § 16.1-11-36 is necessary to prevent ballot overcrowding and voter
confusion by eliminating frivolous candidates, among other interests. A substantial
but not undue burden may be constitutional so long as it is necessary to achieve a
compelling state interest. McLain II, 851 F.2d at 1049. “‘[O]nly a compelling state
interest in the regulation of a subject within the State’s constitutional power to
regulate can justify limiting First Amendment freedoms.’” Williams, 393 U.S. at 31
(quoting NAACP v. Button, 371 U.S. 415, 438 (1963)). A state has a compelling
interest in “‘protecting the integrity of their political processes from frivolous or
fraudulent candidacies, in insuring that their election processes are efficient, in
avoiding voter confusion caused by an overcrowded ballot, and in avoiding the
expense and burden of run-off elections.’” Libertarian Party, 764 F.2d at 540-41
(quoting Clements v. Fashing, 457 U.S. 957, 965 (1982)). Consequently, a state has
a legitimate interest in regulating the number of candidates on the ballot in order to
“prevent the clogging of its election machinery, avoid voter confusion, and assure that
the winner is the choice of a majority, or at least a strong plurality, of those voting,
without the expense and burden of runoff elections.” Bullock v. Carter, 405 U.S. 134,
145 (1971). “Moreover, a [s]tate has an interest, if not a duty, to protect the integrity
of its political process from frivolous or fraudulent candidacies.” Id. A state’s
interest in eliminating frivolous candidates from the ballot is “sufficiently implicated
to insist that political parties appearing on the general ballot demonstrate a
significant, measurable quantum of community support.” Am. Party of Tex., 415 U.S.
at 782; see also Jenness, 403 U.S. at 442 (“There is surely an important state interest
in requiring some preliminary showing of a significant modicum of support before
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printing the name of a political organization’s candidate on the ballot—the interest,
if no other, in avoiding confusion, deception, and even frustration of the democratic
process at the general election.”). Accordingly, the state’s alleged interests of
preventing ballot overcrowding, avoiding voter confusion caused by frivolous
candidates, as well as ensuring an efficient election process and avoiding the expense
associated with run-off elections are all sufficiently compelling as to justify infringing
upon the rights to vote, to freely associate, and to promote political beliefs.
However, whether N.D.C.C. § 16.1-11-36 is necessary to achieve these
compelling interests is a more complex analysis. As an initial matter, the LPND and
candidates assert there are alternative, less burdensome means of furthering the state’s
compelling interest and consequently the chosen means is not necessary and must be
unconstitutional. We disagree. The LPND and candidates offer as an alternative
means the option of requiring 1% of the number of voters in a previous election
instead of basing the percentage on the district’s population. Certainly, it could be
reasonable for North Dakota to do this as it is similar to the requirements upheld by
the Supreme Court for other states’ election laws. See, e.g., Am. Party of Tex., 415
U.S. at 782. However, the mere identification of a less burdensome alternative is not
dispositive in election cases such as this one. The need for fair and orderly elections
requires states to enact restrictions even though those restrictions may be “necessarily
arbitrary,” McLain II, 851 F.2d at 1050 (internal quotation marks omitted), and such
arbitrary restrictions may include the selection of the number of signatures or votes
needed to get on a general election ballot. In this case, the LPND and candidates’
suggestion to use a percent of actual votes, or votes cast in a previous election, as
opposed to a percentage of the general population, is really an argument about the
number of votes required, an arbitrary component to the law, for which our inquiry
evolves from strict and exacting scrutiny into “one of reasonableness.” Id. As we
previously discussed in more detail, the percentage of votes required by N.D.C.C.
§ 16.1-11-36 is not excessive or undue and thus we conclude requiring a number of
votes equal to 1% of the population is reasonable and, therefore, constitutional
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despite the existence of alternatives. See MacBride, 558 F.2d at 448 (analyzing a
deadline as an arbitrary component to the law and would uphold deadline so long as
it was reasonable). As the LPND and candidates concede in briefing, it has “never
been in dispute in this case” that “North Dakota may enact ‘reasonable’ ballot access
restrictions,” Appellant’s R. Br. at 4, and the requirement of acquiring votes equal to
1% of the general population to reach the general election ballot is reasonable under
Supreme Court and Eighth Circuit precedent.
The LPND and candidates raise two additional challenges to the necessity of
N.D.C.C. § 16.1-11-36 in achieving the state’s alleged compelling interests. First,
they contend the statute “does not serve any legitimate state purpose” because it
targets candidates who already “demonstrated a significant modicum of electoral
support.” Appellant’s R. Br. at 5. They specifically argue the statute is not necessary
because “[by] its own terms, [§] 16.1-11-36 is specifically directed at candidates who
1) win their primary election races; 2) after successfully qualifying for inclusion on
the primary election ballot; [and] 3) [are] of a political party that likewise successfully
qualified for inclusion on the primary election ballot.” Id.
In North Dakota, a candidate is placed on the primary ballot through one of two
processes. First, a nonparty candidate can file a petition containing the signatures of
1% of the general population of the relevant legislative area or 300 signatures,
whichever is less. The second method, which applies to candidates affiliated with a
party, involves filing a certificate of nomination requesting a chosen candidate be
placed on the primary ballot without the candidate first obtaining signatures. In this
case, candidates Passa, Stewart, and Ames were all nominated by the LPND and thus
they were placed on the primary ballot without meeting the nonparty candidate
signature requirement. However, to become a party—and thus to be able to bypass
the candidate signature requirement—the LPND had to obtain 7,000 signatures
statewide to show sufficient party support. These 7,000 signatures could be from any
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adult statewide regardless of whether the adult had signed any other party’s petition
and did not require the signer to commit to voting for the party in the future primaries.
The LPND and candidates contend this 7,000-signature requirement to become
a party establishes sufficient voter support to justify future ballot placement of all
candidates and thus obviates the need for a minimum vote requirement following the
primary election. We cannot agree, particularly given the LPND and candidates
chose to bring this challenge as applied. For candidates Passa, Stewart, and Ames,
not one of them had to acquire signatures to show support as an individual candidate.
The only evidence of support before the primary election was the 7,000 signatures
acquired by the LPND to become a party. These signatures—while obtained in part
by each of these candidates—were not to show support for the individual candidates,
but rather for the party as a whole. At no point in the process leading up to the
primary election were the voters ever provided the opportunity to show support, or
lack thereof, for any specific candidate. Instead, as North Dakota’s election laws
require, the first point at which these candidates’ voter support was demonstrated was
at the primary election itself. Accordingly, N.D.C.C. § 16.1-11-36 is not obviated by
the process of getting onto the primary election ballot. To the contrary, given the ease
with which a candidate may be placed on the primary ballot, the primary election
becomes the first instance to filter candidates by actual voter support. Further, the
necessity of the lesser of 1% or 300 primary vote requirement becomes even more
evident when considering the fact that the 7,000 signature requirement on which the
LPND and candidates rely as their showing of support is a one-time occurrence.
Once a party is established using the 7,000 signatures, it will not have to regain those
signatures in future years. Instead, the only protection the state has from frivolous
party candidates and ballot overcrowding in subsequent elections is the 1% or 300
vote requirement in the primaries. And, as addressed in more detail above, it was at
these primaries that candidates Passa, Stewart, and Ames failed to generate sufficient
support to establish themselves as viable, nonfrivolous candidates. We therefore are
unpersuaded by the LPND and candidates’ contention as to § 16.1-11-36 being
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unnecessary because we cannot agree the candidates had already demonstrated a
sufficient modicum of support.
Second, the LPND and candidates challenge the state’s reliance on primary
elections as the forum for determining the amount of support for a particular
candidate. The LPND and candidates contend primary elections “are an inherently
inaccurate measure of support for minor party candidates” because primary elections
are notorious for low voter turn out, voters are limited to voting within only one party
at the primary, and the elections take place too early in the campaign process “before
voters can possibly know who the major party nominees are, must less register
dissatisfaction with them.” Appellant’s R. Br. at 7. We are unpersuaded by each of
these contentions. To begin, the LPND and candidates’ argument as to low voter turn
out is without merit as it has already been rejected by the United States Supreme
Court in Munro, 479 U.S. at 198. The Supreme Court stated, “We perceive no more
force to this argument than we would with an argument by a losing candidate that his
supporters’ constitutional rights were infringed by their failure to participate in the
election.” It further explained,
“candidates and members of small or newly formed political
organizations are wholly free to associate, to proselytize, to speak, to
write, and to organize campaigns for any school of thought they
wish. . . .” States are not burdened with a constitutional imperative to
reduce voter apathy or to ‘handicap’ an unpopular candidate to increase
the likelihood that the candidate will gain access to the general election
ballot.
Id. (quoting Jenness, 403 U.S. at 438). It is relevant that just as major parties are able
to do, minor parties can campaign and reach out to the electorate for support leading
up to the primary. Am. Party of Tex., 415 U.S. at 785. Thus, despite the traditionally
lower interest in primary elections than general elections, the burden is appropriately
placed on the candidate to generate support and rally voters to vote in order to make
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it to the general election ballot. It is not the state’s obligation to find or create an
easier forum for establishing voter support.
Similarly, we are unpersuaded by the LPND and candidates’ frustration with
the restriction created by N.D.C.C. § 16.1-11-22 which limits voters to voting only
within a single party’s primary election. The LPND and candidates claim this
limitation makes it more difficult for smaller third parties to attract a significant
number of voters when the two major parties likely have more contentious and more
nationally-relevant elections on their ballots. The Supreme Court has indicated such
a limitation is reasonable and constitutional for states to impose, Am. Party of Tex.,
415 U.S. at 785, but as the LPND and candidates aptly point out, this rule creates a
potential disadvantage for third parties in generating voter support at the primaries
because a voter who is interested in a particular, nationally-relevant campaign might
desire to vote for a major party candidate in one seat and thereby foreclose the
opportunity to vote for a third party candidate in a state legislature position.
Nevertheless, the fact that voters are limited to voting within only one party at the
primary election is not fatal to the ballot access restriction created in N.D.C.C. § 16.1-
11-36. The purpose of the primary election is for voters to indicate support for a
desirous candidate. Parties are responsible for campaigning and generating voter
support leading up to the primary election. Munro, 479 U.S. at 197-98. The
candidates had the responsibility of rallying the voters to come to the primary to
generate the necessary support to reach the general election ballot. Id. As the
Supreme Court has explained, states are permitted to require candidates “through
their ability to secure votes at the primary election, [to demonstrate] they enjoy a
modicum of community support in order to advance to the general election.” Id. The
fact the candidates in this case failed to generate this support shows N.D.C.C. § 16.1-
11-36 performed precisely the function the state intended to further: its compelling
interest of eliminating frivolous and unsupported candidates from the ballot. See id.
at 198 (“[R]equiring candidates to demonstrate such support [at a primary] is
precisely what we have held States are permitted to do.”). Consequently, we
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conclude the limitation of voting only within a single party’s primary election does
not render primary elections an unconstitutional forum for evaluating a candidate’s
modicum of support.
The LPND and candidates’ last challenge is to the timing of the primary
election. They suggest primary elections are held at a time before minor parties and
independent candidates are likely to generate support and therefore places third
parties at an unconstitutional disadvantage. The courts have recognized the
“disaffected” group of voters likely to support candidates outside of the two major
parties may not be cohesive or identifiable until a few months before the election
because “the identity of the likely major party nominees may not be known until
shortly before the election.” Williams, 393 U.S. at 33. We have emphasized that
minor parties and independent candidates often face greater difficulties in generating
voter support too early in the campaigning process: “[W]ithin the framework of
organized political parties, most voters in fact look to third party alternatives only
when they have become dissatisfied with the platforms and candidates put forward
by the established political parties. This dissatisfaction often will not crystalize until
party nominees are known.” McLain II, 637 F.2d at 1164; see also MacBride, 558
F.2d at 449 (“The American political system is basically the two-party system with
which all are familiar, and ordinarily popular dissatisfaction with the functioning of
that system sufficient to produce third party movements and independent candidacies
does not manifest itself until after the major parties have adopted their platforms and
nominated their candidates.”). Consequently, a deadline for showing support which
is too early may be an arbitrary restriction precluding third party candidates from
accessing a general election ballot. See MacBride, 558 F.2d at 448 (rejecting as
arbitrary a deadline for party signature requirements nine months before general
election and ninety days before primary election).
We have nevertheless upheld deadlines for showing voter support as early as
one week before a primary election, Libertarian Party, 764 F.2d at 542, and the
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Supreme Court has upheld deadlines occurring even before primary elections are
held. Compare Am. Party of Tex., 415 U.S. at 787 (holding deadline 120 days before
election was not unreasonable or unduly burdensome) and Jenness, 403 U.S. at 433-
34 (holding mid-June deadline for third party nominees, which was the same deadline
as that for candidates filing in party primaries, was not unreasonably early) with
Anderson, 460 U.S. at 780 (held a filing deadline 229 days in advance of general
election was unconstitutional) and McLain I, 637 F.2d at 1164-65 (holding deadline
for new political parties, which was 90 days before primary election, was
“particularly troublesome”). Even more, the Supreme Court has upheld the use of
primaries as a forum to determine whether a candidate has a modicum of support. See
Munro, 479 U.S. at 197-98. We therefore conclude the LPND and candidates’
concern should be rejected. The courts have acknowledged the necessity of giving
third party and independent candidates an opportunity to capitalize on the disaffected
group of voters created only after the major parties platform and candidates are
known. However, in acknowledging that necessity, the courts have also held
primaries are a reasonable basis for determining candidate support, and a deadline
occurring even a week before a primary election is reasonable. Accordingly, we
conclude a requirement of a showing of support at the time of a primary election is
not an arbitrarily restrictive deadline and is within the bounds of reasonableness.
Because we conclude the substantial burden created by N.D.C.C. § 16.1-11-36
is reasonable and necessary to serve compelling state interests, we affirm the district
court’s dismissal of the LPND and candidates’ challenge to the constitutionality of
N.D.C.C. § 16.1-11-36 under the First and Fourteenth Amendments.
B. Equal Protection Challenge
We turn next to the LPND and candidates’ argument as to N.D.C.C. § 16.1-11-
36 violating the Equal Protection Clause. The district court rejected this argument,
briefly stating it found no unequal treatment across parties because all candidates are
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subject to the same 1% or 300 vote requirement to reach the general ballot.
According to the LPND and candidates, the district court erred because it failed to
address the disparate impact created by the statute. They argue the minor parties are
essentially required to demonstrate the same level of support as the major parties, but
the major parties had decades in which to build a higher level of support placing
minor parties at a disadvantage.
To determine whether or not a statute violates the Equal Protection Clause, we
consider “the facts and circumstances behind the law, the interests which the State
claims to be protecting, and the interests of those who are disadvantaged by the
classification.” Williams, 393 U.S. at 30. In analyzing the LPND and candidates’
equal protection challenge, we first look at the state’s interests, which are the same
as those discussed above—protecting the integrity of the political process from
frivolous or fraudulent candidacies, ensuring the election process is efficient,
avoiding voter confusion caused by an overcrowded ballot, and avoiding the expense
and burden of run-off elections. As we have already concluded, these interests of the
state are not only compelling, but the statute is necessary to further those interests.
Similarly, the burdens alleged by the LPND and candidates in their equal protection
challenge are the same burdens alleged in their First and Fourteenth Amendment
challenges discussed above—the infringement on the right of individuals to associate
for the advancement of political beliefs and on the right to cast votes effectively
regardless of political persuasion. As concluded above, these burdens are substantial,
but not undue or excessive.
However, in the context of equal protection, we engage in further
considerations, namely whether the law disadvantages one group over another so as
to result in unequal treatment and whether this unequal treatment is justified by a
compelling interest. See id. (“We have . . . held many times that ‘invidious’
distinctions cannot be enacted without a violation of the Equal Protection Clause.”).
We agree with the district court’s conclusion as to no unequal treatment being present
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in this case. On its face, N.D.C.C. § 16.1-11-36 treats all candidates, regardless of
party, the same. Any candidate appearing on the primary ballot will be placed on the
general ballot only if he or she received the requisite number of votes required to
meet the lesser of 1% of the relevant district’s population or 300 votes. Nevertheless,
the United States Supreme Court has previously invalidated an election law scheme
despite the scheme treating all parties equally because, in application, the equal
treatment had a disparate impact. Jenness, 403 U.S. 431 (citing Williams, 393 U.S.
at 34). In Williams, the Supreme Court reviewed and rejected Ohio’s election law
scheme as a whole because it denied equal protection to minority political parties.
393 U.S. at 34. The law at issue in Williams required parties to obtain petitions
signed by qualified electors totaling 15% of the number of ballots cast in the last
preceding gubernatorial election in addition to complying with a slurry of more
technical requirements before it could be considered a party in the subsequent
election. In contrast, another law permitted those parties who received 10% of the
votes in the last gubernatorial election to retain their party status for the election,
avoiding the 15% signature requirement and other technical requirements. The
Supreme Court determined these laws created an unequal treatment between minor
and major parties. Rejecting the state’s argument that the laws applied to all parties
equally, the Supreme Court recognized that, in application, this scheme resulted in
the two major parties consistently retaining party status and avoiding the signature
requirement while minor parties on numerous occasions tried and failed to become
a new party on the ballot. The Supreme Court later interpreting its holding in
Williams opined: “Sometimes the grossest discrimination can lie in treating things
that are different as though they were exactly alike, a truism well illustrated in
Williams v. Rhodes.” Jenness, 403 U.S. at 442.
The LPND and candidates focus on that language from Jenness to highlight the
inequalities they allege are created by N.D.C.C. § 16.1-11-36 in application, namely,
minor and major parties each complying with a requirement more easily met by major
parties. However, we view the situation in Williams as significantly different from
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the statutory scheme in North Dakota. For instance, in Williams, the major parties
were essentially never subject to the 15% signature requirement or any of the other
more technical and nuanced requirements because those parties consistently retained
10% of the votes cast in the previous election. 393 U.S. at 25-26. By comparison,
minor parties were required to meet new party requirements in Ohio’s attempt “to
keep minority parties and independent candidates off the ballot.” 393 U.S. at 26. In
fact, one of the minor parties in Williams had achieved the 15% signature
requirement, but was still denied access to the ballot due to the failure to meet other
technical requirements. 393 U.S. at 26-27. By contrast, under North Dakota’s
election scheme, all parties are subject to the same 1% or 300 vote requirement in the
primaries regardless of support shown in a prior year’s election. Further, the
requirement is fairly minimal—compare 15% to 1%. In contrast to the law in
Williams, North Dakota’s ballot access restriction not only treats each party equally
on the face of the law, it also treats each party equal in application. We see no
unequal effects sufficient to sustain an equal protection challenge.
Nevertheless, the LPND and candidates further their argument with one
additional point: the fact that no third party candidate has appeared on the state
legislature ballots since 1976. Assuming the facts as true—as this court should on
a motion to dismiss for failure to state a claim—this fact could be damaging to the
constitutionality of the statute. As the Supreme Court has stated, “it will be one thing
if [minor party] candidates have qualified with some regularity and quite a different
matter if they have not.” Storer, 415 U.S. at 742. A disparate impact that “operate[s]
to freeze the political status quo” to a two-party system violates the Equal Protection
Clause. Jenness, 403 U.S. at 438. However, as discussed above as well, the claims
made by the LPND and candidates in their complaint do not establish N.D.C.C.
§ 16.1-11-36 as the cause of minor parties’ absence on general election ballots. There
are no facts indicating minor party candidates have appeared consistently on the
primary election ballot but are denied access to the general ballot based on the
required showing of support under the challenged statute. Accordingly, we fail to see
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how the mere absence of minor parties from the general election ballot, without a
causal connection, necessarily establishes N.D.C.C. § 16.1-11-36 has an
unconstitutional disparate impact.
IV
We conclude the burden imposed by the statute is not undue or excessive and
the state has a compelling interest in having a minimum vote requirement before a
candidate may appear on the general election ballot. We therefore hold N.D.C.C.
§ 16.1-11-36 is not unconstitutional on First or Fourteenth Amendment grounds.
Furthermore, because the law applies equally to all candidates and does not result in
unequal treatment, we hold the statute does not violate the Equal Protection Clause.
Accordingly, we affirm the district court.
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