Steven Biener; Carol Greenway v. FRANK CALIO, The Honorable, State Election Commissioner

PRECEDENTIAL
THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
___________
No. 03-1607
___________
STEVEN BIENER; CAROL
GREENWAY,
Appellants
v.
FRANK CALIO, The Honorable, State
Election Commissioner;
DEMOCRATIC PARTY OF THE
STATE OF DELAWARE
___________
APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
DISTRICT OF DELAWARE
(D.C. No. 02-cv-00514)
District Judge: The Honorable
Gregory M. Sleet
___________
ARGUED OCTOBER 28, 2003
BEFORE: SCIRICA, Chief Judge,
NYGAARD, and AMBRO,
Circuit Judges.
(Filed: March 19, 2004)
___________
Leslie G. Bohner, Esq.
Drinker Biddle & Reath
18th and Cherry Streets
One Logan Square
Philadelphia, PA 19103
Charles H. Wampold, III, Esq. (Argued)
Drinker, Biddle & Shanley
105 College Road East
P. O. Box 627, Suite 300
Princeton, NJ 08542
Counsel for Appellants
C. Drue Chichi, Esq. (Argued)
Aleph Ann Woolfold, Esq.
Department of Justice
820 North French Street
Wilmington, DE 19801
Counsel for Appellee, The Honorable
Frank Calio
Charles J. Durante, Esq. (Argued)
Connolly, Bove, Lodge & Hutz
1007 North Orange Street
P. O. Box 2207
Wilmington, DE 19899
Counsel for Appellee, Democratic
Party DE
Bonita P. Tenneriello, Esq.
National Voting Rights Institute
27 School Street
Suite 500
Boston, MA 02108
Counsel for Amicus-Appellant
___________
OPINION OF THE COURT
___________

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NYGAARD, Circuit Judge.
Appellant Steven Biener, a
Delaware citizen who sought nomination
as the Democratic Party’s candidate for
the United States House of
Representatives (“the House”), appeals
the District Court’s grant of summary
judgment against him. Biener and Carol
Greenway, a registered voter who is a
Biener supporter, sued the Democratic
Party of the State of Delaware (“the
Party”) and Frank Calio, Delaware’s
state commissioner for elections, alleging
that the $3000 filing fee for the 2002
Democratic primary was
unconstitutional. The District Court
rejected Biener’s arguments under the
Qualifications, Equal Protection, and
Due Process Clauses and granted
summary judgment on behalf of the Party
and Calio.
The Delaware statute provides a
filing fee exception for indigent
candidates who are unable to pay a fee.
Biener challenges the lack of a ballot
access alternative for non-indigent
candidates. He asserts that he should
have a choice not to pay the fee. We
conclude that the availability of a choice
is outcome determinative for Biener’s
Qualifications and Equal Protection
Clause claims. Those claims fail.
Additionally, we conclude that there is
no due process violation. We will
therefore affirm the District Court’s grant
of summary judgment.
I. FACTS AND PROCEDURAL
HISTORY
Unlike general elections, which
are held by the state to select government
office-holders, primary elections are
conducted by the state on behalf of and
as a convenience to political parties to
assist them in selecting their candidates
for office. Under Delaware law,
individual political parties share
responsibility with the state for election
primaries. Political parties are
authorized to set the filing fee amount, so
long as it does not exceed 1% of the total
salary for the term of office the candidate
seeks. 15 Del. Code § 3103(a)-(c). In
2002, the Party set the filing fee for
candidacy to the House at $3000.
When a party opts to impose a
filing fee on candidates, Delaware law
provides only one exception. 15 Del.
Code § 3103(d)-(e). Candidates who
demonstrate they are indigent by virtue
of qualification for federal benefits may,
in lieu of a filing fee, access the primary
ballot by obtaining signatures on a
petition. Id.
Biener sought to be included on
the ballot for the 2002 Democratic
primary as a candidate for the House. He
ran on an anti-election spending and anti-
special interest platform, and did not
solicit money for his campaign. Biener
submitted the necessary paperwork to the
state and the Party, but was informed that
because he is non-indigent he needed to
remit the $3000 filing fee or would be
left off the Democratic primary ballot.

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Biener filed suit against Calio
seeking declaratory and injunctive relief.
Calio filed an unopposed motion to join
the Party as a defendant, and that motion
was granted. The District Court denied
Biener relief, stating that Biener had not
shown a likelihood of success on any of
his claims.
Once his complaint for
declaratory and injunctive relief was
rejected, Biener paid the $3000 filing
fee. He then amended his complaint to
seek a refund of the fee, which
constituted two-thirds of the entire
amount expended on his campaign.
After paying the fee, Biener was
included on the Democratic primary
ballot and received 48% of the votes but
did not win the Democratic nomination.
Biener’s suit alleged that the filing
fee requirement is unconstitutional on
three grounds: (1) it adds an
impermissible wealth requirement to the
qualifications for House membership, (2)
it denies equal protection to non-indigent
candidates who would like to seek office
without paying a filing fee, and (3) it
violates the Due Process Clause because
it inappropriately delegates state power
to political parties. Calio and the Party
made a motion for summary judgment,
which the District Court granted on all
three grounds.
II. DISCUSSION
We have jurisdiction pursuant to
28 U.S.C. § 1291, since this is an appeal
of a final decision of a federal district
court. We exercise plenary review over
all jurisdictional questions, including
whether a plaintiff has standing to assert
a particular claim. See Gen. Instrument
Corp. of Del. v. Nu-Tek Elec. & Mfg.,
Inc., 197 F.3d 83, 86 (3d Cir. 1999). We
also review the District Court’s decision
to grant summary judgment on a plenary
basis. See Blair v. Scott Specialty Gases,
283 F.3d 595, 602-03 (3d Cir. 2002). A
grant of summary judgment is
appropriate “if the pleadings,
depositions, answers to interrogatories,
and admissions on file, together with the
affidavits, if any, show that there is no
genuine issue as to any material fact and
that the moving party is entitled to a
judgment as a matter of law.” Fed. R.
Civ. P. 56(c). “In reviewing the grant of
summary judgment, we must affirm if the
record evidence submitted by the non-
movant ‘is merely colorable or is not
significantly probative.’” See Port Auth.
of N.Y. & N.J. v. Affiliated FM Ins. Co.,
311 F.3d 226, 232 (3d Cir. 2002)
(quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50 (1986)).
A. STANDING
As a threshold matter, we must
consider whether Biener has standing to
make his claims. Our decision here is
informed by our recent opinion in
Belitskus v. Pizzingrilli, 343 F.3d 632 (3d
Cir. 2003). In that case, which involved
a challenge to Pennsylvania’s election
filing fees, we rejected the argument
“that a candidate challenging a
mandatory filing fee must establish that
payment of the fee would result in the
complete depletion of personal or

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campaign funds in order to demonstrate
injury to a protected interest.” Id. at 640.
Biener, by paying the $3000 filing
fee in protest, depleted two-thirds of his
campaign funds. This is an injury in fact,
which is clearly traceable to the filing fee
set by the Party and Calio. The injury
also can be redressed by a favorable
decision in this court. Biener thus has
standing to challenge the filing fee on his
own behalf. See AT&T Communications
of N.J., Inc. v. Verizon N.J., Inc., 270
F.3d 162, 170 (3d Cir. 2001) (reciting the
three elements of a case or controversy
for purposes of standing: injury,
causation, and redressability); see also
Belitskus, 343 F.3d at 640 (citing Green
v. Mortham, 155 F.3d 1332 (1998), an
Eleventh Circuit Court of Appeals case
in which the candidate used campaign
contributions to pay the filing fee under
protest and the court did not question his
standing).
Biener also purports to make
claims on behalf of indigent or near-
indigent individuals. For example,
Biener alleges that Delaware’s
alternative to filing fees for indigent
candidates is illusory because so few
people qualify as indigent under the
statutory definition. Biener does not
contend, however, that he is in the group
of near-indigent individuals who are
allegedly prevented from availing
themselves of this ballot-access
alternative. Because he is not a member
of that group nor does he possess a
“close relationship” worthy of allowing
him to act as a third-party, Biener lacks
standing to make this claim. See Pa.
Psychiatric Soc’y v. Green Spring Health
Servs., 280 F.3d 278, 288 (3d Cir. 2002)
(“It is a well-established tenet of
standing that a litigant must assert his or
her own legal rights and interests, and
cannot rest a claim to relief on the legal
rights or interests of third parties.”)
(internal quotations omitted).
B. QUALIFICATIONS CLAUSE
The District Court held that
Delaware’s filing fee for the Democratic
primary does not violate the
Qualifications Clause by improperly
adding a wealth requirement to the
qualifications for House membership.
The Qualifications Clause of the United
States Constitution states that “No
Person shall be a Representative who
shall not have attained to the Age of
twenty five Years, and been seven Years
a Citizen of the United States, and who
shall not, when elected, be an Inhabitant
of that State in which he shall be
chosen.” U.S. CONST. art. I, § 2, cl. 2.
Supreme Court precedent establishes that
states have no power to add to these age,
citizenship, and residency requirements.
U.S. Term Limits, Inc. v. Thornton, 514
U.S. 779, 798-99 (1995) (citing a long
list of cases in numerous courts that
conclude states lack the authority to
supplement the qualifications in the
Qualifications Clause). Furthermore,
states should not attempt to disguise
qualifications for office as qualifications
for election as a way to circumvent this
rule, or they risk the qualifications for

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election being found unconstitutional.
Id. at 831 (“[D]ressing eligibility to stand
for Congress in ballot access clothing
trivializes the basic principles of our
democracy that underlie [the
Qualifications] clause[].”) (internal
quotations omitted). The issue here is
whether the filing fee for the Democratic
primary constitutes an additional
qualification for House membership.
Biener’s Qualifications Clause
claim is based in large part on Thornton,
in which the Supreme Court found a
term-limitation statute unconstitutional
as an impermissible attempt to add to the
qualifications for office established by
the Constitution. Id. at 837-38. Latching
onto Thornton, Biener argues that
Delaware’s filing fee is an eligibility
requirement for office and thus an
impermissible wealth qualification. In
support of his claim, Biener points to the
debate by the Framers of the Constitution
over whether to include a wealth or
property-holding requirement in the
Qualifications Clause, and their ultimate
decision that qualifications would be
limited to age, citizenship, and residency.
Thornton and the “impressive and
uniform body of judicial decisions” cited
therein where courts have struck down
laws on the basis that they improperly
added qualifications to those found in the
Qualifications Clause focus on
qualifications that were inherent in the
candidate. See, e.g., Thornton, 514 U.S.
at 800. For instance, all of the following
qualifications have been found
unconstitutional: term limits; district
residency requirements; loyalty oath
requirements; voter registration
requirements; and restrictions on those
convicted of felonies. See, e.g., id. at
799; Schaefer v. Townsend, 215 F.3d
1031, 1039 (9th Cir. 2000); Campbell v.
Davidson, 233 F.3d 1229, 1231 (10th
Cir. 2000). Unlike these impermissible
qualifications, the filing fee for the
Democratic primary is not inherent in the
candidate. See Fowler v. Adams, 315
F.Supp. 592, 594 (M.D. Fla. 1970)
(stating that a filing fee, unlike the
Article I, Section 2, Clause 2
“Qualifications,” “is not personal to the
candidate but may be paid by anyone in
his behalf”).
In a recent case before this Court,
we rejected a Qualifications Clause
challenge to the Hatch Act because
“[t]he Act allows a citizen a choice.”
Merle v. United States, 351 F.3d 92, 97
(3d Cir. 2003). There, we took notice
that a “resign to run” law may force the
prospective candidate to make a choice
between federal employment and running
for elective office, but does not
constitute an “additional qualification for
the office of United States
Representative.” Id. Likewise, a
candidate financially able to pay a filing
fee, but unwilling to do so, is not being
subjected to an impermissible wealth
requirement.
Finally, we disagree with Biener’s
contention that Thornton capsized
existing precedent upholding states’
rights to require filing fees. See Fowler,
315 F.Supp. at 594; Cassidy v. Willis,

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323 A.2d 598, 602 (Del. 1974); Bodner
v. Gray, 129 So.2d 419, 420-21 (Fla.
1961); Kenneweg v. Allegheny County
Comm’rs, 62 A. 249, 251 (Md. 1905).
Even after Thornton, states still have the
right to regulate elections by imposing
reasonable requirements on candidates.
In Thornton, the Court held that “an
amendment with the avowed purpose and
obvious effect of evading the
requirements of the Qualifications
Clause[] by handicapping a class of
candidates cannot stand.” 514 U.S. at
831. Here, there is no avowed purpose to
evade the constitution and exclude a
class; instead, the purpose of the filing
fee is to keep Delaware’s ballots
manageable. Moreover, the logical
consequences of Biener’s argument
would jeopardize states’ use of signature
requirements.
C. EQUAL PROTECTION CLAUSE
Next, we address whether the
District Court erred when it granted
summary judgment for Appellees Calio
and the Party on the Equal Protection
Clause claim. Like the District Court,
we hold that there is no equal protection
violation. Equal protection jurisprudence
mandates a ballot-access alternative for
those unable to pay a filing fee.
Delaware law complies with this
precedent by providing an alternative for
indigent candidates. Here, Biener alleges
only an unwillingness, not an inability, to
pay. In its history, the Supreme Court
has considered only two election filing
fee cases, both of which were decided on
equal protection grounds. In 1972, the
Supreme Court struck down an election
primary filing fee where it was an
“absolute prerequisite” to participation.
Bullock v. Carter, 405 U.S. 134, 137
(1972). The filing fees in that case were
set by the county executive committees
of the individual political parties and
were subject to limitations only in some
counties. Id. at 137-38. The proceeds of
the fee went to the party. Id. at 137. The
Bullock court said that despite the
political parties’ involvement with the
filing fees, “the mechanism of such
elections is the creature of state
legislative choice and hence is state
action within the meaning of the
Fourteenth Amendment.” Id. at 140
(internal citations and quotations
omitted).
The Bullock court “closely
scrutinized” the filing fee, looking at
whether the fee was reasonably necessary
to the accomplishment of legitimate state
objectives. Id. at 144. The Court
recognized that states have a legitimate
interest in regulating the number of
candidates on the ballot 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.” Id. at 145.
Additionally, it is a legitimate objective
for states to protect the ballot from
including frivolous or fraudulent
candidates. Id. But “[t]o say that the
filing-fee requirement tends to limit the
ballot to the more serious candidates is
not enough.” Id. The Court held the
differing treatment must also bear some

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relevance to the objective, and that in
Bullock the fee was not reasonably
necessary because other means to protect
the state’s valid interests were available.
Id. at 145-46. The decision was
motivated by a concern that without an
alternative means of ballot access
affluent candidates were advantaged. Id.
at 144.
A few years later, in Lubin v.
Panish, an indigent candidate brought a
class-action suit to prevent California
from enforcing its filing fee. 415 U.S.
709 (1974). The California Elections
Code made forms required for
nomination and election issuable only
once candidates paid a non-refundable
filing fee. Id. at 710. The fee amount
was tied to the salary of the office
sought. Id. As in Bullock, the Supreme
Court applied a close scrutiny test and
held that the fee was unconstitutional
because no alternate means of ballot
access was available for indigent
candidates. Id. at 717-18. According to
the Court, Lubin was a less
straightforward case than Bullock
because California’s fees were not as
exorbitant. Id. at 715 n.4.
More recently, we considered the
constitutionality of Pennsylvania’s
election filing fees. Because the ruling
occurred after briefs were filed in this
case, we sought comment from the
parties on the applicability of Belitskus,
343 F.3d 632. In Belitskus, we held that
Pennsylvania’s filing-fee requirement
was unconstitutional under the Equal
Protection Clause because it failed to
provide a reasonable alternative means of
ballot access to indigent candidates. Id.
at 647. We applied a heightened level of
scrutiny because indigent plaintiffs were
challenging a mandatory filing fee. Id. at
644-45.
The issue here is whether the
filing fee violated the Equal Protection
Clause by extending alternate means of
ballot access only to indigent candidates.1
The parties agree that Biener cannot avail
himself of Delaware’s alternate means of
accessing the ballot—receiving the
requisite number of signatures on a
campaign petition—because he is not
indigent or even near-indigent. Biener’s
claim is that Delaware’s filing fee is
unconstitutional because it lacks an
equivalent alternative for non-indigent
candidates.2
Biener urges us to find
Delaware’s filing fee unconstitutional
under Bullock and Lubin. But Biener’s
reliance on Bullock and Lubin is
misplaced because the candidates in both
cases were indigent. See Bullock, 405
1. Biener does not challenge the
reasonableness of the $3000 filing fee.
2. Biener makes an argument that
Delaware’s definition of indigence is
useless because so few people qualify for
the alternative means of ballot access.
See 15 Del. Code § 3101(e). As
discussed supra, Biener lacks standing to
make this argument, as he does not
purport to be in the class of near-indigent
persons who are excluded.

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U.S. at 146 (“the candidates . . .
affirmatively alleged that they were
unable, not simply unwilling, to pay the
assessed fees”); see also Cassidy, 323
A.2d at 601 (noting that in Lubin the
“inability to pay the fee . . . is so much a
part of the decision that we cannot ignore
it here”). Biener turns Bullock and Lubin
on their heads when he argues that
indigents are advantaged under
Delaware’s current system because they
have an alternative that other candidates
do not. Biener’s assertion that we should
reach the same result as Bullock is
discouraged by the language of that case,
where the Court said the opinion should
not be read to “cast doubt on the validity
of reasonable candidate filing fees . . . in
other contexts.” 405 U.S. at 149.
Because Biener is not claiming
indigence, Bullock, Lubin, and Belitskus,
while not determinative, are informative
on the Equal Protection analysis. “In
determining whether or not a state law
violates the Equal Protection Clause, we
must 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 v. Rhodes, 393 U.S. 23, 30
(1968) (cited in Bullock, Lubin, and
Belitskus).
Our first inquiry in an equal
protection challenge is the appropriate
level of scrutiny. See Reform Party of
Allegheny County v. Allegheny County
Dep’t of Elections, 174 F.3d 305, 314 (3d
Cir. 1999) (en banc). The scrutiny test
depends on the filing fee’s effect on
Biener’s rights. Id. We need not
automatically apply close scrutiny just
because this case deals with ballot
access. See Burdick v. Takushi, 504 U.S.
428, 433-34 (1992).
In Belitskus, we followed the
flexible standard set forth in Anderson v.
Celebrezze for determining the
appropriate level of scrutiny in ballot
access cases. 460 U.S. 780, 789 (1983),
cited in Belitskus, 343 F.3d at 643. We
decline to apply the Anderson balancing
test here. In Belitskus, such an inquiry
was appropriate because First
Amendment considerations were at issue.
Unlike Belitskus, Biener’s challenge
relies solely on the Fourteenth
Amendment and he makes no allegations
based on freedom of association. See
Belitskus, 343 F.3d at 643 n.8 (noting
that Anderson was not expressly decided
on equal protection grounds and thus
“some uncertainty exists regarding its
applicability to equal protection-based
challenges,” but applying Anderson
nonetheless because “neither party
challenges its application”); Anderson,
460 U.S. at 787 n.7 (“In this case, we
base our conclusions directly on the First
and Fourteenth Amendments and do not
engage in a separate Equal Protection
Clause analysis.”).3
3. Even if we were to apply the
Anderson balancing test, our conclusion
that we would use a rational basis test
would remain unchanged.

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Rather than apply Anderson, we
proceed on a traditional equal protection
analysis, whereby only suspect classes
and fundamental rights receive
intermediate or strict scrutiny. The right
to run for office has not been deemed a
fundamental right. Bullock, 405 U.S. at
142-43. Biener also cannot establish an
infringement on the fundamental right to
vote, because “voter’s rights are not
infringed where a candidate chooses not
to run because he is unwilling to comply
with reasonable state requirements.” See
Adams v. Askew, 511 F.2d 700, 703 (5th
Cir. 1975). As the filing fee does not
infringe upon a fundamental right, nor is
Biener in a suspect class, we consider the
claims under a rational basis test. See id.
at 703-04 (applying a rational basis test
to hold that an alternative to a filing fee
was required only for indigent
candidates).
Having established that the
appropriate test is rational review, the
question becomes whether the filing fee
meets that standard. See, e.g., Romer v.
Evans, 517 U.S. 620, 632 (1996) (noting
that even under the most deferential of
standards, “we insist on knowing the
relation between the classification
adopted and the object to be obtained”).
The justification for the filing fee offered
by both the State of Delaware and the
Party is that it will help distinguish
serious from non-serious candidates to
keep the ballot manageable. The
Supreme Court has recognized that the
interest in keeping ballots manageable,
often manifested in a filing fee, is an
objective “of the highest order.” Lubin,
415 U.S. at 715 (referencing Bullock,
405 U.S. 134); Bullock, 405 U.S. at 145-
46 (stating in dicta that “there may well
be some rational relationship between a
candidate’s willingness to pay a filing fee
and the seriousness with which he takes
his candidacy”). Keeping the ballot
manageable is an interest sufficient to
meet the low standard of review. See
Belitskus, 343 F.3d at 647 (stating that
distinguishing serious from non-serious
candidates is a legitimate interest, but it
is not enough where there is no
reasonable alternative means of ballot
access for indigents).
In concluding that Biener has
suffered no equal protection violation
here, we follow the conclusion reached
by the Fifth Circuit Court of Appeals in
Adams. 511 F.2d 700. There, the Court
was faced with non-indigent candidates
who paid the requisite filing fee under
protest and sued for a refund alleging the
fee was unconstitutional. Id. at 701.
Basing its decision on Bullock and Lubin,
the Fifth Circuit Court of Appeals held
that candidates who were able, but
simply unwilling, to pay a filing fee are
not entitled to another route to the ballot.
Id. at 702. The court found
determinative that “it is not the statute
which perforce restricts the ballot but the
candidate’s decision to pay or not to
pay.” Id. at 703 (emphasis added).
Voters’ rights are not infringed
where a candidate chooses not to
run because he is unwilling to
comply with reasonable state

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requirements. They are no more
affected by a candidate’s
unwillingness to pay a reasonable
filing fee than they are when he
refuses to comply with financial
disclosure laws, or, for that
matter, a reasonable petitioning
requirement.
Id. We quite agree. The availability of
choice is fatal to Biener’s equal
protection claim.
D. DUE PROCESS CLAUSE
Next, Biener alleges an improper
delegation of power under the Due
Process Clause. Biener argues that
because Delaware allows political parties
to set and retain filing fees, 15 Del. Code
§ 3103 is unconstitutional.4 We will
affirm the District Court, because there is
no due process violation where, as here,
the state limits the private party’s
discretion and the private party operates
within the established limitations. The
Due Process Clause of the Fourteenth
Amendment provides that “no State shall
. . . deprive any person of life, liberty, or
property without due process of law.”
The Clause “was intended to prevent
government from abusing its power, or
employing it as an instrument of
oppression.” Deshaney v. Winnebago
County Dep’t of Soc. Servs., 489 U.S.
189, 196 (1989) (internal citations and
quotations omitted). The threshold issue
here is whether Biener possesses a
protected liberty or property interest in
access to the Democratic primary ballot.
In an analogous case, the Supreme Court
held that impositions on the right to run
for state political office do not implicate
the Due Process Clause. See Snowden v.
Hughes, 321 U.S. 1, 7 (1944). We do not
decide here whether the Snowden
holding would extend to federal elective
offices, because even if we were to
follow the result of the Supreme Court
and hold that the right to run for federal
elected office warrants due process
protection, doing so would not save
Biener’s due process claim.
Generally, the Fourteenth
Amendment protects individuals only
against government action, unless the
state has delegated authority to a private
party, thereby making the actor a “state
actor” and implicating the Due Process
Clause. See Nat’l Collegiate Athletic
Ass’n v. Tarkanian, 488 U.S. 179, 195
(1988). The Due Process Clause limits
the manner and extent to which a state
legislature may delegate legislative
authority to a private party acting as a
state actor. See, e.g., Yick Wo v.
Hopkins, 118 U.S. 356, 373-74 (1886).
Only if the state legislature imposes
sufficient limitations is the exercise of
authority by the private party
constitutional. See, e.g., Seattle Title
Trust Co. v. Roberge, 278 U.S. 116, 121-
22 (1928) (concluding that the delegation
of zoning power to individual
4. Delaware’s authority to set filing
fees itself is not at issue. Nor is there a
contention that the Party has exceeded
the scope of authority delegated to it by
the state.

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landowners violated the due process
clause because the ordinance allowed no
opportunity for review and left the
private parties “free to withhold consent
for selfish reasons or arbitrarily . . .
[based on] will or caprice”); Eubank v.
City of Richmond, 226 U.S. 137, 143-44
(1912); Gen. Elec. Co. v. New York State
Dep’t of Labor, 936 F.2d 1448, 1455 (2d
Cir. 1991) (noting that delegation
without standards allows the private
party to exercise selfish or arbitrary
motivations or whims). Without
sufficient limitations, the delegation of
authority can be deemed void for
vagueness as allowing ad hoc decisions
or giving unfettered discretion to the
private party.
In this case, the District Court
held that Delaware’s limitation on the
filing fee amount is a sufficient
limitation on the Party’s authority to
prevent the delegation from running
afoul of the Due Process Clause. We
agree. Delaware delegates to political
parties the authority to set the filing fee
for election primaries, so long as the fee
does not exceed 1% of the total salary for
the term of office the candidate seeks.
15 Del. Code § 3103. The State also
allocates 100% of the fee to the Party for
it to keep, or choose to rebate to the
candidate in whole or in part.
Effectively, the State of Delaware has
created a means of revenue production
for the Party, but caps the profitability by
imposing an upper limit.5 Contrary to
Biener’s contention that the Party
“controls the price of admission to the
electoral process,” it is the state that sets
the only price that matters to potential
candidates who generally pay the filing
fee out of campaign coffers—the
maximum price.
We have not found, nor has
Biener asserted, any instance where a
federal appellate court deemed a state
delegation unconstitutional under the
Due Process Clause for any reason but a
lack of standards allowing exercise of the
authority on a whim or caprice. There is
no evidence that the Party could exercise
its ability to set filing fees selfishly,
arbitrarily, or based on will or caprice.
See Roberge, 278 U.S. at 121-22.
Biener’s reference to Bartley v. Davis, a
1986 case from the Delaware Court of
Chancery, fails to convince us that the
delegation of authority for setting filing
fees has been abused by the Party.
III. CONCLUSION
In sum, Delaware’s filing fee is
constitutional under the Qualifications,
Equal Protection, and Due Process
Clauses. We will affirm the District
Court’s summary judgment order.
5. What use the Party puts filing fee
proceeds to is irrelevant to our analysis.
We consider only whether the delegation
of authority by the State of Delaware is
facially impermissible.

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