United States District Court, D. Maryland
ROBERT S. JOHNSTON, III, et al,
v.
LINDA H. LAMONE, Administrator of The Maryland State Board of Elections, in Her official capacity
MEMORANDUM
CATHERINE C. BLAKE UNITED STATES DISTRICT JUDGE.
Political
parties in Maryland become officially recognized by
submitting the signatures of, 10, 000 registered voters. To
remain recognized, a party must, in each statewide general
election, nominate a candidate for president or governor who
receives 1% or more of the total vote, or secure the party
affiliation of 1% or more of all registered voters. Md. Elec.
Law 4-103(a)(2).[1] At issue here are the claims by plaintiffs
Robert S. Johnston, in and the Libertarian Party of Maryland
(the "Party") that: (1) this "two-tiered"
ballot protocol is unconstitutional, at least as presently
applied to the Party, because over 22, 000 Marylanders remain
registered as Libertarians, and requiring new signatures
would be a costly but gratuitous exercise advancing
insufficient state interest; and (2) the state-imposed name
requirements for a signature to be valid are needlessly
stringent.[2] The Party previously has been recognized
in Maryland, including for an uninterrupted stretch between
2012 and 2018. In the 2018 election; however, the Party
failed to garner the requisite votes for its gubernatorial
candidate, thus relegating it to tier one and requiring the
Party to again obtain 10, 000 signatures in order to be
reinstated as a recognized party. As to the first claim,
because the signature requirement imposes only a modest
burden on the Party and furthers an important state
regulatory interest, Maryland's two-tiered approach is
constitutional. The plaintiffs' second claim however, is
not yet ripe for review: factual uncertainties remain, and
the precise contours of the legal question have yet to be
fully detailed. For these reasons, as explained below, the
plaintiffs fail to state a cognizable claim and the motion to
dismiss filed by defendant Linda H. Lamone, in her official
capacity as the administrator of the Maryland State Board of
Elections, will be granted.
I.
Standard of Review
When
ruling on a motion under Rule 12(b)(6), the court must
"accept the well-pled allegations of the complaint as
true," and "construe the facts and reasonable
inferences derived therefrom in the light most favorable to
the plaintiff." Ibarra v. United States, 120
F.3d 472, 474 (4th Cir. 1997). "Even though the
requirements for pleading a proper complaint are
substantially aimed at assuring that the defendant be given
adequate notice of the nature of a claim being made against
him, they also provide criteria for defining issues for trial
and for early disposition of inappropriate complaints."
Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir.
2009). "The mere recital of elements of a cause of
action, supported only by conclusory statements, is not
sufficient to survive a motion made pursuant to Rule
12(b)(6)." Walters v. McMahen, 684 F.3d 435,
439 (4th Cir. 2012) (citing Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). To survive a motion to dismiss, the
factual allegations of a complaint "must be enough to
raise a right to relief above the speculative level on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact)." Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (internal citations
omitted). "To satisfy this standard, a plaintiff need
not 'forecast' evidence sufficient to prove the
elements of the claim. However, the complaint must allege
sufficient facts to establish those elements."
Walters, 684 F.3d at 439 (citation omitted).
"Thus, while a plaintiff does not need to demonstrate in
a complaint that the right to relief is 'probable,'
the complaint must advance the plaintiffs claim 'across
the line from conceivable to plausible.'"
Id. (quoting Twombly, 550 U.S. at 570).
II.
Discussion
The
plaintiffs levy two as-applied constitutional challenges to
Maryland's elections laws, each under the First and
Fourteenth amendments; namely, that the signature
requalification threshold and the name standard lack the
requisite means-end rationality. Burdick supplies
the applicable constitutional test. "A court considering
a challenge to a state election law must weigh the character
and magnitude of the asserted injury to the rights protected
by the First and Fourteenth Amendments that the plaintiff
seeks to vindicate against the precise interests put forward
by the State as justifications for the burden imposed by its
rule, taking into consideration the extent to which those
interests make it necessary to burden the plaintiffs
rights." Burdick v. Takushi, 504 U.S. 428, 434
(1992) (internal quotations omitted). The severity of the
burden, in turn, dictates the level of justification required
by the state. Severe burdens trigger strict scrutiny: the
regulation must be "narrowly drawn to advance a state
interest of compelling importance." Burdick,
504 U.S. at 434. But if the state election statute imposes
only a modest burden, the state's "important
regulatory interests will usually be enough to justify
reasonable, nondiscriminatory restrictions." Pisano
v. Strach, 743 F.3d 927, 933 (4th Cir. 2014) (quoting
South Car. Green Party v. South Car. State Elections Comm
'n, 612 F.3d 752, 756 (4th Cir. 2010)).
i.
10, 000 Signature Requalification Requirement
The
heart of the plaintiffs3 complaint in this case is that
forcing the Party into the exercise of collecting 10, 000 new
signatures-when more than 22, 000 voters remain registered as
Party affiliates-appears to the plaintiffs as a gratuitous
exercise that provides the state with no newfound information
about the Party or its level of support among voters.
See ECF No. 23 at p. 6. The defendant, by contrast,
maintains that the two-tier electoral system (in which
barriers to entry are lower than requirements to maintain
party status) serves a variety of state interests, including
providing a metric of ongoing and contemporaneous political
support.
The
threshold question is therefore the severity of the burden
imposed by § 4-103(c). Both sides appear to agree that
the burden at issue is the time and expense of collecting
additional signatures. See EGF No. 23 at p. 9. The
plaintiffs maintain that the signature requirement imposes a
significant burden that is unjustified by a state interest.
See Id. at p. 13. They invoke Bullock, a
case concerning substantial filing fees Texas candidates had
to pay in order to seek a political party's nomination,
for the proposition that the estimated cost of the signature
collection effort here is sufficiently high to require
"close[] scrutin[y]." Bullock v. Carter,
405 U.S. 134, 143-44 (1972). But this case is readily
distinguishable on multiple fronts. Not only is the
applicable cost here imposed on a political party and not on
an individual candidate, the requirement in no way proves to
be "patently exclusionary" to any candidate or
political party. See Id. (explaining that the filing
fees required to get on the ballot in Texas were so high that
"[m]any potential office seekers lacking both personal
wealth and affluent backers [were] in every practical sense
precluded from seeking the nomination of their chosen party,
no matter how qualified they might be, and no matter how
broad or enthusiastic their popular support"). Here, the
signature requirement has not prevented the Party from
reacquiring recognition time and again. Harper v.
Virginia State Bd. of Election, similarly relied on by
the plaintiffs to show the severity of their monetary burden,
is even farther afield: it involved a poll tax levied against
prospective voters themselves. 383 U.S. 663, 668 (1966).
Case
law analyzing more onerous recognition requirements confirms
that the signature requirement imposed here is merely a
modest burden on the Party. In Mathers v. Morris, a
judge in this District considered a more exacting version of
this precise Maryland statute, stating, "[t]he statutory
requirement of 10, 000 signatures statewide for initial
qualification as a political party is a relatively minor
restriction and does not unduly burden the rights of those
seeking status as a political party." 515 F.Supp. 931,
937 (D. Md. 1981) (pffd, 454 U.S. 934 (1981)).
See also Pisano, 1A3 F.3d at 934 (85, 739 signatures
over three-and-half years considered a modest burden);
American Party of Tex. v. White, 415 U.S. 767, 783
(1974); cf McLaughlin v. N.C. Bd. of Elections, 65
F.3d 1215, 1221 (4th Cir. 1995) (statute requiring signatures
of 2% of voters for a party to gain ballot access and
requiring lead candidate to receive 10% to remain on the
ballot "undoubtedly severe[, ]" but nevertheless
constitutional). Thus, to the extent the plaintiffs assert
that strict scrutiny applies or that the magnitude of the
burden imposed by the signature requirement is a factual
assessment that should be tabled until summary judgment, this
argument is squarely foreclosed by precedent. The burden
here, as a matter of law, is modest.
The
next step in the Burdick framework is to pinpoint
the state's interest that is advanced by the ballot
access law at issue. As the Supreme Court has repeatedly
maintained, states have a valid interest in requiring
candidates and political parties to show some amount of
support before putting them on the ballot. "There is
surely an important state interest in requiring some
preliminary showing of a significant modicum of support
before 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." Jetmess
v. Fortson, 403 U.S. 431, 442 (1971). Two-tier systems,
including the more onerous predecessor in Maryland, serve
this established state interest. As the court in
Mathers reasoned, "The Maryland requirements
that a political organization gather 10, 000 signatures for
initial qualification as a political party and that such a
party poll at least three percent of the statewide vote in
order to maintain such status obviously serve [a] substantial
state interest." 515 F.Supp. at 936. It continued:
"The State has a substantial interest in requiring a
'significant modicum of support' of political
organizations before they are given status as political
parties under the statute.. .. That state interest does not
disappear once an organization has complied with some initial
threshold requirement, particularly where the initial
requirement has been set at a relatively unrestrictive level.
This Court knows of no reason why a state cannot enact a
two-part statutory scheme so long as the totality of the
restrictions imposed serve a substantial state interest and
are not unduly burdensome." Id. at 937-38.
Because
the burden imposed on the Party is modest, the question
becomes whether the restrictions are nondiscriminatory.and
reasonable, and whether they advance important regulatory
interests.[3] Piscmo, 743 F.3d at 933. The crux
of the plaintiffs' position is that the signature
requirement is a wholly superfluous mandate that provides the
state with less information about public support for the
Party than if it ran a quick search through its database of
registered voters and tallied those already registered as
Libertarians. And yet, while the Party's frustration is
understandable to the extent that it has had to fulfill
repeatedly the requalification requirements, the plaintiffs
gloss over the myriad state interests that are advanced by
the two-tier system as applied to the Party that would not be
furthered by tallying those already registered.
First,
the two-tiered system encourages a diversity of political
options by imposing a relatively modest barrier to entry, but
then installing an exit ramp for political parties that fail
to win or maintain voter support. Quoting the district court,
the Fourth Circuit explained in McLaughlin that
"the lower ballot access requirement actually gives a
group a chance to prove itself when it otherwise would be
kept off the ballot. It is an inclusive, not an exclusive
policy-a safety valve-promoting political participancy
while protecting the ballot. ... It is not unfair to
expect a party to improve its showing of support from the
petition process to be accorded automatic ballot
access." McLaughlin, 65 F.3d at 1222 (emphasis
supplied).[4] While the plaintiffs are careful not to
ask this court to rewrite the Maryland statute-indeed they
object only to the application of the two-tiered system to
their own requalification effort-granting relief would
require just that. The plaintiffs do not propose an
alternative, and none would be appropriate for this court to
impose. The current formulation has sufficient means-end
rationality to withstand the plaintiffs' constitutional
challenge, Burdick, 504 U.S. at 434.
Second,
party affiliation on the voter registration materials and new
party petition forms ask potential signers different
questions for different purposes, such that it cannot be
inferred that a voter who signed one form would necessarily
sign the other. There may be a group of people willing to
register with the Party who would not sign the petition.
Perhaps they seek only to join an established or recognized
political party. Perhaps they want to vote in a particular
primary; indeed, the VRA explains: "You must register
with a political party if you want to take part in the
political party's primary, caucus or convention."
Md. Code Ann., Elec. Law § 3-202(a)(4). Or perhaps a
voter would register with the Party for an interim period
while she campaigned for the recognition of a Libertarian
party rival. Equally, there ...