Johnston v. Lamone

          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 ...