659 F.3d 687 (8th Cir. 2011), 10-3212, Libertarian Party of North Dakota v. Jaeger

Docket Nº:10-3212.
Citation:659 F.3d 687
Opinion Judge:BYE, Circuit Judge.
Party Name:LIBERTARIAN PARTY OF NORTH DAKOTA; Richard Ames; Thommy Passa; Anthony Stewart, Appellants, v. Alvin JAEGER, Appellee.
Attorney:Oliver Barrett Hall, argued, Washington, DC, for appellant. Douglas Alan Bahr, Solicitor General, Attorney General Office, argued, Bismarck, ND, for appellee.
Judge Panel:Before WOLLMAN, BYE, and SHEPHERD, Circuit Judges.
Case Date:October 17, 2011
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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659 F.3d 687 (8th Cir. 2011)

LIBERTARIAN PARTY OF NORTH DAKOTA; Richard Ames; Thommy Passa; Anthony Stewart, Appellants,


Alvin JAEGER, Appellee.

No. 10-3212.

United States Court of Appeals, Eighth Circuit.

October 17, 2011

Submitted: May 11, 2011.

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Oliver Barrett Hall, argued, Washington, DC, for appellant.

Douglas Alan Bahr, Solicitor General, Attorney General Office, argued, Bismarck, ND, for appellee.

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 to dismiss under Federal Rule of Civil Procedure 12(b)(6). The district court 1 granted 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.


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

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" 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

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 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.


We review de novo a dismissal for failure to state a claim.

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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 A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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.


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. 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, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974). The states must ensure elections are fair, honest, and orderly, which necessarily requires " substantial regulation." Id. at 730, 94 S.Ct. 1274. 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, 103 S.Ct. 1564, 75 L.Ed.2d 547 (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

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that the plaintiff seeks to vindicate. It then must identify 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, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974); see also Storer, 415 U.S. at 728, 94 S.Ct. 1274 (noting the state must provide a " feasible means for other political parties and other candidates to appear on the...

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