743 F.3d 927 (4th Cir. 2014), 13-1368, Pisano v. Strach

Docket Nº:13-1368
Citation:743 F.3d 927
Opinion Judge:DIAZ, Circuit Judge:
Party Name:AL PISANO; NORTH CAROLINA CONSTITUTION PARTY; NORTH CAROLINA GREEN PARTY; NICHOLAS TRIPLETT, Plaintiffs - Appellants, v. KIM WESTBROOK STRACH, as Executive Director of the North Carolina Board of Elections; JOSH HOWARD, as Member of the North Carolina Board of Elections; RHONDA AMOROSO, as Member of the North Carolina Board of Elections; PAUL FOLEY
Attorney:Robert Milton Bastress, Jr., Morgantown, West Virginia, for Appellants. Susannah Porter Holloway, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. Jason E. Huber, CHARLOTTE SCHOOL OF LAW, Charlotte, North Carolina, for Appellants. Roy Cooper, North Carolina Attorney G...
Judge Panel:Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges. Judge Diaz wrote the opinion, in which Judge Niemeyer and Judge Motz joined.
Case Date:February 27, 2014
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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743 F.3d 927 (4th Cir. 2014)

AL PISANO; NORTH CAROLINA CONSTITUTION PARTY; NORTH CAROLINA GREEN PARTY; NICHOLAS TRIPLETT, Plaintiffs - Appellants,

v.

KIM WESTBROOK STRACH, as Executive Director of the North Carolina Board of Elections; JOSH HOWARD, as Member of the North Carolina Board of Elections; RHONDA AMOROSO, as Member of the North Carolina Board of Elections; PAUL FOLEY, as Member of the North Carolina Board of Elections; MAJA KRICKER, as Member of the North Carolina Board of Elections; JOSHUA MALCOLM, as Member of the North Carolina Board of Elections, Defendants - Appellees

No. 13-1368

United States Court of Appeals, Fourth Circuit

February 27, 2014

Argued: October 29, 2013.

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Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. (3:12-cv-00192-GCM). Graham C. Mullen, Senior District Judge.

ARGUED:

Robert Milton Bastress, Jr., Morgantown, West Virginia, for Appellants.

Susannah Porter Holloway, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.

ON BRIEF:

Jason E. Huber, CHARLOTTE SCHOOL OF LAW, Charlotte, North Carolina, for Appellants.

Roy Cooper, North Carolina Attorney General, Susan K. Nichols, Special Deputy Attorney General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.

Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges. Judge Diaz wrote the opinion, in which Judge Niemeyer and Judge Motz joined.

OPINION

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DIAZ, Circuit Judge:

North Carolina provides three ways for a candidate to appear on a general election ballot when running for a partisan federal, state, county, or municipal office.1 First, a " recognized" political party may nominate candidates. Second, unaffiliated candidates may petition to appear on a general election ballot. Third, and most relevant here, a " new" political party may nominate candidates.

In this appeal, Al Pisano, Nicholas Triplett, the North Carolina Constitution Party, and the North Carolina Green Party raise an as-applied challenge to North Carolina's May 17 petition-filing deadline for the formation of new political parties.2 They contend that the deadline violates the First and Fourteenth Amendments because it imposes an unjustified, severe burden on their ability to field presidential candidates. They also assert that the deadline violates the Equal Protection Clause of the Fourteenth Amendment because it places an additional, substantial burden on them that is not imposed on unaffiliated candidates or recognized political parties.

The district court held that discovery was not necessary to determine the constitutionality of the deadline and upheld its validity, noting that the deadline has no impact on Plaintiffs' constitutional rights. Even assuming that it did, however, the court concluded that the deadline is justified, and any burden it imposes is ameliorated by other aspects of North Carolina's statutory framework. For the reasons that follow, we affirm.

I.

We begin with a brief sketch of the relevant statutory framework before turning to the issues presented.

A.

North Carolina election law provides that a recognized political party may nominate

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candidates for federal, state, and local offices. McLaughlin v. N.C. Bd. of Elections, 65 F.3d 1215, 1218 (4th Cir. 1995). Recognized political parties must nominate their candidates by primary election unless only one candidate from that party seeks election for a particular office. Id. at 1219; see also N.C. Gen. Stat. § 163-110. North Carolina recognizes a political party if it polled at least two percent of the entire votes cast in the state for governor or for presidential electors. See N.C. Gen. Stat. § 163-96(a)(1).

A new political party may also nominate candidates. See id. § 163-98. To do so, a qualifying new party must select its candidates by party convention and submit its nominees by July 1. Id. To qualify as a new party, a group must file petitions with the State Board of Elections before 12:00 PM on June 1 in the election year in which the group desires to participate. Id. § 163-96(a)(2), (b1). A separate petition must be filed for each county in which the group gathers signatures. See id. § 163-96(b), (b1).

The petitions must collectively be " signed by registered and qualified voters in [North Carolina] equal in number to two percent (2%) of the total number of voters who voted in the most recent general election for Governor," with at least 200 signatures from each of at least four congressional districts. Id. § 163-96(a)(2). In addition to complying with the June 1 deadline, a group must submit each petition for verification to the chairperson of the county board of elections in the county where the signatures were obtained by 5:00 PM on May 17.3 Id. § 163-96(b1).

Groups seeking to form new political parties are not limited to a short time frame for gathering signatures and have notice of the number of signatures required three-and-one-half years before the deadline. This is so because the number of required signatures is based on the total number of votes cast in the previous gubernatorial election. See id. § 163-96(a)(2). North Carolina does not preclude voters from signing petitions based on their party affiliation or from signing multiple petitions.

North Carolina held a primary election on May 8, 2012. The Republican presidential candidate was nominated in August, and the Democratic presidential candidate was nominated in September. The general election was held on November 6. To nominate candidates for North Carolina's general election ballot, a group needed to collect and timely submit 85,379 signatures, a figure amounting to two percent of the total number of votes cast in North Carolina's 2008 gubernatorial election.

B.

The North Carolina Constitution Party and Al Pisano filed suit against the Executive Director of the State Board of Elections and its members on March 27, 2012. On April 6, they filed an amended complaint, joined by the North Carolina Green Party and Nicholas Triplett. Plaintiffs allege that the May 17 deadline violates the First and Fourteenth Amendments and the Equal Protection Clause because it severely burdens their ability to field presidential candidates. Although Plaintiffs do not challenge North Carolina's two percent

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signature requirement, they argue that the deadline, in combination with the signature requirement, creates an impermissible barrier to ballot access. Plaintiffs moved in the district court for a preliminary injunction to prevent enforcement of the May 17 petition-filing deadline in the 2012 presidential election, which the district court denied.

The parties subsequently held a conference in which they agreed not to take discovery until the district court ruled on Defendants' motion for summary judgment or Plaintiffs' motion under Federal Rule of Civil Procedure 56(d) for discovery. The district court denied the Rule 56(d) motion on October 18, 2012, concluding that discovery was not needed to decide whether the May 17 deadline is unconstitutional. The court allowed Plaintiffs time to file additional affidavits before the court ruled on the summary judgment motion, but Plaintiffs did not take advantage of that opportunity.

On March 1, 2013, the district court granted Defendants' motion for summary judgment.4 It first stated that the filing deadline has no impact on Plaintiffs' rights and that it is instead the unchallenged two percent signature requirement that imposes a severe burden. The court then concluded, however, that the filing deadline is constitutional even if it does impose a burden. Applying strict scrutiny, the court determined that the deadline is narrowly tailored and that any burden it imposes " is significantly lessened by the alleviating factors in the overall statutory scheme." J.A. 96-97. The district court also rejected Plaintiffs' equal protection claim, holding that groups seeking to form new political parties are not similarly situated to unaffiliated candidates or recognized political parties. This appeal followed.

II.

A.

Plaintiffs first argue that the district court erred in denying their Rule 56(d) motion. Rule 56(d) mandates that summary judgment be denied when the nonmovant " has not had the opportunity to discover information that is essential to his opposition." 5 Ingle ex rel. Estate of Ingle v. Yelton, 439 F.3d 191, 195 (4th Cir. 2006) (internal quotation marks omitted). A court should hesitate before denying a Rule 56(d) motion when the nonmovant seeks necessary information possessed only by the movant. Id. at 196-97. But a court may deny a Rule 56(d) motion when the information sought would not by itself create a genuine issue of material fact sufficient for the nonmovant to survive summary judgment. Id. at 195. We review a district court's denial of a Rule 56(d) motion for abuse of discretion. Greater Balt. Ctr. for Pregnancy Concerns, Inc., 721 F.3d at 280.

Plaintiffs sought the following discovery: (1) production of any state records regarding minor parties' attempts to gain ballot access for presidential candidates in North Carolina; (2) a deposition of Gary Bartlett, then Executive Director of the State Board of Elections, to explore North Carolina's

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justifications for the May 17 deadline; and (3) information from officials in other states as to the efficacy of later filing deadlines. They contend that this discovery was essential to their ability to oppose summary judgment.

We conclude that the district court did not abuse its discretion on this issue. To begin with, the record includes information regarding other minor parties' efforts to gain ballot access in recent years. Between 1996 and 2012, the Libertarian Party qualified as a new party four times and qualified once as a recognized political party based on previous election results. The Reform Party qualified as...

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