Buscemi v. Bell

Citation964 F.3d 252
Decision Date06 July 2020
Docket NumberNo. 19-2355,19-2355
Parties Gregory BUSCEMI ; Kyle Kopitke; William Clark, Plaintiffs - Appellants, v. Karen Brinson BELL, in her official capacity as Executive Director of the North Carolina State Board of Elections, Defendant - Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Alan P. Woodruff, LAW OFFICES OF ALAN WOODRUFF, Southport, North Carolina, for Appellant. Joshua H. Stein, Attorney General, Paul M. Cox, Special Deputy Attorney General, Nicholas S. Brod, Assistant Solicitor General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellee.

Before MOTZ, KEENAN, and HARRIS, Circuit Judges.

Affirmed as modified by published opinion. Judge Keenan wrote the opinion, in which Judge Motz and Judge Harris joined.

BARBARA MILANO KEENAN, Circuit Judge:

To regulate its elections and the placement of candidates’ names on election ballots, North Carolina has established certain qualification requirements for candidates not affiliated with a political party (unaffiliated candidates) and for candidates whose names are not printed on the ballot (write-in candidates). See N.C. Gen. Stat. §§ 163-122, -123.1 Unaffiliated candidates who wish to have their names appear on the general election ballot in North Carolina must (1) be "qualified voter[s]," (2) collect a certain number of signatures of other qualified voters, and (3) submit those signatures to the state Board of Elections by the date of the primary election. Id. § 163-122(a). Write-in candidates also must collect a minimum number of voters’ signatures before the general election, and any votes cast for a write-in candidate who has failed to collect the required number of signatures will not be counted. Id. § 163-123.

The plaintiffs, two unaffiliated candidates and one voter seeking to cast votes for write-in candidates, argue that these requirements violate their First and Fourteenth Amendment rights. The district court dismissed the complaint for failure to state a claim. The court concluded that the challenged requirements impose only a modest burden on the rights of candidates and voters, which is justified by the state's important interest in regulating elections.

Upon our review, we hold that the plaintiffs lack standing to challenge two requirements at issue, namely, that an unaffiliated candidate be a "qualified voter" and that a write-in candidate submit a certain number of signatures before votes cast for that write-in candidate will be counted. And, although two plaintiffs have standing to challenge North Carolina's signature requirements and filing deadline for unaffiliated candidates, we agree with the district court that these election laws impose only a modest burden that is justified by the state's interest in regulating elections. We therefore affirm the district court's judgment dismissing the plaintiffs’ claims, relying in part on different reasons than those expressed by the district court.

I.

We begin with an overview of the North Carolina election laws that are material to this case. To be placed on the general election ballot as a candidate for public office, an unaffiliated candidate must satisfy three requirements. See N.C. Gen. Stat. § 163-122. First, the candidate must be a "qualified voter" (the qualified voter requirement). Id. § 163-122(a). Although the statute does not define the term "qualified voter," the plaintiffs allege in their complaint that the term refers to a person who lives, and is registered to vote, in North Carolina.

Second, an unaffiliated candidate must collect a minimum number of signatures from individuals who are qualified to vote for a given office. See id. § 163-122(a)(1)-(2). An unaffiliated candidate in a statewide election, including an election for President of the United States, must collect the signatures of at least 1.5% of the total number of voters who voted in the last gubernatorial election. Id. § 163-122(a)(1). An unaffiliated candidate in a districtwide election, including an election for the United States House of Representatives, must collect the signatures of at least 1.5% "of the total number of registered voters in the district." Id. § 163-122(a)(2). Third, an unaffiliated candidate must submit these signatures by the date of the primary election, which this year was held on March 3, 2020. Id. §§ 163-1(b), -122(a)(1)-(2), -213.2.

Write-in candidates for public office in North Carolina face different requirements. See id. § 163-123. Among those requirements, the state only will count votes cast for candidates who have collected a certain number of voter signatures before the general election (the write-in candidate signature requirement). Id. § 163-123(f). These numerical requirements fall in a range between 100 and 500 signatures, depending on the office at issue. Id. § 163-123(c).

Three individuals initiated the present case in the district court. Plaintiff Kyle Kopitke is a Michigan resident seeking placement on the 2020 general election ballot in North Carolina as an unaffiliated candidate for President of the United States. Plaintiff Gregory Buscemi is a North Carolina resident seeking placement on the same ballot as an unaffiliated candidate for the United States House of Representatives. And finally, plaintiff William Clark is a North Carolina resident who wishes to cast votes for write-in candidates for every office in North Carolina's general election.

Kopitke, Buscemi, and Clark (collectively, the plaintiffs) filed a complaint in the district court under 42 U.S.C. § 1983 against Karen Bell, in her official capacity as the Executive Director of the North Carolina State Board of Elections (the Board). The complaint contained three main allegations. First, Kopitke and Buscemi alleged that the signature requirements and the filing deadline for unaffiliated candidates place an unconstitutional burden on their First and Fourteenth Amendment rights. Next, Kopitke asserted separately that the qualified voter requirement violates the Constitution by effectively barring out-of-state residents from running for federal office. See U.S. Const. art. II, § 1, cl. 5 ; U.S. Term Limits, Inc. v. Thornton , 514 U.S. 779, 805, 115 S.Ct. 1842, 131 L.Ed.2d 881 (1995). Finally, Clark alleged that the signature requirement for write-in candidates places an unconstitutional burden on Clark's right to vote.

The plaintiffs moved for a preliminary injunction, asking the district court to enjoin the Board from enforcing the challenged requirements and to direct the Board to include Kopitke and Buscemi on the November 2020 general election ballot. In response, the Board moved to dismiss the case for lack of jurisdiction and for failure to state a claim. The district court granted the Board's motion to dismiss. The court held that the plaintiffs had standing but had failed to state a valid claim. Because the court found that the plaintiffs could not succeed on the merits of their claims, the court also denied the plaintiffsmotion for a preliminary injunction. The plaintiffs now appeal from the district court's dismissal of their electoral law challenges; they have not appealed the court's denial of their request for injunctive relief.

II.

We begin with the question whether the plaintiffs have standing to bring their claims. Although typically we will not address issues raised by an appellee that has not filed a cross-appeal, see Am. Roll-On Roll-Off Carrier, LLC v. P & O Ports Balt., Inc. , 479 F.3d 288, 295-96 (4th Cir. 2007), we must assure ourselves of subject matter jurisdiction and may address standing sua sponte,2 see Benham v. City of Charlotte , 635 F.3d 129, 134 (4th Cir. 2011). Accordingly, we review de novo the legal question whether a plaintiff has standing to bring a claim. South Carolina v. United States , 912 F.3d 720, 726 (4th Cir. 2019). In making this assessment, we accept all allegations in the complaint as true and construe those allegations "in the light most favorable to the plaintiff." Wikimedia Found. v. Nat'l Sec. Agency , 857 F.3d 193, 208 (4th Cir. 2017).

Article III of the Constitution provides that federal courts may consider only "[c]ases" and "[c]ontroversies." U.S. Const. art. III, § 2. To establish an injury sufficient to confer standing to bring suit under Article III, a plaintiff must plausibly allege: (1) "an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins , ––– U.S. ––––, 136 S. Ct. 1540, 1547, 194 L.Ed.2d 635 (2016). These requirements for standing ensure that the plaintiff has "a personal stake in the outcome of the controversy." Gill v. Whitford , ––– U.S. ––––, 138 S. Ct. 1916, 1929, 201 L.Ed.2d 313 (2018) (quoting Baker v. Carr , 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) ). In the present case, we focus on the first and third requirements for Article III standing, namely, injury in fact and redressability.

First, the plaintiff's "injury in fact" must be "concrete and particularized" and "actual or imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotation marks and citations omitted). The "threatened injury must be certainly impending," and "[a]llegations of possible future injury" are insufficient. Whitmore v. Arkansas , 495 U.S. 149, 158, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (internal quotation marks and citation omitted). An injury "reli[ant] on a highly attenuated chain of possibilities[ ] does not" qualify as being "certainly impending." Clapper v. Amnesty Int'l USA , 568 U.S. 398, 410, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013).

When a plaintiff challenges the constitutionality of a statute, the plaintiff must show that "there is a ‘realistic danger’ that" the plaintiff "will ‘sustain[ ] a direct injury’ as a result of the terms of the" statute. Curtis v. Propel...

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