Green Party of Ark. v. Martin

• Decision Date: 05 October 2011
• Docket Number: No. 10–3106.,10–3106.
• Citation: 649 F.3d 675
• Parties: GREEN PARTY OF ARKANSAS, Mark, Swaney, and Rebekah Kennedy, Plaintiffs–Appellants,v.Mark MARTIN, in his official capacity as Secretary of State of the State of Arkansas, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

649 F.3d 675

GREEN PARTY OF ARKANSAS, Mark, Swaney, and Rebekah Kennedy, Plaintiffs–Appellants,
v.
Mark MARTIN, in his official capacity as Secretary of State of the State of Arkansas, Defendant–Appellee.

No. 10–3106.

United States Court of Appeals, Eighth Circuit.

Submitted: May 10, 2011.Filed: Aug. 9, 2011.Rehearing and Rehearing En Banc Denied Oct. 5, 2011.

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Laughlin McDonald, argued, Atlanta, GA, Elizabeth Dickson, on the brief, Little Rock, AR, for appellant.Scott Paris Richardson, AAG, argued, Ali Brady, AAG, on the brief, Little Rock, AR, for appellee.Before MELLOY and BENTON, Circuit Judges, and GRITZNER,¹ District Judge.GRITZNER, District Judge.

The Green Party of Arkansas, Rebekah Kennedy, a former candidate of the Green Party of Arkansas, and Mark Swaney, a member of the Green Party of Arkansas (collectively, the Green Party) brought this action against Arkansas Secretary of State Mark Martin ² (hereinafter, Arkansas) pursuant to 42 U.S.C. § 1983, seeking (1) a declaratory judgment that the Green Party is a political party and that Arkansas Code § 7–1–101(21)(C) (formerly Arkansas Code § 7–1–101(18)(C)) violates the Green Party's First and Fourteenth Amendment rights, and (2) an injunction preventing Arkansas from enforcing § 7–1–101(21)(C). The district court ³ granted summary judgment in favor of Arkansas. This appeal followed. We affirm.

I. BACKGROUND

Individuals that desire to gain access to Arkansas's ballot as a candidate for elected

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office may follow a number of alternative paths. A candidate may gain access to the ballot as the nominee of a state-certified political party, whose full slate of candidates are granted automatic access to the ballot. Arkansas defines a “Political Party” as “any group of voters that at the last preceding general election polled for its candidate for Governor in the state or nominees for presidential electors at least three percent (3%) of the entire vote cast for the office.” Ark.Code Ann. § 7–1–101(21)(A). Arkansas currently recognizes only the Republican and Democratic parties as certified political parties.

A candidate may alternatively gain access to the ballot as a nominee of a new political party. A prospective new political party and its slate of candidates secure ballot access by filing with the Arkansas Secretary of State a petition comprised of the signatures of any 10,000 registered Arkansas voters collected in a ninety-day period. See Ark.Code Ann. § 7–7–205.⁴ If the petition for certification fulfills the requirements of § 7–7–205, the prospective new political party's slate of candidates is granted ballot access. However, the new political party will only maintain status as a political party if it “obtain[s] three percent (3%) of the total vote cast for the office of Governor or nominees for presidential electors at the first general election after certification.” Ark.Code Ann. § 7–7–205(e)(4). A new political party that “fails to obtain three percent (3%) of the total votes cast at an election for the office of Governor or nominees for presidential electors, ... cease[s] to be a political party.” Ark.Code Ann. § 7–1–101(21)(C).

A political group not recognized as either a certified or a new political party may still secure ballot access for its candidates for President and Vice President by filing with the Arkansas Secretary of State a petition comprised of the signatures of any 1000 registered Arkansas voters. Ark.Code Ann. § 7–8–302(5)(B). As with a party that gains access as a new political party under § 7–7–205(e)(4), a political party securing ballot access under § 7–8–302(5)(B) will be recognized as a political party for the next general election if it succeeds in securing for its candidate three percent of the vote for presidential electors. See Ark.Code Ann. § 7–1–101(21)(A).

A candidate may also gain access to the ballot as an independent candidate by petition. “If the person is a candidate for state office or for United States Senator in which a statewide race is required, the person shall file petitions signed by not less than three percent (3%) of the qualified electors of the state or which contain ten thousand (10,000) signatures of qualified electors, whichever is the lesser.” Ark.Code Ann. § 7–7–103(b)(1)(B). Candidates seeking county, township, or district office need only file a petition “signed by not less than three percent (3%) of the qualified electors in the county, township, or district in which the person is seeking office, but in no event shall more than two thousand (2,000) signatures be required for a district, county, or township office.” Ark.Code Ann. § 7–7–103(b)(1)(A). A candidate that gains access to the ballot through independent petition may not list his or her preferred party affiliation on the ballot. See Ark.Code Ann. § 7–5–207(d)(1)(B).

Finally, a candidate may gain access to the ballot as a write-in candidate by filing

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with the Secretary of State or county clerk, where appropriate, a notice of write-in candidacy, a political practices pledge, and an affidavit of eligibility for the office the candidate seeks to hold. See Ark.Code Ann. § 7–5–205.

The Green Party, seeking to be recognized as a certified political party in Arkansas, successfully petitioned to become a new political party in 2006, 2008, and 2010 by filing with the Arkansas Secretary of State petitions comprised of the signatures of 10,000 registered Arkansas voters. The Green Party spent $40,000 in 2006, $30,000 in 2008, and $14,000 in 2010 in order to complete its petition drives. Following certification as a new political party, the Green Party's slate of candidates was granted access to the ballot and experienced some successes.⁵ However, in 2006, Green Party candidate for Governor Jim Lendall received only 12,774 votes out of 774,680 cast (1.65%); in 2008, Green Party candidates for President and Vice President Cynthia McKinney and Rosa Clemente received only 3470 votes out of 1,086,617 cast (0.32%); and in the 2010 gubernatorial election, of which this Court takes judicial notice, Green Party candidate for Governor Jim Lendall received only 14,513 votes out of 781,332 cast (1.9%), see Arkansas Secretary of State, Vote Naturally, http:// www. votenaturally. org/ electionres ults/ index. php? ac: show: contest_ statewide= 1& elecid= 231& contestid= 4 (last visited July 28, 2011).⁶ Based upon the 2006, 2008, and 2010 election results, the Green Party failed to maintain its status as a political party under § 7–1–101(21)(C).

The Green Party filed a declaratory judgment action in the U.S. District Court for the Eastern District of Arkansas, contending that (1) Section 7–1–101(21)(C) violates the Green Party's associational rights pursuant to the First and Fourteenth Amendments because it is not narrowly tailored to advance a compelling state interest, and (2) the Arkansas Secretary of State misinterpreted § 7–1–101(21)(C). The district court granted Arkansas's motion for summary judgment and denied the Green Party's requested declaratory and injunctive relief. On appeal, the Green Party challenges the district court's finding that § 7–1–101(21)(C) does not severely interfere with its right of association and therefore does not impermissibly burden the Green Party's First and Fourteenth Amendment rights.⁷

II. DISCUSSIONA. Standard of Review

“We review a district court's decision to grant a motion for summary judgment de novo, applying the same standards for summary judgment as the district court.” Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 514 (8th Cir.2011). Because the facts are not in dispute, we determine whether the moving party is

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entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a).B. Constitutional Constraints on State Election Laws

“The States possess a ‘broad power to prescribe the “Times, Places and Manner of holding Elections for Senators and Representatives,” Art. I, § 4, cl. 1, which power is matched by state control over the election process for state offices.’ ” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 451, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) (quoting Clingman v. Beaver, 544 U.S. 581, 586, 125 S.Ct. 2029, 161 L.Ed.2d 920 (2005)). Therefore, it is beyond question that “States may condition access to the general election ballot by a minor-party or independent candidate upon a showing of a modicum of support among the potential voters for the office.” Munro v. Socialist Workers Party, 479 U.S. 189, 193, 107 S.Ct. 533, 93 L.Ed.2d 499 (1986). Although the power of the States to regulate the electoral process is expansive, that power may not be implemented in a manner that violates the Constitution. See Wash. State Grange, 552 U.S. at 451, 128 S.Ct. 1184 (citing Williams v. Rhodes, 393 U.S. 23, 29, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968)). Thus, each State must “observe the limits established by the First Amendment rights of the State's citizens,” Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 222, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989) (quoting Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 217, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986)), including “the right of citizens to associate and to form political parties for the advancement of common political goals and ideas,” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 357, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997) (citing Colorado Republican Federal Campaign Committee v. Federal Election Commission, 518 U.S. 604, 616, 116 S.Ct. 2309, 135 L.Ed.2d 795 (1996); Norman v. Reed, 502 U.S. 279, 288, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992); Tashjian, 479 U.S. at 214, 107 S.Ct. 544). Indeed, “[r]epresentative democracy in any populous unit of governance is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views. The formation of national political parties was...