Libertarian Party of Ala. v. Merrill
| Decision Date | 19 November 2021 |
| Docket Number | 20-13356 |
| Parties | LIBERTARIAN PARTY OF ALABAMA, Plaintiff-Appellant, v. JOHN HAROLD MERRILL, Secretary of State for the State of Alabama, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
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Appeal from the United States District Court for the Middle District of Alabama D.C. Docket No. 2:19-cv-00069-ECM-JTA Before Jill Pryor, Luck, and Brasher, Circuit Judges.
Alabama maintains a list containing the name and registration information of every registered voter in the state. Each political party with ballot access gets a copy of the voter list for free. But political parties without ballot access have to pay for it. The issue before us is whether this distinction-between political parties with ballot access and those without it-unconstitutionally burdens the Libertarian Party of Alabama's First and Fourteenth Amendment rights.
We hold that it does not. The Libertarian Party has not met its burden to demonstrate that the distinction drawn by Alabama's voter list law is discriminatory or severely burdens the Party's constitutional rights. Rather it's rationally related to and furthers important state interests in supporting political parties with a modicum of popular support and alleviating administrative burdens. Thus after careful review and with the benefit of oral argument we affirm the district court's summary judgment for John Harold Merrill, the Alabama Secretary of State.
Under Alabama law, a political party isn't entitled to a spot on the ballot just because it calls itself a political party. Instead, a political party must satisfy the state's ballot access requirements.
There are two ways that a political party can earn a place on the ballot: petition and performance.
Under the first way, a party receives ballot access if it submits a petition with "a list of the signatures of at least three percent of the qualified electors who cast ballots for the office of Governor in the last general election for the state, county, city, district, or other political subdivision in which the political party seeks to qualify candidates for office." Ala. Code § 17-6-22(a)(1). There are slightly over three-and-a-half million registered voters in Alabama, and turnout in the 2018 gubernatorial election was about fifty percent. Thus, a successful petition for statewide ballot access in 2020 required signatures from 51 588 registered voters.
Under the second way-performance-a political party qualifies for statewide ballot access if it received at least twenty percent of the vote cast for an officer in the most recent statewide election. Id. § 17-13-40. The Republican and Democratic parties, for example, both consistently maintain ballot access by getting at least twenty percent of the statewide vote each election.
Now for the state's voter list. Alabama keeps a "computerized statewide voter registration list" containing "the name and registration information of every legally registered voter in the state." Id. § 17-4-33(a), (a)(9). This information includes "the name, address, . . . voting location," and "voting history of each registered voter." Id. § 17-4-33(a)(2), (4). The voter list is an important tool for effectively locating voters, petitioning for ballot access, and campaigning for elected office.
Several entities get the voter list free of charge. State legislators receive the voter list for free within 90 days of assuming office, which helps them provide services to their constituents. Id. § 17-4-38(e). The Alabama Administrative Office of Courts is entitled to the list for free, which it uses to produce the state's master jury list. Id. § 17-4-38(f). The chief elections officers from other states are also entitled to a free copy of the list, which helps the states identify voters who have left Alabama. Id. § 17-4-38(g). Alabama also sends the voter list to the Electronic Registration Information Center (a non-profit group) for free on a monthly basis. And, relevant to this appeal, each political party with ballot access gets an electronic copy of the voter list for free:
Following each state and county election, the Secretary of State shall provide one electronic copy of the computerized voter list free of charge to each political party that satisfied the ballot access requirements for that election. The electronic copy of the computerized voter list shall be provided within 30 days of the certification of the election or upon the completion of the election vote history update following the election, whichever comes first. In addition, upon written request from the chair of a political party, the Secretary of State shall furnish up to two additional electronic copies of the computerized voter file during each calendar year to each political party that satisfied the ballot access requirements during the last statewide election held prior to that calendar year. The electronic copies provided pursuant to this section shall contain the full, editable data as it exists in the computerized voter list maintained by the Secretary of State.
Id. § 17-4-33(a)(10).
Entities that don't fall within these categories-including political parties without ballot access-have to pay "for the production of" the voter list. Id. § 17-4-38(b). Because the secretary charges one penny per voter record, in 2020 it would have cost $35, 912.76 to buy the records for every registered voter in the state. But purchasing the voter list isn't all or nothing; one can buy a "subset" of the list for just the voters in a specific county or district.
A person paying for the list out of pocket can request it from an online portal. Each request for a free copy of the list is processed by one of the six employees in the secretary's elections division. It takes about fifty minutes to compile and email the voter list because the file is "very large," and while the employee's computer is processing the file it generally can't be used to perform other tasks.
In the 2000 general election, one of the Libertarian Party of Alabama's candidates earned over twenty percent of the vote in a statewide race. As a result, the Party obtained statewide ballot access for the 2002 general election. But the Party failed to replicate this success in the 2002 general election and lost statewide ballot access. It has yet to regain statewide ballot access and its support in elections rarely exceeds single digits. Since 2002, only twenty-eight candidates have run in Alabama under the Party's banner.
In 2012, the Party's then-chair estimated that the Party had between 250 and 300 members, "give or take a dozen." By 2020, the Party had only 134 official members. No one in the Party is formally responsible for candidate recruitment or achieving ballot access. Its candidates are selected at an annual convention-usu-ally attended by about fifty party members-where there are never enough candidates in any given race to force a contested choice. The Party's fundraising is "extremely limited," even when compared to political parties in Alabama other than the Republican and Democratic parties. The Party currently has about $13, 000 in its coffers, and its main expense is the annual convention.
Although the Party hasn't had statewide ballot access for two decades, it achieved ballot access in four local races in 2018 and, with it, free access to the subset of the voter list in those districts and counties.
In January 2019, the Party sued the secretary in the Middle District of Alabama, bringing First and Fourteenth Amendment claims under 42 U.S.C. section 1983. The Party alleged that sections 17-4-33 and 17-4-38 discriminated between major and minor political parties by giving a free copy of the voter list only to the major parties. (We will sometimes refer to sections 17-4-33 and 17-4-38, together, as the voter list law). This discrimination, the Libertarian Party alleged, violated its right to associate and advance its political beliefs and therefore violated the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The Party sought declaratory relief and an injunction requiring the secretary to give it a free copy of the statewide voter list.
Following discovery, the secretary moved for summary judgment, which the district court granted. The district court applied the Anderson-Burdick balancing test, which governs challenges to ballot access laws. See Anderson v. Celebrezze, 460 U.S. 780 (1983); Burdick v. Takushi, 504 U.S. 428 (1992). The district court concluded that sections 17-4-33(a)(10) and 17-4-38(b) didn't impose a severe burden on the Party because it could receive the voter list for free if it had ballot access, which the Party had previously achieved at the statewide level in 2000. Thus, strict scrutiny didn't apply, the district court explained, and Alabama had to show only that using ballot access as the criterion for a free copy of the voter list rationally served important state interests. The secretary had identified in discovery twenty important state interests that justified giving the voter list for free to political parties that had ballot access (by virtue of satisfying the three-percent petition requirement or the twenty-percent performance requirement). The district court grouped these interests into two categories: the state's interest in supporting parties with a modicum of popular support and the state's administrative interests.
As to the state's modicum-of-support interest, the district court said that even the Libertarian Party of Alabama agreed that the state didn't have to give the voter...
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