Libertarian Party of Nm v. Herrera

• Decision Date: 07 November 2007
• Docket Number: No. 06-2303.,06-2303.
• Citation: 506 F.3d 1303
• Parties: LIBERTARIAN PARTY OF NEW MEXICO; Siebert Ickler; Michael Blessing; John Pfersich; Stan Raczynski, Plaintiffs-Appellants, v. Mary HERRERA, in her official capacity as Secretary of the State of New Mexico; Margaret C. Toulouse, in her official capacity as County Clerk of Bernalillo County, New Mexico,<SMALL><SUP>*</SUP></SMALL> Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

506 F.3d 1303

LIBERTARIAN PARTY OF NEW MEXICO; Siebert Ickler; Michael Blessing; John Pfersich; Stan Raczynski, Plaintiffs-Appellants, v. Mary HERRERA, in her official capacity as Secretary of the State of New Mexico; Margaret C. Toulouse, in her official capacity as County Clerk of

Bernalillo County, New Mexico,^* Defendants-Appellees.

No. 06-2303.

United States Court of Appeals, Tenth Circuit.

November 7, 2007.

Bryan Sells (Laughlin McDonald with him on the briefs), American Civil Liberties Union, Atlanta, GA, for Plaintiffs-Appellants.

David K. Thomson, Assistant Attorney General (Gary K. King, Attorney General of New Mexico, with him on the brief), Santa Fe, NM, for Defendants-Appellees.

Before MURPHY, BRORBY, and McCONNELL, Circuit Judges.

MURPHY, Circuit Judge.

I. Introduction

The Libertarian Party of New Mexico and several of its candidates for public office sought to be placed on the ballot in New Mexico for the November 7, 2006, general election. Failing to obtain the requisite signatures required under New Mexico's election law, N.M. Stat. Ann. §§ 1-8-2(B), 1-8-3(C), the Secretary of State refused to place the candidates' names on the ballot. The Libertarian Party and four candidates brought suit for declaratory relief against the Secretary of State and the County Clerk of Bernalillo County under 42 U.S.C. § 1983 and filed a request for a preliminary injunction, alleging New Mexico's two-petition ballot-access scheme unconstitutionally burdens their First and Fourteenth Amendment rights. The district court granted summary judgment to the defendants and denied the Libertarian Party's Federal Rule of Civil Procedure 56(f) request for discovery.

The Libertarian Party and four of its candidates (collectively referred to here as the "Libertarian Party")¹ challenge the district court's grant of summary judgment and its denial of the Rule 56(f) motion. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, this court affirms.

II. Background

New Mexico classifies political parties in two separate groups for the purpose of placing candidates for public office on the ballot. Candidates (other than presidential) from "major political parties" are nominated by secret ballot in a primary election. N.M. Stat. Ann. § 1-8-1(A). To become a primary candidate, one must obtain a certain number of signatures from members of the candidate's own party. Id. §§ 1-8-31(C)(4), 1-8-33.² A major political party is defined as any qualified party³ which had at least one candidate who received at least five percent of the total number of votes in the preceding general election for governor or president of the United States. Id. § 1-1-9(A).

Candidates from "minor political parties" must take a different route to the ballot. A minor party nominates its candidates by the manner prescribed in its internal party rules and regulations. Id. § 1-8-1(B). After the party nominates its candidates, an appropriate party official must certify the names of the candidates to the secretary of state or county clerk. Id. §§ 1-8-2(A), 1-8-3(A) & (B). This certification must be accompanied by a petition containing a list of signatures and addresses of voters for each candidate. Id. §§ 1-8-2(B), 1-8-3(C). Candidates must obtain signatures equivalent to at least one percent of the votes cast in the last election for governor or president.⁴ Id. §§ 1-8-2(B), 1-8-3(C). Minor political parties are defined as any qualified party which has not obtained the status of major political party. Id. § 1-1-9(B). To become a minor political party, a political group must file a new-party petition to obtain recognition. Id. § 1-7-2(A). The petition must contain the signatures of one-half of one percent of the total number of votes cast in the state in the last preceding general election for governor or president. Id. The upshot is that political groups which have not yet obtained minor party status must go through two rounds of petitioning: one to become a minor party and then one for each of the candidates it nominates.

The Libertarian Party of New Mexico filed its new-party petition with the Secretary of State in November 2005. Minor political party status was granted in April 2006. Thereafter, the party held a convention and nominated candidates for public office. The party certified its nominees to the Secretary of State, but failed to obtain the candidate petition required for each candidate by N.M. Stat. Ann. § 1-8-2(B). When the Secretary of State refused to place the Libertarian Party candidates on the ballot, the party and the candidates filed suit under 42 U.S.C. § 1983. The Libertarian Party sought a declaration that New Mexico's two-petition system violated the Constitution and a preliminary injunction mandating the placement of their candidates on the ballot. The Libertarian Party alleged the two-petition ballot-access system, which requires the party to first show a modicum of support and then show additional support for each candidate, imposes a substantial burden on the party's ability to have its nominees appear on the general election ballot.

The Secretary of State filed a motion for summary judgment on August 17, 2006, approximately five weeks after the complaint was filed. The Libertarian party requested more time for discovery pursuant to Rule 56(f) of the Federal Rules of Civil Procedure. In a September 2006 order, the district court denied the Rule 56(f) motion. The district court then granted summary judgment to the defendants.

III. Discussion

A. Rule 56(f) motion

In response to the Secretary of State's motion for summary judgment, the Libertarian Party attached an affidavit pursuant to Fed.R.Civ.P. 56(f), arguing that discovery was needed before the court could rule on the motion for summary judgment. The affidavit stated with more time, the plaintiffs would:

present expert and lay witness affidavits, answers to interrogatories, admissions, and documentary evidence that will create a genuine issue with respect to: (a) the character and magnitude of the burdens that New Mexico's two-petition ballot-access scheme for new political parties imposes on the plaintiffs' First and Fourteenth Amendment rights; (b) the legitimacy and strength of any interests which the defendants may offer as justification for the scheme; and (c) the extent to which those interests make it necessary to burden the plaintiffs' rights.

Aplt's App. at 81 (Aff. of Bryan L. Sells). The affidavit went on to state the Libertarian Party would specifically show that the magnitude of the burden is severe, the interests offered by New Mexico are not compelling, and the scheme is not necessary to advance New Mexico's interest. In its response to the motion for summary judgment, the Libertarian Party stated it would seek historical evidence regarding the burdens New Mexico's election laws place on new minor party candidates.

The district court denied the Rule 56(f) motion, finding historical evidence was not necessary to assess the character and magnitude of the burdens created by New Mexico's ballot access scheme. The Libertarian Party challenges the denial of their request for discovery. This court reviews the denial of a Rule 56(f) motion for an abuse of discretion. Trask v. Franco, 446 F.3d 1036, 1042 (10th Cir.2006).

Rule 56(f) provides:

Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.

The Libertarian party argues that under Supreme Court precedent to resolve the merits of its ballot-access claim, a district court must engage in a fact specific inquiry and examine the burdens placed on candidates and parties. See Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). Appellants submit that historical evidence showing the burdens faced by other similarly situated minor party candidates would prove a severe burden which is not outweighed by any state interest.

The Secretary of State, echoing the district court's ruling, counters that historical evidence is not necessary because the New Mexico ballot-access scheme is constitutional as a matter of law. Relying on Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971), and American Party of Texas v. White, 415 U.S. 767, 787, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974), the Secretary of State contends the New Mexico petition requirement is constitutional because more burdensome petition requirements were upheld in those cases. In Jenness the Court upheld a Georgia requirement that minor party candidates collect signatures equaling at least five percent of the total number of voters eligible to vote in the last election for the particular office. 403 U.S. at 433, 442, 91 S.Ct. 1970. The Court upheld a similar Texas requirement in which minor party candidates had to demonstrate support from a number of voters equaling at least one percent of the total vote cast for governor in the last preceding election with more stringent requirements on who qualified to sign a minor party candidate's petition. Am. Party of Texas, 415 U.S. at 776, 787-88, 94 S.Ct. 1296. Further, this circuit upheld Oklahoma's five-percent petition requirement for minor party recognition, noting the percent of support required was "undeniably constitutional." Rainbow Coal. of Okla. v. Okla. State Election Bd., 844 F.2d 740, 744 (1988).

The district court's conclusion that historical evidence was not needed in light of Jenness and American Party of Texas appears to turn the Anderson balancing test into a bright line test, ignoring the highly fact specific inquiry required. We need not, however, resolve this issue. The district court did not abuse its discretion when it...