McClure v. Galvin, 04-1803.

• Citation: 386 F.3d 36
• Decision Date: 08 October 2004
• Docket Number: No. 04-1803.,04-1803.
• Court: U.S. Court of Appeals — First Circuit
• Parties: Richard P. McCLURE and Martha McClure, Plaintiffs, Appellants, v. William F. GALVIN, Secretary of the Commonwealth; Elizabeth L. Delaney, Town Clerk, Town of Chelmsford; Jane Doe, Chelmsford Election Poll Clerk, Defendants, Appellees.

386 F.3d 36

Richard P. McCLURE and Martha McClure, Plaintiffs, Appellants, v. William F. GALVIN, Secretary of the Commonwealth; Elizabeth L. Delaney, Town Clerk, Town of Chelmsford; Jane Doe, Chelmsford Election Poll Clerk, Defendants, Appellees.

No. 04-1803.

United States Court of Appeals, First Circuit.

Heard October 7, 2004.

Decided October 8, 2004.

Appeal from the United States District Court for the District of Massachusetts, Richard G. Stearns, J Richard P. McClure, pro se.

James J. Arguin, Assistant Attorney General, with whom Thomas F. Reilly, Attorney General, was on brief, for appellee William F. Galvin.

Brian W. Riley, Lauren F. Goldberg, and Kopelman and Paige, P.C. on brief, for appellee Elizabeth L. Delaney.

Before LYNCH, Circuit Judge, STAHL, Senior Circuit Judge, LIPEZ, Circuit Judge.

LYNCH, Circuit Judge.

Richard McClure filed suit against the Secretary of the Commonwealth of Massachusetts and others, alleging an interference with both his right to vote and his right to run for political office under the First and Fourteenth Amendments of the United States Constitution. He sought injunctive and declaratory relief, requiring that he be placed on the ballot as an independent candidate in the race for a state senate seat.¹

In March of 2004, McClure had sought certification from a town clerk to be placed on the ballot as an unenrolled candidate for state senate in Massachusetts. "Unenrolled" means not affiliated with any political party. The town clerk refused to issue the certification because McClure had voted in the Democratic party presidential primary on March 2, 2004. Pursuant to a state statute, Mass. Gen. Laws ch. 53, § 37, such voting automatically enrolled McClure as a Democrat. Pursuant to another state statute, ch. 53, § 6, one running for an in-state office as an independent must not be enrolled in a political party for the ninety days preceding the filing deadline for primaries for candidates running for state senate. As a result, McClure's temporary enrollment automatically disqualified him from running for the state senate as an independent because the deadline for filing an intent to run for that office was less than ninety days after the date of the Democratic primary in which he voted.

The district court, after an expedited hearing, denied McClure's motion for a preliminary injunction and dismissed his claim on May 17, 2004. McClure v. Galvin, No. Civ.A. 04-CV-10826-RGS, 2004 WL 1092325, at *4 (D.Mass. May 17, 2004). We now affirm this judgment.

I.

The statutory scheme at issue here requires some elaboration.

Massachusetts General Laws chapter 53, section 6 provides that an unenrolled candidate for elected office will not have her name printed on the ballot unless a certificate confirming this unenrolled status is obtained from the registrar of voters of the town where the would-be candidate is a registered voter. Such a certification will not be granted "to any such candidate who shall have been an enrolled member of any political party during the time prior to the last day for filing nomination papers as provided in section ten, and on or after the day by which a primary candidate is required by section forty-eight to establish enrollment in a political party." Mass. Gen. Laws ch. 53, § 6. In turn, chapter 53, section 48 states that an enrolled candidate seeking to enter a party primary must have been a member of that party for the ninety days before the filing deadline for that primary, which is the "last Tuesday in May" for candidates for state senate. The beginning date of the nonenrollment period for independent candidates is thus ninety days prior to the last Tuesday in May. Next, chapter 53, section 10 establishes the "last Tuesday in May" as the deadline for filing candidacies for in-state offices for the general elections, and the last Tuesday in May thus acts as the ending date for the nonenrollment period. The effect of chapter 53, section 6 in 2004 was to require unenrolled candidates seeking a place on the ballot for state senate not to have been enrolled as a member of any political party between February 24, 2004, and May 25, 2004. This year, the state presidential primary was held within the ninety-day period.

The nonenrollment period for independent candidates for state-wide (e.g., governor) and federal (e.g., United States Senator) offices begins one week later, ninety days prior to the first Tuesday in June. Mass. Gen. Laws ch. 53, § 48. The ninety-day period thus did not include the presidential primaries for individuals running for these offices.

A similar scheme is in place for enrolled candidates. See Mass. Gen. Laws ch. 53, § 48 (individual seeking ballot placement for elected office as a member of any party, and who thus seeks to run in a party primary, needs a certificate "certifying that he has been enrolled as a member of the political party whose nomination he seeks throughout the ninety days prior to the last day herein provided for filing nomination papers [for the primary] with the state secretary...."). In fact, since section 6 incorporates section 48 by reference, the beginning date of the period within which candidates running for a given office under a party banner must have been a member of that party is the exact same date as the beginning date of the period within which unenrolled candidates must not have been enrolled as a member of any party. For state senate candidates, this key date is ninety days prior to the last Tuesday in May. See Mass. Gen. Laws ch. 53, § 48.

Massachusetts General Laws chapter 53, section 37 as currently in effect states that voters who are unenrolled at the time of appearing to vote in a primary may generally vote in any party's primary. Upon appearing to vote in a primary, a ballot clerk asks unenrolled voters in which primary they "desire [] to vote"; they may then vote in that primary. Mass. Gen. Laws ch. 53, § 37. Generally, an unenrolled voter can vote in party primaries without losing her unenrolled status.

There is an exception, however, for presidential primaries; in a presidential primary, upon voting, "the voter shall become enrolled in and shall remain a member of the political party whose ballot he received until he files a certificate, signed under the pains and penalties of perjury, with the board of registrars of voters, requesting to have his enrollment changed to another party or political designation or cancelled...." Mass. Gen. Laws ch. 53, § 37. The change of status back to unenrolled is effective once the board receives the certificate. See Mass. Gen. Laws ch. 53, § 38. There is no set amount of time that one must remain a member of the party in whose primary one has just voted; unenrollment can take place immediately.

Before a 1994 amendment to chapter 53, section 37, all primary voting by unenrolled voters (not simply such voting in presidential primaries) automatically enrolled previously unenrolled voters in that party. See Mass. Gen. Laws Ann. ch. 53, § 37, Historical and Statutory Notes. Since the 1994 amendment, however, only the presidential primaries have had that effect; an unenrolled voter may vote in all other primaries without losing her unenrolled status.²

Voters currently enrolled in one party in Massachusetts may not generally vote in any other party's primary, and they may not switch their enrollment to another party within twenty days of a primary. Mass. Gen. Laws ch. 53, § 38. One effect of these laws is that no voter in Massachusetts, enrolled or unenrolled, may vote in more than one party's primary on a given primary day. See Mass. Gen. Laws ch. 53, §§ 37, 38.

McClure is a registered voter in Chelmsford, Massachusetts, and was a registered Republican until February 10, 2004; on that date he disenrolled and changed his status to unenrolled. On March 2, 2004, McClure went to the polls to vote in the Democratic party's presidential primary in Massachusetts. In his affidavit, he states that on that date, the ballot clerk asked him in which party's presidential primary he would like to vote and when he asked for a Democratic party ballot, the clerk put a large "D" next to his name. McClure then told the ballot clerk that he did not want to enroll in the Democratic party; the clerk told him that he would not be enrolled in the Democratic party and handed him a "certificate" indicating that he was "establishing [his] voter status as `unenrolled.'" After voting, a different clerk (an "exit clerk") took this certificate from McClure. Elizabeth Delaney, the town clerk of the Town of Chelmsford, stated, in her affidavit, that the effect of this certificate was merely to immediately change McClure's enrollment status back to "unenrolled." However, he was briefly enrolled as a Democrat.

On March 25, 2004, McClure, having satisfied the other requirements to be an unenrolled candidate for state senate whose name appears on the ballot, applied to the Chelmsford town clerk for a voter registration certificate. The town clerk had called him the previous day (March 24) and told him over the phone that she would not be able to grant such a certificate because McClure voted in the Democratic presidential primary on March 2, 2004, which enrolled him as a Democrat within ninety days of the May 25 deadline for filing. In this conversation, McClure informed her of the misinformation he received from the ballot clerk. The town clerk responded that the election laws are very complex, one cannot expect a checker at the polls to understand all of their details, and McClure should have called her as chief election official if he had any questions or doubts. On March 26, 2004, the town clerk formally and in writing denied McClure's certificate.

II.

McClure filed suit in federal district court in Massachusetts on April 26, 2004, alleging that the ninety-day enrollment restriction effectuated by Massachusetts General Laws chapter 53, sections 6 and 37 violated his First...