Moore v. Martin

• Decision Date: 26 April 2017
• Docket Number: No. 15-3558,15-3558
• Citation: 854 F.3d 1021
• Parties: Mark MOORE, Plaintiff–Appellant Michael Harrod; William Chris Johnson, Plaintiffs v. Mark MARTIN, in his official capacity as Secretary of State for the State of Arkansas, Defendant–Appellee
• Court: U.S. Court of Appeals — Eighth Circuit

854 F.3d 1021

Mark MOORE, Plaintiff–AppellantMichael Harrod; William Chris Johnson, Plaintiffs

v.Mark MARTIN, in his official capacity as Secretary of State for the State of Arkansas, Defendant–Appellee

No. 15-3558

United States Court of Appeals, Eighth Circuit.

Submitted: December 14, 2016

Filed: April 26, 2017

Counsel who presented argument on behalf of the appellant was James Carter Linger, of Tulsa, OK.

Counsel who presented argument on behalf of the appellee was AJ Kelly, of Little Rock, AR.

Before WOLLMAN, SMITH,¹ and BENTON, Circuit Judges.

WOLLMAN, Circuit Judge.

This appeal concerns certain Arkansas statutes that set the filing deadline for individuals who wish to appear on the general election ballot as independent candidates. Mark Moore, along with two other individuals, filed suit in federal district court against Mark Martin, in his official capacity as Arkansas Secretary of State, seeking a declaratory judgment that the filing deadline is unnecessarily early and thus violates the First and Fourteenth Amendments and 42 U.S.C. § 1983. The suit seeks to enjoin Martin from enforcing this deadline against Moore.² Moore appeals from the district court's orders that denied his motion for summary judgment, granted Martin's motion for summary judgment, and denied Moore's motion for reconsideration. We affirm in part and reverse in part.

I. Background

Under Arkansas law, a person seeking to include his or her name on the general election ballot as an independent candidate for any office other than President or Vice President of the United States must submit a petition to the Arkansas Secretary of State. Ark. Code Ann. § 7-7-103(a)(1). Petitions for statewide office must be signed by the lesser of three percent of the qualified electors of the state or ten thousand qualified electors. Id. § 7-7-103(b)(1)(B). Independent candidate petitions must be submitted during the same period as political party candidate petitions. This "party filing period" begins one week prior to the first day in March and ends the first day in March.³ Id. §§ 7-7-103(a)(1), 7-7-203(c)(1). Petitions may not be circulated for signatures earlier than ninety days prior to the March 1 deadline. Id. § 7-7-103(b)(3)(B). The general election is held on the Tuesday following the first Monday in November. Id. § 7-5-102. For political party candidates, the general primary election is held on the second Tuesday in June and the preferential primary election is held three weeks earlier. Id. § 7-7-203(a) -(b). The Secretary and county clerks must certify to the county boards of election commissioners the names of all candidates to be placed on the general election ballot not less than seventy-five days before the general election. Id. § 7-5-203. Upon timely request, states must transmit absentee ballots to absent military voters and overseas voters at least forty-five days before an election for federal office. 52 U.S.C. § 20302(a)(8).

The Secretary must also process requests for inclusion on the ballot for nonpartisan offices, including judges and prosecuting attorneys. The general election for nonpartisan offices is held on the same day as the preferential primary election for partisan offices, and any runoff election is held on the same day as the November general election. Ark. Code Ann. § 7-10-102. A person may have his or her name placed on the ballot for nonpartisan office by paying a filing fee during the party filing period or by submitting a petition, signed by a requisite number of electors, during a period beginning fifty-three days before the first day of the party filing period and ending forty-six days before the first day of the party filing period. Id. § 7-10-103(a)-(c). The Secretary must verify the sufficiency of a petition for nonpartisan office within forty-five days of its filing.⁴ Id. § 7-10-103(c)(1)(C).

Additionally, Arkansas election officials must process petitions for ballot initiatives. Eight percent of the qualified electors in Arkansas may propose a law, and ten percent may propose an amendment to the state's constitution. Ark. Const. art. V, § 1. To appear on the November general election ballot, an initiative petition signed by the requisite number of voters must be filed with the Secretary not less than four months before the general election is to be held. Id. The Secretary must verify the sufficiency of an initiative petition within thirty days after it is filed and may contract with county clerks for assistance in verifying the petition signatures. Ark. Code. Ann. § 7-9-111(a). If the Secretary finds a petition insufficient, within thirty days the petition sponsors must cure the deficiency (by gathering additional signatures, proving the validity of rejected signatures, or making the petition more definite) and submit a supplemental petition, the sufficiency of which the Secretary must verify within thirty days. Id. § 7-9-111(d). The Secretary must certify each verified initiative proposal to the county boards of election commissioners for inclusion on the ballot not less than seventy-five days before the general election. Id. § 7-5-204(a). If the Secretary has not verified the sufficiency of an initiative petition at least seventy-five days before the general election, or if an initiative petition is legally challenged, the Secretary must nevertheless transmit it to the county boards of election commissioners for inclusion on the ballot. Id. § 7-5-204(c)(1). If the Secretary subsequently declares the petition insufficient or if the initiative proposal is held to be legally invalid, no votes regarding the initiative proposal are counted or certified. Id. § 7-5-204(c)(2).

Moore is a registered Arkansas voter and claims that he was an independent candidate for Lieutenant Governor of Arkansas in the 2014 election.⁵ He sued Martin, alleging, as mentioned above, that the filing deadline for independent candidates violates the First and Fourteenth Amendments.

The parties filed cross-motions for summary judgment. The district court granted Martin's motion and denied Moore's motion. It rejected Martin's arguments that the case was moot or unripe for review and that Moore lacked standing. It found that the March deadline for filing as an independent candidate placed a substantial burden on Moore's rights; that Arkansas has a compelling interest in timely certifying candidates and initiatives to the general election ballot; and that the March deadline is narrowly tailored to serve this interest. In determining that the March deadline is narrowly tailored, the court relied on an affidavit submitted by the Arkansas Director of Elections, which states that the increased number of initiative petitions and candidates petitioning for inclusion on the ballot for nonpartisan office leaves Arkansas election officials with insufficient time to process the petitions using the previous May 1 submission deadline.

II. Discussion

We review de novo the district court's order granting Martin's motion for summary judgment and denying Moore's motion for summary judgment. See Green Party of Ark. v. Martin , 649 F.3d 675, 679 (8th Cir. 2011). "The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. Proc. 56(a). The party moving for summary judgment bears the initial burden to "bring up the fact that the record does not contain" a genuine dispute of material fact "and to identify that part of the record which bears out his assertion." Counts v. MK-Ferguson Co. , 862 F.2d 1338, 1339 (8th Cir. 1988) (quoting City of Mt. Pleasant v. Associated Elec. Coop. , 838 F.2d 268, 273-74 (8th Cir. 1988) ). "[I]f the record in fact bears out the claim that no genuine dispute exists on any material fact, it is then the respondent's burden to set forth affirmative evidence, specific facts, showing that there is a genuine dispute on that issue." Id. "A party asserting that a fact cannot be or is genuinely disputed must support the assertion by" either "citing to particular parts of materials in the record" or "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. Proc. 56(c)(1).

Ballot access restrictions implicate not only the rights of potential candidates for public office, but also the First and Fourteenth Amendment rights of voters to cast their ballots for a candidate of their choice and to associate for the purpose of advancing their political beliefs. Anderson v. Celebrezze , 460 U.S. 780, 786-88, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983).⁶ "Constitutional challenges to specific provisions of a State's election laws [ ] cannot be resolved by any ‘litmus-paper test’ that will separate valid from invalid restrictions." Id. at 789, 103 S.Ct. 1564 (quoting Storer v. Brown , 415 U.S. 724, 730, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974) ). Instead, we "must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate," then we "must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule," determining not only "the legitimacy and strength of each of those interests" but also "the extent to which those interests make it necessary to burden the plaintiff's rights." Id. "[W]e review the statute under a form of strict scrutiny referred to as the ‘compelling state interest test’ by first determining whether the challenged statute causes a burden of some substance on a plaintiff's rights, and if so, upholding the statute only if it is ‘narrowly drawn to serve a compelling state interest.’ " Libertarian Party of N.D. v. Jaeger , 659 F.3d 687, 693 (8th Cir. 2011) (quoting McLain v. Meier , 851 F.2d 1045, 1049 (8th Cir. 1988) ). In such cases, the State...