PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
SOUTH CAROLINA GREEN PARTY;
EUGENE PLATT; ROBERT DUNHAM,
Plaintiffs-Appellants,
v.
SOUTH CAROLINA STATE ELECTION
COMMISSION; JOHN H. HUDGENS, in
their official capacities as
members of the South Carolina
State Election Commission;
CYNTHIA M. BENSCH, in their
official capacities as members of
the South Carolina State Election
Commission; TRACEY C. GREEN, in No. 09-1915
their official capacities as
members of the South Carolina
State Election Commission;
PAMELLA B. PINSON, in their
official capacities as members of
the South Carolina State Election
Commission; THOMAS WARING, in
their official capacities as
members of the South Carolina
State Election Commission;
CHARLESTON COUNTY DEMOCRATIC
PARTY,
Defendants-Appellees.
Appeal from the United States District Court
for the District of South Carolina, at Columbia.
Cameron McGowan Currie, District Judge.
(3:08-cv-02790-CMC)
2 SOUTH CAROLINA GREEN PARTY v. SOUTH CAROLINA
Argued: May 11, 2010
Decided: July 20, 2010
Before KEENAN, Circuit Judge, HAMILTON, Senior
Circuit Judge, and Samuel G. WILSON, United States
District Judge for the Western District of Virginia,
sitting by designation.
Affirmed by published opinion. Judge Keenan wrote the opin-
ion, in which Senior Judge Hamilton and Judge Wilson
joined.
COUNSEL
ARGUED: Bryan Sells, AMERICAN CIVIL LIBERTIES
UNION FOUNDATION, Atlanta, Georgia, for Appellants.
Andrew Lindemann, DAVIDSON, MORRISON & LINDE-
MANN, PA, Columbia, South Carolina, for Appellees. ON
BRIEF: Laughlin McDonald, AMERICAN CIVIL LIBER-
TIES UNION FOUNDATION, Atlanta, Georgia, for Appel-
lants. Matthew T. Richardson, WYCHE, BURGESS,
FREEMAN & PARHAM, P.A., Columbia, South Carolina,
for Appellee Charleston County Democratic Party.
OPINION
KEENAN, Circuit Judge:
Eugene Platt and the South Carolina Green Party challenge
the constitutionality of South Carolina’s "sore-loser" statute,
S.C. Code § 7-11-10, as applied to Platt’s Green Party candi-
dacy for South Carolina House Seat 115.1 The district court
1
Although the 2008 general election for South Carolina House Seat 115
has passed, the challenge to South Carolina’s sore-loser statute is not moot
SOUTH CAROLINA GREEN PARTY v. SOUTH CAROLINA 3
upheld the constitutionality of the statute as applied to Platt’s
candidacy and, for the following reasons, we affirm.
I.
In 2008, Platt sought to become a fusion candidate2 in the
election for South Carolina House Seat 115, seeking the nom-
ination of three political parties, the South Carolina Demo-
cratic Party (Democratic Party), the South Carolina Green
Party (Green Party), and the South Carolina Working Fami-
lies Party (Working Families Party). On March 17, 2008, Platt
filed a statement of intention of candidacy with the Demo-
cratic Party. Ten days later, he filed a similar statement with
the Working Families Party.
On May 3, 2008, Platt filed an additional statement of can-
didacy with the Green Party. That same day, the Green Party
chose Platt as its nominee during a state convention. On May
10, 2008, the Working Families Party chose Platt as its nomi-
nee.
On June 10, 2008, Platt lost the Democratic Party primary
election. After Platt’s loss in the primary, the South Carolina
State Election Commission (the Election Commission) noti-
fied Platt that based on South Carolina’s sore-loser statute,
S.C. Code § 7-11-10, his name could not appear on the ballot
for the general election as the nominee for the Green Party or
for the Working Families Party. The statute provides, in rele-
vant part:
[N]o person who was defeated as a candidate for
because it presents issues that are "capable of repetition, yet evading
review." See Storer v. Brown, 415 U.S. 724, 737 n.8 (1974).
2
Electoral fusion is a practice that allows a candidate to appear on a
general election ballot as the nominee of more than one certified political
party and to receive the total number of votes cast for that candidate.
4 SOUTH CAROLINA GREEN PARTY v. SOUTH CAROLINA
nomination to an office in a party primary or party
convention shall have his name placed on the ballot
for the ensuing general or special election . . . .
S.C. Code § 7-11-10.
Platt, along with the Green Party and Robert Dunham, a
registered South Carolina voter who supported Platt, (collec-
tively, the plaintiffs) filed an action against the Election Com-
mission and various other defendants (collectively, the
Election Commission), asserting that application of the sore-
loser statute violated the Green Party’s rights of association
protected by the First and Fourteenth Amendments. After the
parties filed cross-motions for summary judgment, the district
court granted summary judgment in favor of the Election
Commission and denied the plaintiffs’ motion, holding that
the sore-loser statute is constitutional as applied to Platt’s
Green Party candidacy.
On appeal, the plaintiffs argue that the sore-loser statute is
unconstitutional when applied to the Green Party’s nominee,
Platt, because he successfully secured the nomination of the
Green Party before losing his attempt to become the Demo-
cratic Party nominee. According to the plaintiffs, application
of the sore-loser statute to bar Platt’s name from the general
election ballot as the Green Party’s candidate imposed a
severe burden on the Green Party’s association rights. The
plaintiffs contend that application of the statute effectively
permitted the Democratic Party primary voters to "veto" the
Green Party’s preferred candidate and prevented the Green
Party from nominating a substitute candidate. Notably, the
plaintiffs do not argue that Platt’s individual rights of associa-
tion have been affected by the Election Commission’s appli-
cation of the sore-loser statute.
The plaintiffs ask that we apply a strict scrutiny review to
their claim in light of the allegedly severe burden imposed on
the Green Party’s association rights. The plaintiffs contend
SOUTH CAROLINA GREEN PARTY v. SOUTH CAROLINA 5
that when a strict scrutiny standard is used, the sore-loser stat-
ute is unconstitutional as applied because the statute is not
narrowly tailored to advance South Carolina’s interest in min-
imizing excessive factionalism. As a result, the plaintiffs
maintain, this Court should hold that the statute is unconstitu-
tional as applied to Platt’s candidacy with the Green Party.
In response, the Election Commission argues that the Green
Party’s association rights were not severely burdened and,
therefore, strict scrutiny should not apply to our review of the
sore-loser statute. The Election Commission contends that
Democratic primary voters did not effectively "veto" the
Green Party’s selection of Platt as its nominee because Platt’s
decision to run in the Democratic primary, rather than any
interference by Democratic voters, placed him at risk of dis-
qualification as the Green Party nominee. According to the
Election Commission, South Carolina’s sore-loser statute
serves to promote several important state regulatory interests.
Thus, the Election Commission asks that we hold that the
sore-loser statute is constitutional as applied to Platt’s Green
Party candidacy.
II.
Our standard of review is well established. We review a
grant of summary judgment de novo. News & Observer
Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570,
576 (4th Cir. 2010).
A.
The First Amendment, as incorporated against the states by
the Fourteenth Amendment, protects the rights of individuals
to associate for the advancement of political beliefs and ideas.
Kusper v. Pontikes, 414 U.S. 51, 56-57 (1973). These rights
include the freedom for individuals to "band together" in
political parties to promote electoral candidates who support
their political views. Cal. Democratic Party v. Jones, 530
6 SOUTH CAROLINA GREEN PARTY v. SOUTH CAROLINA
U.S. 567, 574 (2000). Such political parties have a right to
choose their "standard bearer" in the form of a nominee. Eu
v. San Francisco County Democratic Cent. Comm., 489 U.S.
214, 224 (1989).
When analyzing whether a state election law impermissibly
infringes on association rights protected by the First and Four-
teenth Amendments, courts must "weigh the ‘character and
magnitude’ of the burden the State’s rule imposes on those
rights against the interests the State contends justify that bur-
den, and consider the extent to which the State’s concerns
make the burden necessary." Timmons v. Twin Cities Area
New Party, 520 U.S. 351, 358 (1997) (quoting Anderson v.
Celebrezze, 460 U.S. 780, 789 (1983)). Regulations that
impose a severe burden on association rights are subject to
strict scrutiny, and a court applying this level of review may
uphold the regulation only if it is "narrowly tailored and
advance[s] a compelling state interest." Id. However, if a stat-
ute imposes only modest burdens, then "a State’s ‘important
regulatory interests’ will usually be enough to justify ‘reason-
able, nondiscriminatory restrictions.’" Id. (quoting Burdick v.
Takushi, 504 U.S. 428, 434 (1992)).
Decisions in previous cases have recognized the various
state interests furthered by sore-loser statutes. In Storer v.
Brown, 415 U.S. 724, 735 (1974), the Supreme Court
addressed a California sore-loser provision, and emphasized
the importance of sore-loser statutes in discouraging intra-
party feuding and in reserving "major struggles" for general
election ballots. See also Backus v. Spears, 677 F.2d 397,
399-400 (4th Cir. 1982). The Supreme Court later explained,
in Clingman v. Beaver, 544 U.S. 581, 596 (2005), that sore-
loser statutes prevent a candidate who has lost a party primary
or nomination from effecting a "splinter" of a major political
party, by joining a minor party while retaining the support of
the major party’s voters, thereby undermining the major party
in the general election.
SOUTH CAROLINA GREEN PARTY v. SOUTH CAROLINA 7
We have recognized that South Carolina’s sore-loser statute
is "substantially identical" to California’s sore-loser provision
discussed in Storer. Backus, 677 F.2d at 400. We further have
stated that South Carolina’s sore-loser statute is a "justifiable
measure[ ] for preventing splintering and factionalism within
the major parties." Cromer v. South Carolina, 917 F.2d 819,
825 (4th Cir. 1990). In the context of these statements, we
consider the constitutionality of South Carolina’s sore-loser
statute as applied to the Green Party’s association rights.
B.
We first address whether the South Carolina sore-loser stat-
ute placed a severe burden on the Green Party’s right to
choose its own candidate. The plaintiffs argue that the burden
imposed by the statute is severe, because Platt’s loss in the
Democratic primary occurred after the Green Party nominated
Platt and was unable to select a replacement candidate. The
plaintiffs contend that the burden imposed on its association
rights to choose a "standard bearer" is no less severe than the
burden imposed by the California law at issue in Jones, 530
U.S. 567. We disagree with the plaintiffs’ arguments.
The law invalidated by the Supreme Court in Jones man-
dated a "blanket" primary election in which voters, regardless
of party affiliation, were permitted the right to vote for a nom-
inee of a different party. Id. at 570. The Supreme Court held
that California’s blanket primary imposed a severe burden on
political parties’ freedom of association, because this type of
primary permitted members of one political party to partici-
pate in the selection of a nominee for another rival political
party. Id. at 577.
In contrast, the Supreme Court held in Timmons that Min-
nesota’s ban on electoral fusion did not severely burden a
political party’s association rights. 520 U.S. at 363. The appli-
cable Minnesota laws prohibited a candidate from appearing
on the general election ballot as the candidate for more than
8 SOUTH CAROLINA GREEN PARTY v. SOUTH CAROLINA
one political party. Id. at 354. The Supreme Court explained
that a party’s association rights are not severely burdened
when a particular individual is barred from the ballot as that
party’s candidate. Id. at 359. In refusing to apply strict scru-
tiny review to the "fusion ban," the Supreme Court noted that
the challenged laws did "not restrict the ability of the [party]
and its members to endorse, support, or vote for anyone they
like." Id. at 363. The Court observed that the party remained
"free to try to convince" its nominee to refrain from seeking
the nomination of another political party. Id. at 360.
Applying these principles, we conclude that the burden the
sore-loser statute placed on the Green Party’s association
rights is not severe. Unlike the blanket primary in Jones, the
South Carolina sore-loser statute did not force the Green Party
"to have [its] nominees, and hence [its] positions" determined
by members of other political parties. See Jones, 530 U.S. at
577. The Green Party retained the right to select Platt, or any
other candidate, at its state convention. It was Platt’s own
decision to seek the Democratic Party’s nomination, not inter-
ference by members of the Democratic Party in the Green
Party’s nomination process, that affected the Green Party’s
ability to retain Platt on the general election ballot as its pre-
ferred nominee. In addition, the Green Party was "free to try
to convince" Platt to refrain from seeking the nomination of
another political party. See Timmons, 520 U.S. at 360.
As the Supreme Court held in Timmons, the fact "[t]hat a
particular individual may not appear on the ballot as a particu-
lar party candidate does not severely burden that party’s asso-
ciation rights." Id. at 359. Thus, we conclude that although the
sore-loser statute prevented the Green Patty from having its
preferred nominee on the ballot, this result did not, of itself,
create a severe burden on the Green Party’s association rights.
See id.
The plaintiffs contend, however, that they were not merely
denied their choice of preferred candidate but also were
SOUTH CAROLINA GREEN PARTY v. SOUTH CAROLINA 9
denied the right to name a substitute candidate because Platt
was not "disqualified" as the Green Party candidate, within
the meaning of South Carolina Code § 7-11-50. According to
the plaintiffs, because Platt could have been elected as a
"write-in" candidate in the general election, he was not "dis-
qualified" from appearing on the general election ballot. We
disagree with the plaintiffs’ interpretation of the statute.
Under South Carolina Code § 7-11-50, if a party nominee
is "disqualified" after his nomination, a political party may
nominate a new candidate for the office. Because South Caro-
lina law does not define the term "disqualified" for purposes
of this statute, we rely on the statutory construction rules
applied by South Carolina’s highest court in the interpretation
of statutes. In re DNA Ex Post Facto Issues, 561 F.3d 294,
300 (4th Cir. 2009).
Under South Carolina law, "[W]ords in a statute must be
construed in context. . . . [T]he meaning of particular terms
in a statute may be ascertained by reference to words associ-
ated with them in the statute." Hill v. York County Natural
Gas Auth., 682 S.E.2d 809, 811-12 (S.C. 2009). "The lan-
guage must also be read in a sense which harmonizes with its
subject matter and accords with its general purpose." Id. at
812.
Section 7-11-50 states, in relevant part:
If a party nominee who was nominated by a method
other than party primary election dies, becomes dis-
qualified after his nomination, or resigns his candi-
dacy for a legitimate nonpolitical reason as defined
in this section and sufficient time does not remain to
hold a convention to fill the vacancy or to nominate
a nominee to enter a special election, the respective
state or county party executive committee may nom-
inate a nominee for the office, who must be duly cer-
tified by the respective county or state chairman.
10 SOUTH CAROLINA GREEN PARTY v. SOUTH CAROLINA
S.C. Code § 7-11-50.
The plain language of Section 7-11-50 refutes the plain-
tiffs’ argument. That statutory language addresses the circum-
stances in which a "party nominee" may be "disqualified"
from representing a "party" after a "nomination." Because the
Election Commission applied the sore-loser statute after
Platt’s loss in the Democratic primary, thereby preventing
him from appearing on the general election ballot as the
Green Party nominee, he was "disqualified" as a "party nomi-
nee" after his "nomination," within the meaning of Section 7-
11-50.3
We disagree with the plaintiffs’ contention that the holding
in Redfearn v. Board of State Canvassers, 107 S.E.2d 10 (S.C.
1959), alters this analysis. In Redfearn, the Supreme Court of
South Carolina held that voters who had taken an oath under
South Carolina law to support the primary nominees in the
general election were not disqualified from voting against
those nominees in the general election. Id. at 11. This holding
is not relevant to our analysis, because the holding does not
refer to South Carolina Code § 7-11-50, nor does the holding
address the issue of when a party nominee is "disqualified,"
as that term is used in Section 7-11-50.
Likewise, the timing of Platt’s loss in the Democratic pri-
mary, after having secured the Green Party nomination, does
not alter our conclusion that the sore-loser statute imposed a
modest, rather than a severe, burden on the Green Party’s
association rights. The burden imposed by the sore-loser stat-
ute was the Green Party’s loss of its ability to field its pre-
ferred candidate, an event unchanged by the date that this
disqualification occurred. Thus, we conclude that the timing
3
We also observe that the district court found that the Green Party could
have nominated a substitute candidate. Although the Green Party contends
that it was unable to name a replacement candidate, it has failed to demon-
strate that the district court’s finding was incorrect.
SOUTH CAROLINA GREEN PARTY v. SOUTH CAROLINA 11
of Platt’s loss is relevant only to the issue whether the state
had an important regulatory interest in the enforcement of the
sore-loser statute in this case. See Timmons, 520 U.S. at 358.
Accordingly, we will address this circumstance of timing
after, not as a part of, our determination of the level of scru-
tiny to be applied to the sore-loser statute.
Because Platt was "disqualified" from appearing on the bal-
lot by operation of the sore-loser statute, the Green Party
could have nominated a substitute candidate. See S.C. Code
§ 7-11-50. Additionally, because Platt’s loss did not affect the
Green Party’s right to nominate its own candidate, but only
affected the Green Party’s right to nominate Platt as its pre-
ferred candidate, we conclude that the burden imposed by the
sore-loser statute in this case is no greater than the modest
burden imposed by the fusion ban at issue in Timmons. See
Timmons, 520 U.S. at 359. Therefore, we hold that the impact
of the sore-loser statute imposed only a modest burden on the
Green Party’s association rights, and we will not engage in
strict scrutiny of those asserted rights.
C.
Having determined that strict scrutiny is not warranted in
the present case, we next examine South Carolina’s regulatory
interests advanced by the sore-loser statute. When, as here, a
statute places only a modest burden on association rights, "a
State’s important regulatory interests will usually be enough
to justify its reasonable, nondiscriminatory restrictions." See
Timmons, 520 U.S. at 358 (internal quotation marks omitted).
We conclude that South Carolina’s sore-loser statute
advances several state regulatory interests that are important.
As we previously have recognized, South Carolina’s sore-
loser statute advances the state’s interest in minimizing exces-
sive factionalism and party splintering. See Cromer, 917 F.2d
at 825. The sore-loser statute also operates to reduce the pos-
sibility of voter confusion that could occur when a candidate’s
12 SOUTH CAROLINA GREEN PARTY v. SOUTH CAROLINA
name appears on the ballot after losing a primary race. See
Timmons, 520 U.S. at 364 (recognizing Minnesota’s state
interest in avoiding voter confusion). Likewise, the sore-loser
statute furthers the state’s interest in ensuring orderly, fair,
and efficient procedures for the election of public officials.
See id.
Nevertheless, the plaintiffs attempt to distinguish our deci-
sion in Cromer based on the timing of Platt’s defeat in the pri-
mary. The plaintiffs argue that Platt did not "splinter" the
Democratic Party by seeking the Green Party’s nomination
after losing in the Democratic primary but sought the Green
Party nomination at the outset of the primary process. We dis-
agree with the plaintiffs’ argument.
The state’s regulatory interest in the enforcement of the
sore-loser statute was not mitigated by Platt’s nomination as
the Green Party candidate before his loss in the Democratic
primary. The timing of his primary loss did not relieve South
Carolina’s concern in limiting factionalism, because if Platt
had remained on the ballot as the Green Party nominee after
his loss in the Democratic primary, Democratic voters who
supported Platt in the primary election could have voted for
Platt in the general election. In this manner, by appearing on
the general election ballot as the Green Party candidate, Platt
could have splintered the Democratic Party voter base. There-
fore, we conclude that South Carolina had important regula-
tory interests that justified the modest burden imposed by its
nondiscriminatory application of the sore-loser statute, see
Burdick, 504 U.S. at 434, and that the sore-loser statute did
not impermissibly infringe on the Green Party’s association
rights, see Timmons, 520 U.S. at 358.
D.
Finally, we observe that South Carolina’s status as a state
permitting "fusion" candidates does not alter our analysis of
the Green Party’s association rights. The absence of a statu-
SOUTH CAROLINA GREEN PARTY v. SOUTH CAROLINA 13
tory ban on fusion candidacies allows candidates to seek nom-
inations from multiple parties. See Timmons, 520 U.S. at 363.
However, the system of electoral fusion does not in any
respect limit a political party’s association rights to choose its
nominee. Accordingly, we hold that South Carolina’s sore-
loser statute is constitutional as applied to Platt’s Green Party
candidacy, and that Platt properly was barred from having his
name appear on the general election ballot as the Green
Party’s candidate based on the statute’s application. See id. at
369-70.
E.
The plaintiffs separately challenge the constitutionality of
South Carolina’s "party loyalty" statute, S.C. Code § 7-11-
210, as applied to Platt’s candidacy. However, we do not
reach this issue because the constitutional application of the
sore-loser statute, which barred Platt’s candidacy as the Green
Party’s nominee, effectively prohibited Platt from appearing
on the general election ballot as the nominee of any political
party. Therefore, the issue of the constitutionality of the party
loyalty statute as applied to Platt’s Green Party candidacy is
rendered moot by our holding on the sore-loser statute.4
III.
For these reasons, we affirm the district court’s holding that
4
Because the plaintiffs failed to allege in their amended complaint that
the Green Party’s association rights were severely burdened by the party
loyalty statute’s restriction on Platt’s campaigning, this issue was not
before the district court and is not before us in this appeal. See Feikema
v. Texaco, Inc., 16 F.3d 1408, 1411 n.* (4th Cir. 1994). The plaintiffs also
failed to raise any facial challenge to the party loyalty statute in their dis-
trict court pleadings and, therefore, we do not address these challenges
that they have raised on appeal. Id.
14 SOUTH CAROLINA GREEN PARTY v. SOUTH CAROLINA
South Carolina’s sore-loser statute is constitutional as applied
to Platt’s Green Party candidacy.5
AFFIRMED
5
We do not reach the plaintiffs’ remaining argument concerning the
constitutionality of South Carolina’s "filing deadline" statute, S.C. Code
§ 7-11-15, as applied to Platt’s Green Party candidacy. The parties have
agreed that this challenge to the filing deadline statute is no longer rele-
vant to this appeal.