Constitution Party of Kansas v. Kobach

FILED
United States Court of Appeals
Tenth Circuit
PUBLISH
September 18, 2012
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT

CONSTITUTION PARTY OF KANSAS;
CURT ENGELBRECHT; and MARK
PICKENS,

Plaintiffs-Appellants,

v. No. 11-3152

KRIS W. KOBACH, in his official
capacity as Secretary of State of Kansas,

Defendant-Appellee.

Appeal from the United States District Court
for the District of Kansas
(D.C. No. 5:10-CV-04043-SAC-KGS)

Daniel J. Treuden of the Bernhoft Law Firm, S.C., Milwaukee, Wisconsin, for Plaintiffs-
Appellants.

Kris Kobach, Secretary of State of Kansas (Ryan A. Kriegshauser, Deputy Secretary of
State, with him on the brief), Topeka, Kansas, for Defendant-Appellee.

Before BRISCOE, Chief Judge, EBEL, and LUCERO, Circuit Judges.

EBEL, Circuit Judge.
 The Constitution Party of Kansas, Curt Engelbrecht, and Mark Pickens sued the

Secretary of State of Kansas, now Kris Kobach (hereinafter, the “Secretary”), in his

official capacity, alleging that their First and Fourteenth Amendment rights are violated

by the Secretary’s refusal, consistent with Kansas law, to keep track of Kansas voters’

affiliation with the Constitution Party because the Constitution Party is not a recognized

political party under Kansas law. In the district court, the parties stipulated to a Joint

Statement of Facts and filed cross-motions for summary judgment. The court ruled for

the Secretary, determining that Kansas’s system of tracking party affiliation did not

unconstitutionally burden the plaintiffs’ rights.

On appeal, the plaintiffs (hereinafter, the “Constitution Party”) argue that the

district court misapplied controlling Tenth Circuit precedent in evaluating their claim,

and that under the proper analytical criteria, reversal is warranted. The Constitution Party

does not contend that summary judgment was improper due to a lack of evidence in the

record to support the Secretary’s legal argument. Exercising jurisdiction under 28 U.S.C.

§ 1291, we AFFIRM, based on our rejection of the argument on which the Constitution

Party has chosen to hinge its appeal.

BACKGROUND

The Secretary of State of Kansas “may adopt rules and regulations prescribing the

method of listing members of all registered political organizations in voter registration

and affiliation.” Kan. Stat. Ann. § 25-3307(b) (2011). Kansas allows its residents to

declare, when they register to vote, “a party affiliation with any recognized political party
2
or a voter affiliation with any registered political organization.” Id. § 25-3306. Voters

thus may affiliate themselves only with a “recognized political party” or “registered

political organization,”1 see id.; otherwise voters must select “Not affiliated with a party”

on the voter registration form, App’x at 7 ¶ 15. To become a recognized political party,

the would-be party must file “petitions signed by qualified electors equal in number to at

least 2% of the total vote cast for all candidates for the office of governor in the state in

the last preceding general election.” Kan. Stat. Ann. § 25-302a. Meanwhile, any

registered political organization that “ha[s] obtained official recognition as a political

party” in the past may “seek[] the right of designation on voter affiliation lists” by

“fil[ing] a statement of organization and a certified list of officers with the [Secretary].”

Id. § 25-3307(a). Under that avenue to voter affiliation tracking, “[c]urrent status as a

recognized political party is not required.” Id.

Currently there are five recognized political parties in Kansas: Democratic,

Republican, Libertarian, Reform, and Americans Elect.2 If a Kansas voter does not

declare affiliation with a recognized political party or a registered political organization,

the voter is listed as unaffiliated by default. The Secretary tracks party affiliation

information on a computer database, and that information is made available to the public.

1
For the purposes of this opinion, unless noted otherwise, the terms “recognized
political party” and “registered political organization” refer to the respective definitions
of those terms under Kansas law.
2
The parties note that the Americans Elect party qualified for the ballot in July
2011, after the district court had entered judgment.

3
Party affiliation lists can be used for political campaign and election purposes.

The Constitution Party is an affiliation of individuals who promote political views

and support candidates for state and national elected offices in Kansas, but it is not a

recognized political party or a registered political organization under Kansas law. Thus,

the Constitution Party has not satisfied the state statutory requirements for having the

Secretary record and track voters’ affiliation with it. That notwithstanding, the

Constitution Party wishes to use party affiliation lists to contact and associate with

members and supporters for political campaign or election purposes.

Purported supporters of the Constitution Party have run, in the past in Kansas, on

the ticket of recognized party parties—i.e., not of the Constitution Party—because the

Constitution Party is not a recognized political party in the state. For example, Susan

Ducey, a Constitution Party supporter and former candidate for Congress in Kansas’s

Fourth Congressional District, ran as the candidate of the Kansas Reform Party because

she could not do so under a Constitution Party label.

The Constitution Party filed suit against the Secretary on April 28, 2010, seeking

declaratory and injunctive relief from the Secretary’s alleged violations of the First and

Fourteenth Amendment. Specifically, Count I of the complaint—the only count at issue

on appeal3—alleged that Kansas’s failure to record and to track voter affiliation with the

3
Count II alleged that Kansas law prohibiting non-state-residents from circulating
ballot petitions violated the First and Fourteenth Amendment as well as the so-called
Dormant Commerce Clause. The parties stipulated to an order and judgment—the nature
Continued . . .
4
Constitution Party violates the First Amendment’s guarantees of political speech and

political association, as well as the Fourteenth Amendment’s guarantee of equal

protection under the law.4 In September 2010, the parties submitted a Joint Statement of

Facts for purposes of ruling on Count I. Both parties then moved for summary judgment.

In April 2011, after full briefing on the cross-motions, the district court granted summary

judgment in favor of the Secretary.

The district court analyzed the Constitution Party’s claim under the balancing test

set forth in Anderson v. Celebrezze, 460 U.S. 780, 789 (1983) (requiring courts

evaluating “[c]onstitutional challenges to specific provisions of a State’s election laws” to

weigh the injury to plaintiffs’ constitutional rights against the state’s interests in

burdening those rights). Under Anderson, the district court first determined that the

Constitution Party had articulated “legitimate and important interests which are burdened

by the State,” namely, interests in a diverse marketplace of political ideas,

communicating with possible party members, and effectively organizing political

campaigns. App’x at 18-19. The court then decided that the Secretary had interests in

regulating voter registration; in avoiding voter confusion and other frustrations to the

______________________________________
Cont.

of which is unclear from the appellate record—on that count, and the district court
entered judgment accordingly on August 13, 2010. That issue is thus not before us.
4
The Constitution Party does not argue that Kansas’s refusal to identify it on
voting ballots is unconstitutional; nor does it argue that Kansas’s 2% signature threshold
for qualification as a recognized political party is unconstitutional.

5
democratic process; in minimizing the administrative burden on the state; and, in related

fashion, in controlling frivolous party registration of fractional political interests. The

court reflected that case law provides no “specific criteria for determining whether [a

political] organization has a modicum of support” sufficient to warrant voter affiliation

tracking privileges. Id. at 23. The court discussed several cases that had addressed the

question, and concluded that

Kansas, like [the states in the case law], properly relies on the state statutes
to define when a political party or organization shows a modicum of
support. The Kansas requirements for becoming a recognized political
party or registered political organization closely resemble [those of two
other states that were upheld in other cases]. . . .

The State of Kansas has a substantial and heavy burden to control
fractionalism. The Court finds that the statutory requirements for
recognition as a [recognized] political party or [registered political]
organization in Kansas are unquestionably constitutional in requiring the
stated modicum of support, and precluding fractional interests.

Unrecognized political [‘]parties[’] representing minority views are vital to
the continuation of a representative government, but this must be balanced
with the State’s important interests in controlling fractionalism, avoiding
voter confusion, and reducing the burden of additional administrative costs.
Kansas, by its statutes, has established a reasonable threshold for an
organization to become a recognized political party or [registered political]
organization. When the court balances the interests of the parties here, it
finds that the state has not unnecessarily infringed upon the speech,
association or equal protection rights of the plaintiffs . . . .

Id. at 26-27.

This appeal followed. As explained in greater detail below, the Constitution Party

has limited its argument on appeal to the narrow question of whether it is entitled to relief

as a matter of law under Baer v. Meyer, 728 F.2d 471 (10th Cir. 1984)—a decision the
6
Constitution Party argues “is the Tenth Circuit’s articulation of how the balancing test in

Anderson v. Celebrezze is to be considered in voter affiliation cases.” Aplt. R. Br. at 5.

DISCUSSION

A. Standard of Review

“We review the district court’s grant of summary judgment de novo, applying the

same legal standard as the district court.” US Airways, Inc. v. O’Donnell, 627 F.3d 1318,

1324 (10th Cir. 2010) (quotation marks, citation omitted). “Cross motions for summary

judgment are treated separately; the denial of one does not require the grant of another.”

Id. (alteration, quotation marks, citation omitted). “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. P. 56(a). In

determining whether the moving party is entitled to judgment as a matter of law based on

the record, “we view the evidence and draw reasonable inferences therefrom in the light

most favorable to” the nonmovant. Garrison v. Gambro, Inc., 428 F.3d 933, 935 (10th

Cir. 2005).

If a party chooses not to assert, or expressly disavows, a certain argument on

appeal, we generally will not consider that argument in our review. See Perry v.

Woodward, 199 F.3d 1126, 1141 n.13 (10th Cir. 1999) (“This court . . . will not craft a

party’s arguments for him”); Vaz Dos Reis v. Holder, 606 F.3d 1, 4 (1st Cir. 2010)

(“When a party disavows a particular theory of the case, it is not an appellate court’s

proper role to make the disavowed argument for him.”); cf. Bronson v. Swensen, 500 F.3d
7
1099, 1104 (10th Cir. 2007) (“[W]e routinely have declined to consider arguments that

are not raised, or are inadequately presented, in an appellant’s opening brief.”).

B. Analysis

I.

The analytical framework that governs constitutional challenges to laws regulating

party affiliation on voter registration forms is the balancing test set forth in Anderson v.

Celebrezze, 460 U.S. 780. See Rainbow Coal. of Okla. v. Okla. State Election Bd., 844

F.2d 740, 747 (10th Cir. 1988); Baer, 728 F.2d at 475. In Anderson, the Supreme Court

determined that “[c]onstitutional 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.” 460 U.S. at 789 (quoting Storer v. Brown, 415 U.S. 724, 730

(1974)). Rather, courts must follow a case-by-case balancing approach:

[The court] 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. It then must identify and evaluate the
precise interests put forward by the State as justifications for the burden
imposed by its rule. In passing judgment, the [c]ourt must not only
determine the legitimacy and strength of each of those interests; it also must
consider the extent to which those interests make it necessary to burden the
plaintiff’s rights. Only after weighing all these factors is the reviewing
court in a position to decide whether the challenged provision is
unconstitutional.

Id. The Supreme Court emphasized that “[t]he results of this evaluation will not be

automatic” and that “there is ‘no substitute for the hard judgments that must be made.’”

Id. at 789-90 (quoting Storer, 415 U.S. at 730).

8
 To frame the issue before us in this appeal, it is prudent first to summarize the

argument the Constitution Party made in its briefs. The Constitution Party never argued

that summary judgment for the Secretary was improper as an evidentiary matter. Rather,

the Constitution Party argued (A) that it has shown a “sufficient modicum of [political]

support” under the criteria set forth in Baer to merit voter affiliation tracking, Aplt. Br. at

6; and (B) that the Secretary’s asserted interests—e.g., “controlling fractionalism,

avoiding voter confusion and reducing the administrative burden of regulating

elections”—do not justify the Secretary’s refusal to track voter affiliation with respect to

the Constitution Party, id. at 7.

On the first of these points, regarding its political support, the Constitution Party

argued in the briefs that “Baer is the controlling case law” that sets the “threshold” of

voter support that is necessary “to be tracked in voter registration lists”—a threshold

“lower . . . than [the threshold] necessary to appear on an actual election ballot.” Id. The

Constitution Party contended that “the district court erred by replacing the factors in Baer

with the statutory criteria Kansas has for defining [recognized] political parties.” Id. at

19. It asserted that “it is time for this Court to hold that the Baer factors control whether

. . . membership or affiliation [vis-à-vis any political entity] in voter registration

databases should be tracked.” Id. at 21.

On the latter point, regarding the Secretary’s interests, the Constitution Party

argued that “the burden on the state to track affiliation with unrecognized [‘]parties[’] is

miniscule or even nil.” Id. at 14 (capitalizations from heading omitted). However, the
9
Constitution Party never made the argument that facts in the record do not support the

Secretary’s claimed burdens. Rather, it simply pointed to case law and made conjectures

about the Secretary’s concerns.

At oral argument, we inquired about the Constitution Party’s presentation of its

appeal, probing the nature and scope of its argument for reversal:

- The Court: [Having just observed that summary judgment to the
Secretary might have been improper on account of the lack of evidence
on the record of the Secretary’s burdens under Anderson—] “But, the
only issue you [the Constitution Party] have presented to us on appeal is
not an evidentiary issue, at all.”

- Counsel for the Constitution Party: “Mm-hmm.”

- The Court: “You only say, ‘Apply Baer.’ And we might say, ‘That’s
wrong. We’re not going to apply Baer. And because that’s the only
issue you have presented, you lose.’ Now, is that the way this case
comes out? . . . .”

- Counsel for the Constitution Party: “I don’t think so because I think
when you still apply the balancing test without any evidence on [the
Secretary’s] side, it’s a very low burden.”

- The Court: “You never made an evidentiary—did you ever, on appeal,
argue insufficiency of [the Secretary’s] evidence to support summary
judgment?”

- Counsel for the Constitution Party: “Umm, the only thing I can think of
is in my reply brief when I pointed out, umm—I believe I pointed out
that, umm, there was no evidence in the record—“

- The Court: “Well, I don’t remember that, but if it came in a reply brief
in a throwaway sentence, that’s not going to be enough. . . . And so it
seems to [us] that maybe we disregard it and say maybe there was no
evidence to support [summary judgment] here, but that’s not the issue
before us. The issue before us is whether we should rule, as a matter of
law, that Baer [compels reversal]. And if we say no, . . . we say, ‘I’m
10
 sorry, you might have made a winning argument, but you didn’t. You
lose.’ Now . . . where is that argument weak?”

- Counsel for the Constitution Party: “Well, I mean, I guess I
concentrated on Baer because that’s really the goal of our clients.”

- The Court: “Okay, so we just take the case you present to us on appeal,
and that’s the only issue we’re going to address?”

- Counsel for the Constitution Party: “I think so, but I also think we win
on [Baer].”

- The Court: “Okay.”

Oral arg. at 10:07-11:54 (emphases added) (with counsel proceeding to analyze

Baer’s applicability). And later, further clarifying the matter:

- The Court: “We don’t know [about the weight of interests under
Anderson in this case] because no one has put on evidence of burdens . .
. But that doesn’t matter because you [Constitution Party] are not
raising an evidentiary issue on appeal.”

- Counsel for the Constitution Party: “No.”

- The Court: “Okay.”

Oral arg. at 35:16-35:25 (emphases added).

Accordingly, in light of the Constitution Party’s disavowal of evidentiary

arguments, and more importantly the failure to assert that issue before the district court

and in its opening brief, the question of whether reversal is warranted on account of

insufficient evidence in the record supporting the Secretary’s claimed burdens is not

before us. See Perry, 199 F.3d at 1141 n.13; Vaz Dos Reis, 606 F.3d at 4. Rather, the

Constitution Party has directed us to address solely whether Baer—which the

11
Constitution Party argues “is the Tenth Circuit’s articulation of how the balancing test in

Anderson v. Celebrezze is to be considered in voter affiliation cases,” Aplt. R. Br. at 5—

compels reversal in this case.

II.

At this point, Baer must be explained. Baer dealt with a challenge brought by two

small political entities in Colorado that did not qualify under Colorado law as

(recognized) “political part[ies].” 728 F.2d at 472 (citing Colo. Rev. Stat. § 1–1–104(18)

(1980)). The plaintiffs in Baer “allege[d] that [Colorado’s] system creat[ed] unfair or

unnecessary burdens on minority political associations in three respects.” Id. One of the

issues in that case involved a challenge similar to the one in this case: the plaintiffs

claimed that Colorado’s refusal to allow voters to indicate affiliation with entities not

recognized as “political parties,” as defined by state statutory law, unconstitutionally

denied them information, enjoyed by official parties, about voter support. Id.

In Baer, as a preliminary matter with respect to that issue, we recognized that

Anderson’s balancing test provided the analytical framework for that constitutional

question. See id. at 475. Then, implicitly recognizing that the plaintiffs’ constitutional

interests under Anderson were burdened, we proceeded to analyze the Secretary’s

arguments that its interests should trump those of the plaintiffs. See id. First, we

addressed the administrative burden that would be posed if the Secretary were ordered to

“permit and include in the [state’s] computerized record a citizen’s designation of its

affiliation with either of the two plaintiff parties,” and we concluded that the “record
12
reflect[ed] that [such] burden . . . would be merely nominal.” Id. Second, we addressed

the Secretary’s non-evidentiary, slippery-slope argument that, if Colorado were required

to record and track voter affiliation vis-à-vis any political entity, “it would be faced with

the impossible task of sorting out” frivolous and insubstantial political parties. Id. We

acknowledged that states have a substantial interest in preventing frivolous party

registration, but we rejected the Secretary’s argument by relying on the state-law

precedent of McBroom v. Brown, 53 Colo. 412 (1912). See Baer, 728 F.2d at 475. We

cited McBroom as “ha[ving] already provided a water mark which if followed prevents

this burdensome result” of tracking party affiliation with any and every purported party,

no matter how insubstantial. Id.

Pursuant to McBroom—in which the Supreme Court of Colorado was “construing

a substantially identical predecessor section of the Colorado Code” that was at issue in

Baer, 728 F.2d at 474—Colorado’s Secretary “need only permit such party designation in

registering if [1] a political organization [as defined by Colorado’s statutes] already exists

in the State under its name, [2] has recognized officials, and [3] has previously placed a

candidate on the ballot by petition.” Id. at 475. Because the plaintiffs in Baer met

McBroom’s criteria (which were based on Colorado statutory law), we held that the

Secretary could not refuse to permit registration with them. We “carefully” limited our

grant of relief to those two plaintiffs, which qualified as “political organizations as

recognized in McBroom”—the decision that, we said, provided the indicator under

Colorado law of when a political entity had “demonstrate[d] some modicum of political
13
organization and support,” id. at 476, sufficient to avoid the classification as a “tiny

fractional interests,” affiliation with which the Secretary need not register, id. at 475. We

concluded our opinion in Baer by “affirm[ing] the trial court’s decision insofar as it

requires the Secretary of State [of Colorado] to conform to the holding of McBroom and

to permit supporters of [the plaintiffs] to designate that support on their voter registration

forms.” Id. at 476; see also id. (“[T]o the extent [the trial court’s opinion] could be

construed more broadly than our holding in this opinion, we disapprove it.”).

Now, we must clarify the constitutional import of Baer—which has been

interpreted in relatively disparate fashion5—because the Constitution Party has rested its

appeal on that decision. Baer’s holding regarding tracking voter affiliation was a federal

constitutional decision in a broad sense, but one in which, crucially, we resolved a

particular sub-argument on state-law grounds. That is, broadly, Baer decided as a matter

of constitutional law that the plaintiffs’ constitutional rights had been burdened, and

5
Compare Iowa Socialist Party v. Nelson, 909 F.2d 1175, 1179 n.7 (8th Cir. 1990)
(“While [the McBroom factors cited in Baer] may have been relevant and sufficient in
Baer to require the state to permit party designation, the same factors might not be
relevant in a different context. . . . We too [having just cited this Court’s subsequent
decision in Rainbow Coalition] reject these factors as the exclusive or even necessarily
the most reliable, indicators of the state registration procedure’s constitutionality.”), with
Atherton v. Ward, 22 F. Supp. 2d 1265, 1267-68 (W.D. Okla. 1998) (noting that it was
“bound by . . . Baer” and concluding that there was “no difference in a constitutional
sense between Oklahoma law and the Colorado law at issue in Baer”). See also Green
Party of N.Y. v. N.Y. State Bd. of Elections, 389 F.3d 411, 422 (2d Cir. 2004)
(recognizing that Baer did not state a universal bright-line rule for drawing the line with
frivolous party registration, “[b]ut, like Baer, [holding] that the ability to meet the
requirements for placing a candidate on the statewide ballot is enough of an indication of
support to overcome the state’s interest in preventing voter confusion”).

14
under Anderson, that injury outweighed the merely nominal corresponding burdens on

the Secretary of Colorado to track affiliation with the plaintiffs. See 728 F.2d at 475.

However, with respect to the Secretary’s argument that granting relief to the plaintiffs

would force the Secretary to track any and every self-proclaimed ‘party,’ Baer rejected

that proposition by relying on the state-statute-based criteria taken from McBroom. We

said in Baer—having earlier emphasized the principle of constitutional avoidance, and

having relied on McBroom as a state-law decision for the purposes of such avoidance, see

id. at 474—that “the Supreme Court of Colorado in McBroom has already provided a

water mark which if followed prevents this burdensome result.” 728 F.2d at 475. And

later, we “carefully” confined our decision to the plaintiffs in that case, cautioning that

our opinion was not to be construed too broadly. Id. at 476. Thus, Baer’s specific

holding as to what constituted a sufficient “modicum of political organization and

support” did not announce a federal constitutional rule. Id. Rather, we simply held,

there, that McBroom articulated state-law criteria for what elevated a political

organization in Colorado above classification as a “tiny fractional interest,” affiliation

with which the state might have refused to track.6 Id. at 475.

6
Our decision in Rainbow Coalition of Oklahoma v. Oklahoma State Election
Board, 844 F.2d 740 (10th Cir. 1988), is not contrary to our interpretation of Baer today.
In Rainbow Coalition, which arose in the context of Oklahoma law, we affirmed
summary judgment for Oklahoma state defendants, ruling that the state’s interest in
avoiding administrative burden was sufficient, under Anderson, to justify the state’s voter
affiliation system. 844 F.2d at 747. We distinguished Baer on the grounds that the
administrative burden presented in Baer was “merely nominal,” whereas the facts in
Continued . . .
15
 III.

We may now address the Constitution Party’s argument that Baer compels
______________________________________
Cont.

Rainbow Coalition showed that the state’s burden “would be substantial.” Id. We
acknowledged that, in Baer, we had “limited our holding” to grant relief to “only those
parties [that] had ‘succeeded in fielding candidates by the petition process so as to
demonstrate some modicum of political organization and support.’” Id. (quoting Baer,
728 F.2d at 476). However, we did not in Rainbow Coalition confront the question,
resolved in Baer by relying on a Colorado-law benchmark, of what criteria might serve in
the Oklahoma context to defeat the argument about “the state’s interest in controlling
party registration of tiny fractional [political] interests.” Rainbow Coalition, 844 F.2d at
747. Our mere summary in Rainbow Coalition of Baer’s limited holding did not
enshrine, as a federal constitutional rule, Baer’s Colorado-specific criteria for what
constitutes a modicum of political organization and support such that an entity qualifies
as more than a “tiny fractional interest,” Baer, 728 F.2d at 475.
Meanwhile, we add the observation that summary judgment for the Secretary is
not automatically warranted in this case in light of Rainbow Coalition. Specifically, it is
not the case that since in Rainbow Coalition we ruled for a state with a 5% signature
threshold for political-party recognition, it follows a fortiori that we should rule for the
Secretary because Kansas’s 2% threshold is less onerous. The constitutional challenge
common to Rainbow Coalition and the present case is not a challenge to the state’s
statutory threshold for party recognition. Rather, the challenge is to the state’s refusal to
track affiliation with entities that are not recognized political parties, independent of the
propriety of the statutory criteria for recognition. The signature threshold is not
necessarily relevant, then, to the application of Anderson’s balancing test in this
particular context. See Rainbow Coalition, 844 F.2d at 742-44, 747 (analyzing separately
the constitutionality of the signature requirement, and the constitutionality of the refusal
to track affiliation with plaintiffs, who were not recognized political parties).
Moreover, assuming the signature percentage threshold were relevant, Anderson
expressly rejected the notion that “any ‘litmus-paper test’ . . . will separate valid from
invalid restrictions,” and emphasized that “the results of [the balancing test identified in
the opinion] will not be automatic.” 460 U.S. at 789-90 (quoting Storer, 415 U.S. at
730). Accordingly, it could be, for instance, that a state’s interests in one case were
stronger than those of a different state in a subsequent case, such that even though the
state in the prior case prevailed under Anderson with voter affiliation laws that were even
more burdensome, the state in the subsequent case would not prevail. But again, we
conduct no such evidentiary inquiry today.

16
reversal as a matter of law in this case. We reject that argument for multiple self-

sufficient reasons.

For one, the Constitution Party cannot rely on Baer to find legal error with the

district court’s conclusion that the Constitution Party failed to demonstrate a “modicum

of support” under Kansas law and therefore was a “fractional interest[],” affiliation with

which the Secretary need not track. App’x at 27. As discussed above, Baer’s statement

of what sufficed as a sufficient level of political support and organization in that case

rested on Colorado law, and was never intended to establish per se criteria outside Baer’s

state-specific context. Therefore, Baer does not require us, as a matter of law, to find

error with the district court’s determination that the Constitution Party is a fractional

political interest in Kansas, such that the Secretary need not track affiliation with it.

Moreover, even if we found legal error with the district court’s reliance on

Kansas’s statutory standards rather than the McBroom-via-Baer factors in classifying the

Constitution Party as a mere fractional interest, that alone would not compel reversal.

Rather, there would remain the district court’s conclusions regarding the Secretary’s

“interests in . . . avoiding voter confusion, and reducing the burden of additional costs,”

id., which are independent of the Secretary’s interest in controlling fractionalism, and

which alone may have outweighed the Constitution Party’s countervailing interests. But

such balancing would require us to examine the evidence in the record of the parties’

17
respective burdens and interests,7 and the Constitution Party has forsaken evidence-based

avenues of reversal.

Finally, even assuming arguendo that “the Baer test” were applicable and

dispositive in this case as the Constitution Party argues (without merit), the Constitution

Party fails to pass that very test. The Constitution Party repeatedly argued that entities

that do not qualify as recognized political parties may nevertheless demonstrate sufficient

political support and organization as to earn affiliation-tracking privileges by meeting the

Baer factors. However, notwithstanding the Constitution Party’s single bald assertion in

its briefs that it “satisfies th[ose] factors,” Aplt. Br. at 7, it is apparent that Constitution

Party actually does not. The three McBroom criteria cited in Baer for a modicum of

support were: “[1] a political organization already exists in the State under [the would-be-

tracked entity’s] name, [2] has recognized officials, and [3] has previously placed a

candidate on the ballot by petition.” Baer, 728 F.2d at 475. However, judging from

everything presented to us in this case, the Constitution Party has not previously placed a

candidate on the ballot under the Constitution Party name, as required under the third

7
See Baer, 728 F.2d at 475 (“The record reflects that the burden on the Secretary
. . . to permit and include in the computerized record a citizen’s designation of its
affiliation with either of the two plaintiff parties would be merely nominal.”); see also
Rainbow Coalition, 844 F.2d at 747 (relying on the state’s “present[ation] [of]
uncontroverted evidence” of the “state’s [administrative] burden,” which “would be
substantial” due to the fact that “voter registration rolls were computerized in only three
Oklahoma counties at the time”); Iowa Socialist Party v. Nelson, 909 F.2d 1175, 1179 n.7
(8th Cir. 1990) (“In balancing a state’s interests against the [plaintiff’s] interests, we must
examine the individual facts of each case.”); id. at 1180 (relying on evidence about the
substantial cost of changing voter registration forms to comply with plaintiff’s request).

18
criterion. The Court asked the Constitution Party at oral argument about this apparent,

fatal flaw in its appeal:

- The Court: “[I]f we [accept the Baer/McBroom criteria as controlling],
how do you establish the criterion that your party has run a candidate?
It hasn’t.”

- Counsel for the Constitution Party: “Well, I would argue that you
couldn’t—you shouldn’t hold [against us] the fact that [Susan Ducey,
who supports the Constitution Party but ran on a different ticket] took
the easiest path to the ballot in that case . . . .”

- The Court: “But she didn’t run on your label.”

- Counsel for the Constitution Party: “Yeah, no, she didn’t. And, I
would have loved—”

Oral arg. at 31:53-32:18 (the Court then moving on to another topic). To be sure, Susan

Ducey, a Constitution Party “supporter,” ran for Congress in Kansas’s Fourth

Congressional District, but she did so as a candidate for the Kansas Reform Party. App’x

at 9 ¶ 26. That is insufficient under the plain language of Baer. See 728 F.2d at 475.

And it should be insufficient: Ducey’s appearance on the ballot as a representative of

another party does not demonstrate that the Constitution Party has a sufficient level of

political support and organization to warrant voter affiliation tracking with respect to it.

See id. at 475-76. Thus, even if this appeal turned on the Constitution Party’s satisfaction

of the McBroom factors cited in Baer, we still would not reverse. 8

8
We note that at oral argument, the Secretary volunteered that the Constitution
Party used to be a recognized political party under a different party name. However, we
do not think that a political entity (such as the Constitution Party) that evolved out of a
Continued . . .
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 CONCLUSION

We conclude, confined to the legal theory on which the Constitution Party has

rested its appeal, that reversal of the district court’s grant of summary judgment to the

Secretary is unwarranted. AFFIRMED.

______________________________________
Cont.

distinct, recognized political party, necessarily meets the McBroom criteria cited in Baer.
Those criteria served to show that political organizations had demonstrated a sufficient
modicum of political support and organization such that they were distinguishable from
mere fractional political interests. It cannot be inferred that political support and
organization for a unique, previously existing, but now defunct recognized political party
translates into support for a later would-be-party byproduct (which may, for instance,
have quite a different political platform—one to which supporters of the discrete prior
party might not adhere). Furthermore, the Secretary’s assertion is not a fact in the record;
and contrary and subsequent to the Secretary’s assertion at oral argument, counsel for the
Constitution Party effectively stated, through the dialogue included above, that the
Constitution Party had never placed a candidate on the ballot for the purpose of satisfying
the McBroom criteria.

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