Johnny Swanson, III v. The State of Alabama

                                                              [PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT              FILED
                        ________________________   U.S. COURT OF APPEALS
                                                     ELEVENTH CIRCUIT
                                                         June 29, 2007
                              No. 06-13643           THOMAS K. KAHN
                        ________________________         CLERK

                 D. C. Docket No. 02-00644-CV-2-MHT-SRW

JOHNNY SWANSON, III,
FRANK E. COBB,
JOE GRIMSLEY,


                                                    Plaintiffs-Appellants,

THE INDEPENDENT DEMOCRATS (ALABAMA),

                                                                Plaintiff,
                                   versus

NANCY WORLEY,
Alabama Secretary of State,
TROY KING,
Alabama Attorney General,
NANCY O. ROBERTSON,
Probate Judge for Barbour County, Alabama,
ARTHUR C. MURRAY,
Probate Judge for Calhoun County, Alabama,


                                                   Defendants-Appellees.
                               ________________________

                      Appeal from the United States District Court
                          for the Middle District of Alabama
                            _________________________

                                       (June 29, 2007)

Before HULL and MARCUS, Circuit Judges, and BARZILAY,* Judge.

HULL, Circuit Judge:

       Plaintiffs are former independent political candidates who appeal the district

court’s order granting summary judgment to the state defendants on plaintiffs’

constitutional challenge to Alabama’s ballot access restrictions. Specifically,

under Alabama law, independent candidates seeking ballot access must submit a

petition with the signatures of at least three percent of qualified electors who cast

ballots at the last general election for governor, and the signature petition must be

filed by the first primary election date, which is the first Tuesday in June. See Ala.

Code § 17-8-2.1 (2005) (current version at Ala. Code § 17-6-22); Ala. Code § 17-

16-6 (2005) (current version at Ala. Code § 17-13-3). Plaintiffs contend that the

three-percent signature requirement and primary election date filing deadline,

independently and in combination, infringe upon their First and Fourteenth

Amendment rights. After review and oral argument, we agree with the district


       *
        Honorable Judith M. Barzilay, Judge, United States Court of International Trade, sitting
by designation.

                                                2
court that, based on the record in this case, plaintiffs have not shown a

constitutional violation, and thus we affirm.

                                 I. BACKGROUND

A.    2002 Election Campaign

      On April 3, 2001, plaintiff Johnny Swanson, III joined the 2002 race for

United States Senator in Alabama as the candidate of his newly formed party, the

Independent Democrats of Alabama. In the early spring of 2002, plaintiff Frank

Cobb began his campaign as an independent candidate for Alabama House

Representative District 40, and plaintiff Joseph Grimsley began his campaign as an

independent candidate for Sheriff of Barbour County.

      Under Alabama law, if a political party has not garnered more than twenty

percent of the votes cast at the preceding general election, that political party must

petition the Alabama Secretary of State or county probate office for placement on

the ballot. See Ala. Code § 17-16-2 (2005) (current version at Ala. Code § 17-13-

40); Ala. Code § 17-8-2.1(a)(1) (2005). Prior to 1995, Alabama required that

independent and minor party candidates must provide the signatures of one percent

of voters with their petitions. In 1995, Alabama adopted a requirement that

petitions include “the signatures of at least three percent of the qualified electors

who cast ballots for the office of Governor in the last general election for the state,



                                            3
county, city, district, or other political subdivision in which the political party

seeks to qualify candidates for office . . . .” Ala. Code § 17-8-2.1(a)(1) (2005)

(emphasis added).

       Under this three-percent signature requirement, plaintiff Swanson needed to

gather 39,536 valid signatures in order to appear on the general election ballot in

his statewide race in 2002. Plaintiffs Cobb and Grimsley needed to gather several

hundred valid signatures to appear on the ballot for their local races.

       Prior to 2002, independent candidates had to submit the required number of

valid signatures “six days after the second primary election,” which was July 1 in

the 2002 election cycle. Ala. Code § 17-8-2.1 (1995). On December 28, 2001, the

Alabama governor signed Act. No. 2001-1131 (“the Act”), which, inter alia,

moved the deadline for independent candidate registration to the date of the first

primary election. See Act of Dec. 28, 2001, 2001 Ala. Laws 1131.1 The first

primary election date in the 2002 election cycle was June 4, 2002.

       On March 29, 2002, the Act was submitted to the Department of Justice for

preclearance. On May 28, 2002, the Department of Justice precleared the Act, and


       1
         The Act also amended the “sore loser” statute by moving the filing deadline in that
statute for independent candidates to the date of the first primary election. See Ala. Code § 17-
7-1(a)(3) (2005) (current version at Ala. Code § 17-9-3(a)(3)). Even before this deadline
change, Alabama’s “sore loser” statute barred major party candidates who were defeated in a
party primary election from running as independent candidates in the same election cycle. See
id.; see also infra note 17.

                                                 4
the Alabama Secretary of State issued a press release to the general public about

the registration deadline change to June 4, 2002, exactly one week after the Act

went into effect.2

       Although plaintiff Swanson first learned about the Act shortly after it was

submitted for preclearance in March 2002, the Secretary of State’s Office did not

inform him of the new June 4 deadline until a week before the deadline. Plaintiff

Grimsley learned about the new deadline as he was collecting signatures on the

first primary election date on June 4, and plaintiff Cobb learned about the deadline

several days after June 4.

       On July 1, 2002 (i.e., the old filing deadline before the Act went into effect),

Cobb and Grimsley attempted to file their registration petitions with the required

number of verified signatures. By July 1, 2002, Swanson had submitted just under

11,000 signatures to be verified by the Secretary of State’s Office, well short of the

three-percent signature threshold even if all signatures were verified. Swanson

actually would have been short even if the one-percent signature threshold had

been in effect.

B.     Preliminary Injunction Suit and Hearing

       On June 4, 2002, Swanson filed an initial complaint under 42 U.S.C. § 1983.


       2
       The State Election Handbook in 2002 described the Act, but noted that it was subject to
Department of Justice preclearance and listed the candidate registration deadline as July 1, 2002.

                                                5
On August 13, 2002, Swanson, joined by Cobb and Grimsley, filed an amended

complaint against the Alabama Governor, Alabama Attorney General, Alabama

Secretary of State, and Probate Judges of Barbour County and Calhoun County.3

The amended complaint alleged that Alabama’s ballot access laws violated the

Qualifications Clause; the Interstate Commerce Clause; and the First, Tenth,

Fourteenth, and Seventeenth Amendments. The amended complaint sought three

forms of relief: (1) injunctive relief to place plaintiffs Swanson, Cobb, and

Grimsley on the general election ballot; (2) injunctive relief to stop the

implementation of the Act; and (3) a declaratory judgment that the three-percent

signature requirement and the Act are unconstitutional.

       In August 2002, the district court held a preliminary injunction hearing.

Plaintiffs Swanson, Cobb, and Grimsley testified about obstacles they faced in

collecting valid signatures. Cobb and Grimsley stated that they had collected a

sufficient number of signatures by the first primary election date of June 4, but

they did not submit their petitions until July 1 because of the late notice of the

deadline change. Swanson admitted that he fell short of the three-percent signature

threshold, but said that he lost volunteers willing to gather signatures after he

learned about the deadline change to June 4.


       3
         The district court later dismissed the Alabama Governor from the suit. This dismissal is
not at issue on appeal.

                                                6
        Mark Bodenhausen of the Libertarian Party and Bob Belcher of the Reform

Party testified that primary polling places are critical venues for gathering

signatures and asserted that the new filing deadline–the first primary election

date–would undermine ballot access efforts. Bodenhausen stated that the

Libertarian Party gained general ballot access in the 2002 election cycle based on

solid election results from the 2000 race, which followed a $100,000 signature-

gathering campaign begun seventeen months before the 2000 election.4

        Richard Winger, the editor of an election law newsletter, testified that

polling places are the best locations to gather signatures and that the deadline

change would have a “very significant effect” on independent candidates

attempting to qualify for ballot access. Winger also testified that Alabama was the

second toughest state for independent and minor party candidates to gain ballot

access in 2002. David Gillespie, a political science professor at Presbyterian

College, testified that Alabama’s ballot access laws were more restrictive than

many states and would not contribute to voter education.

        Despite the short notice of the new June 4, 2002 filing deadline, independent

candidates Jimmy Blake and Tracy Larkin testified that they met the three-percent



        4
         As discussed later, Alabama provides unlimited time for the petitioning effort. While
there is a deadline for filing the petition, there is no limitation on the start date, which is why the
Libertarian Party could begin its petitioning effort seventeen months before the election.

                                                   7
signature requirement and qualified for ballot access in their local races in the 2002

election.5 Both candidates admitted that they would have had more difficulty

qualifying for ballot access if they were not already well-known.

       After the hearing, the district court granted a preliminary injunction in part

and denied it in part on August 30, 2002. Swanson v. Bennett, 219 F. Supp. 2d

1225, 1234 (M.D. Ala. 2002) (Swanson I). The district court found that Alabama’s

three-percent signature requirement was less than the five-percent signature

requirements in other states that had been upheld in two United States Supreme

Court cases as not excessive and constitutional. Id. at 1231 (citing Storer v.

Brown, 415 U.S. 724, 738, 94 S. Ct. 1274, 1283 (1974); Jenness v. Fortson, 403

U.S. 431, 442, 91 S. Ct. 1970, 1976 (1971)). The district court also noted that this

Court previously had upheld Florida’s three-percent signature requirement. Id. at

1231-32 (citing Libertarian Party of Florida v. Florida, 710 F.2d 790, 793 (11th

Cir. 1983)). The district court further determined that the Alabama statute had

sufficient “alleviating factors” to ease the burden of gathering signatures. Id. at

1232. Accordingly, in denying Swanson’s request for a preliminary injunction, the

district court determined that plaintiff Swanson did not have a substantial



       5
        Jimmy Blake qualified as an independent candidate for a county commissioner’s seat in
Jefferson County, and Tracy Larkin qualified as an independent candidate for Alabama State
Senate District 26.

                                              8
likelihood of success in his challenge to Alabama’s three-percent signature

requirement. Id.

      As to plaintiffs Cobb and Grimsley, the district court noted that they had met

the three-percent signature requirement and determined that they had a substantial

likelihood of success on the merits of their claims that they were deprived of “fair

notice” of the change in the filing deadline. Id. at 1229-31. The district court

found that Cobb and Grimsley expected to have until July 1 to meet the registration

deadline and were given no notice of the new date of June 4. Id. at 1230.

Furthermore, the district court found that “the State has failed to articulate an

adequate reason for applying the new deadline to the current election cycle instead

of delaying its applicability or granting candidates such as Cobb and Grimsley a

grace period for compliance.” Id. Accordingly, the district court concluded that

Cobb and Grimsley satisfied the requirements for a preliminary injunction and

ordered defendants to place Cobb’s and Grimsley’s names on the general election

ballot. Id. at 1234. The district court emphasized that the problem with the

deadline change statute was “not its content, but the manner in which it was

promulgated without sufficient notice to those affected by its terms.” Id.

C.    Cross-Motions for Summary Judgment

      Following the 2002 election, the district court addressed the parties’ cross-



                                           9
motions for summary judgment. In support of these cross-motions, plaintiffs’ brief

noted that defendants did not dispute any of the factual allegations in this case, and

defendants’ brief also observed that there were no genuine issues of material fact.

        On August 24, 2004, the district court granted summary judgment to

defendants in part. Swanson v. Bennett, 340 F. Supp. 2d 1295, 1301 (M.D. Ala.

2004) (Swanson II). The district court first noted that “[t]he facts in this case are

not in dispute” and “summarize[d] the relevant facts.” 6 Id. at 1297. The district

court then addressed the fair notice claim.

        After noting its preliminary injunction order and that the 2002 election cycle

had passed, the district court stated that its conclusion at the summary judgment

stage was now different from the preliminary injunction stage as to the fair notice

claim. Id. at 1298. The district court determined that “the only way the same

wrong could recur for Grimsley, Cobb, and Swanson would be if Alabama were to

change the law regarding the registration deadline again and fail to give them

notice of it again . . . .” Id. After finding that this scenario was unlikely to occur,

the district court issued a show-cause order as to why the fair notice claim should

not be dismissed as moot. Id. at 1298-99, 1301.


        6
         In this appeal, the parties do not challenge the district court’s conclusion that the facts in
this case are not in dispute. No party claims that the case should be remanded for trial; instead,
all parties agree that the appeal presents questions of law that should be resolved on summary
judgment.

                                                  10
       The district court next considered the three-percent signature requirement.

The district court noted that, in its 2002 preliminary injunction order, it had already

found that “the State did have an important interest in requiring independent

candidates to show they had a ‘significant modicum’ of support before printing

their names on the ballot.” Id. at 1299 (quoting Swanson I, 219 F. Supp. 2d at

1231). The district court concluded that the three-percent signature requirement is

reasonable based on Jenness and Libertarian Party, especially given the alleviating

factors present in the Alabama statute containing the three-percent signature

requirement. Id.

       The district court also cited this Court’s decision in Cartwright v. Barnes,

304 F.3d 1138 (11th Cir. 2002), where this Court upheld Georgia’s five-percent

signature requirement. Id. The district court then found that Alabama ballot

access laws had sufficient alleviating factors and reiterated its earlier ruling that the

signature requirement “does not unreasonably restrict or place suffocating

restrictions on a candidate’s ability to gather signatures.”7 Id. at 1300.


       7
         Specifically, the district court found that Alabama’s election laws included the following
alleviating factors:
        (1) allowing voters to sign the petition regardless of party affiliation; (2) allowing
        voters who already voted in the primary to sign the petition; (3) allowing voters to
        sign more than one petition; (4) lack of restriction on how many signatures were
        allowed from one area; (5) lack of restriction on how many signatures could be
        submitted in an effort to meet the 3% requirement; (6) allowing sufficient time to
        conduct the petitioning effort; (7) the ability of minor political parties to qualify
        for the ballot in the past; and (8) the cost required was not impermissibly

                                                11
       In upholding Alabama’s three-percent signature requirement, the district

court acknowledged that plaintiff Swanson offered the affidavit of Richard Winger,

which stated that few other states imposed the restrictions that Alabama does. Id.

The district court found this fact irrelevant because a court “‘is no more free to

impose the legislative judgment of other States on a sister State than it is free to

substitute its own judgment for that of the state legislature.’” Id. (quoting Swanson

I, 219 F. Supp. 2d at 1233 (quoting Libertarian Party, 710 F.2d at 794)). The

district court also repeated its earlier finding that the State had an “important

interest in requiring independent candidates to show they had a ‘significant

modicum’ of support before printing their names on the ballot.” Id. at 1299

(citation omitted). After concluding that Alabama’s three-percent signature

requirement was constitutional, the district court granted summary judgment to

defendants on this claim. Id. at 1300-01.

       Subsequently, on May 30, 2006, the district court granted summary

judgment to defendants on plaintiffs’ additional claim that the filing deadline on

the primary election date impermissibly burdened signature gathering. Swanson v.

Worley, 432 F. Supp. 2d 1262, 1264 (M.D. Ala. 2006) (Swanson III). The district

court dismissed the “fair notice” claim as moot and noted its earlier finding that the


      burdensome.
Swanson II, 340 F. Supp. 2d at 1299 n.3.

                                            12
three-percent signature requirement was constitutional. Id. at 1262-63.

      After resolving those two claims, the district court considered whether the

filing deadline–the day of the first primary election–impermissibly and

unconstitutionally denied plaintiffs the opportunity to collect signatures at primary

polling places, which plaintiffs asserted was “‘the most viable source of successful

petition drives . . . .’” Id. at 1263. The district court agreed with plaintiffs that the

deadline on the primary election day deprived plaintiffs of a “meaningful

opportunity” to gather signatures on the primary election day itself. Id. at 1263

n.2. The district court acknowledged that plaintiffs had given these reasons why

having the primary election day to collect signatures for the three-percent signature

requirement was so important:

      the mindset of electors is on election issues, petitioners are assured
      that the elector is a registered voter, the electors[’] district and polling
      places are readily apparent, electors are not suspicious of the
      petitioners’ need for personal information, it is the only public place
      where petitioners’ activities are welcomed, and it is the least costly
      means of obtaining signatures.

Id. at 1263. Therefore, in evaluating the constitutionality of the filing deadline, the

district court was advised of and noted the interrelationship between the deadline

change and the three-percent signature requirement and how changing the deadline

to the primary election day caused plaintiffs to lose the least costly and most

effective way for plaintiffs to collect signatures to meet the three-percent signature


                                            13
requirement.

       Nonetheless, the district court concluded that the deadline change to the

primary election date for meeting the three-percent signature requirement was not

unconstitutional because “other factors present in the Alabama election scheme

alleviate . . . this perceived loss.” Id. (quotation marks, internal citation, and

alteration omitted). In evaluating the deadline change, the district court recited

those other factors, including:

       (1) “Alabama does not restrict voters from signing petitions based on their

party affiliation”;

       (2) Alabama does not “restrict voters who have already voted in [the]

primary from signing the petition”;

       (3) “[i]ndependent candidates can seek signatures from voters who have

already signed other petitions”;

       (4) “there are no restrictions on how many signatures may come from a

specific geographical area”;

       (5) “Alabama does not restrict how many signatures can be submitted in an

effort to meet the 3% requirement”; and

       (6) Alabama “allows unlimited time to conduct the petitioning effort.”



                                            14
Id. (quotation marks and citation omitted). The district court then applied the

balancing test and factors identified in Swanson I and concluded that “changing the

deadline for independent candidates to collect signatures from six days after the

second primary election to the day of the first primary election is reasonable and

does not put an unreasonable burden on independent candidates.” Id. (quotation

marks, citation, and alteration omitted). In reaching this conclusion, the district

court relied in part on Jenness and characterized Jenness as holding that the

“deadline [on the] primary election for independent candidates to meet [the five-

percent] signature requirement is not ‘unreasonably early.’” Id. (quoting Jenness,

403 U.S. at 438, 91 S. Ct. at 1974).

      Plaintiffs timely appealed.

                                    II. DISCUSSION

      In their brief on appeal, plaintiffs raise these two issues:

      I. Is Alabama Statute § 17-7-1 requiring independent and minor party
      candidates to obtain signatures of three percent of the electors who
      cast votes for governor in the last election unconstitutional because it
      substantially burdens the First and Fourteenth Amendment rights of
      voters and candidates but fails to serve any legitimate state interest?

      II. Does the Alabama Statute § 17-7-1 changing the filing deadline for
      the signature petitions of independent and minor party candidates to
      the day of the primary election, combined with a three percent
      signature threshold, abridge the First and Fourteenth Amendment
      rights of candidates and voters by denying them the only meaningful
      opportunity to collect signatures and meet the threshold?

                                       15
Before addressing the merits of plaintiffs’ two claims, we outline the applicable

balancing test for constitutional challenges to ballot access restrictions.8

A.     The Supreme Court’s Balancing Test

       The Supreme Court long has recognized candidates’ constitutional rights

under the First and Fourteenth Amendments to associate for political ends and to

participate equally in the electoral process. See Burdick v. Takushi, 504 U.S. 428,

433, 112 S. Ct. 2059, 2063 (1992); Anderson v. Celebrezze, 460 U.S. 780, 787-88,

103 S. Ct. 1564, 1569 (1983). Ballot access restrictions also implicate the

constitutional rights of voters, especially those with preferences outside the

existing parties, to associate and cast their votes effectively. See Williams v.

Rhodes, 393 U.S. 23, 30, 89 S. Ct. 5, 10 (1968). However, the Supreme Court also

“long has recognized that states have important and compelling interests in

regulating the election process and in having ballot access requirements.” Green v.

Mortham, 155 F.3d 1332, 1335 (11th Cir. 1998) (collecting cases). In particular,

the Supreme Court has emphasized that a state has an “important state interest in

requiring some preliminary showing of a significant modicum of support before



       8
        The parties agree that we review a district court’s grant of summary judgment de novo.
See Willard v. Fairfield S. Co., 472 F.3d 817, 821 (11th Cir. 2006). In this appeal, no party
claims that any genuine issues of material fact exist; rather, the parties throughout the litigation
have agreed that the facts are undisputed and argue that the case presents questions of
constitutional law subject to de novo review.

                                                 16
printing the name of a political organization’s candidate on the ballot–the interest,

if no other, in avoiding confusion, deception, and even frustration of the

democratic process at the general election.”9 Jenness, 403 U.S. at 442, 91 S. Ct. at

1976.

        In order to balance these interests, a court must first consider “the character

and magnitude of the asserted injury to the rights protected by the First and

Fourteenth Amendments that the [candidate] seeks to vindicate.” Anderson, 460

U.S. at 789, 103 S. Ct. at 1570. “It then must identify and evaluate the precise

interests put forward by the State as justifications for the burden imposed by its

rule.” Id. In making this evaluation, a court must “determine the legitimacy and

strength of [the State’s] interests [and] consider the extent to which those interests

make it necessary to burden the [candidate’s] rights.” Id. A court then must weigh

all these factors to determine if the statute is constitutional. Id.

        Furthermore, if the state election scheme imposes “severe burdens” on the

plaintiffs’ constitutional rights, it may survive only if it is “narrowly tailored and

advance[s] a compelling state interest.” Timmons v. Twin Cities Area New Party,


        9
         Alabama law provides candidates with two ways to demonstrate the required
“significant modicum of support.” First, a political organization can obtain general ballot access
by garnering twenty percent of the votes cast at the general election for state officers. See Ala.
Code § 17-16-2 (2005). Alternatively, a political organization or a candidate can obtain ballot
access for a particular election by satisfying the three-percent signature threshold by the first
primary election date. See Ala. Code § 17-8-2.1 (2005). Only the second path is at issue here.

                                                17
520 U.S. 351, 358, 117 S. Ct. 1364, 1370 (1997). But when a state ballot access

law provision imposes only ‘“reasonable, nondiscriminatory restrictions’” upon the

plaintiffs’ First and Fourteenth Amendment rights, “a State’s ‘important regulatory

interests’ will usually be enough to ‘justify reasonable, nondiscriminatory

restrictions.’” Id. (quoting Burdick, 504 U.S. at 434, 112 S. Ct. at 2063). “Lesser

burdens . . . trigger less exacting review . . . .” Id.

       Under this framework, we first review the “character and magnitude of the

asserted injury” to plaintiffs’ constitutional rights, considering the burden posed by

the signature requirement and the June filing deadline independently and in

combination.

B.     Signature Requirement

       Plaintiffs assert that Alabama’s three-percent signature requirement violates

the First and Fourteenth Amendments.10 Based on our precedent, we conclude that


       10
          Defendants contend that the signature requirement claim is moot. Although the 2002
election cycle has passed, it is well settled that ballot access challenges fall under the “capable of
repetition, yet evading review” exception to the mootness doctrine. See Norman v. Reed, 502
U.S. 279, 287-88, 112 S. Ct. 698, 704-05 (1992); Moore v. Ogilvie, 394 U.S. 814, 816, 89 S. Ct.
1493, 1494 (1969); Libertarian Party, 710 F.2d at 796. While the signature requirement claim is
not moot, Cobb and Grimsley nonetheless lack standing to challenge the signature requirement.
In order to establish standing, a plaintiff must show “a fairly traceable connection between the
plaintiff’s injury and the complained-of conduct of the defendant.” See Charles H. Wesley
Educ. Found., Inc. v. Cox, 408 F.3d 1349, 1352 (11th Cir. 2005) (quotation marks and citation
omitted). Because Cobb and Grimsley satisfied the signature requirement, their injury–their
omission from the ballot–was “fairly traceable” to their failure to meet the filing deadline, not
the signature requirement. Accordingly, only Swanson has standing to challenge the three-
percent signature requirement.

                                                  18
Alabama’s signature requirement by itself does not impose a severe burden on

plaintiffs’ rights but is a reasonable, nondiscriminatory restriction.

      This Court previously upheld a three-percent signature requirement in a

challenge under the First and Fourteenth Amendments in Libertarian Party of

Florida v. Florida. In Libertarian Party, we considered the constitutionality of a

Florida statute requiring the signatures of three percent of all registered voters in

order for a minor party candidate to appear on the general election ballot. See id.,

710 F.2d at 792. Based on Jenness, we observed that the State had compelling

state interests in regulating the state’s election process; in requiring a significant

modicum of support before placing a candidate on a ballot; and in avoiding

confusion, deception, and frustration of the democratic process. Id. at 792-93

(citing Jenness, 403 U.S. at 442, 91 S. Ct. at 1976). We rejected strict scrutiny

analysis and stated that the test was whether the three-percent signature

requirement was “a rational way to meet this compelling state interest.” Id. at 793.

We added that the test is one of “reasonableness, i.e., whether the statute

unreasonably encroaches on ballot access.” Id. at 793 (citing Anderson, 460 U.S.

at 788 & n.9, 103 S. Ct. at 1570 & n.9). In light of the compelling state interest

and several factors that eased the burden of gathering signatures, this Court

concluded in Libertarian Party that Florida’s three-percent signature requirement



                                            19
was valid. Id. at 795.

      Alabama’s three-percent signature requirement is less burdensome than

Florida’s signature requirement in Libertarian Party. While Florida required

signatures of three percent of all registered voters, Alabama requires only the

signatures of three percent of qualified electors who voted in the last gubernatorial

election, a significantly smaller pool than all registered voters.

      Moreover, the Supreme Court has upheld even more restrictive signature

requirements than Alabama’s three-percent requirement. See Am. Party of Tex. v.

White, 415 U.S. 767, 788-89, 94 S. Ct. 1296, 1309-10 (1974) (upholding Texas’s

signature thresholds of three and five percent for local independent candidates);

Storer, 415 U.S. at 740, 94 S. Ct. at 1284 (concluding that California’s five-percent

signature requirement was not per se unconstitutional); Jenness, 403 U.S. at 442,

91 S. Ct. at 1976 (upholding Georgia’s five-percent requirement); Cartwright, 304

F.3d at 1141-42 (reaffirming Jenness in upholding Georgia’s five-percent signature

requirement). Based on this long line of precedent, we must conclude that

Alabama’s three-percent signature requirement is a reasonable, nondiscriminatory

restriction that imposes a minimal burden on plaintiffs’ rights.

      As the district court noted, Alabama’s statute also has the same alleviating

factors that eased the burden of gathering signatures in Libertarian Party. See



                                           20
Swanson II, 340 F. Supp. 2d at 1299 & n.3; Swanson I, 219 F. Supp. 2d at 1232 &

n.4. Specifically, the district court found that Alabama’s statute:

       does not restrict voters from signing petitions based on their party
       affiliation, nor does it restrict voters who have already voted in a
       primary from signing the petition. Independent candidates can seek
       signatures from voters who have already signed other petitions, and
       there are no restrictions on how many signatures may come from a
       specific geographical area. Alabama does not restrict how many
       signatures can be submitted in an effort to meet the 3% requirement,
       and the state allows unlimited time to conduct the petitioning effort.

Swanson I, 219 F. Supp. 2d at 1232 (emphasis added). Therefore, while there is a

deadline for collecting signatures, there is no required start date or limited time

period for collecting signatures. These alleviating factors resonate just as strongly

in this case as they did in Libertarian Party, if not more so, and ameliorate any

burden on plaintiffs’ constitutional rights.11

       The ability of minor party candidates in Alabama to qualify for the ballot in

the past also bolsters the reasonableness of Alabama’s three-percent signature

       11
          The alleviating factors recognized in Libertarian Party included: (1) allowing voters to
sign the petition regardless of party affiliation; (2) allowing voters who already voted in the
primary to sign the petition; (3) allowing voters to sign more than one petition; (4) placing no
geographic caps on the number of signatures that can be gathered from one area; (5) imposing no
limit on how many signatures may be submitted for verification; (6) allowing sufficient time to
conduct the petitioning effort; and (7) requiring no impermissibly burdensome expenses.
Libertarian Party, 710 F.2d at 794; see also Jenness, 403 U.S. at 438-39, 91 S. Ct. at 1974.
        In Libertarian Party, the plaintiffs had 188 days to collect signatures to meet the three-
percent signature requirement. Libertarian Party, 710 F.2d at 794. In Jenness, the plaintiffs had
only 180 days before the deadline to meet the five-percent signature requirement. Jenness, 403
U.S. at 433, 91 S. Ct. at 1972. Alabama not only has similar alleviating factors but also an
additional important one in that Alabama allows an unlimited time period for the petitioning
effort. Swanson I, 219 F. Supp. 2d at 1232.

                                                21
requirement. Specifically, many Libertarian Party candidates met Alabama’s

signature requirement and qualified for ballot access in both statewide and local

offices in the 2000 election. Based on strong election results in the 2000 election,

the Libertarian Party gained general ballot access for the 2002 election, entitling it

to nominate a slate of both statewide and local candidates in the 2002 election in

Alabama. The Libertarian Party’s successes in the 2000 and 2002 election cycles

in Alabama demonstrate that the three-percent signature requirement does not

hinder diligent independent and minor party candidates, and Alabama’s election

law thus “provides a realistic means of access.” Libertarian Party, 710 F.2d at 794

(noting that a three-percent signature requirement was not unreasonably

burdensome when one minor party qualified its slate of candidates in two election

cycles).

       For all of these reasons, Alabama’s three-percent signature requirement is a

reasonable, nondiscriminatory regulation that does not impose a severe burden.12


       12
          In presidential elections, independent candidates need to obtain only 5,000 signatures to
appear on the general election ballot in Alabama. See Ala. Code § 17-19-2(a) (2005) (current
version at Ala. Code § 17-14-31(a)). Plaintiffs contend that if a less restrictive signature
requirement sufficiently satisfies the State’s interests in presidential elections, there is no
justification for requiring more signatures through the three-percent signature requirement in
statewide elections.
         However, presidential elections call for a different balancing of interests than statewide
or local races. As the Supreme Court emphasized in Anderson, “the State has a less important
interest in regulating Presidential elections than statewide or local elections, because the
outcome of the former will be largely determined by voters beyond the State’s boundaries.”
Anderson, 460 U.S. at 795, 103 S. Ct. at 1573. Accordingly, we cannot say it is unreasonable for

                                                22
C.     Filing Deadline Combined with Signature Requirement

       Even if a three-percent signature requirement alone passes constitutional

muster, plaintiffs also contend that Alabama’s filing deadline on the first primary

election date, in combination with the three-percent signature requirement, violates

the First and Fourteenth Amendments.13 Specifically, plaintiffs assert that primary

polling sites are critical locations for gathering signatures to meet the three-percent

signature requirement, that Alabama’s June filing deadline effectively precludes

gathering signatures at primary polling sites, and that the filing deadline in tandem

with the three-percent signature requirement severely burdens plaintiffs’

constitutional rights to ballot access. Based on our review of binding precedent

and the undisputed facts in this case, we conclude that Alabama’s June filing

deadline, in combination with the three-percent signature requirement, does not

place a severe burden on the constitutional rights of independent candidates.

       We begin our analysis with Jenness v. Fortson, wherein the Supreme Court

rejected a challenge to Georgia’s five-percent signature requirement and June filing



Alabama to apply more demanding regulations on statewide and local races than presidential
races.
       13
          Although defendants also assert that this claim is moot absent plaintiffs’ expressed
intent to run again, plaintiffs are certainly capable of doing so, and it is reasonable to expect that
they will do so in the future. As noted above, ballot access challenges fall under the “capable of
repetition, yet evading review” exception to the mootness doctrine. See Norman, 502 U.S. at
287-88, 112 S. Ct. at 704-05; Libertarian Party, 710 F.2d at 796.

                                                  23
deadline acting in concert. Jenness, 403 U.S. at 440-42, 91 S. Ct. at 1975-76.

Despite having a similar June filing deadline, the election scheme upheld in

Jenness was significantly more restrictive than Alabama’s. Specifically, the

Georgia statute in Jenness required the signatures of five percent of all registered

voters, unlike the three percent of actual voters in Alabama. Id. at 432, 91 S. Ct. at

1971. Moreover, candidates had only 180 days to circulate signature petitions in

Jenness, unlike the unlimited time allowed in Alabama. Id. at 433, 91 S. Ct. at

1972. Furthermore, in Jenness, the June filing deadline for independent candidates

to appear on the November general election ballot was the same deadline for a

major party candidate qualifying to appear on an August party primary election

ballot. Id. at 433-34, 91 S. Ct. at 1972. The June deadline for independents thus

precluded signature gathering not only on the primary election date but also two

months before the primary election date in August.

      In Jenness, the Supreme Court noted that this June filing deadline was not

“unreasonably early,” distinguishing it from the February deadline invalidated in

Williams v. Rhodes, 393 U.S. 23, 33, 89 S. Ct. 5, 11 (1968). Id. at 438, 91 S. Ct. at

1974. Moreover, the Supreme Court concluded that the absence of “suffocating

restrictions” on signature gathering minimized any burden posed by the deadline,

and it upheld Georgia’s five-percent signature requirement and June filing



                                          24
deadline. Id. at 438-40, 91 S. Ct. at 1974-75. As noted repeatedly by the district

court in upholding the June filing deadline, the Alabama statute here also imposes

none of the “suffocating restrictions” on the circulation of signature petitions

outlined in Jenness. See Swanson III, 432 F. Supp. 2d at 1263; Swanson II, 340 F.

Supp. 2d at 1299 (citing Jenness, 403 U.S. at 438-39, 91 S. Ct. at 1974); Swanson

I, 219 F. Supp. 2d at 1232.

      Based on the reasoning in Jenness, other circuits have upheld statutes with

filing deadlines on the primary election day (or even the day before) in

combination with signature requirements, despite the deadline’s effect on signature

gathering. See, e.g., Lawrence v. Blackwell, 430 F.3d 368, 375 (6th Cir. 2005),

cert. denied, __ U.S. __, 126 S. Ct. 2352 (2006) (upholding Ohio’s filing deadline

for independent candidates on the day before the primary election date, which is as

early as March in presidential election years, with a one-percent signature

requirement); Wood v. Meadows, 207 F.3d 708, 713-14 (4th Cir. 2000) (analyzing

Virginia’s June filing deadline on the primary election date “in conjunction with”

its signature requirement of 0.5% of registered voters and concluding that its

election scheme “taken as a whole” is constitutional); Council of Alternative

Political Parties v. Hooks, 179 F.3d 64, 76-77 (3d Cir. 1999) (concluding that the

combination of New Jersey’s deadline on the primary election date and signature



                                          25
requirement of up to 1,000 signatures imposed only a minimal burden); Rainbow

Coal. of Okla. v. Okla. State Election Bd., 844 F.2d 740, 747 (10th Cir. 1988)

(holding that a May 31 filing deadline is not unconstitutional “even in conjunction

with the relatively high [five-percent] signature requirement”).14 While we

recognize that Ohio, Virginia, and New Jersey chose a less restrictive signature

requirement than Alabama’s three-percent signature requirement, the five-percent

signature requirement was upheld in Jenness along with an even earlier deadline.

Accordingly, on this record, we have no basis to conclude that Alabama’s statute

falls outside the spectrum of constitutional legislative choices.

       Plaintiffs do not cite, much less address, Jenness in their initial or reply

briefs. Instead, plaintiffs rely on the Supreme Court’s decision in Anderson v.

Celebrezze and this Court’s decision in New Alliance Party v. Hand, 933 F.2d

1568 (11th Cir. 1991). However, the statutes in those cases are materially different

from Alabama’s statute at issue here.


       14
          We cite and rely upon the same decisions as did the district court. In Swanson III, the
district court summarized its previous finding in Swanson II that the signature requirement was
constitutional. Swanson III, 432 F. Supp. 2d at 1262. After noting its resolution of the signature
requirement claim, the district court turned to the filing deadline’s effect on the signature
gathering needed to satisfy the three-percent signature requirement and ultimately upheld
Alabama’s election scheme. Id. at 1263-64. In rejecting the deadline challenge, the district
court cited Jenness, Wood, Hooks, and Rainbow Coalition of Oklahoma, each of which denied
challenges to a filing deadline operating in conjunction with a signature requirement. Id. at
1263. Therefore, the district court’s reasoning and cases cited in support of its opinion in
Swanson III support the conclusion that Alabama’s filing deadline operating in conjunction with
the signature requirement is constitutional.

                                                26
      Anderson is different in two material ways. First, Anderson involved a

presidential election where the Supreme Court noted that “the State has a less

important interest in regulating Presidential elections than statewide or local

elections . . . .” Anderson, 460 U.S. at 795, 103 S. Ct. at 1573. In contrast, the

Alabama statute, challenged by plaintiffs, addresses only statewide and local

elections, and a separate Alabama statute not at issue on appeal governs

independent presidential candidates. See Ala. Code § 17-19-2(a) (2005) (current

version at Ala. Code § 17-14-31(a)).

      Second, the Ohio statute in Anderson placed independent candidates at a

relative disadvantage to major party candidates. Specifically, the Ohio statute

invalidated in Anderson required major party candidates to declare their

candidacies by late March in order to be on the primary election ballot, which was

seventy-five days later in mid-June. Independent presidential candidates had to file

a nominating petition with 5,000 signatures by the same date in late March in order

to appear on the general election ballot, which was over seven months later in

November. Anderson, 460 U.S. at 782-83 & n.1, 103 S. Ct. at 1566-67 & n.1. In

requiring independent candidates to file signature petitions by late March, the Ohio

statute thus placed independent candidates at a relative disadvantage to major party

candidates because (1) major party candidates alone had the flexibility to respond



                                          27
to intervening events between the March filing deadline and the national

nominating conventions five months later, and (2) the early deadline burdened

signature gathering when the general election was “far in the future.” Id. at 790-

92, 103 S. Ct. at 1570-72. This discrimination against independent candidates

constituted a severe burden because “[a] burden that falls unequally on new or

small political parties or on independent candidates impinges, by its very nature,

on associational choices protected by the First Amendment.” Id. at 793-94, 103 S.

Ct. at 1572 (emphasis added).

       In Anderson, although major party candidates had to declare their

candidacies on the same date as the filing deadline for independent candidates, the

Supreme Court noted that “the burdens and the benefits of the respective

requirements are materially different . . . .” Id. at 799, 103 S. Ct. at 1575.

Specifically, although major party candidates had to declare their candidacies in

late March before the party primary to allow reasonable time to prepare the

primary election ballots, there was no similar administrative justification for

requiring independent candidates to register in late March before the major party

primary in June. Id. at 800, 103 S. Ct. at 1576. Additionally, while the major party

candidates would benefit from the added publicity and organizational support tied

to the party primary elections, independent candidates would gain no



                                           28
corresponding benefit from the lead up to the primary elections. Id. at 800-01, 103

S. Ct. at 1576. Accordingly, as demonstrated in Anderson, courts subject filing

deadlines that are well prior to the primary election to more exacting scrutiny. See

id. at 805-06, 103 S. Ct. at 1578-79; Wood, 207 F.3d at 711 (noting that courts

subject to “searching scrutiny” election schemes requiring both independent and

major party candidates to declare their candidacies on the same date prior to the

major party’s primary election date).

       In contrast, Alabama’s statute does not discriminate against independent

candidates relative to major party candidates when the filing deadline for

independent candidates is set on Alabama’s primary election date, which is sixty

days after major party candidates must declare their candidacies.15 Although major

party candidates enjoy the benefits of the publicity and automatic support of an

experienced party organization, major party candidates in Alabama have the

additional burden of filing earlier, thus placing independent and major party

candidates in comparable positions. See Lawrence, 430 F.3d at 373; Wood, 207

F.3d at 712. Although the Constitution bars states from discriminating against

independent and minor party candidates, it does not mandate that states give



       15
          In Alabama, major party candidates must declare their candidacies sixty days before the
first primary election. See Ala. Code § 17-16-11 (2005) (current version at Ala. Code § 17-13-
5).

                                               29
independent and minor party candidates preferential treatment over major party

candidates. Timmons, 520 U.S. at 367, 117 S. Ct. at 1374 (concluding that states

have no obligation to remove all hurdles facing independent and minor party

candidates and that an election scheme “may, in practice, favor the traditional two-

party system”); Munro v. Socialist Workers Party, 479 U.S. 189, 198, 107 S. Ct.

533, 539 (1986) (“States are not burdened with a constitutional imperative to

reduce voter apathy or to ‘handicap’ an unpopular candidate to increase the

likelihood that the candidate will gain access to the general election ballot.”). By

extending the filing deadline for independent and minor party candidates to the

primary election date, sixty days after major party candidates must declare their

candidacies, Alabama imposes no discriminatory burden on independent and minor

party candidates.

      Similarly, New Alliance Party v. Hand is distinguishable because the old

Alabama statute invalidated in that case was like the Ohio statute in Anderson and

placed independent and minor party candidates at a relative disadvantage to major

party candidates. In New Alliance Party, this Court addressed Alabama’s old

election statute, which required local and statewide independent candidates to file

their signature petitions in April, sixty days before the primary election. See New

Alliance Party, 933 F.2d at 1570 & n.3 (citing Ala. Code § 17-8-2.1 (2005)). This



                                          30
Court concluded that the early deadline “make[s] it moderately difficult for a minor

party candidate to qualify to be on the ballot . . . .” Id. at 1575-76. This Court

struck down the election scheme under a strict scrutiny framework, noting that the

State failed to “adopt the least drastic means to achieve its ends.” Id. at 1576

(internal quotation marks, citation, and alteration omitted).

      In New Alliance Party, the April filing deadline placed unequal burdens on

independent and minor party candidates (again similar to the late-March filing

deadline seventy-five days before the primary election invalidated in Anderson).

Just as in Anderson, Alabama’s old scheme required independent and minor party

candidates to file their petitions on the same day that major party candidates simply

declared their candidacies without any of the administrative justifications or

corresponding benefits of the major party primary elections. See id. at 1570 & n.3;

see also Anderson, 460 U.S. at 800-01, 103 S. Ct. at 1576.

      In contrast, as discussed above, Alabama’s new June filing deadline on the

primary election date does not place independent and minor party candidates at a

relative disadvantage to major party candidates. Indeed, major party candidates

have the additional burden of declaring their candidacies sixty days before

independent and minor party candidates must file their signature petitions in June,

and independent and major party candidates thus are in roughly comparable



                                          31
positions. Accordingly, unlike the April filing deadline invalidated in New

Alliance Party, Alabama’s new filing deadline is a nondiscriminatory restriction,

and the strict scrutiny analysis applied in New Alliance Party is not appropriate for

Alabama’s filing deadline on the primary election date for independent and minor

party candidates.

       More importantly in this case, the burden posed by Alabama’s filing

deadline is significantly lessened by the statute’s alleviating factors. In particular,

Alabama sets no limit on the time period for conducting the petitioning effort, a far

more permissive scheme than filing deadlines that have been upheld in the past.16

See, e.g., Am. Party of Tex., 415 U.S. at 786-87, 94 S. Ct. at 1309 (upholding a

statute requiring minor party candidates to gather roughly 400 signatures a day

within a 55-day petitioning period); Jenness, 403 U.S. at 433, 442, 91 S. Ct. at

1971-72, 1976 (upholding a five-percent signature requirement with a 180-day

petitioning period); Libertarian Party, 710 F.2d at 794 (upholding a three-percent

signature requirement with a 188-day petitioning period). Given the unlimited


       16
          Plaintiffs assert that independent candidates cannot petition more than a year in advance
of the primary because of Ala. Code § 17-22A-7(b)(2) (2005) (current version at Ala. Code § 17-
5-7(b)(2)), which bars candidates from accepting, soliciting, or receiving campaign contributions
more than a year prior to the election. Plaintiffs point to no authority, and we find none, that
treats this campaign contributions provision as limiting the petitioning period for ballot access.
The ballot access provision at issue in this case contains no explicit limitation on the period for
gathering signatures. Ala. Code § 17-8-2.1(a)(1) (2005). Even if Alabama had a twelve-month
petitioning period, this would essentially double the petitioning periods in Libertarian Party and
Jenness.

                                                32
petitioning window, a diligent independent or minor party candidate could meet

the filing deadline by collecting signatures many months before the June primary

deadline.

      Plaintiffs attempt to sidestep the clear precedent in Jenness by pointing to

evidence that few independent and minor party candidates have been able to obtain

access to Alabama’s ballot since both the three-percent signature requirement and

June filing deadline have been in place. Since the signature filing deadline was

moved to the primary election date in the 2002 election cycle, two independent

candidates obtained ballot access in 2002 despite the short notice of the deadline

change, two independent candidates obtained ballot access in 2004, and six

independent and minor party candidates obtained ballot access in 2006.

      Although plaintiffs note that these candidates were running for only local

races and that no independent or minor party candidate has obtained ballot access

in a statewide race since 2002, there is no evidence in this particular record that an

independent or minor party candidate has even sought ballot access in a statewide

race since plaintiff Swanson in 2002. Moreover, there is no evidence in the record

in this case that any independent or minor party candidate sought and failed to gain

ballot access in any Alabama races since plaintiffs in 2002. All we say here is that

the evidence in this particular record does not establish any severe burden on



                                          33
rights; instead, the successes of several independent and minor party candidates

demonstrate that Alabama’s election scheme does not “completely insulate the

two-party system from minor parties’ or independent candidates’ competition and

influence . . . .” Timmons, 520 U.S. at 367, 117 S. Ct. at 1374; see also

Cartwright, 304 F.3d at 1141 (upholding Georgia’s signature requirement even

though no Libertarian Party candidate had ever satisfied it); Libertarian Party, 710

F.2d at 794 (concluding that Florida law “does not freeze the status quo but

provides a realistic means of access” based on one minor party’s success in

qualifying a slate of candidates in two election cycles).

      Plaintiffs also point to Winger’s testimony that Alabama had the second

toughest ballot access restrictions among all states in the 2002 election. This Court

in Libertarian Party instructed that the legislative choices of other states are

irrelevant, however, because a court is “no more free to impose the legislative

judgments of other states on a sister state than it is free to substitute its own

judgment for that of the state legislature.” Libertarian Party, 710 F.2d at 794.

Furthermore, the Supreme Court has upheld a broad array of election schemes, and

we confine our inquiry to whether Alabama’s election scheme is constitutional, not

whether Alabama’s scheme is the best relative to other states. See Green, 155 F.3d

at 1339 (“There is a range of fees and signature requirements that are



                                            34
constitutional, and [a state] legislature is free to choose its ballot access

requirements from that constitutional spectrum.”).

       Further, plaintiffs point to no case in which a court has invalidated a filing

deadline on the primary election day combined with a signature requirement

similar to Alabama’s laws. Because Alabama does not discriminate against

independent and minor party candidates, and because there are significant

alleviating factors in Alabama’s statute, such as the unlimited time to gather

signatures, we conclude that Alabama’s filing deadline on the primary election

date, in tandem with the three-percent signature requirement, is a reasonable,

nondiscriminatory regulation.

D.     State Interests

       Because Alabama’s filing deadline on the June primary election date in

combination with its three-percent signature requirement imposes reasonable,

nondiscriminatory restrictions on plaintiffs’ rights, “less exacting review” of

Alabama’s election regulations is proper. Timmons, 520 U.S. at 358, 117 S. Ct. at

1370. Under this review, we conclude that important state interests provide

sufficient justification for these reasonable, nondiscriminatory regulations. See id.

Specifically, defendants identify various state interests supporting the regulations,




                                            35
such as avoiding voter confusion and promoting political stability.17

       The district court found that Alabama had “an important interest in requiring

independent candidates to show they had a significant modicum of support before

printing their names on the ballot.” Swanson II, 340 F. Supp. 2d at 1299

(quotation marks and citation omitted). By requiring candidates to demonstrate a

modicum of support, Alabama discourages frivolous candidacies and thereby

serves its important interests in “avoiding confusion, deception, and even

frustration of the democratic process at the general election.” Jenness, 403 U.S. at

442, 91 S. Ct. at 1976. This Court previously has recognized that signature

requirements promote the important state interest of ensuring that only bona fide

independent candidates with a measure of support gain ballot access, preventing


       17
          The parties also contest whether Alabama’s election scheme serves an important state
interest in discouraging “sore loser” candidates who lose in a major party primary election and
attempt to run as independent candidates. The filing deadline on the primary election date
clearly serves this interest because a losing candidate in a major party primary could not qualify
on the same day as an independent candidate.
        However, Alabama already has a separate “sore loser” statute that states that ballots shall
not include “the name of any independent candidate who was a candidate in the primary election
of that year and the name of any nominee of a political party who was a candidate for the
nomination of a different political party in the primary election of that year.” Ala. Code § 17-7-
1(c) (2005) (current version at Ala. Code § 17-9-3(b)). The early filing deadline is thus
superfluous in the context of preventing “sore losers,” and we do not consider this interest to
justify Alabama’s restrictions. See Anderson, 460 U.S. at 804-05 & n.31, 103 S. Ct. at 1578 &
n.31 (noting that an early filing deadline was not precisely drawn to discourage “sore losers”
when the state had a separate “sore loser” statute); New Alliance Party, 933 F.2d at 1576 & n.21
(finding that this otherwise legitimate state interest was already protected by Alabama’s separate
“sore loser” statute). But see Hooks, 179 F.3d at 80 & n.18 (concluding that a filing deadline on
the primary election date served an important state interest in preventing “sore losers” even
though the state had a separate disaffiliation statute).

                                                36
frivolous candidates from clogging the ballot and confusing voters. See

Cartwright, 304 F.3d at 1142; Libertarian Party, 710 F.2d at 792-93; see also

Fulani v. Krivanek, 973 F.2d 1539, 1547 (11th Cir. 1992) (noting that a signature

requirement promotes the interest in demonstrating a modicum of support).

Accordingly, Alabama’s election scheme as a whole promotes the State’s

important interest in limiting ballot access to candidates with a modicum of

support, thus avoiding voter confusion.

      Moreover, reasonable ballot access regulations promote important state

interests in preserving political stability by “temper[ing] the destabilizing effects of

party-splintering and excessive factionalism.” Timmons, 520 U.S. at 367, 117 S.

Ct. at 1374; see also Storer, 415 U.S. at 735, 94 S. Ct. at 1282 (recognizing a state

interest in discouraging “independent candidacies prompted by short-range

political goals, pique, or personal quarrel”). Although this interest in political

stability does not permit states to “completely insulate the two-party system from

minor parties’ or independent candidates’ competition and influence,” this interest

justifies reasonable restrictions that “may, in practice, favor the traditional two-

party system . . . .” Timmons, 520 U.S. at 367, 117 S. Ct. at 1374. By placing

reasonable restrictions on ballot access for independent and minor party

candidates, Alabama’s election scheme discourages party-splintering and



                                           37
factionalism that could destabilize the political system. See id. (noting that state

legislatures may conclude that political stability is best served through a healthy

two-party system); Storer, 415 U.S. at 736, 94 S. Ct. at 1282 (“California

apparently believes with the Founding Fathers that splintered parties and

unrestrained factionalism may do significant damage to the fabric of

government.”).18

       Plaintiffs do not dispute that Alabama has legitimate, important interests in

avoiding voter confusion and promoting political stability. Instead, plaintiffs

contend that defendants failed to prove that the signature requirement and filing

deadline were necessary to promote these important interests. However, this

argument misapprehends the proper test for reasonable, nondiscriminatory

regulations. Because any percentage requirement or filing deadline is “necessarily

arbitrary” and “impossible to defend . . . as either compelled or least drastic,” the

test is not whether the regulations are necessary but whether they rationally serve

important state interests. Libertarian Party, 710 F.2d at 793 (quotation marks

omitted); see also Timmons, 520 U.S. at 358, 117 S. Ct. at 1370 (noting that a state

       18
          Additionally, the district court noted defendants’ contention that “Alabama needs the
additional time afforded by the earlier, first-primary-election deadline to verify petition
signatures and to perform other administrative duties connected to the election cycle.” Swanson
III, 432 F. Supp. 2d at 1263. Plaintiffs do not dispute this interest, and we conclude that this is
an additional important interest justifying Alabama’s ballot access restrictions. See Wood, 207
F.3d at 715 (“Administrative convenience readily falls under the rubric of a state’s ‘regulatory
interests,’ the importance of which the Supreme Court has repeatedly recognized.”).

                                                38
does not need to establish that ballot access restrictions are narrowly tailored and

necessary to promote its interests unless the restrictions severely burden rights).

Moreover, the Supreme Court has “never required a State to make a particularized

showing of the existence of voter confusion, ballot overcrowding, or the presence

of frivolous candidacies prior to the imposition of reasonable restrictions on ballot

access.” Munro, 479 U.S. at 194-95, 107 S. Ct. at 537. Because state legislatures

“should be permitted to respond to potential deficiencies in the electoral process

with foresight rather than reactively,” Alabama was not required to present

evidence in support of its professed interests. Id. at 195, 107 S. Ct. at 537.

       Alabama has articulated important interests justifying its reasonable,

nondiscriminatory ballot access restrictions. Accordingly, we conclude that

Alabama’s election scheme, with a three-percent signature requirement and filing

deadline on the primary election date, does not abridge plaintiffs’ First and

Fourteenth Amendment rights.

                                      III. CONCLUSION

       For the foregoing reasons, we affirm the district court’s grant of summary

judgment to defendants on all claims.19


       19
          Plaintiffs also request a reversal of the district court’s denial of their September 18,
2002 motion for attorney’s fees and costs, pursuant to 42 U.S.C. § 1988. On October 25, 2002,
the district court denied plaintiffs’ motion for attorney’s fees and costs “with leave to renew in a
timely manner after a final judgment has been entered.” However, plaintiffs never refiled a

                                                 39
       AFFIRMED.




motion for attorney’s fees and costs following entry of final judgment, and the district court thus
never addressed the merits of this request. Accordingly, the request for attorney’s fees and costs
is not properly presented to this Court on appeal.

                                                40