United States Court of Appeals
For the First Circuit
No. 04-1803
RICHARD P. McCLURE and MARTHA McCLURE,
Plaintiffs, Appellants,
v.
WILLIAM F. GALVIN, Secretary of the Commonwealth;
ELIZABETH L. DELANEY, Town Clerk, Town of Chelmsford;
JANE DOE, Chelmsford Election Poll Clerk,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Lynch, Circuit Judge,
Stahl, Senior Circuit Judge,
Lipez, Circuit Judge.
Richard P. McClure pro se.
James J. Arguin, Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General, was on brief, for appellee
William F. Galvin.
Brian W. Riley, Lauren F. Goldberg, and Kopelman and
Paige, P.C. on brief for appellee Elizabeth L. Delaney.
October 8, 2004
LYNCH, Circuit Judge. Richard McClure filed suit against
the Secretary of the Commonwealth of Massachusetts and others,
alleging an interference with both his right to vote and his right
to run for political office under the First and Fourteenth
Amendments of the United States Constitution. He sought injunctive
and declaratory relief, requiring that he be placed on the ballot
as an independent candidate in the race for a state senate seat.1
In March of 2004, McClure had sought certification from
a town clerk to be placed on the ballot as an unenrolled candidate
for state senate in Massachusetts. "Unenrolled" means not
affiliated with any political party. The town clerk refused to
issue the certification because McClure had voted in the Democratic
party presidential primary on March 2, 2004. Pursuant to a state
statute, Mass. Gen. Laws ch. 53, § 37, such voting automatically
enrolled McClure as a Democrat. Pursuant to another state statute,
ch. 53, § 6, one running for an in-state office as an independent
must not be enrolled in a political party for the ninety days
preceding the filing deadline for primaries for candidates running
for state senate. As a result, McClure's temporary enrollment
automatically disqualified him from running for the state senate as
1
McClure's wife, Martha McClure, was also named as a plaintiff
in the suit and submitted an affidavit. She alleges that she was,
by virtue of her husband's exclusion, prohibited from voting for
the candidate whose political beliefs are most in line with her
own, and she claimed to be suing on behalf of all other voters
similarly situated. We do not discuss her claims further as they
make no difference in the disposition of the case.
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an independent because the deadline for filing an intent to run for
that office was less than ninety days after the date of the
Democratic primary in which he voted.
The district court, after an expedited hearing, denied
McClure's motion for a preliminary injunction and dismissed his
claim on May 17, 2004. McClure v. Galvin, No. Civ.A. 04-CV-10826-
RGS, 2004 WL 1092325, at *4 (D. Mass. May 17, 2004). We now affirm
this judgment.
I.
The statutory scheme at issue here requires some
elaboration.
Massachusetts General Laws chapter 53, section 6 provides
that an unenrolled candidate for elected office will not have her
name printed on the ballot unless a certificate confirming this
unenrolled status is obtained from the registrar of voters of the
town where the would-be candidate is a registered voter. Such a
certification will not be granted "to any such candidate who shall
have been an enrolled member of any political party during the time
prior to the last day for filing nomination papers as provided in
section ten, and on or after the day by which a primary candidate
is required by section forty-eight to establish enrollment in a
political party." Mass. Gen. Laws ch. 53, § 6. In turn, chapter
53, section 48 states that an enrolled candidate seeking to enter
a party primary must have been a member of that party for the
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ninety days before the filing deadline for that primary, which is
the "last Tuesday in May" for candidates for state senate. The
beginning date of the nonenrollment period for independent
candidates is thus ninety days prior to the last Tuesday in May.
Next, chapter 53, section 10 establishes the "last Tuesday in May"
as the deadline for filing candidacies for in-state offices for the
general elections, and the last Tuesday in May thus acts as the
ending date for the nonenrollment period. The effect of chapter
53, section 6 in 2004 was to require unenrolled candidates seeking
a place on the ballot for state senate not to have been enrolled as
a member of any political party between February 24, 2004, and May
25, 2004. This year, the state presidential primary was held
within the ninety-day period.
The nonenrollment period for independent candidates for
state-wide (e.g., governor) and federal (e.g., United States
Senator) offices begins one week later, ninety days prior to the
first Tuesday in June. Mass. Gen. Laws ch. 53, § 48. The ninety-
day period thus did not include the presidential primaries for
individuals running for these offices.
A similar scheme is in place for enrolled candidates.
See Mass. Gen. Laws ch. 53, § 48 (individual seeking ballot
placement for elected office as a member of any party, and who thus
seeks to run in a party primary, needs a certificate "certifying
that he has been enrolled as a member of the political party whose
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nomination he seeks throughout the ninety days prior to the last
day herein provided for filing nomination papers [for the primary]
with the state secretary. . . ."). In fact, since section 6
incorporates section 48 by reference, the beginning date of the
period within which candidates running for a given office under a
party banner must have been a member of that party is the exact
same date as the beginning date of the period within which
unenrolled candidates must not have been enrolled as a member of
any party. For state senate candidates, this key date is ninety
days prior to the last Tuesday in May. See Mass. Gen. Laws ch. 53,
§ 48.
Massachusetts General Laws chapter 53, section 37 as
currently in effect states that voters who are unenrolled at the
time of appearing to vote in a primary may generally vote in any
party's primary. Upon appearing to vote in a primary, a ballot
clerk asks unenrolled voters in which primary they "desire[] to
vote"; they may then vote in that primary. Mass. Gen. Laws ch. 53,
§ 37. Generally, an unenrolled voter can vote in party primaries
without losing her unenrolled status.
There is an exception, however, for presidential
primaries; in a presidential primary, upon voting, "the voter shall
become enrolled in and shall remain a member of the political party
whose ballot he received until he files a certificate, signed under
the pains and penalties of perjury, with the board of registrars of
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voters, requesting to have his enrollment changed to another party
or political designation or cancelled . . . ." Mass. Gen. Laws ch.
53, § 37. The change of status back to unenrolled is effective
once the board receives the certificate. See Mass. Gen. Laws ch.
53, § 38. There is no set amount of time that one must remain a
member of the party in whose primary one has just voted;
unenrollment can take place immediately.
Before a 1994 amendment to chapter 53, section 37, all
primary voting by unenrolled voters (not simply such voting in
presidential primaries) automatically enrolled previously
unenrolled voters in that party. See Mass. Gen. Laws Ann. ch. 53,
§ 37, Historical and Statutory Notes. Since the 1994 amendment,
however, only the presidential primaries have had that effect; an
unenrolled voter may vote in all other primaries without losing her
unenrolled status.2
Voters currently enrolled in one party in Massachusetts
may not generally vote in any other party's primary, and they may
not switch their enrollment to another party within twenty days of
a primary. Mass. Gen. Laws ch. 53, § 38. One effect of these laws
is that no voter in Massachusetts, enrolled or unenrolled, may vote
2
A recent amendment to section 37 will take effect on October
13, 2004, fully opening up even the presidential primaries to
unenrolled voters. Unenrolled voters will no longer have to enroll
in a party, even temporarily, in order to vote in a presidential
primary. Thus, the problem presented in this case should not
recur.
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in more than one party's primary on a given primary day. See Mass.
Gen. Laws ch. 53, §§ 37, 38.
McClure is a registered voter in Chelmsford,
Massachusetts, and was a registered Republican until February 10,
2004; on that date he disenrolled and changed his status to
unenrolled. On March 2, 2004, McClure went to the polls to vote in
the Democratic party's presidential primary in Massachusetts. In
his affidavit, he states that on that date, the ballot clerk asked
him in which party's presidential primary he would like to vote and
when he asked for a Democratic party ballot, the clerk put a large
"D" next to his name. McClure then told the ballot clerk that he
did not want to enroll in the Democratic party; the clerk told him
that he would not be enrolled in the Democratic party and handed
him a "certificate" indicating that he was "establishing [his]
voter status as 'unenrolled.'" After voting, a different clerk (an
"exit clerk") took this certificate from McClure. Elizabeth
Delaney, the town clerk of the Town of Chelmsford, stated, in her
affidavit, that the effect of this certificate was merely to
immediately change McClure's enrollment status back to
"unenrolled." However, he was briefly enrolled as a Democrat.
On March 25, 2004, McClure, having satisfied the other
requirements to be an unenrolled candidate for state senate whose
name appears on the ballot, applied to the Chelmsford town clerk
for a voter registration certificate. The town clerk had called
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him the previous day (March 24) and told him over the phone that
she would not be able to grant such a certificate because McClure
voted in the Democratic presidential primary on March 2, 2004,
which enrolled him as a Democrat within ninety days of the May 25
deadline for filing. In this conversation, McClure informed her of
the misinformation he received from the ballot clerk. The town
clerk responded that the election laws are very complex, one cannot
expect a checker at the polls to understand all of their details,
and McClure should have called her as chief election official if he
had any questions or doubts. On March 26, 2004, the town clerk
formally and in writing denied McClure's certificate.
II.
McClure filed suit in federal district court in
Massachusetts on April 26, 2004, alleging that the ninety-day
enrollment restriction effectuated by Massachusetts General Laws
chapter 53, sections 6 and 37 violated his First Amendment speech
and association rights as a voter and as a candidate for public
office. He also asserted that it violated his Equal Protection
Clause rights because it constituted invidious discrimination
against unenrolled voters. He finally alleged both that the
statutory scheme itself gave unconstitutionally inadequate notice
to McClure and that the negligence of various town and state
officials led to a similar lack of notice. McClure sought
declaratory relief, injunctive relief, and attorney's fees.
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Given the time constraints involved, the district court
granted McClure's motion for an expedited hearing on his motion for
a preliminary injunction, and then denied the preliminary
injunction and dismissed the claim under Fed. R. Civ. P. 12(b)(6).
McClure, 2004 WL 1092325, at *1, *4. The district court, relying
on the Supreme Court's decision in Storer v. Brown, 415 U.S. 724
(1974), held that McClure could not state a claim on the merits.
McClure, 2004 WL 1092325, at *2-*3. Storer upheld a California law
preventing candidates from having their names placed on the ballot
in a general election as independents if they had registered with
a political party at any time within one year prior to the date of
the primary election that preceded that general election. Storer,
415 U.S. at 728. The district court held that the scheme at issue
in Storer was identical in its relevant respects to the one at
issue here, thus foreclosing the bulk of McClure's claim. McClure,
2004 WL 1092325, at *2-*3.
The district court also held that McClure's attempt to
distinguish Storer failed; the fact that the scheme at issue here
only applied to presidential primaries and not to all primaries is
a "distinction . . . without a meaningful difference" because "[i]t
is impossible to see how a statute that places an even lesser
burden on an independent voter who desires to seek public office
could be more violative of a voter's rights." Id. at *3. As for
the rest of McClure's claims (arguing lack of fair notice), the
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court cited the principle that citizens are presumed to know the
law and added that the ballot clerk's negligence provided no basis
for a viable estoppel claim. Id.
McClure appealed the denial of the preliminary injunction
and the dismissal of the claim to this court. McClure has not,
however, raised on appeal his claims of lack of fair notice or
misrepresentation by the ballot clerk; those claims are waived.
The only claim before this court is that the statutory scheme
unduly burdens McClure's rights to vote and to run for office.
III.
Appellate review of a trial court's denial of a
preliminary injunction is deferential: we will reverse such a
denial only if the district court "mistook the law, clearly erred
in its factual assessments, or otherwise abused its discretion in
granting" the preliminary injunction. McGuire v. Reilly, 260 F.3d
36, 42 (1st Cir. 2001). Of course, a material error of law
constitutes an abuse of discretion. Review of the dismissal of a
claim under rule 12(b)(6) for failure to state a claim upon which
relief can be granted is de novo. Martin v. Applied Cellular
Tech., Inc., 284 F.3d 1, 5 (1st Cir. 2002). In the end, both the
dismissal of the claim and the denial of the preliminary injunction
turn on pure issues of law.
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The standard of review for a law that burdens ballot
access and voting rights is not static; rather, the Supreme Court
has suggested something of a sliding scale approach and has noted
that there is no "bright line" to separate unconstitutional state
election laws from constitutional ones. Timmons v. Twin Cities
Area New Party, 520 U.S. 351, 359 (1997). We must "weigh the
'character and magnitude' of the burden the [s]tate's rule imposes
[on rights to vote and run for office] against the interests the
state contends justifies that burden, and consider the extent to
which the [s]tate's concerns make the burden necessary. . . .
Regulations imposing severe burdens on plaintiffs' rights must be
narrowly tailored and advance a compelling state interest. Lesser
burdens, however, trigger less exacting review, and a [s]tate's
'important regulatory interests' will usually be enough to justify
'reasonable, nondiscriminatory restrictions.'" Id. at 358 (quoting
Burdick v. Takushi, 504 U.S. 428, 434 (1992)) (citations omitted).
McClure is correct that the state's interests here are
weaker than the interests stated in Storer. The burden imposed on
McClure's rights here is also not severe. In the end, the state's
important regulatory interests, while more fragmented than those in
Storer, are sufficient to justify that burden.
McClure argues that the scheme forces him to make a
difficult choice between two crucial rights, voting and running for
office, because the scheme does not allow him, within a ninety-day
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period, both to run for state senate as an independent and to vote
in a party's presidential primary. But voting in a presidential
primary has never been treated in the same way as voting in a
general election, and indeed, voting in the primary of a party to
which one does not belong is not a constitutional right. See Cal.
Democratic Party v. Jones, 530 U.S. 567, 573 n.5 (2000) ("As for
the associational 'interest' in selecting the candidate of a group
to which one does not belong, that falls far short of a
constitutional right, if indeed it can even fairly be characterized
as an interest. It has been described in our cases as a 'desire'
. . . ."). It is instead an associational right of a political
party to decide whether it wants to include nonmembers in its own
primaries; this is a decision that the state generally must respect
in its regulation of primaries. See id. at 575; Tashjian v.
Republican Party of Conn., 479 U.S. 208, 214-16 (1986); Cool Moose
Party v. Rhode Island, 183 F.3d 80, 85 (1st Cir. 1999).
The Massachusetts scheme, of course, does not operate to
exclude existing Democrats from voting in the presidential primary
and then running for office as Democrats; it only prevents those
who are unenrolled or enrolled in a different party from both
voting in the Democratic presidential primary and then running for
office under their old party designation. The choice that McClure
points to is only a choice between running for political office
(which is surely an important political right) and voting in
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another organization's primary (which is not a constitutional right
at all). The state places no great burden on McClure when it asks
him to refrain from the latter in order to participate in the
former.
The remaining burden imposed on McClure by this statute
is that it forces him to think ninety days ahead before the filing
deadline if he plans on becoming an unenrolled candidate, because
he needs to be careful that he does not vote in a disqualifying
primary within this time period. But Storer held that a potential
candidate was not significantly burdened by a statute that forced
him to think ahead one full year before becoming an independent
candidate. 415 U.S. at 734, 736.
The significance of the burden on McClure is further
reduced by the fact that it falls evenly on all political groups.
The Supreme Court has said that review of election regulations will
be far sharper if there is discrimination against certain distinct
political groups. See, e.g., Anderson v. Celebrezze, 460 U.S. 780,
793-94 (1983). McClure argues that the Massachusetts scheme
discriminates against unenrolled voters, but this is not so. The
scheme applies evenhandedly to enrolled individuals of all parties
as well as to unenrolled individuals. All candidates are banned
from running for office using one enrollment status if they have
held some other enrollment status for the ninety days before the
primary filing deadlines. The rule thus equally burdens
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Republicans, Democrats, and independents. If anything, the laws
give unenrolled voters more rights than other voters by permitting
them to vote in any party's primary (at least if they are willing
to change designations); individuals enrolled in a party cannot
vote in a different party's primary unless they changed their
enrollment more than twenty days before the primary. Mass. Gen.
Laws ch. 53, § 38.
McClure also argues that the election laws discriminate
against individuals running for in-state as opposed to state-wide
and federal offices, because the filing deadline for in-state
offices is one week earlier than the filing deadlines for other
offices. Thus the presidential primaries occurred within the
ninety-day period for in-state offices but not for state-wide or
federal offices. It is not rational to infer from this fact an
intent on the part of a state to discriminate against potential in-
state officials as a group while favoring potential state-wide and
federal officials. No evident reason for an inference of such
discrimination exists. At any rate, the defendants give entirely
legitimate reasons for the different deadlines. Candidates for
state-wide and federal offices generally have higher signature
requirements to get on the ballot than candidates for in-state
offices. See Mass. Gen. Laws ch. 53, § 6. Also, administratively,
it makes more sense for election officials to have two different
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deadlines as opposed to one, to avoid an excessive workload. We
see no invidious discrimination here.
Having found that the laws place little burden on
McClure, we weigh that burden against the state's regulatory
interests in utilizing its scheme. The defendants point to the
state interests articulated in Storer, which were considered
"compelling" in the context of that case. See Storer, 415 U.S. at
736. Those interests included preventing "splintered parties" and
"unrestrained factionalism" and protecting "the stability of [the
state's] political system." Id. As Storer explained, the statute
"protects the direct primary process by refusing to recognize
independent candidates who do not make early plans to leave a party
and take the alternative course to the ballot. It works against
independent candidacies prompted by short-range political goals,
pique, or personal quarrel. It is also a substantial barrier to a
party fielding an 'independent' candidate to capture and bleed off
votes in the general election that might well go to another party."
Id. at 735.
McClure's chief argument is that Storer must be
distinguished because of the state's peculiar scheme as to
primaries. McClure admits that the Massachusetts provision barring
candidates from running as independents if they have been enrolled
as members of other parties within ninety days of the filing
deadline, Mass. Gen. Laws ch. 53, § 6, is very similar to (and in
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fact much less stringent than) the provision at issue in Storer.
However, he challenges the way he became enrolled, by voting in the
Massachusetts presidential primary, pursuant to Massachusetts
General Laws chapter 53, section 37. He argues that people like
him, who were enrolled in a party only through voting in a
presidential primary and who were enrolled for a very short period
of time, cannot constitutionally be disqualified from being placed
on the ballot as independents because the state has no important
interest in disqualifying such people.
McClure asserts that many of the interests at play in
Storer do not apply to his case because the enrollment requirements
here only apply to presidential primaries, and McClure is seeking
to run in a state race. Thus, the concern in Storer about sore
loser candidates who run as independents in order to bring intra-
party disputes outside of the party is not present in his case.
McClure also argues that the fact that Massachusetts only forces
unenrolled voters who vote in presidential primaries, and not other
sorts of primaries, to affiliate with a party, and that even when
such affiliation is forced, it need only be very brief because a
voter (like McClure) can immediately unenroll, shows that the state
interest in closing primaries to non-affiliates is weak. McClure
notes that the Massachusetts Supreme Judicial Court has stated that
the Massachusetts primary scheme "blur[s] any meaningful
distinction between open and closed primaries." Metros v. Sec'y of
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the Commonwealth, 484 N.E.2d 1015, 1021 n.9 (Mass. 1985)(quoting
Langone v. Sec'y of the Commonwealth, 446 N.E.2d 43, 47 (Mass.
1983)) (internal quotation marks omitted).
This case is not precisely on all fours with Storer: the
state interests at play in the Massachusetts scheme are far weaker
than the state interests at play in the California scheme at issue
in Storer. Concerns about sore losers and short-term candidacies
motivated by intra-party quarrel are not particularly well served
by this scheme. Still, the scheme does help serve some other
important state interests. It provides some assurance that
unenrolled candidates actually are independent of party
affiliations. Also, like the law upheld in Storer, it forces
potential candidates for office to think ahead before the filing
deadline, thus weeding out frivolous candidacies and only
permitting serious candidates to go forward.
It is true that these state interests would be served
more strongly by a scheme which made all primaries truly closed
(thus forcing all primary voters to have prior enrollment in the
party) and which disallowed all voters in such truly closed
primaries from running for office under another party's banner or
as an unenrolled candidate. The state's 1994 switch from a scheme
that required party affiliation from unenrolled voters for voting
in all primaries to a scheme that required affiliation only for
voting in presidential primaries reflected a move towards the
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opening up of the primary system to independent voters. The
purpose seems to have been to increase voter participation as a
whole in those electoral contests. See 1993 Mass. Acts ch. 475
(one key purpose of the emergency bill in which the 1994 amendments
were embedded was to "increase electoral participation in the
commonwealth").
But the state had an important reason for retaining the
enrollment requirement for presidential primaries: it was trying to
serve the will of the parties themselves. The Democratic Party of
the United States has a charter provision stating that delegates to
the party's national convention must be chosen through processes
which "restrict participation to Democrats only." The Charter &
The Bylaws of the Democratic Party of the United States, art. 2, §
4(e). No party has challenged the enrollment requirement for
presidential party primaries since the 1994 amendment. States
generally must respect the wishes of parties about who should be
included in their own primaries, see Jones, 530 U.S. at 575;
Tashjian, 479 U.S. at 214-16; Cool Moose Party, 183 F.3d at 85, so
clearly acceding to these wishes constitutes an important state
interest.
As well, the state could easily conclude that
presidential primaries were different from other types of
primaries; these types of primaries could justifiably be thought of
as much more susceptible to inundation from non-affiliated voters
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than other primaries because their turnout tends to be so much
higher and the interest that they inspire so much broader.
Further, there is less need to open these presidential primaries in
order to encourage voter participation.
The state (again reflecting the interests of the two
political parties) can thus have a strong interest in trying to
curb the impact of non-affiliated voters on a party presidential
primary. See Jones, 530 U.S. at 581-82 (law forcing parties to
open primaries to all voters was unconstitutional because it
"adulterat[ed]" their candidate selection process); Rosario v.
Rockefeller, 410 U.S. 752, 760-62 (1973) (upholding statute
designed to prevent inter-party raiding in primaries). Forcing
presidential primary voters to enroll in the party ameliorated this
potential problem. Disqualification from getting on the ballot as
an independent is only a small piece of the disincentive scheme
that is operating. For example, while McClure immediately
disaffiliated from the Democratic party, many voters do not; the
enrollment thus has the effect of making it more difficult for
voters to vote in any primary involving another party during the
next election cycle. Thus, even if the state chose, as it did in
1994, to open up other primaries, its interest in moving
incrementally and not opening presidential primaries is a strong
one. It is sufficient to survive the level of scrutiny we apply
under Timmons.
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McClure's final argument is that there were various
alternative ways in which the state could have tailored its scheme
to achieve the same ends with less of an infringement on his
interests. For example, the state could have pushed back the
filing deadline for in-state offices roughly a week, thus moving
the presidential primaries out of the ninety-day window. But our
review here is far from strict scrutiny and we will not speculate
as to all of the other conceivable ways in which the state could
have set up its framework. It is enough that the existing
framework serves the significant state interests noted above.
We hold that the state interests in this statutory
framework outweigh the infringement on McClure's rights. Because
we resolve the case on these grounds, we need not reach the state's
argument that McClure's delay in prosecuting this appeal renders it
impracticable to fashion appropriate, non-disruptive relief.
IV.
The district court's denial of a preliminary injunction
and dismissal of the claim are affirmed.
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McClure v. Galvin
Court: Court of Appeals for the First Circuit
Date filed: 2004-10-08
Citations: 386 F.3d 36
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