South Carolina Green Party v. South Carolina State Election Commission

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SOUTH CAROLINA GREEN PARTY; 

EUGENE PLATT; ROBERT DUNHAM,

Plaintiffs-Appellants,

v.

SOUTH CAROLINA STATE ELECTION

COMMISSION; JOHN H. HUDGENS, in

their official capacities as

members of the South Carolina

State Election Commission;

CYNTHIA M. BENSCH, in their

official capacities as members of

the South Carolina State Election

Commission; TRACEY C. GREEN, in  No. 09-1915

their official capacities as

members of the South Carolina

State Election Commission;

PAMELLA B. PINSON, in their

official capacities as members of

the South Carolina State Election

Commission; THOMAS WARING, in

their official capacities as

members of the South Carolina

State Election Commission;

CHARLESTON COUNTY DEMOCRATIC

PARTY,

Defendants-Appellees.



Appeal from the United States District Court

for the District of South Carolina, at Columbia.

Cameron McGowan Currie, District Judge.

(3:08-cv-02790-CMC)

2 SOUTH CAROLINA GREEN PARTY v. SOUTH CAROLINA

Argued: May 11, 2010

Decided: July 20, 2010

Before KEENAN, Circuit Judge, HAMILTON, Senior

Circuit Judge, and Samuel G. WILSON, United States

District Judge for the Western District of Virginia,

sitting by designation.

Affirmed by published opinion. Judge Keenan wrote the opin-

ion, in which Senior Judge Hamilton and Judge Wilson

joined.

COUNSEL

ARGUED: Bryan Sells, AMERICAN CIVIL LIBERTIES

UNION FOUNDATION, Atlanta, Georgia, for Appellants.

Andrew Lindemann, DAVIDSON, MORRISON & LINDE-

MANN, PA, Columbia, South Carolina, for Appellees. ON

BRIEF: Laughlin McDonald, AMERICAN CIVIL LIBER-

TIES UNION FOUNDATION, Atlanta, Georgia, for Appel-

lants. Matthew T. Richardson, WYCHE, BURGESS,

FREEMAN & PARHAM, P.A., Columbia, South Carolina,

for Appellee Charleston County Democratic Party.

OPINION

KEENAN, Circuit Judge:

Eugene Platt and the South Carolina Green Party challenge

the constitutionality of South Carolina’s "sore-loser" statute,

S.C. Code § 7-11-10, as applied to Platt’s Green Party candi-

dacy for South Carolina House Seat 115.1 The district court

1

Although the 2008 general election for South Carolina House Seat 115

has passed, the challenge to South Carolina’s sore-loser statute is not moot

SOUTH CAROLINA GREEN PARTY v. SOUTH CAROLINA 3

upheld the constitutionality of the statute as applied to Platt’s

candidacy and, for the following reasons, we affirm.

I.

In 2008, Platt sought to become a fusion candidate2 in the

election for South Carolina House Seat 115, seeking the nom-

ination of three political parties, the South Carolina Demo-

cratic Party (Democratic Party), the South Carolina Green

Party (Green Party), and the South Carolina Working Fami-

lies Party (Working Families Party). On March 17, 2008, Platt

filed a statement of intention of candidacy with the Demo-

cratic Party. Ten days later, he filed a similar statement with

the Working Families Party.

On May 3, 2008, Platt filed an additional statement of can-

didacy with the Green Party. That same day, the Green Party

chose Platt as its nominee during a state convention. On May

10, 2008, the Working Families Party chose Platt as its nomi-

nee.

On June 10, 2008, Platt lost the Democratic Party primary

election. After Platt’s loss in the primary, the South Carolina

State Election Commission (the Election Commission) noti-

fied Platt that based on South Carolina’s sore-loser statute,

S.C. Code § 7-11-10, his name could not appear on the ballot

for the general election as the nominee for the Green Party or

for the Working Families Party. The statute provides, in rele-

vant part:

[N]o person who was defeated as a candidate for

because it presents issues that are "capable of repetition, yet evading

review." See Storer v. Brown, 415 U.S. 724, 737 n.8 (1974).

2

Electoral fusion is a practice that allows a candidate to appear on a

general election ballot as the nominee of more than one certified political

party and to receive the total number of votes cast for that candidate.

4 SOUTH CAROLINA GREEN PARTY v. SOUTH CAROLINA

nomination to an office in a party primary or party

convention shall have his name placed on the ballot

for the ensuing general or special election . . . .

S.C. Code § 7-11-10.

Platt, along with the Green Party and Robert Dunham, a

registered South Carolina voter who supported Platt, (collec-

tively, the plaintiffs) filed an action against the Election Com-

mission and various other defendants (collectively, the

Election Commission), asserting that application of the sore-

loser statute violated the Green Party’s rights of association

protected by the First and Fourteenth Amendments. After the

parties filed cross-motions for summary judgment, the district

court granted summary judgment in favor of the Election

Commission and denied the plaintiffs’ motion, holding that

the sore-loser statute is constitutional as applied to Platt’s

Green Party candidacy.

On appeal, the plaintiffs argue that the sore-loser statute is

unconstitutional when applied to the Green Party’s nominee,

Platt, because he successfully secured the nomination of the

Green Party before losing his attempt to become the Demo-

cratic Party nominee. According to the plaintiffs, application

of the sore-loser statute to bar Platt’s name from the general

election ballot as the Green Party’s candidate imposed a

severe burden on the Green Party’s association rights. The

plaintiffs contend that application of the statute effectively

permitted the Democratic Party primary voters to "veto" the

Green Party’s preferred candidate and prevented the Green

Party from nominating a substitute candidate. Notably, the

plaintiffs do not argue that Platt’s individual rights of associa-

tion have been affected by the Election Commission’s appli-

cation of the sore-loser statute.

The plaintiffs ask that we apply a strict scrutiny review to

their claim in light of the allegedly severe burden imposed on

the Green Party’s association rights. The plaintiffs contend

SOUTH CAROLINA GREEN PARTY v. SOUTH CAROLINA 5

that when a strict scrutiny standard is used, the sore-loser stat-

ute is unconstitutional as applied because the statute is not

narrowly tailored to advance South Carolina’s interest in min-

imizing excessive factionalism. As a result, the plaintiffs

maintain, this Court should hold that the statute is unconstitu-

tional as applied to Platt’s candidacy with the Green Party.

In response, the Election Commission argues that the Green

Party’s association rights were not severely burdened and,

therefore, strict scrutiny should not apply to our review of the

sore-loser statute. The Election Commission contends that

Democratic primary voters did not effectively "veto" the

Green Party’s selection of Platt as its nominee because Platt’s

decision to run in the Democratic primary, rather than any

interference by Democratic voters, placed him at risk of dis-

qualification as the Green Party nominee. According to the

Election Commission, South Carolina’s sore-loser statute

serves to promote several important state regulatory interests.

Thus, the Election Commission asks that we hold that the

sore-loser statute is constitutional as applied to Platt’s Green

Party candidacy.

II.

Our standard of review is well established. We review a

grant of summary judgment de novo. News & Observer

Publ’g Co. v. Raleigh-Durham Airport Auth., 597 F.3d 570,

576 (4th Cir. 2010).

A.

The First Amendment, as incorporated against the states by

the Fourteenth Amendment, protects the rights of individuals

to associate for the advancement of political beliefs and ideas.

Kusper v. Pontikes, 414 U.S. 51, 56-57 (1973). These rights

include the freedom for individuals to "band together" in

political parties to promote electoral candidates who support

their political views. Cal. Democratic Party v. Jones, 530

6 SOUTH CAROLINA GREEN PARTY v. SOUTH CAROLINA

U.S. 567, 574 (2000). Such political parties have a right to

choose their "standard bearer" in the form of a nominee. Eu

v. San Francisco County Democratic Cent. Comm., 489 U.S.

214, 224 (1989).

When analyzing whether a state election law impermissibly

infringes on association rights protected by the First and Four-

teenth Amendments, courts must "weigh the ‘character and

magnitude’ of the burden the State’s rule imposes on those

rights against the interests the State contends justify that bur-

den, and consider the extent to which the State’s concerns

make the burden necessary." Timmons v. Twin Cities Area

New Party, 520 U.S. 351, 358 (1997) (quoting Anderson v.

Celebrezze, 460 U.S. 780, 789 (1983)). Regulations that

impose a severe burden on association rights are subject to

strict scrutiny, and a court applying this level of review may

uphold the regulation only if it is "narrowly tailored and

advance[s] a compelling state interest." Id. However, if a stat-

ute imposes only modest burdens, then "a State’s ‘important

regulatory interests’ will usually be enough to justify ‘reason-

able, nondiscriminatory restrictions.’" Id. (quoting Burdick v.

Takushi, 504 U.S. 428, 434 (1992)).

Decisions in previous cases have recognized the various

state interests furthered by sore-loser statutes. In Storer v.

Brown, 415 U.S. 724, 735 (1974), the Supreme Court

addressed a California sore-loser provision, and emphasized

the importance of sore-loser statutes in discouraging intra-

party feuding and in reserving "major struggles" for general

election ballots. See also Backus v. Spears, 677 F.2d 397,

399-400 (4th Cir. 1982). The Supreme Court later explained,

in Clingman v. Beaver, 544 U.S. 581, 596 (2005), that sore-

loser statutes prevent a candidate who has lost a party primary

or nomination from effecting a "splinter" of a major political

party, by joining a minor party while retaining the support of

the major party’s voters, thereby undermining the major party

in the general election.

SOUTH CAROLINA GREEN PARTY v. SOUTH CAROLINA 7

We have recognized that South Carolina’s sore-loser statute

is "substantially identical" to California’s sore-loser provision

discussed in Storer. Backus, 677 F.2d at 400. We further have

stated that South Carolina’s sore-loser statute is a "justifiable

measure[ ] for preventing splintering and factionalism within

the major parties." Cromer v. South Carolina, 917 F.2d 819,

825 (4th Cir. 1990). In the context of these statements, we

consider the constitutionality of South Carolina’s sore-loser

statute as applied to the Green Party’s association rights.

B.

We first address whether the South Carolina sore-loser stat-

ute placed a severe burden on the Green Party’s right to

choose its own candidate. The plaintiffs argue that the burden

imposed by the statute is severe, because Platt’s loss in the

Democratic primary occurred after the Green Party nominated

Platt and was unable to select a replacement candidate. The

plaintiffs contend that the burden imposed on its association

rights to choose a "standard bearer" is no less severe than the

burden imposed by the California law at issue in Jones, 530

U.S. 567. We disagree with the plaintiffs’ arguments.

The law invalidated by the Supreme Court in Jones man-

dated a "blanket" primary election in which voters, regardless

of party affiliation, were permitted the right to vote for a nom-

inee of a different party. Id. at 570. The Supreme Court held

that California’s blanket primary imposed a severe burden on

political parties’ freedom of association, because this type of

primary permitted members of one political party to partici-

pate in the selection of a nominee for another rival political

party. Id. at 577.

In contrast, the Supreme Court held in Timmons that Min-

nesota’s ban on electoral fusion did not severely burden a

political party’s association rights. 520 U.S. at 363. The appli-

cable Minnesota laws prohibited a candidate from appearing

on the general election ballot as the candidate for more than

8 SOUTH CAROLINA GREEN PARTY v. SOUTH CAROLINA

one political party. Id. at 354. The Supreme Court explained

that a party’s association rights are not severely burdened

when a particular individual is barred from the ballot as that

party’s candidate. Id. at 359. In refusing to apply strict scru-

tiny review to the "fusion ban," the Supreme Court noted that

the challenged laws did "not restrict the ability of the [party]

and its members to endorse, support, or vote for anyone they

like." Id. at 363. The Court observed that the party remained

"free to try to convince" its nominee to refrain from seeking

the nomination of another political party. Id. at 360.

Applying these principles, we conclude that the burden the

sore-loser statute placed on the Green Party’s association

rights is not severe. Unlike the blanket primary in Jones, the

South Carolina sore-loser statute did not force the Green Party

"to have [its] nominees, and hence [its] positions" determined

by members of other political parties. See Jones, 530 U.S. at

577. The Green Party retained the right to select Platt, or any

other candidate, at its state convention. It was Platt’s own

decision to seek the Democratic Party’s nomination, not inter-

ference by members of the Democratic Party in the Green

Party’s nomination process, that affected the Green Party’s

ability to retain Platt on the general election ballot as its pre-

ferred nominee. In addition, the Green Party was "free to try

to convince" Platt to refrain from seeking the nomination of

another political party. See Timmons, 520 U.S. at 360.

As the Supreme Court held in Timmons, the fact "[t]hat a

particular individual may not appear on the ballot as a particu-

lar party candidate does not severely burden that party’s asso-

ciation rights." Id. at 359. Thus, we conclude that although the

sore-loser statute prevented the Green Patty from having its

preferred nominee on the ballot, this result did not, of itself,

create a severe burden on the Green Party’s association rights.

See id.

The plaintiffs contend, however, that they were not merely

denied their choice of preferred candidate but also were

SOUTH CAROLINA GREEN PARTY v. SOUTH CAROLINA 9

denied the right to name a substitute candidate because Platt

was not "disqualified" as the Green Party candidate, within

the meaning of South Carolina Code § 7-11-50. According to

the plaintiffs, because Platt could have been elected as a

"write-in" candidate in the general election, he was not "dis-

qualified" from appearing on the general election ballot. We

disagree with the plaintiffs’ interpretation of the statute.

Under South Carolina Code § 7-11-50, if a party nominee

is "disqualified" after his nomination, a political party may

nominate a new candidate for the office. Because South Caro-

lina law does not define the term "disqualified" for purposes

of this statute, we rely on the statutory construction rules

applied by South Carolina’s highest court in the interpretation

of statutes. In re DNA Ex Post Facto Issues, 561 F.3d 294,

300 (4th Cir. 2009).

Under South Carolina law, "[W]ords in a statute must be

construed in context. . . . [T]he meaning of particular terms

in a statute may be ascertained by reference to words associ-

ated with them in the statute." Hill v. York County Natural

Gas Auth., 682 S.E.2d 809, 811-12 (S.C. 2009). "The lan-

guage must also be read in a sense which harmonizes with its

subject matter and accords with its general purpose." Id. at

812.

Section 7-11-50 states, in relevant part:

If a party nominee who was nominated by a method

other than party primary election dies, becomes dis-

qualified after his nomination, or resigns his candi-

dacy for a legitimate nonpolitical reason as defined

in this section and sufficient time does not remain to

hold a convention to fill the vacancy or to nominate

a nominee to enter a special election, the respective

state or county party executive committee may nom-

inate a nominee for the office, who must be duly cer-

tified by the respective county or state chairman.

10 SOUTH CAROLINA GREEN PARTY v. SOUTH CAROLINA

S.C. Code § 7-11-50.

The plain language of Section 7-11-50 refutes the plain-

tiffs’ argument. That statutory language addresses the circum-

stances in which a "party nominee" may be "disqualified"

from representing a "party" after a "nomination." Because the

Election Commission applied the sore-loser statute after

Platt’s loss in the Democratic primary, thereby preventing

him from appearing on the general election ballot as the

Green Party nominee, he was "disqualified" as a "party nomi-

nee" after his "nomination," within the meaning of Section 7-

11-50.3

We disagree with the plaintiffs’ contention that the holding

in Redfearn v. Board of State Canvassers, 107 S.E.2d 10 (S.C.

1959), alters this analysis. In Redfearn, the Supreme Court of

South Carolina held that voters who had taken an oath under

South Carolina law to support the primary nominees in the

general election were not disqualified from voting against

those nominees in the general election. Id. at 11. This holding

is not relevant to our analysis, because the holding does not

refer to South Carolina Code § 7-11-50, nor does the holding

address the issue of when a party nominee is "disqualified,"

as that term is used in Section 7-11-50.

Likewise, the timing of Platt’s loss in the Democratic pri-

mary, after having secured the Green Party nomination, does

not alter our conclusion that the sore-loser statute imposed a

modest, rather than a severe, burden on the Green Party’s

association rights. The burden imposed by the sore-loser stat-

ute was the Green Party’s loss of its ability to field its pre-

ferred candidate, an event unchanged by the date that this

disqualification occurred. Thus, we conclude that the timing

3

We also observe that the district court found that the Green Party could

have nominated a substitute candidate. Although the Green Party contends

that it was unable to name a replacement candidate, it has failed to demon-

strate that the district court’s finding was incorrect.

SOUTH CAROLINA GREEN PARTY v. SOUTH CAROLINA 11

of Platt’s loss is relevant only to the issue whether the state

had an important regulatory interest in the enforcement of the

sore-loser statute in this case. See Timmons, 520 U.S. at 358.

Accordingly, we will address this circumstance of timing

after, not as a part of, our determination of the level of scru-

tiny to be applied to the sore-loser statute.

Because Platt was "disqualified" from appearing on the bal-

lot by operation of the sore-loser statute, the Green Party

could have nominated a substitute candidate. See S.C. Code

§ 7-11-50. Additionally, because Platt’s loss did not affect the

Green Party’s right to nominate its own candidate, but only

affected the Green Party’s right to nominate Platt as its pre-

ferred candidate, we conclude that the burden imposed by the

sore-loser statute in this case is no greater than the modest

burden imposed by the fusion ban at issue in Timmons. See

Timmons, 520 U.S. at 359. Therefore, we hold that the impact

of the sore-loser statute imposed only a modest burden on the

Green Party’s association rights, and we will not engage in

strict scrutiny of those asserted rights.

C.

Having determined that strict scrutiny is not warranted in

the present case, we next examine South Carolina’s regulatory

interests advanced by the sore-loser statute. When, as here, a

statute places only a modest burden on association rights, "a

State’s important regulatory interests will usually be enough

to justify its reasonable, nondiscriminatory restrictions." See

Timmons, 520 U.S. at 358 (internal quotation marks omitted).

We conclude that South Carolina’s sore-loser statute

advances several state regulatory interests that are important.

As we previously have recognized, South Carolina’s sore-

loser statute advances the state’s interest in minimizing exces-

sive factionalism and party splintering. See Cromer, 917 F.2d

at 825. The sore-loser statute also operates to reduce the pos-

sibility of voter confusion that could occur when a candidate’s

12 SOUTH CAROLINA GREEN PARTY v. SOUTH CAROLINA

name appears on the ballot after losing a primary race. See

Timmons, 520 U.S. at 364 (recognizing Minnesota’s state

interest in avoiding voter confusion). Likewise, the sore-loser

statute furthers the state’s interest in ensuring orderly, fair,

and efficient procedures for the election of public officials.

See id.

Nevertheless, the plaintiffs attempt to distinguish our deci-

sion in Cromer based on the timing of Platt’s defeat in the pri-

mary. The plaintiffs argue that Platt did not "splinter" the

Democratic Party by seeking the Green Party’s nomination

after losing in the Democratic primary but sought the Green

Party nomination at the outset of the primary process. We dis-

agree with the plaintiffs’ argument.

The state’s regulatory interest in the enforcement of the

sore-loser statute was not mitigated by Platt’s nomination as

the Green Party candidate before his loss in the Democratic

primary. The timing of his primary loss did not relieve South

Carolina’s concern in limiting factionalism, because if Platt

had remained on the ballot as the Green Party nominee after

his loss in the Democratic primary, Democratic voters who

supported Platt in the primary election could have voted for

Platt in the general election. In this manner, by appearing on

the general election ballot as the Green Party candidate, Platt

could have splintered the Democratic Party voter base. There-

fore, we conclude that South Carolina had important regula-

tory interests that justified the modest burden imposed by its

nondiscriminatory application of the sore-loser statute, see

Burdick, 504 U.S. at 434, and that the sore-loser statute did

not impermissibly infringe on the Green Party’s association

rights, see Timmons, 520 U.S. at 358.

D.

Finally, we observe that South Carolina’s status as a state

permitting "fusion" candidates does not alter our analysis of

the Green Party’s association rights. The absence of a statu-

SOUTH CAROLINA GREEN PARTY v. SOUTH CAROLINA 13

tory ban on fusion candidacies allows candidates to seek nom-

inations from multiple parties. See Timmons, 520 U.S. at 363.

However, the system of electoral fusion does not in any

respect limit a political party’s association rights to choose its

nominee. Accordingly, we hold that South Carolina’s sore-

loser statute is constitutional as applied to Platt’s Green Party

candidacy, and that Platt properly was barred from having his

name appear on the general election ballot as the Green

Party’s candidate based on the statute’s application. See id. at

369-70.

E.

The plaintiffs separately challenge the constitutionality of

South Carolina’s "party loyalty" statute, S.C. Code § 7-11-

210, as applied to Platt’s candidacy. However, we do not

reach this issue because the constitutional application of the

sore-loser statute, which barred Platt’s candidacy as the Green

Party’s nominee, effectively prohibited Platt from appearing

on the general election ballot as the nominee of any political

party. Therefore, the issue of the constitutionality of the party

loyalty statute as applied to Platt’s Green Party candidacy is

rendered moot by our holding on the sore-loser statute.4

III.

For these reasons, we affirm the district court’s holding that

4

Because the plaintiffs failed to allege in their amended complaint that

the Green Party’s association rights were severely burdened by the party

loyalty statute’s restriction on Platt’s campaigning, this issue was not

before the district court and is not before us in this appeal. See Feikema

v. Texaco, Inc., 16 F.3d 1408, 1411 n.* (4th Cir. 1994). The plaintiffs also

failed to raise any facial challenge to the party loyalty statute in their dis-

trict court pleadings and, therefore, we do not address these challenges

that they have raised on appeal. Id.

14 SOUTH CAROLINA GREEN PARTY v. SOUTH CAROLINA

South Carolina’s sore-loser statute is constitutional as applied

to Platt’s Green Party candidacy.5

AFFIRMED

5

We do not reach the plaintiffs’ remaining argument concerning the

constitutionality of South Carolina’s "filing deadline" statute, S.C. Code

§ 7-11-15, as applied to Platt’s Green Party candidacy. The parties have

agreed that this challenge to the filing deadline statute is no longer rele-

vant to this appeal.