Libertarian Party of Alabama v. Merrill

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

LIBERTARIAN PARTY OF ALABAMA )

)

Plaintiff, )

)

v. ) CIV. ACT. NO. 2:19-cv-69-ECM

) [WO]

JOHN HAROLD MERRILL, )

Secretary of State for the State of Alabama, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

The Libertarian Party of Alabama (“Libertarian Party”) filed a this action

challenging the State of Alabama’s policy of providing some political parties a free copy

of the voter registration list while charging other parties a substantial fee. The Libertarian

Party argues that this policy violates its Equal Protection Rights under the Fourteenth

Amendment and the Free Speech Clause of the First Amendment.

This case is before the Court on Defendant’s Motion to Dismiss for failure to state

a claim. (Doc. 5). For the reasons stated below, this motion is due to be denied.

I. BACKGROUND1

1 This recitation of the facts is based upon the Plaintiff’s Complaint, which is presumed to be true

for the purposes of this motion. In support of his Motion to Dismiss, the Defendant submitted the

Declaration of Clay S. Helms, Director of Elections and Supervisor of Voter Registration for the Alabama

Secretary of State. Through this Declaration, the Defendant presents evidence and arguments regarding the

justification for the policy in question. Because this matter is before the Court on a Rule 12(b)(6) Motion

to Dismiss, the Court declines to consider the declaration. See Jones v. Auto Ins. Co. of Hartford, Conn.,

917 F.2d 1528–32 (11th Cir. 1990) (“It is within the judge’s discretion to decide whether to consider matters

outside of the pleadings that are presented to the court [when presented with a motion to dismiss].”). The

Court further declines to convert the Defendant’s Motion to Dismiss to a Motion for Summary Judgment.

Pursuant to state law, Alabama maintains a computerized voter registration list that

contains the name, address, voting location, and voting history of every legally registered

voter in the state. ALA. CODE § 17-4-33. Following every state and county election, each

political party that satisfied the ballot access requirements is automatically provided a copy

of the voter list free of charge and may later receive two additional electronic copies in the

next calendar year. Id.

A party may attain ballot access by either (1) performance or (2) petition. In the

case of performance, a party may qualify if it achieved at least 20% of the entire vote cast

for a state officer in the prior General Election. ALA. CODE § 17-13-40. This qualification

is only good for the next election, so a party must repeatedly get 20% of the vote for at

least one state officer to qualify under § 17-13-40 for the next cycle. If a party does not

secure 20% of the vote for a state official, it must file a petition by the date of the first

primary election for the next election with signatures of at least 3% of the qualified voters

who cast a ballot for the governor in the last election. ALA. CODE § 17-6-22(a).

In 2000, the Libertarian Party qualified for ballot access after it collected enough

signatures to run a slate of candidates, with one statewide candidate receiving over 20% of

the vote. By garnering 20% of the vote in a state-wide election, the Libertarian Party gained

ballot access for the next election without a petition. The Libertarian Party then lost ballot

access in 2002. The Libertarian Party continued to run candidates as independents through

the less demanding process that resulted in the candidates not being identified as belonging

to the Libertarian Party on the ballot.

Under Alabama law, the Libertarian Party does not currently qualify for ballot

access and thus, is not entitled a free copy of the voter registration list. See ALA. CODE §

17-4-33(a)(10) (states that a free list is available to “each political party that satisfied the

ballot access requirements for that election”); ALA. CODE § 17-4-38 (providing for the

“reasonable” and “uniform” charge for the production of voter lists to applicants not

otherwise entitled to it without charge). Currently, pursuant to § 17-4-33(a)(10), only the

Democratic and Republican parties receive a free copy of the voter list while political

parties must pay approximately $34,000. The Libertarian Party argues that this cost is

prohibitively expensive for minor parties seeking the same list provided at no cost to major

parties. The Libertarian Party explains that this list is important because it allows a political

party to know the number of voters in a location so that the party can prioritize its efforts

to gain support, it lets the party reach out to registered voters by name, at their home, to

solicit support, and it assists parties in seeking out politically like-minded voters to obtain

ballot access signatures and win elections for party candidates. The Libertarian Party is

particularly interested in this list in order to begin collecting signatures to gain ballot access

for the 2020 election. (Doc. 1 at 6).

Due to the State’s policy that has the effect of providing the Democratic and

Republican parties with the voter list free of charge, while charging the Libertarian Party

approximately $34,000 for the same list, the Libertarian Party brings a § 1983 claim for

violation of the Libertarian Party’s First Amendment Rights and its Equal Protection Rights

under the Fourteenth Amendment. Specifically, the Libertarian Party brings a facial and

as applied challenge to the constitutionality of Alabama Code § 17-4-33(a)(10) and § 17-

4-38.

II. LEGAL STANDARD

A Rule 12(b)(6) motion to dismiss tests the sufficiency of the complaint against the

legal standard set forth in Rule 8: “a short and plain statement of the claim showing that

the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss,

a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U. S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U. S. 544, 570 (2007)). “Determining whether a complaint

states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing

court to draw on its judicial experience and common sense.” Id. at 679.

The plausibility standard requires “more than a sheer possibility that a defendant

has acted unlawfully.” Iqbal, 556 U. S. at 678. Conclusory allegations that are merely

“conceivable” and fail to rise “above the speculative level” are insufficient to meet the

plausibility standard. Twombly, 550 U. S. at 555, 570. This pleading standard “does not

require ‘detailed factual allegations,’ but it demands more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678. Indeed, “[a]

pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a

cause of action will not do.’” Id.

III. DISCUSSION

A. The Libertarian Party pleads sufficient facts to defeat the Defendant’s

Motion to Dismiss.

The Libertarian Party argues that the Alabama law penalizes minor parties by

charging them a steep fee while providing major parties the same list for free, violating the

Free Speech Clause of the First Amendment and the Equal Protection Clause of the

Fourteenth Amendment. The Defendant responds that any party that qualifies for state-

wide ballot access may receive the list for free. Thus, the Defendant denies that the state

is treating political parties differently based their status as major or minor parties, but

instead argues that ballot access is the determining factor, one that applies with equal force

to political parties and to the general public.

Other courts that have addressed similar challenges have found cognizable claims.

See Socialist Workers Party v. Rockefeller, 314 F. Supp. 984 (S.D.N.Y.), judgment aff’d,

400 U.S. 806 (1970) (holding that a New York law that provided for free copies for major

political parties and charged minor parties violated Equal Protection); Schultz v. Williams,

44 F.3d 48, 60 (2nd Cir. 1994) (affirmed the district court’s decision that a New York law

that provided a free voter registration list only to political parties that achieved over 50,00

votes in the prior gubernatorial election was unconstitutional); Fusaro v. Cogan, 930 F.3d

241 (4th Cir. 2019) (reversing the district court’s dismissal of the Plaintiff’s complaint and

remanding the case to consider the claims on their merits under the Anderson-Burdick test).

The Court determines that the Libertarian Party likewise sufficiently states a claim against

the Defendant.

B. In order for the Court to conduct the appropriate legal test, it must consider

evidence.

The Defendant argues that in evaluating the constitutionality of the challenged law,

the Court should apply the Anderson-Burdick test. See Democratic Exec. Comm. of Fla.

v. Lee, 915 F.3d 1312, 1318 (11th Cir. 2019) (citing Anderson v. Celebrezze, 460 U.S. 780,

789 (1983); Burdick v. Takushi, 504 U.S. 428, 434 (1992)). Pursuant to that test, courts

“weigh the character and magnitude of the asserted First and Fourteenth Amendment injury

against the state’s proffered justifications for the burdens imposed by the rule, taking into

consideration the extent to which those justifications require the burden to the plaintiffs’

rights.” Democratic Exec., 915 F.3d at 1318. Regulations that impose severe burdens on

a plaintiff’s rights “must be narrowly tailored and advance a compelling state interest.”

Timmons v. Twin Cities Area New Party, 520 U.S. 351, 359 (1997). Regulations that

impose lesser burdens trigger “less exacting review” and a state’s “important regulatory

interests” will usually be enough to justify “reasonable, nondiscriminatory restrictions.” Id.

(citing Burdick, 504 U.S. at 434). The Supreme Court also urged that “no bright line

separates permissible election-related regulation from unconstitutional infringements on

First Amendment freedoms.” Timmons, 520 U.S. at 359; see also Storer v. Brown, 415

U.S. 724, 730 (1974) (“no litmus-paper test . . . separate[es] those restrictions that are valid

from those that are invidious . . .The rule is not self-executing and is no substitute for the

hard judgments that must be made”).

The Defendant points to the Supreme Court’s analysis in Timmons to argue that this

Court should similarly evaluate the burden here. In Timmons, the Supreme Court held that

Minnesota’s ban on multiple-party candidacies for elected office did not violate the First

and Fourteenth Amendments. Timmons, 520 U.S. 351 (1997). There, the state banned the

practice of one candidate appearing on the ballot as the candidate of more than one party,

which was referred to as a “fusion” candidacy. Id. at 353–354. The New Party filed suit

arguing that the antifusion law violated the party’s associational rights under the First and

Fourteenth Amendments. Id. at 354. The New Party continued that the ban stripped the

party of an important tool in developing consensus alliances and broadening its base of

support. Id. at 360. It claimed the burden was severe because party members would be

forced to decide between voting for a candidate with no chance of winning; voting for

major party candidates; or voting for no candidate at all. Id.

The Court agreed with the New Party that the ban would prevent the party from

using the ballot to communicate to the public that it supported a candidate. Id at 362. The

Court held, however that it was “unpersuaded” “by the party’s contention that it has a right

to use the ballot itself to send a particularized message, to its candidate and to the voters,

about the nature of its support for the candidate.” Id. at 363. The Court reasoned that the

New Party could still use the ballot to communicate its support for a candidate if the

candidate was not already another party’s candidate. Moreover, the Court agreed that the

state had an interest in protecting the integrity and efficiency of its election process and the

antifusion rule prevented transforming the ballot’s purpose as “a means of choosing

candidates to a billboard for political advertising.” Id. at 365. Accordingly, the Court held

that there were no First or Fourteenth Amendment violations.

The Defendant also points to Stein, where the Eleventh Circuit affirmed the district

court’s decision that Alabama’s ballot access rules were constitutional. Stein v. Alabama

Sec’y of State, 774 F.3d 689 (11th Cir. 2014). There, several political parties and

candidates sued, alleging that Alabama’s ballot access law discriminated against

presidential candidates of unrecognized parties by imposing an early March deadline to

appear on the ballot with their party label while permitting independent candidates the

opportunity to meet a later deadline with less onerous requirements. Id. at 693. Minor

political parties were required to gather signatures of three percent of qualified voters

(approximately 45,000 signatures) who cast a ballot for governor in the previous election

by early March. Id. Independent candidates could appear on the ballot by obtaining 5,000

signatures prior to September but did not have a party label by their name even if they were

associated with a party. Id. There, the court engaged in an extensive review of the record

for evidence that a reasonable factfinder could believe that a reasonably diligent political

party could not have submitted its signatures by the March deadline. Id. at 697. The court

ultimately found that the law did not severely burden the plaintiffs’ rights and that the state

had a rational interest providing a fair playing field for political candidates and establishing

a deadline early enough to verify the signatures on ballot-access petitions. Id. at 701.

Notably, Stein and Timmons involved determinations made on motions for summary

judgment. There, the parties had the opportunity to conduct discovery and provide

evidence regarding the various burdens and benefits of the regulations at issue. In Stein,

the court engaged in an extensive review of the record to determine whether the restriction

was severely burdensome to the plaintiffs’ rights and whether the state met its burden.

Here, the parties are only at the motion to dismiss stage, and the only issue before the Court

is whether the Plaintiff presents a plausible claim for relief. The Court is not in a position

to weigh the relative benefits and burdens of the state law until the parties have had an

opportunity to conduct discovery and fully develop the record. Indeed, the Defendant relies

heavily of the Declaration submitted in support of his Motion to Dismiss. Such reliance

on extraneous evidence at this early stage in litigation underscores the very reason

dismissal is not warranted.

IV. CONCLUSION

For the reasons stated above, it is ORDERED that the Defendant’s Motion to

Dismiss (Doc. 5) is DENIED.

DONE this 28th day of August, 2019.

/s/ Emily C. Marks

EMILY C. MARKS

CHIEF UNITED STATES DISTRICT JUDGE