United States District Court, D. Alaska
ORDER RE MOTIONS FOR SUMMARY JUDGMENT
Sharon
L. Gleason UNITED STATES DISTRICT JUDGE
Before
the Court at Docket 8 is Plaintiff Jed Whittaker's Motion
for Summary Judgment and at Docket 15 is Defendant Byron
Mallott's Motion for Summary Judgment. Defendant did not
respond to Plaintiff's motion, which was filed before
Defendant was served with the Complaint. Plaintiff opposed
Defendant's motion at Docket 19. No reply was
filed.[1] Also before the Court, at Docket 17, is
Plaintiff's Motion to Strike Defendant's Motion for
Summary Judgment. Defendant opposed this motion to strike at
Docket 19. Oral argument was not requested and was not
necessary to the Court's decision.
BACKGROUND
This
case concerns the constitutionality of Alaska's ballot
access requirements as codified at Alaska Statute (AS)
15.25.160. Plaintiff Jed Whittaker was a candidate for United
States Senator for Alaska in 2016; he was not affiliated with
a “political party” as that term is defined by
Alaska law.[2] To have his name printed on the official
ballot, Mr. Whittaker was required to submit a petition
“signed by qualified voters of the state equal in
number to at least one percent of the number of voters who
cast ballots in the preceding general
election.”[3] For the 2016 election, a petition was
valid if it contained at least 2, 854
signatures.[4] Mr. Whittaker's petition contained
only 2, 081 signatures; the division of elections accordingly
rejected his petition in August 2016.[5] Mr. Whittaker subsequently
filed as a “write-in” candidate for the senate
seat pursuant to AS 15.25.105.[6]
Mr.
Whittaker filed his Complaint in September 2016 naming
Lieutenant Governor Byron Mallott as Defendant, in his
official capacity. Mr. Whittaker sought an injunction
ordering the Alaska Division of Elections to include his name
on the ballot and enjoining enforcement of AS 15.25.160. Mr.
Whittaker did not dispute that he did not meet the statutory
requirements to appear on the ballot. Instead, he contended
that those requirements impermissibly infringed on his First
and Fourteenth Amendment rights.[7]Because Mr. Whittaker sought
leave to proceed in forma pauperis, [8] the Court reviewed the
Complaint pursuant to 28 U.S.C. § 1915(e). On October 5,
2016, the Court found that Mr. Whittaker's Complaint
stated a plausible claim for relief and could
proceed.[9] But in the Court's initial screening
order, the Court denied Mr. Whittaker's motion for
expedited consideration because it did not relate to any
specific motion.[10]
There
were 706 write-in votes cast in the November 2016 senate
election, but Mr. Whittaker was not elected.[11]
DISCUSSION
I.
Jurisdiction
The
Court has jurisdiction pursuant to 28 U.S.C. § 1331
because Plaintiff's claim arises under the U.S.
Constitution.
II.
Standard for Summary Judgment
Federal
Rule of Civil Procedure 56(a) directs a court to “grant
summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” The burden of showing the
absence of a genuine dispute of material fact lies with the
moving party.[12] The parties appear not to dispute any
material fact in this case; the only question is which party
is entitled to judgment as a matter of law in light of those
undisputed facts.
III.
Mr. Whittaker's Motion for Summary Judgment
As
discussed above, a motion for summary judgment will be
granted if the movant shows “that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”[13] Mr. Whittaker's
motion makes no such showing; he claims entitlement to
judgment in his favor based on Defendant's alleged
failure to timely answer or defend the
Complaint.[14] Thus, though titled a motion for summary
judgment, Mr. Whittaker's motion is better characterized
as a motion for a default judgment pursuant Federal Rule of
Civil Procedure 55(b).
Mr.
Whittaker is not entitled to a default judgment. The Court
issued its screening order on October 5, 2016; Mr. Whittaker
moved for summary judgment the next day.[15]But Defendant
was not served until October 26, 2016.[16] Pursuant to
Federal Rule of Civil Procedure 12(a), Defendant then had 24
days to file a responsive pleading.[17] Defendant filed the
motion for summary judgment on November 14, 2016, well within
the prescribed time limit.[18]
Because
Defendant has not “failed to plead or otherwise defend,
” Mr. Whittaker is not entitled to either an entry of
default or an entry of default judgment. The Court will
therefore deny Mr. Whittaker's motion for summary
judgment at Docket 8.
IV.
Motion to Strike
Defendant
did not file a responsive pleading in this case, but instead
moved immediately for summary judgment.[19] Mr. Whittaker
moves to strike this motion on the grounds that Defendant
must first answer the Complaint.[20] Defendant responds that
“a defendant is not required to file a formal answer to
a complaint prior to moving for summary judgment,
”[21] and that he filed a motion for summary
judgment instead of a motion to dismiss because the Court had
already concluded that Mr. Whittaker's Complaint stated a
plausible claim.[22]
Defendant
points to a decision from the District Court for the District
of Columbia that notes Federal Rule of Civil Procedure 56(b)
permits a party to move for summary judgment “at any
time.”[23] That court also noted that the Federal
Rules of Civil Procedure expressly permit a defendant to file
a motion to dismiss under Rule 12 in lieu of filing an
answer.[24] Thus, the court concluded that the
filing a motion for summary judgment before answering is not
different, in substance, from “filing a motion under
Rule 12(b)(6) accompanied by matters outside the pleadings,
which is then converted by operation of Rule 12(d) to one
under Rule 56.”[25] This is consistent with Ninth Circuit
law.[26] “[T]he filing of an answer is not
a prerequisite to the filing of a motion for summary
judgment.”[27]
The
proper course in this case, then, is to treat Defendant's
motion for summary judgment as a motion converted under Rule
12(b) and Rule 12(d), particularly as both parties have
referenced documents outside the pleadings, which the Court
has considered. Accordingly, the Court will deny Mr.
Whittaker's motion to strike at Docket 17.
V.
Defendant's Motion for Summary Judgment
The
Court next considers Defendant's Motion for Summary
Judgment. Defendant seek summary judgment on two grounds.
First, he contends this case is moot and therefore no longer
presents a justiciable controversy.[28] Second, Defendant
contends that Alaska's signature requirements are
constitutional on the merits.[29]
A.
Mootness
Defendant
contends that Mr. Whittaker's lawsuit is moot because the
election for which he sought to be added to the ballot has
come and gone. Because the Court cannot grant Mr. Whittaker
meaningful relief, Defendant asserts, the case is moot.
Obviously,
the Court cannot enter a judgment at this time that would
impact the November 2016 ballot. As a general rule,
“[w]here the activities sought to be enjoined already
have occurred . . . the action is moot, and must be
dismissed.”[30] But there is an exception to this
general mootness principle for cases that are “capable
of repetition, yet evading review.”[31] The exception
applies when first, “the duration of the challenged
action is too short to be fully litigated before it ceases,
” and second, “there is a reasonable expectation
that the plaintiff[] will be subjected to the same action
again.”[32] Defendant argues that Mr.
Whittaker's case does not fit that exception. And yet as
Defendant recognizes, election-related cases “often
fall within this exception because the inherently brief
duration of an election is almost invariably too short to
enable full litigation on the merits.”[33]
The
Ninth Circuit recently addressed a nearly identical claim of
mootness in Arizona Green Party v.
Reagan.[34] There, a political party that had not
attained the vote percentage in the 2012 election required
for automatic inclusion on the next ballot challenged the
deadline for submitting petition signatures for qualification
as a recognized party in the 2014 election.[35] The Ninth
Circuit issued its decision on the merits in 2016, nearly two
years later. The Ninth Circuit recognized that “[a]ll
specific demands for relief related to the 2014 election are
moot, ” but held that the challenge to the statutory
requirement's constitutionality was not.[36]
So too
here, Mr. Whittaker's “specific demands for relief
related to the [2016] election are moot, ” but his
challenge to the signature requirement's
constitutionality is not. Mr. Whittaker has sought relief
beyond the 2016 election; he seeks an order enjoining
enforcement of AS 15.25.160 generally.[37] Under that
statute and other applicable sections of Alaska law, a
prospective candidate must submit a “full petition with
voter signatures” on the day of the primary election
preceding the general election.[38] Primary elections are
held “on the third Tuesday in August,
”[39] and the general election is held on
“the Tuesday after the first Monday in
November.”[40] Ballots must be distributed “not
less than 25 days before the date for the
election.”[41] This leaves approximately two months to
resolve any challenge to the signature requirement for a
given year-from mid-August to mid-October. Despite
Defendant's implied assertion that this two-month
timeframe is adequate for a judicial resolution,
[42]
the Court concludes that “the duration of the
challenged action is too short to be fully litigated before
it ceases.”[43]
Defendant
also faulted Mr. Whittaker for failing to “indicate
that he intends to avail himself of the petition process in
any future elections.”[44] The Court therefore ordered
Mr. Whittaker to indicate whether he intends to be a
candidate again.[45] In response, Mr. Whittaker promptly
filed a statement indicating that he did so
intend.[46] Based on that representation, the Court
concludes that there is a reasonable expectation that Mr.
Whittaker will be subjected to the same requirements
again.[47]
In
light of the foregoing, the Court finds the case is not moot.
B.
Merits
The
Court turns now to the merits of the question presented in
Mr. Whittaker's Complaint and Defendant's Motion for
Summary Judgment: Is AS 15.25.160
constitutional?[48] That statute provides that to have
one's name listed on the ballot for “the office of
governor, lieutenant governor, United States senator, and
United States representative, ” a candidate must submit
a petition that is “signed by qualified voters of the
state equal in number to at least one percent of the number
of voters who cast ballots in the preceding general
election.”[49]
Mr.
Whittaker has suggested in his Complaint that the State has
no authority to impose any restrictions on ballot access, and
that Supreme Court cases-he specifically references
Burdick v. Takushi[50]-holding otherwise are in
error.[51] Mr. Whittaker argues that the U.S.
Constitution grants to a state the power to regulate
“the more mundane issue of the mechanics of Elections,
not the more substantive issue of qualifying as a candidate
for election as a Senator or
Representative.”[52] But this Court has no authority to
disregard controlling decisions of the Supreme Court or the
Ninth Circuit; it is required to apply that precedent and
will do so in this case.[53]
Under
that binding precedent, it is well established that
“[t]he impact of candidate eligibility requirements on
voters implicates basic constitutional rights”
protected by the First and Fourteenth
Amendments.[54] The Supreme Court has recognized that
such laws burden both “aspirants for office” and
voters: “The right to vote is ‘heavily
burdened' if that vote may be cast only for major-party
candidates at a time when other parties or other candidates
are ‘clamoring for a place on the ballot.' The
exclusion of candidates also burdens voters' freedom of
association, because an election campaign is an effective
platform for the expression of views on the issues of the
day, and a candidate serves as a rallying-point for
like-minded citizens.”[55]
But at
the same time, “not all restrictions imposed by the
States on candidates' eligibility for the ballot impose
constitutionally suspect burdens on voters' rights to
associate or to choose among candidates.”[56] As the
Supreme Court has explained, a court reviewing a ballot
access restriction
must first consider the character and magnitude of the
asserted injury to the rights protected by the First and
Fourteenth Amendments that the plaintiff seeks to vindicate.
It then must identify and evaluate the precise interests put
forward by the State as justifications for the burden imposed
by its rule. In passing judgment, the Court must not only
determine the legitimacy and strength of each of those
interests; it also must consider the extent to which those
interests make it necessary to burden the plaintiff's
rights. Only after weighing all these factors is the
reviewing court in a position to decide whether the
challenged provision is unconstitutional.[57]
When
reviewing ballot access restrictions, the Supreme Court has
also clarified that the standard of review is not always
strict scrutiny. “Instead . . . a more flexible
standard applies.”[58] Thus, “the rigorousness of [a
court's] inquiry . . . depends upon the extent to which a
challenged regulation burdens First and Fourteenth Amendment
rights.”[59] “[A]n election regulation that
imposes a severe burden is subject to strict scrutiny and
will be upheld only if it is narrowly tailored to serve a
compelling state interest, ” whereas “election
regulations imposing a lesser burden” may be justified
“by demonstrating the state has important regulatory
interests.”[60]
1.
Severity of Burden
Ninth
Circuit precedent provides that one challenging an election
law bears “the initial burden of showing that [the
state's] ballot access requirements seriously restrict
the availability of political
opportunity.”[61] Assessing the burden of a challenged
statute requires examination of “the entire scheme
regulating ballot access.”[62] Alaska law provides that
a candidate for any of the four offices affected by AS
15.25.160 may appear on the ballot in one of three ways.
First, a candidate will appear on the ballot if the candidate
is selected in a primary election to represent a
“political party” that garnered more than three
percent of the vote in the preceding election.[63] Second, a
candidate “not representing a political party”
may be “nominated by petition.”[64] The validity
of that petition turns, in part, on the signature
requirements under consideration in this case; to be valid, a
petition must “be signed by qualified voters of the
state equal in number to at least one percent of the number
of voters who cast ballots in the preceding general
election.”[65] Third, and finally, a candidate may run
as a “write-in” candidate.[66] To run as a
write-in candidate, the candidate must submit a letter of
intent to the director of elections providing information for
verifying eligibility.
As
evidence of the burden of the second option, Mr. Whittaker
points to his own experience and to that of Margaret Stock,
another independent candidate for senate in
2016.[67] Mr. Whittaker asserts that Ms. Stock
expended over $111, 000 collecting signatures in
2016.[68] But Ms. Stock appeared on the 2016
ballot; even if she and her campaign expended some energy to
do so, the one-percent requirement was apparently not overly
burdensome to her.[69] Mr. Whittaker stresses that he is of
limited financial means. And he asserts that it would take
him-if he alone were to collect signatures for his
candidacy-up to 285 hours to collect the required number of
signatures. But while Mr. Whittaker has established that
some burden results from the one-percent
requirement, the Court must determine the extent of that
burden.
Defendant
asks the Court to hold as a matter of law that a one-percent
signature requirement for independent candidacy petitions
imposes a low burden and is therefore not subject to strict
scrutiny.[70] Defendant points to the Ninth
Circuit's recent decision in Nader v. Cronin, in
which the Court of Appeals upheld Hawaii's one-percent
signature requirement and had “little trouble
concluding that, in isolation, the burden [of that
requirement] on independent candidates for president and
vice-president is minimal.”[71]But after assessing the
burden in isolation, the Circuit Court in Cronin
then observed that a court “must examine the entire
scheme regulating ballot access.”[72] “The
relevant inquiry is ‘whether reasonably diligent minor
party candidates can normally gain a place on the ballot, or
if instead they only rarely will
succeed.'”[73] To answer this inquiry, the one-percent
requirement cannot be considered in isolation.[74] Here, four
factors of the Alaska statutory scheme are significant: (1)
the number of signatures required; (2) any restrictions on
who may sign a ballot; (3) the timeframe for obtaining
signatures; and (4) the deadline for filing a
petition.[75]
In
Storer v. Brown, the Supreme Court examined not only
the five-percent signature requirement imposed by California
law, but also the absolute number of signatures a candidate
would have to collect. The Supreme Court noted that
collecting 325, 000 signatures over just 24 days would be a
“substantial burden” but “would not appear
to require an impractical undertaking for one who desires to
be a candidate for President.”[76] In absolute terms, the 2,
854 signatures Mr. Whittaker was required to collect in 2016
is substantially less than either the California requirement
or those upheld in other states, such as Texas's
one-percent, 22, 000-signature requirement reviewed and
upheld by the Supreme Court in American Party of Texas v.
White[77] or Hawaii's one-percent, 3,
711-signature requirement more recently upheld by the Ninth
Circuit in Cronin.[78]
Under
Alaska law, only the signatures of “qualified
voters” are counted in evaluating a
petition.[79] But the law defines a qualified voter as
“a person who has the qualification of a voter and is
not disqualified” by statute or the state constitution-
essentially anyone who can vote.[80] This is in contrast with
the Ohio law struck down by the Supreme Court in Williams
v. Rhodes, which effectively required petition
subscribers to be new voters.[81] Also, Alaska's law does
not limit how many petitions a qualified voter may
sign.[82] And unlike the Arizona provision struck
down by the Ninth Circuit in Nader v. Brewer,
Alaska's law does not restrict who may collect such
signatures.[83]
The
parties have not discussed the timeframe for gathering
signatures under Alaska law, but the Court is aware of no
restriction apart from the deadline for submission. Mr.
Whittaker announced his candidacy on January 8, 2016, over
seven months before his petition was due.[84] He apparently
could collect signatures at any time up until the date of the
primary election. This open-ended collection period is in
marked contrast to the 90-day period a district court held to
unreasonably burden constitutional rights in Libertarian
Party of Oklahoma v. Oklahoma State Election Board,
[85]
and is more generous than Georgia's 180-day period upheld
by the Supreme Court in Jenness v.
Fortson.[86] Other courts have consistently found
that an extended period of time to collect signatures eases
the burden of doing so.[87]
Finally,
the deadline for filing the petition and signatures under
Alaska law is not unreasonably early. The petition is due on
the date of the primary election, which by statute is held on
the third Tuesday in August.[88] This date will always fall
between 70 and 90 days before the general election, which is
held the first Tuesday after the first Monday in
November.[89] In Cronin, the Ninth Circuit
upheld a Hawaii statute that required submission 60 days
prior to the general election.[90] Alaska's statute is thus
somewhat more onerous in this regard than the Hawaii statute,
but this additional time is quite reasonable given the
remoteness of many parts of Alaska and the resultant
logistical challenges of conducting statewide
elections.[91]
Moreover,
as the Supreme Court explained in Anderson v.
Celebrezze, the burden of early filing deadlines arises
from the lack of voter engagement before the primary season.
In Anderson, the filing deadline was 75 days before
the primary election, which the Supreme Court held could
prevent “a newly-emergent independent candidate”
from “serv[ing] as the focal point for a grouping of
Ohio voters who decide, [after the filing deadline], that
they are dissatisfied with the choices within the two major
parties.”[92] The Alaska regime, by contrast, permits
signature collection up until the date of the primary,
allowing prospective independent candidates to capitalize on
the voter engagement that accompanies a primary
campaign.[93] Thus, in this regard Alaska's law is
unlike that struck down either by the Supreme Court in
Anderson or by the Ninth Circuit in
Brewer.[94] Courts around the country have similarly
noted that a filing deadline that falls on or around the date
of the primary election is not burdensome under
Anderson.[95]
Of
course, the burden must be assessed in its entirety, not
piecemeal. In sum, Alaska law requires an aspiring
independent candidate to collect signatures amounting to only
one percent of the voting populace from among all qualified
voters in Alaska, over an indefinite period of time ending on
the date of the primary election. At its core, the
“[t]he relevant inquiry is ‘whether reasonably
diligent minor party candidates can normally gain a place on
the ballot, or if instead they only rarely will
succeed.'”[96]
Mr.
Whittaker states that it would take him 285 hours to collect
the required signatures if he worked alone.[97] As explained
above, Mr. Whittaker is not required to collect all the
signatures himself; organizing and recruiting volunteers is a
traditional aspect of campaigning. Moreover, Mr. Whittaker
could begin collecting those signatures well in advance of
the deadline. Finally, Mr. Whittaker was permitted to run as
a write-in candidate, even after his petition was rejected.
Upon
consideration of Alaska's laws and the controlling case
law, the Court concludes that Alaska's system is not
overly restrictive. “Past experience will be a helpful,
if not always an unerring, guide: it will be one thing if
independent candidates have qualified with some regularity
and quite a different matter if they have
not.”[98] Alaska's experience with independent
candidates is strong evidence that its laws are little
impediment to ballot access: there were three independent
candidates on the ballot for the office of U.S. Senator for
the 2016 election alone.[99] Moreover, and unlike Hawaii, whose
one-percent signature requirement was upheld in
Cronin, independent candidates in Alaska may run as
a write-in candidate if they are unable to attain the
required number of signatures, just as Mr. Whittaker did
here.[100] The Hawaiian system prohibits write-in
candidates, [101] a distinction that has some
constitutional significance.[102]
In
light of the foregoing, the Court concludes that the burden
of Alaska's ballot access laws is not severe, and that
strict scrutiny review is therefore unwarranted.
2.
State Justification
When
the burden is not severe and strict scrutiny therefore does
not apply, “the State's important regulatory
interests are generally sufficient to justify the
restrictions.”[103]Still, the Court must subject the
regulation to “a balancing and means-end fit
analysis.”[104]As the Supreme Court has explained, a
court assessing the constitutionality of ballot access
restrictions must “determine the legitimacy and
strength of each of those interests” and
“consider the extent to which those interests make it
necessary to burden the plaintiff's
rights.”[105]
The
Court has already determined that the burden imposed by
Alaska's ballot access law is not severe. Indeed, with
historical experience as a guide, the Court concludes that
the burden is quite low.[106] Similar signature
requirements have consistently been upheld by courts across
the United States, including by the Supreme
Court.[107] As the Supreme Court has noted,
“requiring independent candidates to evidence a
‘significant modicum of support' is not
unconstitutional” because of the state's
“compelling” interest in “regulating the
number of candidates on the ballot to avoid undue voter
confusion.”[108] Such is the very interest that
Defendant asserts is protected by Alaska's statutory
requirements.[109] Voter confusion is widely recognized
as a legitimate concern, [110] and is one that Alaska has
advanced to defend its election laws since at least the
1980s.[111] It is the same interest that the Ninth
Circuit recognized as adequate justification for Hawaii's
one-percent signature requirement.[112] As the ...