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Whittaker v. Mallott

United States District Court, D. Alaska

April 27, 2017

BYRON MALLOTT, in his official capacity as Lieutenant Governor of the State of Alaska, Defendant.


          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.


         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]


         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 ...

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