                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               September 9, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                            FOR THE TENTH CIRCUIT


    ALAN WOODRUFF; DANIEL
    FENTON; GREEN PARTY OF NEW
    MEXICO,

              Plaintiffs-Appellants,
                                                       No. 10-2076
    and                                   (D.C. Nos. 1:09-CV-00449-JCH-KBM,
                                                1:10-CV-00123-JCH-KBM
    LIBERTARIAN PARTY OF NEW                  & 1:10-CV-00124-JCH-KBM)
    MEXICO; DONALD HILLIS;                              (D. N.M.)
    REFORM PARTY OF NEW
    MEXICO; LA RAZA UNIDA,

              Plaintiffs,

    v.

    MARY HERRERA, New Mexico
    Secretary of State,

              Defendant-Appellee.


                            ORDER AND JUDGMENT *


Before HARTZ and PORFILIO, Circuit Judges, and BRORBY, Senior Circuit
Judge.


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
       At times the Green Party of New Mexico has been a significant force in

New Mexico politics, perhaps determining the outcome of races for major offices

such as Governor and member of Congress. Recently, however, its candidates

have not garnered sufficient votes for it to qualify for designation as a minor

political party under state law. To requalify, it must file petitions with sufficient

signatures of voters declaring that they desire the party to be a qualified political

party in the state. See N.M. Stat. Ann. § 1-7-2(A) (1978). In addition, the party’s

designated candidates must submit petitions with sufficient signatures of voters

supporting the candidate. See id. §§ 1-8-2(B), 1-8-3(C).

      Daniel Fenton, a New Mexico resident but not a registered voter, seeks to be

a candidate for a seat in the United States House of Representatives. He and the

Green Party brought suit in the United States District Court for the District of New

Mexico against the Secretary of State to challenge several provisions of the New

Mexico Election Code. 1 Only two of the claims are relevant to this appeal. One

claim–Count II-A of the complaint–challenged the constitutionality of the Election

Code requirement that a candidate for political office be a registered voter. See id.

§ 1-8-18. The other–raised in Count IV of the complaint–related to petitions for a

minor political party or its candidates. It challenged the constitutionality of


1
       The lead plaintiff in the lawsuit, Alan Woodruff, is an attorney representing
the other plaintiffs, but does not appear to have a personal issue on appeal.

                                          -2-
Election Code provisions regarding the personal address to be placed on the

petitions by a qualified voter who signs such a petition. 2 See id. §§ 1-7-2(A),

1-8-2(B), 1-8-31(C).

      The district court agreed with the plaintiffs regarding the constitutionality of

the provisions. It held that “it is unconstitutional to require that a person running

for U.S. Representative be registered to vote.” R. at 890. And it held that the

Election Code is inconsistent regarding “whether signers of petitions must state

their address of residence or their address as registered,” and is therefore

unconstitutionally vague. Id. at 899.

      Those two holdings are not at issue on appeal. What plaintiffs are

challenging is the district court’s failure to give them the relief to which they

claim entitlement based on those holdings. Fenton contends that he should be

placed on the ballot because the Election Code has no provisions relating to

candidates who are not registered voters. And the Green Party contends that it

should not have to file petitions to qualify as a minor political party. The district



2
       In the complaint, plaintiffs challenged the Election Code provisions only as
they relate to the addresses of voters who sign candidate nominating petitions. In
its motion for summary judgment, however, the Green Party challenged the
provisions as they relate to the addresses of voters who sign minor-party
qualifying petitions. The Secretary of State did not challenge the plaintiffs’ right
to raise the issue, the district court’s summary-judgment ruling decided the
constitutionality of the Election Code provisions relating to signers of party
qualifying petitions, and the Secretary’s brief on appeal does not challenge the
propriety of this ruling.

                                          -3-
court disagreed with those contentions, and so do we. In particular, we hold:

(1) The district court did not rewrite the Election Code by stating that Fenton must

comply with all statutory requirements other than being a registered voter; the

court simply held that one requirement was unconstitutional, leaving the other

requirements in place. (2) The district court properly ordered that the address

requirement for petition signers could be satisfied by providing either the

residence address or the registration address; this was a suitable remedy for a

constitutional violation and was required by the Code in any event. (3) The

district court’s order did not contradict the law of the case established by its

summary-judgment ruling, because that ruling did not state–and plaintiffs did not

interpret it to state–that Fenton was ordered on the ballot or that the Green Party

was ordered to be recognized as a qualified party. (4) The district court’s order

did not violate due process by depriving plaintiffs of adequate time to obtain

petition signatures required under the Code.

I.    PROCEDURAL BACKGROUND

      A.     The Complaint

      Count II-A of the complaint asserted that § 1-8-18 of New Mexico’s

Election Code is unconstitutional because it requires that all candidates for

nomination by political parties be registered voters. 3 Count IV raised two


 3
       N.M. Stat. Ann. § 1-8-18(A) (1978) states:
                                                                          (continued...)

                                          -4-
constitutional challenges, the only one relevant to this appeal being that the

Election Code provisions relating to the required address of a petition signer are

unconstitutionally vague. In particular, Count IV asserted that conflicting

provisions of the Code make it unclear whether petition signers are required to

provide their address of residence or their address as registered, which might not

be the same. See N.M. Stat. Ann. §§ 1-7-2(A), 1-8-2(B), 1-8-30(C), 1-8-31(B)

(1978).

         B.     Ruling on Motions for Summary Judgment

         Mr. Fenton moved for summary judgment on Count II-A, and the Green

Party moved for summary judgment on Count IV. The district court granted

Mr. Fenton summary judgment, holding (1) that it is undisputed that the Election

Code requires anyone desiring to run for the U.S. House of Representatives,



3
    (...continued)
                  No person shall become a candidate for nomination by a
           political party or have his name printed on the primary election ballot
           unless his record of voter registration shows:

          (1) his affiliation with that political party on the date of the
          governor’s proclamation for the primary election; and

          (2) his residence in the district of the office for which he is a
          candidate on the date of the governor’s proclamation for the primary
          election or in the case of a person seeking the office of United States
          senator or United States representative, his residence within New
          Mexico on the date of the governor's proclamation for the primary
          election.


                                              -5-
whether as a nominee of a major or minor party or as an independent candidate, to

be a registered voter, and (2) that under this court’s opinion in Campbell v.

Davidson, 233 F.3d 1229, 1234 (10th Cir. 2000), “it is unconstitutional to require

that a person running for U.S. Representative be registered to vote.” R. at 890.

Further, it held that “the portions of the Declaration of Candidacy [forms for

candidates] that require voter registration are unconstitutional.” Id. at 891. The

court also granted summary judgment to the Green Party, concluding that “with

regard to whether the signers of petitions must state their address of residence or

their address as registered, the Election Code is internally inconsistent and

unconstitutionally vague.” Id. at 899. 4


4
        We note that the district court’s rationale relied exclusively on Election
Code provisions in Article 8, which governs candidate nominating petitions. We
agree with the court that the Article 8 provisions regarding the address
requirement for candidate nominating petitions are in conflict. Compare N.M.
Stat. Ann. § 1-8-31(B) (1978) (requiring petition signer to provide his address of
residence or, lacking that, a mailing address) with id. § 1-8-30(C) (setting forth
mandatory petition form requiring petition signer to provide his address as
registered). The court concluded that if a petition signer’s registered and
residence addresses differed, the conflicting provisions would leave the signer to
guess which address is actually required, and the Code’s provisions are therefore
unconstitutionally vague.
        We question whether this rationale can also be applied to party qualifying
petitions. Those petitions are governed by Article 7 of the Election Code, and
§ 1-7-2(A) clearly provides that “[t]o qualify as a political party in New Mexico,
. . . the governing body of the political party shall . . . file with the secretary of
state a petition containing the hand-printed names, signatures, addresses of
residence and counties of residence” of a designated number of voters.
(Emphasis added.) Although the form for party qualifying petitions promulgated
by the Secretary of State appears to conflict with the statute by requiring a signer
                                                                           (continued...)

                                           -6-
         C.     Ruling on Motion for Entry of Final Judgment

         On December 23, 2009, two weeks after the district court’s

summary-judgment ruling, plaintiffs filed an emergency motion for entry of final

judgment on Counts II-A, II-B and IV (“Emergency Motion”). Plaintiffs asserted

that the court’s summary-judgment order entitled them to relief, but “until

[plaintiffs] know the precise nature of their relief, they remain unable to

effectively participate in the 2010 general election.” R. at 994; see also id. at n.2

(stating that form of relief granted by court would determine what actions

plaintiffs had to take). Plaintiffs asked that the court (1) direct the Secretary of

State to include Mr. Fenton on the 2010 ballot as a candidate for the U.S. House of

Representatives; (2) “[e]njoin the Secretary of State from enforcing NMSA

§1-7-2(A) as a condition for ‘qualifying’ minor political parties for ballot access”;

and (3) direct the Secretary to recognize the Green Party as a “qualified” party.

Id. at 994.

         The court entered final judgment on the three counts on April 5, 2010, but it

declined to grant the relief that plaintiffs requested. The court rejected


4
    (...continued)
    to provide his registered address, that form (unlike the candidate nominating
    form) is not codified in the Election Code. Thus, there appears to be no conflict
    among Code provisions that would make the Code itself unconstitutionally vague
    with respect to party qualifying petitions. Apparently, the sole problem is that the
    Secretary’s form unlawfully conflicts with the statute. Nevertheless, neither party
    has challenged on appeal the merits of the district court’s summary-judgment
    ruling on this matter.

                                            -7-
Mr. Fenton’s contention that he should be “place[d] on the ballot without

satisfying any of the statutory requirements imposed upon other candidates.” Id.

at 1380. It said:

      Fenton must determine whether he wants to run as a member of a
      party or as an independent, and then he must fulfill all of the statutory
      obligations of such candidates with the exception of the voter
      registration requirement. If the statute requires him to prove
      membership in a party, Fenton must do so, though the Secretary of
      State may not require that he make such proof solely through voter
      registration. However, the Court will not excuse Fenton from meeting
      the other ballot access requirements set forth in the Election Code.

Id. at 1381.

      The court also rejected the Green Party’s contention that the Secretary

should be ordered to qualify it as a minor political party for the 2010 election,

thereby relieving it of all petition requirements. It instead adopted the suggestion

by the Secretary that the remedy should be to order her to accept signatures

accompanied by either the address as registered or the residence address. The

court said that any remedy would require some conflict with the Election Code but

the Green Party’s suggested remedy would do “the most violence” to it. Id. at

1382. The court concluded that its remedy would satisfy “the Legislature’s intent

that in order to be qualified, parties must file signed petitions.” Id. at 1383.

II.   DISCUSSION

      Plaintiffs appeal the district court’s remedial order, contending that they

were entitled to broader relief than the court provided. Our jurisdiction arises


                                          -8-
under 28 U.S.C. § 1291. 5 As the district court determined, there are no disputed

facts in this case. Thus, we need review only the district court’s conclusions of

law; that review is de novo. See O’Toole v. Northrop Grumman Corp., 499 F.3d

1218, 1221 (10th Cir. 2007).

      A.    Mr. Fenton

      Mr. Fenton argues that by requiring him to meet the ballot-access

requirements in the Election Code applicable to other candidates, the district court

effectively rewrote the Election Code with respect to unregistered-voter

candidates. He maintains that because the Election Code’s ballot-access

requirements apply only to registered voters, none apply to candidates who are not

registered to vote. Therefore, he reasons, the court improperly added provisions to

the Election Code when it held that he had to meet the Code’s ballot-access

requirements despite his unregistered status. Mr. Fenton’s argument

mischaracterizes the Code and the proceedings.




5
       We initially questioned whether we had jurisdiction over this appeal
because the district-court order being appealed did not appear to be a final,
appealable order. The district court later entered an order certifying under
Fed. R. Civ. P. 54(b) that the claims at issue on appeal are final and appealable
and that there is no just reason for delay. Accordingly, we have jurisdiction over
this appeal. The district court’s certification also included a third claim, but
plaintiffs have not addressed it in their briefs on appeal. Their failure to do so
waives any challenge to that claim. See Bronson v. Swensen, 500 F.3d 1099,
1104 (10th Cir. 2007).

                                         -9-
      The Election Code contains different requirements for a candidate to get on

the ballot depending on whether he is running as the nominee of a major party, as

the nominee of a minor party, or as an independent candidate. The only

ballot-access requirement underlying Mr. Fenton’s appeal is the requirement that a

candidate be a registered voter to run for the U.S. House of Representatives. 6 The

district court agreed that the Code unconstitutionally requires a congressional

candidate to be registered to vote, so it invalidated that requirement. Moreover,

the court held that if a ballot-access provision would require Mr. Fenton to prove

membership in a party, the Secretary of State could not require that he do so solely

through voter registration.

      The court did not, however, invalidate any ballot-access requirement

relating to major or minor party nominees or independent candidates except those

requiring a candidate to be a registered voter. The course that Mr. Fenton would

have to take to get on the ballot was therefore clear. As the court explained in its

remedial order, once Mr. Fenton determined whether he was going to run as a

party nominee or as an independent candidate, he had to comply with the ballot-

access requirements related to that chosen status. The court’s decision did not add

new provisions to the Election Code. Rather than imposing new requirements on




6
      In district court Mr. Fenton also asserted challenges to other ballot-access
requirements not at issue on appeal.

                                        -10-
unregistered candidates, the court merely left intact all requirements except the

registration requirement.

      Likewise unavailing is Mr. Fenton’s contention that the court’s remedial

order ignored the law of the case established in the summary-judgment ruling.

The court concluded on summary judgment only that New Mexico could not

require Mr. Fenton to be a registered voter to qualify as a candidate for the U.S.

House of Representatives. It did not hold that Mr. Fenton should automatically be

placed on the ballot. For Mr. Fenton to argue otherwise is inconsistent with what

he said in the Emergency Motion, which sought further rulings from the district

court that would have been unnecessary if he believed that he was already assured

of being on the ballot. Indeed, the Emergency Motion’s premise for requesting an

expedited ruling was that “[t]he period for petition collection is already well under

way, and the date when ballot access petitions must be filed is rapidly

approaching.” R. at 994 (footnote omitted). Mr. Fenton clearly understood that,

absent further court action, he would need to collect the necessary petition

signatures.

      We also are not persuaded by Mr. Fenton’s argument that the district court’s

remedial order denied him due process because he had inadequate time to obtain

petition signatures after the order was entered. Surely, a potential candidate for

office should not be permitted to gain access to the ballot by suing to invalidate

the petition requirement, losing the suit, and then claiming that there was

                                         -11-
inadequate time after judgment to obtain petition signatures. The potential

candidate should have been gathering petition signatures while pursuing the

litigation. The only difference between Mr. Fenton and such a potential candidate

is that he prevailed on one claim of his challenge to the Election Code. But the

district court never suggested to him that he did not need to gather petition

signatures, and his status as one not registered to vote was unrelated to the petition

process. He had as much time as any other candidate to gather signatures.

      Finally, we reject Mr. Fenton’s argument that the sole remedy for the

unconstitutionality of the registered-voter requirement was to order his name

placed on the ballot. He relies on two Supreme Court cases in which the Court

ordered that a party or a candidate be placed on the ballot; but neither imposed an

absolute rule. Instead, each looked to the particular circumstances of the case in

crafting an appropriate remedy for the unconstitutional limitation. See Williams v.

Rhodes, 393 U.S. 23, 35 (1968) (concluding that “under the circumstances,” Ohio

would be required to print the name of the Ohio American Independent Party on

the ballot, but the Socialist Labor Party would be limited to the relief previously

granted, namely space on the ballot for write-in votes); McCarthy v. Briscoe,

429 U.S. 1317, 1322–23 (1976) (Powell, J., in chambers) (concluding that when

the State had precluded independent presidential candidates from gaining access to

the ballot, the Court was not limited to allowing the candidate to collect petition

signatures to show support, but it could “properly look to available evidence or to

                                         -12-
matters subject to judicial notice to determine whether there is reason to assume

the requisite community support” to place the candidate’s name on the ballot).

      The district court properly concluded that it was not necessary to place

Mr. Fenton’s name on the ballot to remedy the unconstitutional limitation on his

access to the ballot. It was enough to permit him to qualify for the ballot through

the petition process.

      B.     The Green Party

      The Green Party also challenges the district court’s remedial order on

several grounds. First, it contends that by ordering the Secretary of State to accept

either the address of residence or the address as registered of signers of party

qualifying petitions, the court improperly rewrote the Election Code. We disagree.



      The Party cites cases stating that a court cannot rewrite a statute to save its

constitutionality. See, e.g., Colo. Right to Life Comm., Inc. v. Coffman, 498 F.3d

1137, 1155 (10th Cir. 2007). But that is not what the district court did. On the

contrary, it held that the Election Code was unconstitutional in one respect. It

therefore had to construct a remedy. Any remedy would require “violating” the

Code in some way. Certainly an order to declare the Party to be a qualified party,

despite its failure to comply with the requirements for that status, would “rewrite”

the Code. In our view, the court’s order was a proper exercise of its power to

remedy a constitutional violation and was entirely consistent with the Election

                                         -13-
Code. See McCarthy, 429 U.S. at 1323 (fashioning remedy for unconstitutional

denial of ballot access that carried out purpose of election law).

      Indeed, the district court’s remedial order did nothing more than restate New

Mexico law regarding petition signatures. The sole grounds for rejection of a

signature on a nominating petition are set forth in § 1-8-31(C). As relevant here,

§ 1-8-31(C) requires that a signature on a petition be counted unless the person

signing the petition failed to provide required information “sufficient to determine

that the person is a qualified voter of the state, district, county or area to be

represented.” 7 The address provisions in §§ 1-8-30(C) and 1-8-31(B) facilitate the

determination required by § 1-8-31(C), because either an address of residence or

an address as registered would suffice to determine whether the petition signer is a

qualified voter. Cf. State ex rel Citizens for Quality Educ. v. Gallagher, 697 P.2d

935, 939 (N.M. 1985) (requirement that signer of school-board recall petition

indicate address as registered was “obviously intended to enable a county clerk to

determine whether the signer is a ‘registered voter of the county and of the school

district’” as required by N.M. Stat. Ann. § 22-7-10(E)(1) (1978)). But, as New

Mexico Supreme Court precedent firmly establishes, those address provisions do

not impose conditions for counting a signer beyond those set forth in § 1-8-31(C).

The Supreme Court has said that it is “committed to examine most carefully, and


7
       The statute contains other conditions for disqualification that are not at
issue on appeal.

                                           -14-
rather unsympathetically any challenge to a voter’s right to participate in an

election, and will not deny that right absent bad faith, fraud or reasonable

opportunity for fraud.” Ruiz v. Vigil-Giron, 196 P.3d 1286, 1288 (N.M. 2008)

(internal quotation marks omitted)). In keeping with this commitment, settled

New Mexico law provides that a signature on a petition will be counted if it gives

the relevant government officer sufficient information to determine its validity,

even if it does not conform to the exact requirements of a statutory petition form.

See Gallagher, 697 P.2d at 939 (failure of signature to conform with statutory

form would not invalidate signature so long as information provided was sufficient

to allow county clerk to determine that signer was qualified voter); Simmons v.

McDaniel, 680 P.2d 977, 978-99 (N.M. 1984) (refusing to invalidate petition

signatures that provided address other than registered address required by statutory

form, because lack of registered address was not a cause for disqualification listed

in what is now § 1-8-31(C)).

      Thus, the district court did not improperly rewrite the Election Code when it

ordered the Secretary to accept either the address of residence or the address as

registered of petition signers.

      The Green Party also argues that the district court ignored the law of the

case when it ordered the Secretary to accept either the residence or registered

addresses of petition signers, a remedy it allegedly had rejected in its

summary-judgment order. The Green Party points to the district court’s statement

                                         -15-
in the order that “parties and candidates gathering signatures for their petitions

should not be forced to guess at which address is actually required from signers,”

or to await a court challenge to the signatures to argue that the address provided

was valid under one provision or another. R. at 899. But the court made this

statement in explaining its rejection of the Secretary’s suggestion that the Green

Party use the petition form that she had promulgated–which required the address

as registered–but have each signer write down his address of residence. Contrary

to the Green Party’s contention, the remedy fashioned by the district court was not

one that it had rejected on summary judgment. The court was concerned that

parties might be uncertain which address they should require people signing their

petitions to provide and they might not know if they had chosen correctly until it

was too late. The court’s remedy eliminated this uncertainty by requiring the

Secretary to accept either address. The remedy therefore complemented, rather

than contradicted, the court’s reasoning on summary judgment. In any event, this

court is not bound by the law of the case set in district court, see Woods v. Kenan

(In re Woods), 173 F.3d 770, 776 (10th Cir. 1999); and we hold that the remedial

order was wholly proper.

      Like Mr. Fenton, the Green Party further contends that under Supreme Court

authority, the sole remedy for the unconstitutionally vague Election Code

provisions was to order that the Green Party be qualified as a minor party. We




                                         -16-
have already discussed and rejected that argument with respect to Mr. Fenton. It

is similarly unavailing with respect to the Green Party.

      The Green Party also maintains that the district court’s remedial order

denied it due process. It contends that it relied on the court’s summary-judgment

order to discontinue its efforts to gather petition signatures, justifiably assuming

that the Election Code’s petition requirements no longer applied to it. The Green

Party’s alleged reliance was not justified, however, because the district court’s

summary-judgment order did not suggest that the Green Party could qualify as a

minor party without submitting the required petition signatures. And the Green

Party knew this. After the summary-judgment order was filed, not only did its

Emergency Motion state that it did not know “the precise nature” of the relief that

the court intended to grant, R. at 994, but it also filed a motion for preliminary

injunction seeking to enjoin the Secretary from enforcing the requirements relating

to minor-party qualifying petitions, see id. at 1107–1131, and it filed an

emergency motion for permanent injunction in which it acknowledged that “[t]he

Order granting summary judgment did not specify the relief to be granted for the

constitutional violations identified therein,” id. at 1283. The court’s orders did not

deprive the Green Party of sufficient time to collect the necessary signatures for its

party qualifying petition. Nor was there any practical problem for the Green Party

in gathering petition signatures. It could have used the Secretary’s form (which

asked for the address of registration) with full confidence under New Mexico law

                                          -17-
(as set forth above) that the signer would not be rejected on the ground that the

address was not the residence address.

      The Green Party makes two final arguments that are easily disposed of.

First, it argues that in fashioning a remedy for the constitutional violation, the

district court failed to comply with the dictates of Anderson v. Celebrezze,

460 U.S. 780 (1983), “to identify specific state interests and weight state interests

against the burdens imposed on the Green Party and to make specific factual

determinations regarding these interests and burdens.” Aplt. Amended Br. at

26-27 (emphasis omitted). The Green Party’s reliance on Anderson is misplaced.

Anderson described the analysis a court should follow when determining whether a

State’s election laws are unconstitutional because they unduly or unfairly burden

the voting and associational rights that the plaintiff seeks to vindicate. 460 U.S. at

789. The decision did not speak to the appropriate remedy to be fashioned once a

court finds an unconstitutional burden.

      Second, the Green Party argues that we may grant the remedial relief it

seeks based on the Secretary’s allegedly improper use of the term qualified elector

rather than voter on her form for party qualifying petitions. But the Party did not

show the district court why use of the form would impair its petition-gathering

efforts. At worst, a qualified elector who was not registered to vote (and therefore

was statutorily ineligible to sign a petition) would sign the petition and the signer

would not be counted.

                                          -18-
      Appellants’ unopposed emergency motion in this court for expedited

argument and ruling and the supplement thereto are DENIED as moot.

      The judgment of the district court is AFFIRMED.



                                                 Entered for the Court


                                                 Harris L Hartz
                                                 Circuit Judge




                                      -19-
