                         RECOMMENDED FOR FULL-TEXT PUBLICATION
                             Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                    File Name: 16a0212p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


 LIBERTARIAN PARTY OF KENTUCKY; LIBERTARIAN            ┐
 NATIONAL COMMITTEE, INC.; KEN MOELLMAN, JR.;          │
 CONSTITUTION PARTY OF KENTUCKY,                       │
                           Plaintiffs-Appellants,      │
                                                       │
                                                           >      No. 16-6107
                                                          │
         v.
                                                          │
                                                          │
 ALISON LUNDERGAN GRIMES, Secretary of State of │
 the Commonwealth of Kentucky; JOSHUA G. │
 BRANSCUM, JOHN HAMPTON, STEPHEN HUFFMAN, │
 DONALD BLEVINS, JR., ALBERT B. CHANDLER, III, │
 and GEORGE RUSSELL, Members of the State Board │
 of Elections; MARYELLEN B. ALLEN, Executive │
 Director, Kentucky State Board of Elections; │
 ANDREW G. BESHEAR, Attorney General, all in their │
 official capacities,                                     │
                                                          │
                                 Defendants-Appellees. │
                                                          ┘
                           Appeal from the United States District Court
                         for the Eastern District of Kentucky at Frankfort.
                  No. 3:15-cv-00086—Gregory F. Van Tatenhove, District Judge.

                            Decided and Filed: August 26, 2016

               Before: MERRITT, BOGGS, and McKEAGUE, Circuit Judges.

                                    _________________

                                        COUNSEL

ON BRIEF: Christopher Wiest, Robert A. Winter, Jr., CHRIS WIEST, AAL, PLLC, Crestview
Hills, Kentucky, for Appellants. Jonathan T. Salomon, Katherine Lacy Crosby, TACHAU
MEEK PLC, Louisville, Kentucky, for Appellee Grimes and Board of Elections Appellees. S.
Travis Mayo, Matt James, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort,
Kentucky, for Appellee Beshear.




                                              1
No. 16-6107           Libertarian Party of Ky., et al. v. Grimes, et al.                   Page 2


                                        _________________

                                             OPINION
                                        _________________

       BOGGS, Circuit Judge. Appellants are the Libertarian Party of Kentucky, the Libertarian
National Committee, the Constitution Party of Kentucky, and Ken Moellman, Jr., an individual
voter and former Libertarian Party candidate for Kentucky state office.            The gravamen of
appellants’ complaint is that Kentucky law unconstitutionally burdens appellants’ First and
Fourteenth Amendment rights to freedom of political association and equal protection by
categorizing the Libertarian Party and Constitution Party as “political groups,” which must
petition to list their candidates for state and local office on election ballots, rather than as
“political parties” or “political organizations,” which enjoy “blanket” ballot access for all the
candidates they nominate. The district court concluded that the Commonwealth of Kentucky’s
three-tiered ballot-access scheme was a constitutional means of exercising the Commonwealth’s
power to regulate elections. We affirm.

                                                   I

       The Commonwealth of Kentucky classifies a political association as (1) a “political
party” if it received at least twenty percent of the total vote cast in the last presidential election,
(2) a “political organization” if it received at least two percent of the vote of the state in the last
presidential election, or (3) a “political group” if it fails to qualify as a “political party” or a
“political organization.” Ky. Rev. Stat. § 118.015. Political candidates who are members of a
political party or political organization may gain ballot access by winning their party’s
nomination at a convention or in a primary election. Id. §§ 118.305, .325, .105. Members of a
political group, on the other hand, must obtain voters’ signatures on a qualifying petition in order
to gain ballot access. Id. § 118.305(1)(d). The signature requirement is 5,000 for a statewide
office; 400 for the United States House of Representatives; 100 for a county officer, member of
the Kentucky General Assembly, or Commonwealth’s Attorney; and twenty-five or fewer for
various other local offices. Id. § 118.315(2). Individuals may sign more than one petition for the
same office only if each petition nominates a soil and water conservation district supervisor (of
which seven are elected to staggered terms for each of Kentucky’s 120 counties); in all other
cases, if an individual signs multiple petitions for the same office, only the signature on the first
No. 16-6107           Libertarian Party of Ky., et al. v. Grimes, et al.               Page 3


petition to be filed is counted. Ibid. Petitioning may begin approximately one year preceding the
election for which a candidate seeks ballot access, and petitions must be filed with the Secretary
of State or county clerk by the second Tuesday in August preceding the election, allowing
approximately nine months for candidates to gather signatures. Id. § 118.365(5).

       Appellants’ argument is essentially this: the two-percent requirement for blanket party
access to the general-election ballot is “impossible, or virtually impossible” to satisfy, and the
alternative means of fielding candidates by petition is unconstitutionally burdensome—not as
applied to any individual candidate for a specific office, but rather as applied to the Libertarian
Party and Constitution Party as political associations, because these associations must incur high
costs of gathering and filing petitions in order to field a slate of candidates for state and local
office. Appellants’ Br. 11. Appellants argue that by allowing political parties and organizations
blanket ballot access without the need for petitioning, and by requiring groups like the
Libertarian Party and Constitution Party to incur heavy burdens by filing petitions, the
Commonwealth’s ballot-access laws deny appellants equal protection and “appear designed” to
“keep candidates other than the Democrat and Republican candidates off the ballot.” Id. at 23.
Appellants challenge the Commonwealth’s laws “both facially and as applied,” id. at 29, and
appellants’ arguments “have characteristics of as-applied and facial challenges.” Green Party of
Tenn. v. Hargett, 791 F.3d 684, 692 (6th Cir. 2015) (citing John Doe No. 1 v. Reed, 561 U.S.
186, 194 (2010)).

       We have previously held that the 5,000-signature requirement to petition for statewide-
office ballot access is consistent with the Equal Protection Clause. Anderson v. Mills, 664 F.2d
600, 606–07 (6th Cir. 1981). The Eastern District of Kentucky has also upheld the 5,000-
signature requirement in a challenge under the First and Fourteenth Amendments involving
appellant Libertarian Party of Kentucky. Libertarian Party v. Davis, 601 F. Supp. 522, 523–25
(E.D. Ky. 1985). Both cases involved challenges arising from the denial of ballot access to
specific candidates. We have not yet, however, evaluated the constitutionality of the two-percent
requirement for blanket party access to the general-election ballot under either the First
Amendment or the Fourteenth Amendment, nor have we evaluated the constitutionality of the
No. 16-6107               Libertarian Party of Ky., et al. v. Grimes, et al.                               Page 4


petitioning requirements as applied to a political association as a whole.1 We do so today,
following the well-established Anderson-Burdick framework, which “serves as ‘a single standard
for evaluating challenges to voting restrictions.’” Green Party of Tenn. v. Hargett, 791 F.3d at
692 (quoting Obama for Am. v. Husted, 697 F.3d 423, 430 (6th Cir. 2012)).

                                                           II

         The United States Supreme Court, in Anderson v. Celebrezze, 460 U.S. 780, 788–89
(1983), and Burdick v. Takushi, 504 U.S. 428, 434 (1992), established a three-step framework for
evaluating state restrictions on ballot access. The first step of Anderson-Burdick is to consider
the “character and magnitude” of the restriction: “severe” restrictions are subject to heightened
scrutiny, “minimally burdensome” restrictions are subject to rational-basis review, and
regulations falling in the middle warrant a “flexible analysis” that weighs the state’s interests and
chosen means of pursuing them against the burden of the restriction. Green Party of Tenn. v.
Hargett, 767 F.3d 533, 544 (6th Cir. 2014) (citing Anderson and Burdick). The second step is to
“identify and evaluate” the state’s interests and justifications for its restrictions. Id. at 546. The
third step is to assess the “legitimacy and strength” of those interests to determine whether the
restrictions are constitutional burdens on ballot access. Ibid.




         1
           Appellants challenge the effect on the Libertarian Party and the Constitution Party of the various
petitioning requirements (and not only the 5,000-signature requirement to petition for a nominee to statewide office),
including the requirement in most cases to file a separate petition with unique signatures for each nominee rather
than filing a single petition per election year. Notably, the number of signatures required for each petition is both
relatively modest and roughly congruent to the number of registered voters in the political unit represented by
each corresponding political office: 5,000 signatures for statewide office, for instance, represents roughly
0.15% of the 3,261,183 voters registered in Kentucky as of August 2016, State Bd. of Elections,
Commonwealth of Ky., Voter Registration          Statistics   Report     (2016)     (August    report    by    district),
http://elect.ky.gov/statistics/Documents/voterstatsdistrict-20160811-031801.pdf; 400 signatures for the United States
House of Representatives represents just under 0.1% of the number of voters registered in each of Kentucky’s six
congressional districts; and 100 signatures for the Kentucky General Assembly represents roughly 0.3% of the
number of voters registered in each of Kentucky’s 100 house districts and roughly 0.1% of the number of voters
registered in each of Kentucky’s thirty-eight senate districts. Ibid. While there is surely some variance in the ratio
of required signatures to registered voters at the county-or-lower level (since the signature requirements are fixed,
while the number of registered voters per county ranges from 1,734 in Robertson County to 573,650 in Jefferson
County), there is likely also variance in the difficulty of obtaining signatures depending on factors such as whether a
county is predominantly urban or rural, and in any event the requirements of 100 or fewer signatures for county- or
lower-level offices do not impose a severe burden for the reasons we set forth below. State Bd. of Elections,
Commonwealth of Ky., Voter Registration Statistics Report (2016) (August report by county),
http://elect.ky.gov/statistics/Documents/voterstatscounty-20160811-031759.pdf.
No. 16-6107           Libertarian Party of Ky., et al. v. Grimes, et al.                 Page 5


                                                 A

         At the first step, we hold that the burden of the Commonwealth’s ballot-access
restrictions on appellants is not “severe.” The hallmark of a severe burden is exclusion or virtual
exclusion from the ballot.     Compare Lubin v. Panish, 415 U.S. 709, 719 (1974) (striking
$701.60 filing fee for ballot-access petition because it excluded indigent candidates from running
for office with no reasonable alternative means of access), and Williams v. Rhodes, 393 U.S. 23,
24, 35 (1968) (striking “series of election laws,” including requirement that minor political
parties file a petition signed by the number of voters equal to fifteen percent of the votes cast in
the preceding gubernatorial election, because it “made it virtually impossible” for any party other
than the Republican Party and Democratic Party to gain ballot access), with Jenness v. Fortson,
403 U.S. 431, 438 (1970) (upholding a requirement that five percent of all registered Georgia
voters sign candidate’s petition for ballot access and noting that even serious restrictions on third
parties’ ballot access are generally upheld unless they truly operate to “freeze the political status
quo”).

         In some circumstances, the “combined effect” of ballot-access restrictions can pose a
severe burden. Citizens to Establish a Reform Party v. Priest, 970 F. Supp. 690, 699 (E.D. Ark.
1996) (citing Republican Party of Ark. v. Faulkner, 49 F.3d 1289 (8th Cir. 1995));
see Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 582–83 (6th Cir. 2006) (striking down
Ohio regulatory scheme where minor political parties could gain general-election ballot access
only if they both participated in the March primary and—120 days prior to the March primary—
filed a petition with signatures equal to one percent of the votes cast in the previous statewide
election); see also Jenness, 403 U.S. at 442 (noting that Georgia’s higher-than-most five-percent
signature requirement was “balanced by the fact that Georgia has imposed no arbitrary
restrictions whatever” on voters who want to sign multiple petitions). A very early filing
deadline, for example, combined with an otherwise reasonable petitioning requirement, can
impose a severe burden, especially on independent candidates or minority parties that must
gather signatures well before the dominant political parties have declared their nominees. See,
e.g., Storer v. Brown, 415 U.S. 724, 739–40 (1974) (remanding for further factual development
where a California requirement that a party obtain approximately 325,000 signatures on a
petition within a twenty-four-day period may have posed a severe burden); Council of
No. 16-6107          Libertarian Party of Ky., et al. v. Grimes, et al.               Page 6


Alternative Political Parties v. Hooks, 121 F.3d 876, 880 (3d Cir. 1997) (holding that a filing
deadline fifty-four days before the primary election was an unconstitutional burden); McLain v.
Meier, 637 F.2d 1159, 1163–64 (8th Cir. 1980) (finding “particularly troublesome” a filing
deadline ninety days before the primary election); Priest, 970 F. Supp. at 697–98 (concluding
that a filing deadline in January, more than four months before the primary election, was an
“unreasonable burden”).

       The burden of the Commonwealth’s ballot-access scheme on appellants thus falls well
short of “severe”: while the blanket-access requirement of gaining two percent of the votes in a
presidential election may impose some financial costs on the Libertarian Party and the
Constitution Party to the extent that meeting the threshold may require greater campaign efforts,
those costs certainly do not constitute exclusion or virtual exclusion from the ballot. After all,
the requirement that a minor party secure two percent of the actual votes cast in a presidential
election is not substantially different from a requirement that a party secure signatures of two
percent of the registered voters in a jurisdiction: indeed, the absolute number of votes required
(35,944 out of 1,797,212 cast in the 2012 election, for example) is significantly lower than the
number of signatures that would be required under a regulation that required the signatures of
two percent of registered voters (65,224 out of 3,261,183)—and even such a burden would
fall well below the five-percent requirement that the Supreme Court upheld in Jenness,
403 U.S. at 442. See State Bd. of Elections, Commonwealth of Ky., Official 2012 General
Election Results (2012), http://elect.ky.gov/SiteCollectionDocuments/Election%20Results/2010-
2019/2012/2012genresults.pdf;     State    Bd.    of    Elections,    Commonwealth        of   Ky.,
Voter Registration Statistics Report (2016) (August report by district), http://elect.ky.gov/
statistics/Documents/voterstatsdistrict-20160811-031801.pdf.

       Further, the two-percent requirement for blanket ballot access cannot constitute exclusion
or virtual exclusion because blanket access is only one of two ballot-access mechanisms. The
alternative option of filing petitions for each candidate’s candidacy remains, as we have held
before, see Anderson v. Mills, 664 F.2d at 606–07, a reasonable means of ballot access.

       Although appellants argue that meeting the two-percent requirement “is impossible, or
virtually impossible,” Appellants’ Br. 11, third parties in Kentucky have done exactly that
several times in recent election cycles: the American Party in 1968, the Anderson Coalition in
No. 16-6107               Libertarian Party of Ky., et al. v. Grimes, et al.                              Page 7


1980, and the Reform Party in 1996. Appellants contend that “if [a] party is only interested in
state politics,” it is “impossible” for such a party to gain blanket ballot access. Appellants’ Br.
12 (citing the Progressive Party of Vermont, which has eight state legislators but does not field
any presidential candidates, as an example of the sort of political group that would find it very
difficult to gain blanket ballot access under a statute like Kentucky’s). But while that argument
may have some force, since a party that failed ever to field a presidential candidate would be
unable to gain two percent of the votes in a presidential election, the hypothetical burden of
Kentucky’s regulation on a hypothetical party has no bearing on appellants, and we do not decide
how severe, if at all, such a burden would be.

         Moreover, appellants have not demonstrated that the “combined effect,” Priest, 970 F.
Supp. at 699, of the Kentucky regulation is to impose a severe burden on their access to the
ballot. Indeed, the Libertarian Party has satisfied the petitioning requirement and fielded a
candidate for President of the United States in every presidential election since 1988. Even the
Constitution Party—which boasts fewer than 400 registered voters in Kentucky—has placed a
presidential candidate on the ballot in 2000, 2004, and 2008. See State Bd. of Elections,
Commonwealth of Ky., Voter Registration Statistics Report (2016) (August report by district),
http://elect.ky.gov/statistics/Documents/voterstatsdistrict-20160811-031801.pdf. Unlike the pre-
primary filing deadlines in Hooks, 121 F.3d at 880, McLain, 637 F.2d at 1163–64, and Priest,
970 F. Supp. at 698, Kentucky allows political groups to file petitions for candidacy three
months before the general election, and provides such groups approximately nine months to
gather a quantity of signatures that amounts in almost all cases to less than 0.3% of the number
of registered voters in the political unit that corresponds to each office.                         Ky. Rev. Stat.
§§ 118.365(5), .315(2).

         Appellants further argue that the burden of the regulation is severe because of the cost on
the party of filing separate petitions for each office for which the party wishes to field a
candidate. Appellants argue that if they wished to field a candidate for every state and county
office over a four-year term,2 the cost of petitioning would be as much as $734,328: $2 per

         2
          Notably, over the four-year term including the 2017–2020 election years, appellants would have to field
candidates for a total of 2,590 offices: 2,457 offices for the 2018 election, six for the 2019 election, and 127 for the
2020 election. Nothing in the record would indicate that appellants have ever sought or now seek to nominate
candidates to anywhere near that number of offices over a four-year term.
No. 16-6107             Libertarian Party of Ky., et al. v. Grimes, et al.                     Page 8


signature for the 367,164 unique signatures that appellants claim would be required to satisfy the
petitioning requirements for every office while maintaining a “safety factor” of 1.75.3
Appellants compare this to the filing fee that the Supreme Court struck down in Lubin, 415 U.S.
at 719. Appellants’ Br. 31–32. But appellants cite figures based on the market rate charged by
“professional petitioners” to gather signatures, even though nothing in the Kentucky regulation
requires the use of such professionals. Id. at 16. And again, appellants present the hypothetical
maximum cost of petitioning without demonstrating any likelihood that appellants would
actually field a full slate of candidates for every state and county office during an actual four-
year term. Thus, unlike the mandatory filing fee in Lubin, the incidental costs of gathering
signatures on petitions do not come close to exclusion from the ballot, and thus do not impose a
severe burden on ballot access.

        Having concluded that the burden on appellants is not so “severe” as to warrant strict
scrutiny, we also conclude that the burden is not so “minimal” as to warrant rational basis
review. Green Party of Tenn. v. Hargett, 767 F.3d at 546 (citing Burdick, 504 U.S. 428). A
burden is minimal when it “in no way limit[s] a political party’s access to the ballot.”
Libertarian Party of Ohio v. Blackwell, 462 F.3d at 587 (citing Timmons v. Twin Cities Area
New Party, 520 U.S. 351, 354 (1997) (holding “minimal” any burden imposed by a regulation
that prohibited an individual from appearing on the ballot as the candidate for more than one
party), and Clingman v. Beaver, 544 U.S. 581, 593 (2005) (upholding statute allowing only
registered members of a party and registered independents to vote in a primary election)). Here,
the burden of the Kentucky regulation on appellants is at least somewhat greater than minimal
because appellants must either earn sufficient votes in a presidential election to gain political-
organization status, presumably at more-than-minimal cost in terms of time, effort, and money,
or engage in petitioning that is not required of major political parties, with the result that minor
parties will necessarily spend time, effort, and money gathering signatures that they could
otherwise spend campaigning for candidates. To the extent that a minor party therefore fields
fewer candidates or earns fewer votes than it would if it enjoyed blanket ballot access without
having to earn it, the Kentucky regulation imposes a more-than-minimal burden. Since the


        3
          Safety factor refers to the ratio of actual signatures gathered to signatures required. Candidates
generally gather more signatures than required to hedge against the risk of invalid or duplicate signatures.
Appellants’ Br. 1–2.
No. 16-6107            Libertarian Party of Ky., et al. v. Grimes, et al.                 Page 9


Kentucky regulation thus falls somewhere “in between” minimal and severe, Green Party of
Tenn. v. Hargett, 767 F.3d at 546, we will next engage in the “flexible analysis,” Anderson v.
Celebrezze, 460 U.S. at 789, that the district court rightly employed.

                                                  B

       At the second step of Anderson/Burdick, we hold that Kentucky has an important interest
in ensuring that candidates demonstrate a “significant modicum of support,” Jenness, 403 U.S. at
442, before gaining access to the ballot, primarily in order to avoid voter confusion, ballot
overcrowding, and frivolous candidacies.

       Under Article I, Section 4, of the United States Constitution, it falls to the states to
prescribe the “times, places and manner of holding Elections,” subject to some federal oversight.
U.S. Const. art. I, § 4, cl. 1. The Supreme Court has held that “as a practical matter, there must
be a substantial regulation of elections if they are to be fair and honest and if some order, rather
than chaos, is to accompany the democratic process.” Storer, 415 U.S. at 730 (finding a
significant state interest in avoiding ballot confusion to be a valid justification for requiring
independent candidates to be politically disaffiliated with other parties for one year before the
primary election); see also Timmons, 520 U.S. at 364, 366 (noting that “[s]tates certainly have an
interest in protecting the integrity, fairness, and efficiency of their ballots and election processes
as means for electing public officials” and that states have a “strong interest in the stability of
their political systems”).

       The Commonwealth of Kentucky has asserted interests in avoiding the voter confusion,
ballot overcrowding, and frivolous candidacies that would likely arise in increasing frequency as
the number of parties with blanket ballot access increased. The district court rightly noted that
the privilege of blanket access is significant, for any party with blanket access may field as many
candidates as it nominates to every state and local election for a four-year term, adding a
potentially great number of candidates to ballots statewide. The interests cited are central to the
regulation of elections: for example, much of the controversy attendant to the 2000 presidential
election in Florida was occasioned by the fact that Florida permitted ten parties to be included on
the presidential ballot, leading to a variety of confusing and unorthodox ballot designs that would
not have been necessary with a smaller number of parties. Thus, the Commonwealth may
No. 16-6107           Libertarian Party of Ky., et al. v. Grimes, et al.                   Page 10


sensibly require the kind of broad-level support that is measured by a political group’s ability to
garner two percent of the vote in a presidential election.

                                                  C

        Finally, at step three of Anderson/Burdick, we hold that the Commonwealth of
Kentucky’s legitimate interests in regulating elections are sufficiently strong to justify its chosen
means of achieving them, even if less restrictive means might be available. Appellants contend
that rather than requiring political groups to obtain two percent of the votes in a presidential
election in order to enjoy blanket ballot access, Kentucky should alternatively allow mid-term or
gubernatorial election results to qualify a political association as a political party or organization.
Appellants’ Br. 13. Our job, however, is not to second-guess the legislative decisions of the
Kentucky General Assembly but only to evaluate whether those decisions pass constitutional
muster, and for the reasons discussed above in Parts II-A and II-B, the strength of Kentucky’s
interests in avoiding voter confusion, ballot overcrowding, and frivolous candidacies outweighs
the modest burden of the ballot-access regulations on appellants.

        As for the petitioning requirement, appellants argue that they should be able to file a
single petition rather than separate petitions for each candidate. While such a scheme would
almost certainly require less time and effort of appellants if they chose to field many candidates
in a given election year, it is not the system that Kentucky has chosen and that we now uphold.

                                                  III

        We also affirm the district court’s grant of Attorney General Beshear’s motion to dismiss.
The district court properly held that the Attorney General was not a proper defendant because the
Attorney General’s general enforcement powers did not provide a basis on which to grant
appellants relief.

        Accordingly, the district court’s judgment is AFFIRMED.
