                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-19-2004

Biener v. Calio
Precedential or Non-Precedential: Precedential

Docket No. 03-1607




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Recommended Citation
"Biener v. Calio" (2004). 2004 Decisions. Paper 885.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/885


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                     PRECEDENTIAL   Leslie G. Bohner, Esq.
                                    Drinker Biddle & Reath
 THE UNITED STATES COURT OF         18 th and Cherry Streets
APPEALS FOR THE THIRD CIRCUIT       One Logan Square
          ___________               Philadelphia, PA 19103

           No. 03-1607              Charles H. Wampold, III, Esq. (Argued)
           ___________              Drinker, Biddle & Shanley
                                    105 College Road East
    STEVEN BIENER; CAROL            P. O. Box 627, Suite 300
         GREENWAY,                  Princeton, NJ 08542
                 Appellants            Counsel for Appellants


                v.                  C. Drue Chichi, Esq. (Argued)
                                    Aleph Ann Woolfold, Esq.
FRANK CALIO, The Honorable, State   Department of Justice
     Election Commissioner;         820 North French Street
  DEMOCRATIC PARTY OF THE           Wilmington, DE 19801
    STATE OF DELAWARE                  Counsel for Appellee, The Honorable
                                       Frank Calio
           ___________
                                    Charles J. Durante, Esq. (Argued)
   APPEAL FROM THE UNITED           Connolly, Bove, Lodge & Hutz
STATES DISTRICT COURT FOR THE       1007 North Orange Street
    DISTRICT OF DELAWARE            P. O. Box 2207
                                    Wilmington, DE 19899
      (D.C. No. 02-cv-00514)           Counsel for Appellee, Democratic
   District Judge: The Honorable       Party DE
          Gregory M. Sleet
             ___________            Bonita P. Tenneriello, Esq.
                                    National Voting Rights Institute
   ARGUED OCTOBER 28, 2003          27 School Street
                                    Suite 500
  BEFORE: SCIRICA, Chief Judge,     Boston, MA 02108
    NYGAARD, and AMBRO,                Counsel for Amicus-Appellant
        Circuit Judges.
                                                 ___________

      (Filed: March 19, 2004)             OPINION OF THE COURT
           ___________                         ___________
NYGAARD, Circuit Judge.                               I. FACTS AND PROCEDURAL
                                                               HISTORY
        Appellant Steven Biener, a
Delaware citizen who sought nomination                    Unlike general elections, which
as the Democratic Party’s candidate for           are held by the state to select government
the United States House of                        office-holders, primary elections are
Representatives (“the House”), appeals            conducted by the state on behalf of and
the District Court’s grant of summary             as a convenience to political parties to
judgment against him. Biener and Carol            assist them in selecting their candidates
Greenway, a registered voter who is a             for office. Under Delaware law,
Biener supporter, sued the Democratic             individual political parties share
Party of the State of Delaware (“the              responsibility with the state for election
Party”) and Frank Calio, Delaware’s               primaries. Political parties are
state commissioner for elections, alleging        authorized to set the filing fee amount, so
that the $3000 filing fee for the 2002            long as it does not exceed 1% of the total
Democratic primary was                            salary for the term of office the candidate
unconstitutional. The District Court              seeks. 15 Del. Code § 3103(a)-(c). In
rejected Biener’s arguments under the             2002, the Party set the filing fee for
Qualifications, Equal Protection, and             candidacy to the House at $3000.
Due Process Clauses and granted
                                                          When a party opts to impose a
summary judgment on behalf of the Party
                                                  filing fee on candidates, Delaware law
and Calio.
                                                  provides only one exception. 15 Del.
        The Delaware statute provides a           Code § 3103(d)-(e). Candidates who
filing fee exception for indigent                 demonstrate they are indigent by virtue
candidates who are unable to pay a fee.           of qualification for federal benefits may,
Biener challenges the lack of a ballot            in lieu of a filing fee, access the primary
access alternative for non-indigent               ballot by obtaining signatures on a
candidates. He asserts that he should             petition. Id.
have a choice not to pay the fee. We
                                                          Biener sought to be included on
conclude that the availability of a choice
                                                  the ballot for the 2002 Democratic
is outcome determinative for Biener’s
                                                  primary as a candidate for the House. He
Qualifications and Equal Protection
                                                  ran on an anti-election spending and anti-
Clause claims. Those claims fail.
                                                  special interest platform, and did not
Additionally, we conclude that there is
                                                  solicit money for his campaign. Biener
no due process violation. We will
                                                  submitted the necessary paperwork to the
therefore affirm the District Court’s grant
                                                  state and the Party, but was informed that
of summary judgment.
                                                  because he is non-indigent he needed to
                                                  remit the $3000 filing fee or would be
                                                  left off the Democratic primary ballot.


                                              2
        Biener filed suit against Calio             all jurisdictional questions, including
seeking declaratory and injunctive relief.          whether a plaintiff has standing to assert
Calio filed an unopposed motion to join             a particular claim. See Gen. Instrument
the Party as a defendant, and that motion           Corp. of Del. v. Nu-Tek Elec. & Mfg.,
was granted. The District Court denied              Inc., 197 F.3d 83, 86 (3d Cir. 1999). We
Biener relief, stating that Biener had not          also review the District Court’s decision
shown a likelihood of success on any of             to grant summary judgment on a plenary
his claims.                                         basis. See Blair v. Scott Specialty Gases,
                                                    283 F.3d 595, 602-03 (3d Cir. 2002). A
        Once his complaint for
                                                    grant of summary judgment is
declaratory and injunctive relief was
                                                    appropriate “if the pleadings,
rejected, Biener paid the $3000 filing
                                                    depositions, answers to interrogatories,
fee. He then amended his complaint to
                                                    and admissions on file, together with the
seek a refund of the fee, which
                                                    affidavits, if any, show that there is no
constituted two-thirds of the entire
                                                    genuine issue as to any material fact and
amount expended on his campaign.
                                                    that the moving party is entitled to a
After paying the fee, Biener was
                                                    judgment as a matter of law.” Fed. R.
included on the Democratic primary
                                                    Civ. P. 56(c). “In reviewing the grant of
ballot and received 48% of the votes but
                                                    summary judgment, we must affirm if the
did not win the Democratic nomination.
                                                    record evidence submitted by the non-
        Biener’s suit alleged that the filing       movant ‘is merely colorable or is not
fee requirement is unconstitutional on              significantly probative.’” See Port Auth.
three grounds: (1) it adds an                       of N.Y. & N.J. v. Affiliated FM Ins. Co.,
impermissible wealth requirement to the             311 F.3d 226, 232 (3d Cir. 2002)
qualifications for House membership, (2)            (quoting Anderson v. Liberty Lobby, Inc.,
it denies equal protection to non-indigent          477 U.S. 242, 249-50 (1986)).
candidates who would like to seek office
                                                    A. STANDING
without paying a filing fee, and (3) it
violates the Due Process Clause because                     As a threshold matter, we must
it inappropriately delegates state power            consider whether Biener has standing to
to political parties. Calio and the Party           make his claims. Our decision here is
made a motion for summary judgment,                 informed by our recent opinion in
which the District Court granted on all             Belitskus v. Pizzingrilli, 343 F.3d 632 (3d
three grounds.                                      Cir. 2003). In that case, which involved
                                                    a challenge to Pennsylvania’s election
            II. DISCUSSION
                                                    filing fees, we rejected the argument
        We have jurisdiction pursuant to            “that a candidate challenging a
28 U.S.C. § 1291, since this is an appeal           mandatory filing fee must establish that
of a final decision of a federal district           payment of the fee would result in the
court. We exercise plenary review over              complete depletion of personal or

                                                3
campaign funds in order to demonstrate             him to act as a third-party, Biener lacks
injury to a protected interest.” Id. at 640.       standing to make this claim. See Pa.
                                                   Psychiatric Soc’y v. Green Spring Health
                                                   Servs., 280 F.3d 278, 288 (3d Cir. 2002)
        Biener, by paying the $3000 filing
                                                   (“It is a well-established tenet of
fee in protest, depleted two-thirds of his
                                                   standing that a litigant must assert his or
campaign funds. This is an injury in fact,
                                                   her own legal rights and interests, and
which is clearly traceable to the filing fee
                                                   cannot rest a claim to relief on the legal
set by the Party and Calio. The injury
                                                   rights or interests of third parties.”)
also can be redressed by a favorable
                                                   (internal quotations omitted).
decision in this court. Biener thus has
standing to challenge the filing fee on his        B. QUALIFICATIONS CLAUSE
own behalf. See AT&T Communications
                                                           The District Court held that
of N.J., Inc. v. Verizon N.J., Inc., 270
                                                   Delaware’s filing fee for the Democratic
F.3d 162, 170 (3d Cir. 2001) (reciting the
                                                   primary does not violate the
three elements of a case or controversy
                                                   Qualifications Clause by improperly
for purposes of standing: injury,
                                                   adding a wealth requirement to the
causation, and redressability); see also
                                                   qualifications for House membership.
Belitskus, 343 F.3d at 640 (citing Green
                                                   The Qualifications Clause of the United
v. Mortham, 155 F.3d 1332 (1998), an
                                                   States Constitution states that “No
Eleventh Circuit Court of Appeals case
                                                   Person shall be a Representative who
in which the candidate used campaign
                                                   shall not have attained to the Age of
contributions to pay the filing fee under
                                                   twenty five Years, and been seven Years
protest and the court did not question his
                                                   a Citizen of the United States, and who
standing).
                                                   shall not, when elected, be an Inhabitant
        Biener also purports to make               of that State in which he shall be
claims on behalf of indigent or near-              chosen.” U.S. C ONST. art. I, § 2, cl. 2.
indigent individuals. For example,                 Supreme Court precedent establishes that
Biener alleges that Delaware’s                     states have no power to add to these age,
alternative to filing fees for indigent            citizenship, and residency requirements.
candidates is illusory because so few              U.S. Term Limits, Inc. v. Thornton, 514
people qualify as indigent under the               U.S. 779, 798-99 (1995) (citing a long
statutory definition. Biener does not              list of cases in numerous courts that
contend, however, that he is in the group          conclude states lack the authority to
of near-indigent individuals who are               supplement the qualifications in the
allegedly prevented from availing                  Qualifications Clause). Furthermore,
themselves of this ballot-access                   states should not attempt to disguise
alternative. Because he is not a member            qualifications for office as qualifications
of that group nor does he possess a                for election as a way to circumvent this
“close relationship” worthy of allowing            rule, or they risk the qualifications for

                                               4
election being found unconstitutional.             residency requirements; loyalty oath
Id. at 831 (“[D]ressing eligibility to stand       requirements; voter registration
for Congress in ballot access clothing             requirements; and restrictions on those
trivializes the basic principles of our            convicted of felonies. See, e.g., id. at
democracy that underlie [the                       799; Schaefer v. Townsend, 215 F.3d
Qualifications] clause[].”) (internal              1031, 1039 (9th Cir. 2000); Campbell v.
quotations omitted). The issue here is             Davidson, 233 F.3d 1229, 1231 (10th
whether the filing fee for the Democratic          Cir. 2000). Unlike these impermissible
primary constitutes an additional                  qualifications, the filing fee for the
qualification for House membership.                Democratic primary is not inherent in the
                                                   candidate. See Fowler v. Adams, 315
       Biener’s Qualifications Clause
                                                   F.Supp. 592, 594 (M.D. Fla. 1970)
claim is based in large part on Thornton,
                                                   (stating that a filing fee, unlike the
in which the Supreme Court found a
                                                   Article I, Section 2, Clause 2
term-limitation statute unconstitutional
                                                   “Qualifications,” “is not personal to the
as an impermissible attempt to add to the
                                                   candidate but may be paid by anyone in
qualifications for office established by
                                                   his behalf”).
the Constitution. Id. at 837-38. Latching
onto Thornton, Biener argues that                          In a recent case before this Court,
Delaware’s filing fee is an eligibility            we rejected a Qualifications Clause
requirement for office and thus an                 challenge to the Hatch Act because
impermissible wealth qualification. In             “[t]he Act allows a citizen a choice.”
support of his claim, Biener points to the         Merle v. United States, 351 F.3d 92, 97
debate by the Framers of the Constitution          (3d Cir. 2003). There, we took notice
over whether to include a wealth or                that a “resign to run” law may force the
property-holding requirement in the                prospective candidate to make a choice
Qualifications Clause, and their ultimate          between federal employment and running
decision that qualifications would be              for elective office, but does not
limited to age, citizenship, and residency.        constitute an “additional qualification for
                                                   the office of United States
       Thornton and the “impressive and
                                                   Representative.” Id. Likewise, a
uniform body of judicial decisions” cited
                                                   candidate financially able to pay a filing
therein where courts have struck down
                                                   fee, but unwilling to do so, is not being
laws on the basis that they improperly
                                                   subjected to an impermissible wealth
added qualifications to those found in the
                                                   requirement.
Qualifications Clause focus on
qualifications that were inherent in the                   Finally, we disagree with Biener’s
candidate. See, e.g., Thornton, 514 U.S.           contention that Thornton capsized
at 800. For instance, all of the following         existing precedent upholding states’
qualifications have been found                     rights to require filing fees. See Fowler,
unconstitutional: term limits; district            315 F.Supp. at 594; Cassidy v. Willis,

                                               5
323 A.2d 598, 602 (Del. 1974); Bodner             Supreme Court struck down an election
v. Gray, 129 So.2d 419, 420-21 (Fla.              primary filing fee where it was an
1961); Kenneweg v. Allegheny County               “absolute prerequisite” to participation.
Comm’rs, 62 A. 249, 251 (Md. 1905).               Bullock v. Carter, 405 U.S. 134, 137
Even after Thornton, states still have the        (1972). The filing fees in that case were
right to regulate elections by imposing           set by the county executive committees
reasonable requirements on candidates.            of the individual political parties and
In Thornton, the Court held that “an              were subject to limitations only in some
amendment with the avowed purpose and             counties. Id. at 137-38. The proceeds of
obvious effect of evading the                     the fee went to the party. Id. at 137. The
requirements of the Qualifications                Bullock court said that despite the
Clause[] by handicapping a class of               political parties’ involvement with the
candidates cannot stand.” 514 U.S. at             filing fees, “the mechanism of such
831. Here, there is no avowed purpose to          elections is the creature of state
evade the constitution and exclude a              legislative choice and hence is state
class; instead, the purpose of the filing         action within the meaning of the
fee is to keep Delaware’s ballots                 Fourteenth Amendment.” Id. at 140
manageable. Moreover, the logical                 (internal citations and quotations
consequences of Biener’s argument                 omitted).
would jeopardize states’ use of signature
                                                          The Bullock court “closely
requirements.
                                                  scrutinized” the filing fee, looking at
C. EQUAL PROTECTION CLAUSE                        whether the fee was reasonably necessary
                                                  to the accomplishment of legitimate state
       Next, we address whether the
                                                  objectives. Id. at 144. The Court
District Court erred when it granted
                                                  recognized that states have a legitimate
summary judgment for Appellees Calio
                                                  interest in regulating the number of
and the Party on the Equal Protection
                                                  candidates on the ballot to “prevent the
Clause claim. Like the District Court,
                                                  clogging of its election machinery, avoid
we hold that there is no equal protection
                                                  voter confusion, and assure that the
violation. Equal protection jurisprudence
                                                  winner is the choice of a majority, or at
mandates a ballot-access alternative for
                                                  least a strong plurality.” Id. at 145.
those unable to pay a filing fee.
                                                  Additionally, it is a legitimate objective
Delaware law complies with this
                                                  for states to protect the ballot from
precedent by providing an alternative for
                                                  including frivolous or fraudulent
indigent candidates. Here, Biener alleges
                                                  candidates. Id. But “[t]o say that the
only an unwillingness, not an inability, to
                                                  filing-fee requirement tends to limit the
pay. In its history, the Supreme Court
                                                  ballot to the more serious candidates is
has considered only two election filing
                                                  not enough.” Id. The Court held the
fee cases, both of which were decided on
                                                  differing treatment must also bear some
equal protection grounds. In 1972, the

                                              6
relevance to the objective, and that in           provide a reasonable alternative means of
Bullock the fee was not reasonably                ballot access to indigent candidates. Id.
necessary because other means to protect          at 647. We applied a heightened level of
the state’s valid interests were available.       scrutiny because indigent plaintiffs were
Id. at 145-46. The decision was                   challenging a mandatory filing fee. Id. at
motivated by a concern that without an            644-45.
alternative means of ballot access
                                                          The issue here is whether the
affluent candidates were advantaged. Id.
                                                  filing fee violated the Equal Protection
at 144.
                                                  Clause by extending alternate means of
        A few years later, in Lubin v.            ballot access only to indigent candidates.1
Panish, an indigent candidate brought a           The parties agree that Biener cannot avail
class-action suit to prevent California           himself of Delaware’s alternate means of
from enforcing its filing fee. 415 U.S.           accessing the ballot—receiving the
709 (1974). The California Elections              requisite number of signatures on a
Code made forms required for                      campaign petition—because he is not
nomination and election issuable only             indigent or even near-indigent. Biener’s
once candidates paid a non-refundable             claim is that Delaware’s filing fee is
filing fee. Id. at 710. The fee amount            unconstitutional because it lacks an
was tied to the salary of the office              equivalent alternative for non-indigent
sought. Id. As in Bullock, the Supreme            candidates.2
Court applied a close scrutiny test and
                                                         Biener urges us to find
held that the fee was unconstitutional
                                                  Delaware’s filing fee unconstitutional
because no alternate means of ballot
                                                  under Bullock and Lubin. But Biener’s
access was available for indigent
                                                  reliance on Bullock and Lubin is
candidates. Id. at 717-18. According to
                                                  misplaced because the candidates in both
the Court, Lubin was a less
                                                  cases were indigent. See Bullock, 405
straightforward case than Bullock
because California’s fees were not as
exorbitant. Id. at 715 n.4.                       1.     Biener does not challenge the
       More recently, we considered the           reasonableness of the $3000 filing fee.
constitutionality of Pennsylvania’s
                                                  2.      Biener makes an argument that
election filing fees. Because the ruling
                                                  Delaware’s definition of indigence is
occurred after briefs were filed in this
                                                  useless because so few people qualify for
case, we sought comment from the
                                                  the alternative means of ballot access.
parties on the applicability of Belitskus,
                                                  See 15 Del. Code § 3101(e). As
343 F.3d 632. In Belitskus, we held that
                                                  discussed supra, Biener lacks standing to
Pennsylvania’s filing-fee requirement
                                                  make this argument, as he does not
was unconstitutional under the Equal
                                                  purport to be in the class of near-indigent
Protection Clause because it failed to
                                                  persons who are excluded.

                                              7
U.S. at 146 (“the candidates . . .                 depends on the filing fee’s effect on
affirmatively alleged that they were               Biener’s rights. Id. We need not
unable, not simply unwilling, to pay the           automatically apply close scrutiny just
assessed fees”); see also Cassidy, 323             because this case deals with ballot
A.2d at 601 (noting that in Lubin the              access. See Burdick v. Takushi, 504 U.S.
“inability to pay the fee . . . is so much a       428, 433-34 (1992).
part of the decision that we cannot ignore
                                                           In Belitskus, we followed the
it here”). Biener turns Bullock and Lubin
                                                   flexible standard set forth in Anderson v.
on their heads when he argues that
                                                   Celebrezze for determining the
indigents are advantaged under
                                                   appropriate level of scrutiny in ballot
Delaware’s current system because they
                                                   access cases. 460 U.S. 780, 789 (1983),
have an alternative that other candidates
                                                   cited in Belitskus, 343 F.3d at 643. We
do not. Biener’s assertion that we should
                                                   decline to apply the Anderson balancing
reach the same result as Bullock is
                                                   test here. In Belitskus, such an inquiry
discouraged by the language of that case,
                                                   was appropriate because First
where the Court said the opinion should
                                                   Amendment considerations were at issue.
not be read to “cast doubt on the validity
                                                   Unlike Belitskus, Biener’s challenge
of reasonable candidate filing fees . . . in
                                                   relies solely on the Fourteenth
other contexts.” 405 U.S. at 149.
                                                   Amendment and he makes no allegations
       Because Biener is not claiming              based on freedom of association. See
indigence, Bullock, Lubin, and Belitskus,          Belitskus, 343 F.3d at 643 n.8 (noting
while not determinative, are informative           that Anderson was not expressly decided
on the Equal Protection analysis. “In              on equal protection grounds and thus
determining whether or not a state law             “some uncertainty exists regarding its
violates the Equal Protection Clause, we           applicability to equal protection-based
must consider the facts and                        challenges,” but applying Anderson
circumstances behind the law, the                  nonetheless because “neither party
interests which the State claims to be             challenges its application”); Anderson,
protecting, and the interests of those who         460 U.S. at 787 n.7 (“In this case, we
are disadvantaged by the classification.”          base our conclusions directly on the First
Williams v. Rhodes, 393 U.S. 23, 30                and Fourteenth Amendments and do not
(1968) (cited in Bullock, Lubin, and               engage in a separate Equal Protection
Belitskus).                                        Clause analysis.”).3
       Our first inquiry in an equal
protection challenge is the appropriate
level of scrutiny. See Reform Party of
                                                   3.     Even if we were to apply the
Allegheny County v. Allegheny County
                                                   Anderson balancing test, our conclusion
Dep’t of Elections, 174 F.3d 305, 314 (3d
                                                   that we would use a rational basis test
Cir. 1999) (en banc). The scrutiny test
                                                   would remain unchanged.

                                               8
       Rather than apply Anderson, we              objective “of the highest order.” Lubin,
proceed on a traditional equal protection          415 U.S. at 715 (referencing Bullock,
analysis, whereby only suspect classes             405 U.S. 134); Bullock, 405 U.S. at 145-
and fundamental rights receive                     46 (stating in dicta that “there may well
intermediate or strict scrutiny. The right         be some rational relationship between a
to run for office has not been deemed a            candidate’s willingness to pay a filing fee
fundamental right. Bullock, 405 U.S. at            and the seriousness with which he takes
142-43. Biener also cannot establish an            his candidacy”). Keeping the ballot
infringement on the fundamental right to           manageable is an interest sufficient to
vote, because “voter’s rights are not              meet the low standard of review. See
infringed where a candidate chooses not            Belitskus, 343 F.3d at 647 (stating that
to run because he is unwilling to comply           distinguishing serious from non-serious
with reasonable state requirements.” See           candidates is a legitimate interest, but it
Adams v. Askew, 511 F.2d 700, 703 (5th             is not enough where there is no
Cir. 1975). As the filing fee does not             reasonable alternative means of ballot
infringe upon a fundamental right, nor is          access for indigents).
Biener in a suspect class, we consider the
                                                           In concluding that Biener has
claims under a rational basis test. See id.
                                                   suffered no equal protection violation
at 703-04 (applying a rational basis test
                                                   here, we follow the conclusion reached
to hold that an alternative to a filing fee
                                                   by the Fifth Circuit Court of Appeals in
was required only for indigent
                                                   Adams. 511 F.2d 700. There, the Court
candidates).
                                                   was faced with non-indigent candidates
       Having established that the                 who paid the requisite filing fee under
appropriate test is rational review, the           protest and sued for a refund alleging the
question becomes whether the filing fee            fee was unconstitutional. Id. at 701.
meets that standard. See, e.g., Romer v.           Basing its decision on Bullock and Lubin,
Evans, 517 U.S. 620, 632 (1996) (noting            the Fifth Circuit Court of Appeals held
that even under the most deferential of            that candidates who were able, but
standards, “we insist on knowing the               simply unwilling, to pay a filing fee are
relation between the classification                not entitled to another route to the ballot.
adopted and the object to be obtained”).           Id. at 702. The court found
The justification for the filing fee offered       determinative that “it is not the statute
by both the State of Delaware and the              which perforce restricts the ballot but the
Party is that it will help distinguish             candidate’s decision to pay or not to
serious from non-serious candidates to             pay.” Id. at 703 (emphasis added).
keep the ballot manageable. The
                                                          Voters’ rights are not infringed
Supreme Court has recognized that the
                                                          where a candidate chooses not to
interest in keeping ballots manageable,
                                                          run because he is unwilling to
often manifested in a filing fee, is an
                                                          comply with reasonable state

                                               9
       requirements. They are no more                189, 196 (1989) (internal citations and
       affected by a candidate’s                     quotations omitted). The threshold issue
       unwillingness to pay a reasonable             here is whether Biener possesses a
       filing fee than they are when he              protected liberty or property interest in
       refuses to comply with financial              access to the Democratic primary ballot.
       disclosure laws, or, for that                 In an analogous case, the Supreme Court
       matter, a reasonable petitioning              held that impositions on the right to run
       requirement.                                  for state political office do not implicate
                                                     the Due Process Clause. See Snowden v.
Id. We quite agree. The availability of
                                                     Hughes, 321 U.S. 1, 7 (1944). We do not
choice is fatal to Biener’s equal
                                                     decide here whether the Snowden
protection claim.
                                                     holding would extend to federal elective
D. DUE PROCESS CLAUSE                                offices, because even if we were to
                                                     follow the result of the Supreme Court
         Next, Biener alleges an improper
                                                     and hold that the right to run for federal
delegation of power under the Due
                                                     elected office warrants due process
Process Clause. Biener argues that
                                                     protection, doing so would not save
because Delaware allows political parties
                                                     Biener’s due process claim.
to set and retain filing fees, 15 Del. Code
§ 3103 is unconstitutional.4 We will                         Generally, the Fourteenth
affirm the District Court, because there is          Amendment protects individuals only
no due process violation where, as here,             against government action, unless the
the state limits the private party’s                 state has delegated authority to a private
discretion and the private party operates            party, thereby making the actor a “state
within the established limitations. The              actor” and implicating the Due Process
Due Process Clause of the Fourteenth                 Clause. See Nat’l Collegiate Athletic
Amendment provides that “no State shall              Ass’n v. Tarkanian, 488 U.S. 179, 195
. . . deprive any person of life, liberty, or        (1988). The Due Process Clause limits
property without due process of law.”                the manner and extent to which a state
The Clause “was intended to prevent                  legislature may delegate legislative
government from abusing its power, or                authority to a private party acting as a
employing it as an instrument of                     state actor. See, e.g., Yick Wo v.
oppression.” Deshaney v. Winnebago                   Hopkins, 118 U.S. 356, 373-74 (1886).
County Dep’t of Soc. Servs., 489 U.S.                Only if the state legislature imposes
                                                     sufficient limitations is the exercise of
                                                     authority by the private party
4.       Delaware’s authority to set filing          constitutional. See, e.g., Seattle Title
fees itself is not at issue. Nor is there a          Trust Co. v. Roberge, 278 U.S. 116, 121-
contention that the Party has exceeded               22 (1928) (concluding that the delegation
the scope of authority delegated to it by            of zoning power to individual
the state.

                                                10
landowners violated the due process                 imposing an upper limit.5 Contrary to
clause because the ordinance allowed no             Biener’s contention that the Party
opportunity for review and left the                 “controls the price of admission to the
private parties “free to withhold consent           electoral process,” it is the state that sets
for selfish reasons or arbitrarily . . .            the only price that matters to potential
[based on] will or caprice”); Eubank v.             candidates who generally pay the filing
City of Richmond, 226 U.S. 137, 143-44              fee out of campaign coffers—the
(1912); Gen. Elec. Co. v. New York State            maximum price.
Dep’t of Labor, 936 F.2d 1448, 1455 (2d
                                                            We have not found, nor has
Cir. 1991) (noting that delegation
                                                    Biener asserted, any instance where a
without standards allows the private
                                                    federal appellate court deemed a state
party to exercise selfish or arbitrary
                                                    delegation unconstitutional under the
motivations or whims). Without
                                                    Due Process Clause for any reason but a
sufficient limitations, the delegation of
                                                    lack of standards allowing exercise of the
authority can be deemed void for
                                                    authority on a whim or caprice. There is
vagueness as allowing ad hoc decisions
                                                    no evidence that the Party could exercise
or giving unfettered discretion to the
                                                    its ability to set filing fees selfishly,
private party.
                                                    arbitrarily, or based on will or caprice.
        In this case, the District Court            See Roberge, 278 U.S. at 121-22.
held that Delaware’s limitation on the              Biener’s reference to Bartley v. Davis, a
filing fee amount is a sufficient                   1986 case from the Delaware Court of
limitation on the Party’s authority to              Chancery, fails to convince us that the
prevent the delegation from running                 delegation of authority for setting filing
afoul of the Due Process Clause. We                 fees has been abused by the Party.
agree. Delaware delegates to political
parties the authority to set the filing fee
for election primaries, so long as the fee                     III. CONCLUSION
does not exceed 1% of the total salary for
                                                           In sum, Delaware’s filing fee is
the term of office the candidate seeks.
                                                    constitutional under the Qualifications,
15 Del. Code § 3103. The State also
                                                    Equal Protection, and Due Process
allocates 100% of the fee to the Party for
                                                    Clauses. We will affirm the District
it to keep, or choose to rebate to the
                                                    Court’s summary judgment order.
candidate in whole or in part.
Effectively, the State of Delaware has
created a means of revenue production
for the Party, but caps the profitability by        5.      What use the Party puts filing fee
                                                    proceeds to is irrelevant to our analysis.
                                                    We consider only whether the delegation
                                                    of authority by the State of Delaware is
                                                    facially impermissible.

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