PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

CHRISTINE FISHBECK; BRIAN HORTON;
THE LIBERTARIAN NATIONAL
COMMITTEE; THE WEST VIRGINIA
LIBERTARIAN PARTY,
Plaintiffs-Appellants,

and
                                                                       No. 95-1951
KARL HESS,
Plaintiff,

v.

KEN HECHLER, Secretary of State,
Defendant-Appellee.

Appeal from the United States District Court
for the Southern District of West Virginia, at Charleston.
John T. Copenhaver, Jr., District Judge.
(CA-92-807-2)

Argued: May 6, 1996

Decided: June 3, 1996

Before RUSSELL and MICHAEL, Circuit Judges, and PAYNE,
United States District Judge for the Eastern District of Virginia,
sitting by designation.

_________________________________________________________________

Affirmed by published opinion. Judge Russell wrote the majority
opinion, in which Judge Michael joined. Judge Payne wrote a dissent-
ing opinion.

_________________________________________________________________
COUNSEL

ARGUED: Robert Milton Bastress, Jr., WEST VIRGINIA UNIVER-
SITY COLLEGE OF LAW, Morgantown, West Virginia, for Appel-
lants. Daynus Jividen, OFFICE OF THE ATTORNEY GENERAL
OF WEST VIRGINIA, Charleston, West Virginia, for Appellee.

_________________________________________________________________

OPINION

RUSSELL, Circuit Judge:

The state and national Libertarian Party and two of its members1
challenge West Virginia's primary-election-eve deadline for filing
nominating petitions as an unconstitutional restriction on access to the
ballot.

In 1992, the Libertarian Party (the "Party") sought to place Karl
Hess on the general election ballot in West Virginia as the Party's
candidate for governor. Because the Party had not accumulated one
percent of the vote in the preceding gubernatorial election, West Vir-
ginia election law required the party to submit a nominating petition
endorsed by a number of registered voters equal to one percent of the
total voter turnout in the preceding gubernatorial election. W. Va.
Code §§ 3-1-8 and 3-5-23. West Virginia law requires candidates for
offices other than president or vice-president to submit such nominat-
ing petitions no later than the day preceding the primary,2 which is
held on the second Tuesday in May. W. Va. Code §§ 3-5-1 and 3-5-
24. West Virginia law also prohibits a registered voter who signs a
_________________________________________________________________
1 The plaintiffs are the Libertarian Party National Committee; the West
Virginia Libertarian Party; Brian Horton, the West Virginia Libertarian
Party Chairman, the coordinator of the West Virginia Libertarian Party's
petition drive in 1992, and the Libertarian Party's candidate for West
Virginia State Auditor in 1992; and Christine Fishbeck, a member of the
Libertarian Party. Karl Hess, the Libertarian Party's candidate for West
Virginia governor in 1992 was originally a plaintiff; he died in 1994.
2 Nominating petitions for candidates for president or vice-president
must be submitted by August 1 in the year of the election. W. Va. Code
§ 3-5-23(a).

                    2
nominating petition from voting in the next primary election. W. Va.
Code § 3-5-23(c).

On or around March 1, 1992, the Party began its petition drive to
collect the 6,533 signatures required to place Hess on the ballot. On
May 11, 1992, the day before the 1992 primary election, the Party
filed its petition with 11,159 signatures supporting Hess' candidacy.
The Secretary of State, Ken Hechler, subsequently declared 6,704 of
the submitted signatures to be invalid. Of these, 2,574 signators were
rejected because they had voted in the primary. 3 The Secretary of
State accepted only 4,455 signatures supporting Hess' candidacy and
thus disqualified the Libertarian Party from access to the 1992 guber-
natorial ballot.

Upon learning in late July that it did not have enough signatures
to place Hess on the ballot, the Party immediately restarted its ballot
drive. Brian Horton, who had coordinated the failed petition drive,
was replaced by two of the Party's national directors. On August 3,
1992, the Party filed 4,821 additional signatures. The Secretary of
State found only 2,202 of these additional signatures to be valid, but
these signatures, in addition to 4,455 valid signatures submitted on
May 11, were sufficient to meet the one-percent requirement. The
Secretary of State, however, did not place Hess on the 1992 guberna-
torial ballot because the Libertarian Party had not filed the requisite
number of signatures by the day before the primary election.

On August 8, 1992, the plaintiffs filed this action in the United
States District Court for the Southern District of West Virginia. The
plaintiffs challenge West Virginia's primary-eve deadline for filing
nominating petitions as an unconstitutional restriction on access to the
ballot. The plaintiffs do not challenge West Virginia's requirement
_________________________________________________________________
3 Under West Virginia law, persons soliciting signatures for a nominat-
ing petition must inform each potential signator that signing the petition
disqualifies him or her from participating in the primary election. W. Va.
Code § 3-5-23(c). After the Secretary of State received complaints that
the Party's solicitors were not always informing prospective signators of
their disqualification from voting in the primary, Hess agreed to allow
the Secretary of State to void all signators who subsequently voted in the
1992 primary.

                    3
that registered voters choose between signing a nominating petition
and voting in the primary election. Instead, they argue that the
primary-eve filing deadline, in light of the forced-choice provision, is
unconstitutional.

When considering a challenge to a state election law, a court must
weigh "the character and magnitude of the asserted injury to the rights
protected by the First and Fourteenth Amendments that the plaintiffs
seek to vindicate" against "the precise interests put forward by the
State as justifications for the burden imposed by its rule . . . ."
Anderson v. Celebrezze, 460 U.S. 780, 789 (1983). In doing so, the
court must consider "the extent to which those interests make it neces-
sary to burden the plaintiff's rights." Id . The Court has stated:

          [T]he rigorousness of our inquiry into the propriety of a
          state election law depends upon the extent to which a chal-
          lenged regulation burdens First and Fourteenth Amendment
          rights. Thus, as we have recognized, when those rights are
          subjected to "severe" restrictions, the regulation must be
          "narrowly drawn to advance a state interest of compelling
          importance." [Norman v. Reed, 112 S. Ct. 698, 705 (1992).]
          But when a state election law provision imposes only"rea-
          sonable, nondiscriminatory restrictions" upon the First and
          Fourteenth Amendment rights of voters, "the State's impor-
          tant regulatory interests are generally sufficient to justify"
          the restrictions. [Anderson, 460 U.S. at 788.]

Burdick v. Takushi, 112 S. Ct. 2059, 2063-64 (1992).

In a previous case, the district court considered and upheld the con-
stitutionality of West Virginia's primary-eve filing deadline. The dis-
trict court held that "the burdens placed upon the challengers under
West Virginia election laws are not great" and that "West Virginia has
an important interest in requiring third party and independent candi-
dates to demonstrate a modicum of community support before placing
their names on its general election ballot." Socialist Workers Party v.
Hechler, 696 F. Supp. 190, 201-02 (S.D. W. Va. 1988). On appeal,
we affirmed the portion of the district court's decision upholding the
constitutionality of the primary-eve filing deadline. Socialist Workers

                    4
Party v. Hechler, 890 F.2d 1303, 1305-07 (4th Cir. 1989), cert.
denied, 495 U.S. 932 (1990).

In the instant case, the Libertarian Party provided the district court
with historical data of minor party access to the ballot in West Vir-
ginia throughout this century. To summarize, their evidence demon-
strated that minor parties placed numerous candidates on the ballot for
congressional and state offices in the election years before 1937.
Between 1937 and 1980, no minor party candidate for Congressional
or state office gained access to the ballot, and since 1980, only a
handful of minor party candidates have been placed on the ballot. The
plaintiffs correlated this historical data with the various changes in
West Virginia's election laws over the same period of time in an
attempt to demonstrate that the primary-eve filing deadline is a severe
burden on minor parties' ability to gain access to the ballot.

In reviewing this historical evidence, we found that several facts
undermined the conclusion that the Libertarian Party wanted us to
draw. In 1932 and 1936, West Virginia election law included the
same restrictions as the current code. In those years, West Virginia
held its primary on the second Tuesday in May, and it imposed the
primary-eve filing deadline and the forced-choice provision. Despite
these restrictions, several dozen minor party candidates gained access
to the ballot for congressional and statewide offices in 1932 and 1936.
In 1984, furthermore, West Virginia suspended its primary-eve filing
deadline, and minor party candidates could file nominating petitions
as late as August. Despite the suspension of the deadline, only one
minor party candidate gained access to the ballot for congressional
and statewide offices, a decrease from the four minor candidates who
gained access to the ballot for congressional and statewide offices in
1982, when West Virginia enforced the primary-eve filing deadline.
If the primary-eve filing deadline was a severe burden on ballot
access, as the plaintiffs claim, we would have expected to see far
fewer minor party candidates on the ballot in the 1932 and 1936 elec-
tions and an explosion of minor party candidates in 1984. The plain-
tiffs' historical evidence appears to demonstrate just the opposite.

The district court carefully analyzed the record submitted by the
plaintiffs and held that West Virginia's primary-eve filing deadline is
not a severe restriction on minor parties' access to the ballot, and it

                    5
again upheld the constitutionality of the primary-eve filing deadline.
After examining the record, considering the parties' briefs, and hear-
ing oral argument, we affirm on the thorough reasoning of the district
court. See Hess v. Hechler, ___ F. Supp. ___ (S.D. W. Va. 1995).

AFFIRMED

PAYNE, District Judge, dissenting:

In Anderson v. Celebrezze, 460 U.S. 780 (1983), the Supreme
Court held that in evaluating restrictions imposed by the states on
access to election ballots, the principal concern of the courts "is with
the tendency of [those] ballot access restrictions `to limit the field of
candidates from which voters might choose.'" Id. at 786 (quoting
Bullock v. Carter, 405 U.S. 134, 143 (1972)). Anderson underscored
the acknowledgement made in Storer v. Brown, 415 U.S. 724 (1974)
that "`as a practical matter, there must be a substantial regulation of
elections if they are to be fair and honest and if some sort of order,
rather than chaos, is to accompany the democratic processes.'" Id. at
788 (quoting Storer v. Brown, 415 U.S. at 730).

The Court, in Anderson, also emphasized that challenges to spe-
cific provisions of state election laws cannot be resolved by applica-
tion of any "litmus-paper test" but that "[i]nstead, a court must resolve
such a challenge by an analytical process that parallels its work in
ordinary litigation." Id. at 789. To that end, the Court instructed that:

          It [the court] must first consider the character and magnitude
          of the asserted injury to the rights protected by the First and
          Fourteenth Amendments that the plaintiff seeks to vindicate.
          It then must identify and evaluate the precise interests put
          forward by the state as justifications for the burden imposed
          by its rule. In passing judgment, the Court must not only
          determine the legitimacy and strength of each of those inter-
          ests; it also must consider the extent to which those interests
          make it necessary to burden the plaintiff's rights.

Id. at 789. After conducting that tripartite inquiry, "[t]he constitution-
ality of the challenged restriction is then to be made on the basis of

                     6
a necessarily hard evaluative judgment of the relative weight of state
interests and voters' rights." Cromer v. South Carolina, 917 F.2d 819,
823 (4th Cir. 1990).

As the Supreme Court explained in Storer, the inevitable question
for judgment becomes:

          [I]n the context of [the state's] politics, could a reasonably
          diligent independent candidate be expected to satisfy the
          signature requirements, or will it be only rarely that the
          unaffiliated candidate will succeed in getting on the ballot?
          Past experience will be a helpful, if not always an unerring,
          guide: it will be one thing if independent candidates have
          qualified with some regularity and quite a different matter
          if they have not.

Storer v. Brown, 415 U.S. at 742 (emphasis added); see also Mandel
v. Bradley, 432 U.S. 173, 177 (1977) (emphasizing that this is the
appropriate inquiry in the court's analysis of the burden faced by
potential candidates).

More recently, in Burdick v. Takushi, 112 S. Ct. 2059 (1992), the
Supreme Court prescribed a sliding scale analysis, pursuant to which:

          [T]he rigorousness of our inquiry into the propriety of a
          state election law depends upon the extent to which a chal-
          lenged regulation burdens First and Fourteenth Amendment
          rights. Thus, as we have recognized when those rights are
          subjected to "severe" restrictions, the regulation must be
          "narrowly drawn to advance a state interest of compelling
          importance." But when a state election law provision
          imposes only "reasonable, nondiscriminatory restrictions"
          upon the First and Fourteenth Amendment rights of voters,
          "the State's important regulatory interests are generally suf-
          ficient to justify" the restrictions.

Burdick v. Takushi, 112 S. Ct. at 2063-64 (citations omitted) (empha-
sis added).

                    7
I respectfully submit that, when considered within the foregoing
framework and in light of this Court's decision in Cromer v. South
Carolina, 917 F.2d 819 (4th Cir. 1990), the ballot access restrictions
at issue here are severe and the interests proffered by the state are
either constitutionally insignificant, not narrowly tailored, or both.
For those reasons, I respectfully dissent.

A. The Severity Of the Burden

The majority opinion accurately summarizes the essential history
and present status of the lack of success that minority parties and
independent candidates have encountered in attempting to achieve
access to the West Virginia general ballot. The district court's opinion
provides further details of that history consistent with that summary
recitation. Nonetheless, to assess the severity of the burden imposed
by the challenged West Virginia restrictions, it is helpful to augment
the majority opinion's discussion somewhat by referring to the find-
ings of the district court.1

It appears that the parties agree generally with the findings of the
district court respecting the number of third party and independent
candidates who actually appeared on the ballots of West Virginia over
the years. Further, an examination of the record confirms that the
findings made by the district court in that regard are fully supported
by the record. Hence, it is appropriate briefly to summarize the find-
ings of the district court.
_________________________________________________________________

1 Before undertaking that exposition, it is appropriate to note that,
because many of the records respecting the filings made over time by
third parties and independent candidates were destroyed accidentally by
the state, the plaintiff was unable to compile an analysis which compared
the data of the total number of those who have filed a notice that they
intended to seek access to the ballot with those who have been placed on
the ballot. Additionally, although it was possible theoretically for the
plaintiffs to search the records of the various county courthouses in West
Virginia for filing information, the burden of that undertaking was
beyond the reach of the plaintiffs' resources. In any event, it is doubtful
that a plaintiff is required to go to that extent.

                    8
1. From 1923 to 1932, the state conducted, alternatively,
May and August primaries (held in May during presi-
dential election years and on the first Tuesday in August
of all other years). Independent and minor party candi-
dates could gain access to the general election ballot
through the petitioning process. The filing date for nom-
inating positions was either 20 days after the primary or
30 days before the primary (depending upon an inter-
pretation of conflicting code provisions) (J.A. 80-81).

2. In the four elections conducted between 1923 and 1931,
there were 15 minor party candidates for state legisla-
ture, 17 for statewide offices and 7 for the United States
Congress. Of these 39 candidates, 34 gained access to
the ballot in presidential election years when the pri-
mary was held in May while only 5 were on the ballot
in the off years when the primary was in August. (J.A.
81).

3. State law changed in 1932 respecting the process of
obtaining nomination through the certification process.
The primary date was moved to the second Tuesday in
May for presidential election years and remained on the
first Tuesday in August for non-presidential election
years. The forced choice provision remained in effect as
previously. (J.A. 81-82).

4. In the three elections held between 1932 and 1937,
there were 35 candidates for the state legislature, 24 for
statewide offices, 18 for United States Congress, and 5
for President. Seventy-seven candidates thus gained
access to the ballot during that period. (J.A. 82).

5. From 1937 to 1963, 13 elections were held. No indepen-
dent or minor party candidate appeared on the general
election ballot for any statewide office in any of the 13
elections in this 26 year period. Only one presidential
candidate was on the ballot during that period, Henry
Wallace, in 1948. (J.A. 83-84).

          9
6. From 1964 through the election of 1978, the non-
presidential year primary was moved to May so that all
primary elections occurred on the second Tuesday in
May. Eight elections were held during that 14 year
period, but no independent or minor party candidate
appeared on the general election ballot for any state
office and only one presidential candidate , George Wal-
lace, in 1968, was on the ballot. (J.A. 84).

7. In 1978 the primary date was moved from the second
Tuesday in May to the first Tuesday in June, effective
1980. (J.A. 84).

8. The certification process remained the same and there
were no legislative changes until 1985. However, the
West Virginia Supreme Court of Appeals decided West
Virginia Libertarian Party v. Manchin, 270 S.E.2d 634
(W. Va. 1980) which invalidated a number of the West
Virginia voting law restrictions. In the next election,
that of 1982, the forced choice provision and the pri-
mary eve filing deadline remained. However, in that
year 4 minor party candidates succeeded in having their
names placed on the ballot: two for the state legislature;
one for the United States House of Representatives; and
one for the United States Senate (J.A. 86).

9. As a result of the decision in Anderson v. Celebrezze,
the June primary eve filing deadline was suspended. All
candidates, therefore, had until August to file nominat-
ing certificates. Three minor party candidates for
president were given access to the ballot for the 1984
election and one minor party candidate appeared on the
ballot for United States Senate. No independent or
minor party candidates were placed on the ballot for
the state legislature or other statewide offices that year,
however. (J.A. 86-87).

10. In 1985, the legislature changed the primary date from
the first Tuesday in June to the second Tuesday in
May, where it remains today. There were other legisla-

          10
          tive changes in 1985 and 1986; however, in the period
          between the last legislative changes in 1986 through
          the date of the district court's decision in March 1995,
          there were four elections. Three independent or minor
          party candidates for president gained access to the
          ballot, one in 1988 and two in 1992. In 1986 and 1988,
          no independent or minor party candidate, however,
          appeared on the general election ballot as a nominee
          for either the state legislature, a statewide office or
          United States Congress. In 1990 and in 1992, there
          was one independent candidate for the state legisla-
          ture. A second independent candidate for the state leg-
          islature qualified in 1992 but withdrew for unknown
          reasons. A third independent candidate paid the filing
          fee for state senate but did not appear on the ballot.
          (J.A. 88-89).

In sum, in the many elections since 1937 in which a spring filing
deadline was in effect, only four candidates for president and vice-
president and eight candidates for state offices have been successful
in gaining access to the ballot. Of the eight candidates who did obtain
access to the ballot for state office, only one was running for a state-
wide office. (J.A. 48-51, ¶¶ 33-44).

Based on this historical data and the legislative changes made over
time, the district court concluded that "the almost total lack of inde-
pendent and minor party candidates on the general election ballots in
the period between 1938 and 1980 was attributable to external
forces." On the other hand, the district court concluded that "[t]he data
starting in 1984 thus suggests that a May filing deadline imposes
some burden on independent and minor party candidates" (J.A. 94)
and that:

          [i]t may similarly be said that the prohibition against both
          signing a nominating certificate and voting in the primary
          hindered the ability of the Libertarian Party to garner the
          signatures necessary for Hess by the May primary eve filing
          deadline [in 1992]. It is reasonable to assume that many vot-
          ers are reluctant to forego voting in the primary, particularly
          when the primary may be the decisive race for certain

                    11
          offices and their decision must in many instances be made
          before the positions of the major political party candidates
          are crystallized.

(J.A. 94). Then, in comparing signatures obtained by the Libertarian
Party before the May 1992 primary and afterward, the district court
reached the conclusion that "it follows that the forced choice provi-
sion appears to have hindered his [Hess'] ability to gain access to the
ballot [in 1992]." (J.A. 94-95).

Finally, the district court concluded, once again on the basis of his-
torical statistics and the history of changes in state election law, that
"it cannot be said that under the current statutory framework, it is only
rarely that an independent or minor party candidate succeeds in get-
ting on the ballot when forced to meet a May primary eve filing dead-
line." (J.A. 93).

Notwithstanding the thoughtful analysis of the legislative evolution
and historical data conducted by the district court, I am forced to con-
clude that the historical, statistical information since 1944, and partic-
ularly in the last decade, points strongly to the conclusion that West
Virginia's restrictions on ballot access results in a severe restriction
and, more to the point, that the principal impediment to access is the
combined effect of the primary eve filing deadline and the forced
choice provision because, when those provisions have been absent,
third party and independent candidates have achieved a measure of
success in obtaining access to the ballot not demonstrated while those
restrictions were in effect.2

Indeed, a fair summary of the historical and statistical evidence,
especially since 1984, is that, except when the ballot access provi-
sions here challenged have been suspended or do not apply (as in the
case of presidential elections), there have been no third party or inde-
pendent candidates on West Virginia's ballot for state offices and
_________________________________________________________________
2 The district court correctly concluded, contrary to the assertion of the
Secretary of State, that the decision of this Court in Socialist Workers
Party v. Hechler, 890 F.2d 1303 (4th Cir. 1989), does not control the
facts presented by this case because the plaintiffs here presented a factual
record not before the Court in Socialist Workers Party.

                     12
only a scant few for congressional offices. Further, third party and
independent candidates in presidential elections achieved ballot
access when those measures were suspended and have enjoyed regu-
lar access in the elections since the filing date for petitions in presi-
dential elections was moved to August.

Additionally, there is substantial evidence of a non-historical, non-
statistical nature which demonstrates that the ballot access provisions
here challenged have had, and continue to have, a severe effect. For
example, the undisputed evidence is that West Virginia is the only
state which combines primary eve filing with a forced choice provi-
sion. Also, the expert evidence of Richard Winger (stipulated by the
parties as an expert who edits the publication entitled "Ballot Access
News" and serves as a consultant on federal and state election law)
recites that West Virginia's ballot access laws make it the most inac-
cessible state in the country for third party and independent candi-
dates. He also testified that, during the period of 1944 through the
date of his affidavit, "no other state has had as few third party or inde-
pendent candidates on the ballot for state office or for Congress as
West Virginia." Finally, William Redpath, the Nationwide Ballot
Access Chair for the Libertarian Party, testified that, in his experi-
ence, West Virginia was the most difficult state in the country in
which to qualify candidates for state offices. He demonstrated the
truth of this assertion by showing the favorable results his party
achieved in other states without the unique combination of restrictions
here at issue.

This non-historical, non-statistical evidence appears not to have
been taken into account in assessing the severity of the challenged
ballot access restriction. That evidence, however, assumes particular
importance in this case because, as noted previously in footnote 1, the
records which would show the pool of third party and independent
aspirants who did not achieve ballot access over the years had been
destroyed and was not available for comparison with the data demon-
strating the dearth of third party and independent candidates. It is dif-
ficult, therefore, to ascribe dispositive significance to the statistical
evidence related to that period. Moreover, the heart of the data upon
which the district court's opinion relies, namely, the relative success
which third party and independent candidates had in accessing the
ballot in 1932-1936, is relatively antiquated. Thus, the more contem-

                     13
porary analysis, manifested in the evidence given by these individu-
als, should be given credence.

Nor is it persuasive that the number of third party and independent
candidates who achieved ballot access decreased from four in 1982
to one in 1984 when the primary eve deadline was moved to August
because of the decision in Anderson. This decrease is not significant
because the number of third-party and independent candidates in both
of those years was so small in absolute terms when compared to the
large number of possible statewide offices. Furthermore, considering
the history of adversity encountered by third parties reflected in the
record, I cannot take much comfort in positing that the one time sus-
pension of the early deadline in 1984 should have produced more can-
didates than it actually did.

I respectfully submit that the effect of the historical, statistical data
considered in perspective of the foregoing expert and first-hand evi-
dence is sufficient to establish the existence of a severe restriction on
ballot access, thereby necessitating the showing of a compelling state
interest which, as discussed later, the state has not demonstrated.

At a minimum, the plaintiffs' evidence was sufficient to shift the
burden of going forward on the issue of severity to the Secretary of
State, who failed to offer evidence to rebut the plaintiffs' demonstra-
tion of severity, relying instead on speculative assertions that the
admitted dearth of third party and independent candidates on West
Virginia's ballots, over a protracted period of time, was caused by
other factors such as the general lack of interest in third parties during
and after the Roosevelt era, the dominance of the Democratic Party
in West Virginia, and the effect of various legislative changes. Con-
sidering the admonition of the Supreme Court in Anderson v.
Celebrezze, that a court confronted with constitutional challenges to
specific provisions of the state's election law"must resolve such a
challenge by an analytical process that parallels its work in ordinary
litigation," it cannot be said that the assertions made by the Secretary
of State satisfies his obligation to meet the plaintiffs' proof with proof
under the familiar, now settled, principles of current summary judg-
ment jurisprudence.3
_________________________________________________________________
3 Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 247-48 (1986);
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986).

                     14
It also appears that the severity analysis was heavily influenced by
the conclusion that "the Libertarian Party's own lack of diligence con-
tributed to its failure to meet the May filing deadline." (J.A. 95). That
conclusion, in turn, appears to be based:

          (1) on the fact that the initial coordinator for the Libertar-
          ian Party's pre-May petition drive had no previous
          experience;

          (2) on the fact that 23% of the petitions submitted in May
          were invalidated as the result of a settlement agree-
          ment between the Libertarian Party and the Secretary
          of State respecting the alleged failure of the party's
          solicitors to inform individuals from whom they solic-
          ited signatures, in accordance with state law, that they
          could not sign the petition and vote in the primary; and

          (3) on the view that the Libertarian Party experienced an
          unsatisfactory validation rate compared to other candi-
          dates.

To the extent that the lack of diligence rationale is predicated on
the inexperience of Horton, I respectfully submit that inexperience is
not a lack of diligence. To the extent that the lack of diligence ratio-
nale is based on the results of the settlement agreement, I respectfully
submit that the record is too insubstantial to permit an inference of
non-diligence from the mere fact of settlement of a dispute over
whether certain information was or was not given by the party's solic-
itors. To the extent that inadequate diligence is founded on the assess-
ment that the Libertarian Party's validation rate was 30% to 40%
lower than any group other than the Socialist Workers Party, I
respectfully submit that it is without significance because, as the
plaintiffs point out, the only other statewide petitioning effort in the
1992 election, which was more successful than the Libertarians, was
that of Ross Perot who was placed on the ballot as a presidential can-
didate and those petitions were not due until August.

However, there is a more fundamental difficulty with the reliance
on the plaintiffs' purported lack of diligence in assessing the severity
of the ballot restrictions. The concept of a "reasonably diligent candi-

                     15
date" comes from language in Storer v. Brown , where, in preface to
its articulation of the requirements for assessing the severity of the
state restriction, the Supreme Court explained that the inevitable judg-
ment in ballot access cases was whether a reasonably diligent inde-
pendent candidate could be expected to satisfy the challenged
requirements. Storer v. Brown, 415 U.S. at 742. That statement sim-
ply establishes an objective standard against which to assess what
could be achieved in the face of the ballot access restrictions at issue
in a particular case. It does not, I respectfully submit, permit the use
of a subjective standard in conducting the severity analysis because
a lack of reasonable diligence would permit even the most egregious
restrictions to survive and that is not, I think, what Storer intended.
Nor is it consistent with the Court's instruction that the primary con-
cern in ballot access cases is the rights of the voter because a heavy
focus on a specific candidate's actual diligence precludes or, at least
distorts, the inquiry on the primary concern that permits consideration
of a candidate's diligence only in an objective sense.4

Moreover, to consider the "reasonably diligent candidate" language
in Storer as the ultimate determining factor, or even as a significant
determining factor in the severity analysis, is to overlook the critical
question which is whether independent or third party candidates have
qualified with some regularity. As the Supreme Court directed in both
Storer v. Brown and Mandel v. Bradley, that is the critical inquiry.
Here, the record demonstrates convincingly that third party and inde-
pendent candidates have not qualified with regularity, but have met
with some of the greatest lack of success in the country. That, at a
minimum, suggests that Horton's inexperience had little, if anything,
to do with the matter. Nor, is there merit to the contention of the Sec-
retary of State that lack of diligence before the primary is proved by
the fact that post-primary solicitations produced the requisite number
of signatures in only two weeks. To the contrary, that only goes to
show that it is easier to obtain signatures after the primary.

Finally, the severity analysis was based, in significant part, on the
conclusion that there were several causes for the dearth of third party
_________________________________________________________________
4 That is not to say that a lack of diligence is always irrelevant. See
Socialist Worker's Party v. Heckler, 890 F.2d 1303 (4th Cir. 1989).
Those circumstances are not present here, however.

                    16
and independent candidates in addition to the combined effect of the
primary eve filing deadline and the forced choice provision. The anal-
ysis seems to proceed from the premise that severity will obtain only
where the challenged restrictions are solely responsible for the lack
of ballot access. (J.A. 91-92). This approach, however, shifted the
focus of decision to the question of causation in a way that required
the plaintiffs to show that the principal, if not the sole, cause of the
demonstrated dearth was the challenged provisions.

That approach, however, is inconsistent with the requirements of
Anderson and Burdick because it requires more than the showing of
a severe burden. Here, the undisputed record shows a lack of success,
almost unique in the country. And, the plaintiffs produced substantial
statistical evidence that the dismal showing took place when the chal-
lenged provisions were in effect, while showing also that the success
factor was significantly different when the challenged restrictions did
not apply (either by actual suspension or generally in the case of pres-
idential elections). They also produced opinion evidence from Winger
and Redpath that the disparate effect was produced by the challenged
provisions. That, I respectfully submit, is sufficient to prove a severe
burden.

B. The Asserted State Interests In Maintaining The
Challenged Restrictions

The second part of the analysis requires assessment of West Vir-
ginia's asserted interests in maintaining the May filing deadline. The
three justifications offered to support the need for that deadline fail
to justify it, under either the "important" state interest analysis which
was followed by the district court, or under the"strict scrutiny" stan-
dard which, for the reasons set forth in Part A above, is warranted by
the severity of the burden those restrictions impose.

In making the required determination, the court must first "identify
and evaluate the precise interests put forward by the State as justifica-
tions for the burden imposed by its rule." Anderson, 460 U.S. at 789.
After identifying those interests, "the Court must not only determine
the legitimacy and strength of each of those interests, it also must
consider the extent to which those interests make it necessary to bur-
den the plaintiff's rights." Id. (emphasis added).

                     17
Under this standard, the rigorousness of the court's inquiry into the
propriety of the state's restriction turns upon the extent of the burden
placed upon a reasonably diligent candidate's ability to gain access to
the ballot. Burdick, 112 S. Ct. at 2059. Where an election law places
a severe burden on a reasonably diligent candidate's access to the bal-
lot, the regulation must be "narrowly drawn to advance a state interest
of compelling importance." Id. However, even where the regulation
"imposes only reasonable, nondiscriminatory restrictions" upon the
First and Fourteenth Amendment rights of voters to choose their can-
didate, the state must still demonstrate that it has"important" regula-
tory interests sufficient to justify the restrictions. Id. Finally, even
where a state interest is shown, whether compelling or important, the
restriction must not be unnecessarily restrictive. Anderson v.
Celebrezze, 460 U.S. at 806.

1. Ensuring A Modicum Of Support

First, the primary eve filing deadline has been justified on the
ground that it insures that candidates on the election ballot have dem-
onstrated at least "a modicum of support." That interest, of course, has
been identified by the Supreme Court as the fundamental interest
which any state has in promulgating regulations that govern the
administration of elections. As the Court explained:

          the State has the undoubted right to require candidates to
          make a preliminary showing of substantial support in order
          to qualify for a place on the ballot, because it is both waste-
          ful and confusing to encumber the ballot with the names of
          frivolous candidates.

Anderson, 460 U.S. at 788 n.9 (citations omitted).

While the May 1 filing deadline may contribute in some way to
ensure that third-party and independent candidates demonstrate a
showing of support before the state permits their appearance on the
ballot, the restriction cannot be said to be either"necessary" or "nar-
rowly tailored" to serve this interest. Since 1984 when Anderson was
decided, West Virginia has operated successfully under a requirement
that third party and independent presidential candidates must file peti-
tions on August 1. History shows that this has adequately served the

                    18
state's interest in avoiding a ballot "encumbered" by insignificant can-
didates. The state has neither asserted otherwise nor offered any rea-
son why an August 1 deadline would not equally serve the state's
interest in requiring state candidates to show a"modicum of support."
Under such a circumstance, the Supreme Court has admonished that:

          [E]ven when pursuing a legitimate interest, a State may not
          choose means that unnecessarily restrict constitutionally
          protected liberty. "Precision of regulation must be the
          touchstone in an area so closely touching our most precious
          freedoms."

Anderson, 460 U.S. at 806 (citations omitted). Accordingly, where, as
here, there are two approaches which equally serve the legitimate
interests of the state, and one of those methods is less burdensome
upon the exercise of a basic constitutional right, the more burdensome
approach, if adopted by the state, is not constitutionally permissible.

2. Equal Treatment

Second, the May filing deadline has been justified on the ground
that it serves to place all candidates upon "equal footing" by equally
exposing them to the scrutiny of the public eye and to negative cam-
paigns put forth by other candidates who emerge from the May pri-
maries. While the state may have an interest in promoting such equal
treatment, reliance on the May 1 filing date to achieve that end is sub-
stantially undercut by other provisions of West Virginia's code which
effectively serve that interest without impermissibly burdening the
plaintiffs as does the May 1 deadline. West Virginia Code § 3-5-23(a)
provides:

          Group of citizens having no party organization may nomi-
          nate candidates for public office otherwise than by conven-
          tions or primary elections. In such case, the candidate or
          candidates, jointly or severally, shall file a declaration with
          the secretary of state if the office is to be filled by the voters
          of more than one county, or with the clerk of the circuit
          court of the county if the office is to be filled by the voters
          of one county or political subdivision thereof; such declara-
          tion to filed at least thirty days prior to the time of filing the

                     19
          certificate provided by section twenty four #AD8E # 3-5-24] of this
          article.

(Emphasis added.) As a consequence of this section, potential third
party and independent candidates must step into the public forum well
before the May primary and, although it is not certain that they will
ultimately appear on the ballot, they will, nevertheless, be known as
potential candidates by the public, the media, and their adversaries.
Thus, any supposed strategic advantages which may inure to third
party or independent candidates as a result of the institution of a dead-
line after the May primary, are eliminated by virtue of the equally
effective, but far less restrictive, statutory control present in § 3-5-23
which already serves to foreclose those potential problems. Moreover,
there has been no showing that the August date for filing in presiden-
tial elections has resulted in the adverse consequences apprehended,
but not shown, by the state.

3. Voter Education

Finally, the May filing deadline also has been held out to serve the
state interest in ensuring that voters are in a position to cast their bal-
lot in an informed and intelligent manner. "There can be no question
about the legitimacy of the State's interest in fostering informed and
educated expressions of the popular will in a general election."
Anderson, 460 U.S. at 796. However, for the reasons set forth above,
it would appear that an individual's declaration of candidacy under
§ 3-5-23 would still serve to let the public know of the individual's
intent to run and would provide to voters an adequate opportunity to
thoughtfully consider the candidate's views and thereby cast an
informed vote even if the filing deadline for petitions in non-
presidential elections was moved to August.

Furthermore, the Supreme Court has recognized that the effect of
the drastic changes in communications technology, the literacy rate,
and the degree to which citizens are informed about events and issues
lessen the need for the state to provide broad protections to ensure
voter education. Anderson, 460 U.S. at 796-97 Indeed, in Dunn v.
Blumstein, 405 U.S. 330, 358 (1982) the Court rejected the rationale
posited by the state to justify a statute requiring residence in the state

                     20
for a year and in the county for three months as a prerequisite to voter
registration because:

          Given modern communications, and given the clear indica-
          tion that campaign spending and voter education occur
          largely during the month before an election, the State cannot
          seriously maintain that it is `necessary' to reside for a year
          in the State and three months in the county in order to be
          knowledgeable about congressional, state, or even purely
          local elections.

(Emphasis added.) The recent decision of this Court in Cromer v.
South Carolina, 917 F.2d 819 (4th Cir. 1990), reinforces this view.
There, the Court held that while "no constitutional maximum or mini-
mum has been developed," a decent interval for voter education is
about 60 to 90 days before a general election. Id. at 825. "Beyond that
period, some other interest would seem to be needed to justify an ear-
lier declaration of independent candidacy." Id.

Here, the state has failed to offer any reason why the period from
August to November is insufficient to allow voters to learn about the
candidates and to cast a vote on an informed basis. Consequently, in
light of both Supreme Court precedent and this Court's decision in
Cromer, this justification for the May filing deadline fails to outweigh
the constitutional burden it creates. Hence, it is constitutionally
impermissible.

For the foregoing reasons, I would strike the challenged provisions
of West Virginia's ballot access restriction law.

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