2013 VT 73


Anderson, Benjamin, Eastwood,
Albert and Killoran v. State of Vermont, Secretary
Condos (2012-272)
 
2013 VT 73
 
[Filed 06-Sep-2013]
 
NOTICE:  This opinion is
subject to motions for reargument under V.R.A.P. 40 as well as formal revision before
publication in the Vermont Reports.  Readers are requested to notify the
Reporter of Decisions by email at: JUD.Reporter@state.vt.us or by mail at:
Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801, of any
errors in order that corrections may be made before this opinion goes to press.
 
 

2013 VT 73

 

No. 2012-272

 

Ross “Rocky” Anderson, Benjamin
  Eastwood, 
Daniel Albert and Nicole Killoran


Supreme Court


 


 


 


On Appeal from


     v.


Superior Court, Washington
  Unit,


 


Civil Division


 


 


State of Vermont, Secretary of
  State James Condos


March Term, 2013


 


 


 


 


Michael
  S. Kupersmith, J.


 

Charles L. Merriman, and Emily Flewelling
and Alexandrea Castino, Law
Clerks (On the Brief)
  of Tarrant, Gillies, Merriman & Richardson, Montpelier, for
Plaintiffs-Appellees.
 
William H. Sorrell, Attorney General, and Keith Aten and Bridget Asay, Assistant
Attorneys
  General, Montpelier, for
Defendants-Appellants.
 
 
PRESENT:   Reiber, C.J.,
Skoglund, Burgess and Robinson, JJ.,
and Eaton, Supr. J.
                    
Specially Assigned
 
 
¶ 1.            
ROBINSON, J.  This case requires us to consider whether
Vermont’s nominating petition process for independent candidates for President
of the United States, as interpreted and applied by the Secretary of State,
unduly burdens the rights of such candidates and their supporters under the
First and Fourteenth Amendments of the U.S. Constitution.  We conclude
that the trial court correctly held that it does and affirm the trial court’s
judgment for plaintiffs.
¶ 2.            
Independent candidates for President of the United States can get on the
general election ballot in Vermont by submitting to the Secretary of State, by
a specified date, a statement of nomination accompanied by the signatures of at
least 1000 qualified voters.  17 V.S.A. § 2402(a), (b)(1)(A).  The statement of nomination must include
“certification by the town clerk of each town where the signers appear to be
voters that the persons whose names appear as signers of the statement are
registered voters in the town.”  Id. § 2402(a)(4).  In the certification, the town clerk confirms
that each named signer is in fact a registered voter in that town and certifies
the total number of names on the statement belonging to registered voters in
that town.
¶ 3.            
The largely uncontested facts as found by the trial court are as
follows.  Plaintiff Ross “Rocky” Anderson was an independent candidate for
President of the United States in the 2012 election.  In May 2012, a group
of volunteers under the direction of plaintiff Benjamin Eastwood, Mr.
Anderson’s campaign coordinator, set about gathering the requisite 1000
signatures to qualify Mr. Anderson for the general election ballot.  They got
signatures from 1400 people from at least twenty-two towns and cities. 
However, supporters were delayed and ultimately frustrated in their
nomination efforts by the Secretary of State’s interpretation of 17 V.S.A.
§ 2402, pursuant to which town clerks could certify only names
appearing on original nominating petitions, rather than on faxes or
photocopies.[1]  Plaintiff Eastwood and
others were only able to get town clerk certification
for 580 signatures before the June 14 deadline.
¶ 4.            
Plaintiff Anderson and three supporters sought injunctive relief,
challenging the constitutionality of the town-clerk-certification requirement
that was applicable to independent candidates for President but not to
major-party candidates.  The State moved to dismiss the complaint. 
Following a hearing, the trial court concluded that overall, the statute
appeared to be a reasonable regulation of elections.  Nonetheless,
the trial court denied the State’s motion to dismiss and granted plaintiffs
permanent injunctive relief on the ground that the Secretary of State’s
requirement that town clerks certify only names listed on original
statements—as opposed to faxes or photocopies of those statements—unduly
burdened plaintiffs’ First and Fourteenth Amendment rights.  The court granted plaintiffs extended time to file
certified statements of nomination with the Secretary of State, instructed town
clerks to accept legible photocopies or facsimiles for the purpose of
certification, and directed town clerks to complete certification within two
business days of submission. 
¶ 5.            
Significantly, the trial court’s decision rested on the relatively
narrow question of the constitutionality of the Secretary of State’s
requirement that town clerks certify only original statements.  The trial
court rejected plaintiffs’ broader argument that the certification requirement
was invalid on its face.  Accordingly, the trial court denied plaintiffs’
request that the court eliminate the certification requirement altogether.
¶ 6.            
The State appealed, arguing that the “original statement” requirement
serves important state interests and imposes only a minor burden on plaintiffs’
rights.[2]  Plaintiffs urge us to affirm
the trial court’s ruling that the Secretary of State’s application of 17 V.S.A.
§ 2402(a)(4), pursuant to which the Secretary of State requires that town
clerks certify only original statements, violates plaintiffs’ rights.[3]

¶ 7.            
On appeal, we review the trial court’s conclusions of law de novo.
 Badgley v. Walton, 2010 VT 68,
¶ 4, 188 Vt. 367, 10 A.3d 469.  We do not
disturb the trial court’s findings of fact unless they are clearly
erroneous.  Id.  In this case, plaintiffs do not dispute the
facts.  
¶ 8.            
During elections, states must balance the constitutional rights of
voters “to associate for the advancement of political beliefs, and . . . cast their votes effectively”
against the necessary objective of maintaining fair and honest elections that
eschew chaos.  Anderson v. Celebrezze,
460 U.S. 780, 787 (1983) (quoting Williams v. Rhodes, 393 U.S. 23, 30
(1968)).  As a practical matter, states must develop regulations,
potentially even substantial or complex regulations, in order to achieve this
balance.  Id.  While these regulations invariably will burden,
at least to some degree, voters’ fundamental rights to associate and cast votes
effectively, not all restrictions “impose constitutionally-suspect burdens.”
 Id. at 788.  
¶ 9.            
This Court recently considered the constitutionality of a different
state election statute that imposed burdens on candidates for public office,
upholding the constitutionality of an accelerated filing deadline for general
election ballot access that affected only independent candidates.  Trudell
v. Markowitz, 2013 VT 18, ___ Vt. ___, ___ A.3d ___.  There, we
applied the balancing test articulated by the U.S. Supreme Court in Anderson,
460 U.S. at 789:
A court considering a challenge to a
state election law must weigh “the character and magnitude of the asserted
injury to the rights protected by the First and Fourteenth Amendments that the
plaintiff seeks to vindicate” against “the precise interests put forward by the
State as justifications for the burden imposed by its rule,” taking into
consideration “the extent to which those interests make it necessary to burden
the plaintiff’s rights.”
Trudell, 2013 VT 18,
¶ 8 (citations omitted).  We explained that “when a state
imposes a severe restriction on access to the ballot, the regulation must be
‘narrowly drawn to advance a state interest of compelling importance.’ ”  Id. ¶ 8 (quoting Norman v. Reed,
502 U.S. 279, 289 (1992)).  On the other hand, “when a state election law
provision imposes ‘reasonable, nondiscriminatory restrictions upon the First
and Fourteenth Amendment rights of voters, the State’s important regulatory
interests are generally sufficient to justify the restrictions.’ ”  Id. (quoting Burdick v. Takushi,
504 U.S. 428, 434 (1992)).
¶ 10.         Although
our review of reasonable, nondiscriminatory restrictions is more deferential, the
U.S. Constitution nonetheless requires a meaningful review of the state
interests underlying the restrictions as well as the nexus between the
articulated interests and the restrictions at issue.  Our opinion in Trudell demonstrates that deferential review is not
shorthand for “rubber stamp.”  We recognized there that the State “need
not provide empirical evidence justifying its interest,” but we also made it
clear that the State “cannot rely on hollow or contrived arguments as
justifications.”  2013 VT 18, ¶ 21.  
¶ 11.         Applying
the balancing test to the filing deadline at issue in Trudell,
we determined that the accelerated timeline was a reasonable, nondiscriminatory
regulation that, at most, placed a minor burden on independent
candidates.  Id. ¶ 19.  We went
on to explain that “[e]ven a minor burden requires an
evaluation of the State’s proffered justifications for the advanced
deadline.”  Id. ¶ 20.  Even
though we considered the statute to be neutral and reasonable, and the
associated burden to be minor, we nevertheless rejected two of the three
supporting rationales proffered by the State because the State’s articulated
interests were not sufficiently connected to the challenged restrictions. 
Id. ¶¶ 22, 23.  
¶ 12.         With
this guidance in mind, we first consider the burden that 17 V.S.A.
§ 2402(a)(4), as applied, imposes on plaintiffs’
First Amendment rights.  The focus of our assessment is not the burden of
the certification requirement as a whole but, rather, the added burden arising
from the requirement that town clerks certify only names appearing on original
statements.  As a result of the Secretary of State imposing this
requirement in administering the statute, if a campaign collects signatures
from individuals residing in multiple different Vermont towns on the same page
of a nominating statement, the campaign must then submit that original page to
each respective town clerk, successively.  Plaintiff Eastwood testified
that driving from one town to another, throughout the State, to get multiple
clerk certifications on a particular nominating statement page takes many
hours.  The burden is compounded by the fact that clerks in different
towns keep different schedules, and there is no requirement that clerks certify
and return the statements within a particular time frame.  Although a
campaign can minimize the burden by including only signers from one town on a
given page, this constraint is difficult to enforce. 
¶ 13.         We
conclude that the burden associated with this requirement is not severe. 
As noted above, a well-organized campaign can minimize the burden by collecting
signatures from residents of different towns on different pages, or by starting
the signature-gathering process earlier.  If the Rocky Anderson campaign
had planned better, it could have started its signature-collection efforts
sooner, getting the requisite signatures and securing the necessary
certifications in time.  However, the burden is not, as the State
suggests, trivial.  In order to segregate nominating statement pages by
town, a canvasser at, say, the Burlington Discover Jazz Festival, where
plaintiff Albert signed a nominating statement, would have to be armed with
literally dozens of different pages, and would have to identify a voter’s town
of residence and produce the corresponding form to the voter within the very
short window of time typically available in such encounters.  This
back-and-forth has to be more time-consuming, and, thus, more burdensome, than
simply handing a clipboard to a passerby, without a preliminary exchange
regarding the person’s residence.  Moreover, there is a limit to how early
a small, independent campaign can reasonably be expected to start gathering
signatures.  The U.S. Supreme Court has recognized the burden on an independent
candidate’s signature-gathering efforts resulting from deadlines that require
the signature-gathering too far in advance of the election.  Anderson,
460 U.S. at 792 (“When the primary campaigns are far in the future and the
election itself is even more remote, the obstacles facing an independent
candidate’s organizing efforts are compounded.”).  Given these factors, we
characterize the burden on plaintiffs’ First and Fourteenth Amendment rights as
minor, but not trivial.  
¶ 14.         The
State proffers two primary interests in support of the requirement of original
petitions for certification: deterring fraud and promoting orderly elections.
 We do not dispute the importance of these goals.  As in Trudell, however, we must look more closely to determine
whether the requirement at issue actually serves those state interests. 
See 2013 VT 18, ¶¶ 22-23.  As the trial court aptly noted, the
Legislature arguably could have required that voters’ signatures be submitted
to the town clerks not simply for certification that the names belong to
registered voters, but for authentication that the named registered voters
actually signed them.  But that is not what the Legislature did.  The
certification requirement merely calls upon town clerks to certify that “the
persons whose names appear as signers of the statement are registered voters in
the town.”  17 V.S.A. § 2402(a)(4). 
Nothing about the certification requirement calls upon town clerks to
authenticate the signatures on the nominating petitions.  Given that the
town clerks’ role is limited to matching names against the voter checklist, the
requirement for original statements does not in any way enhance their
effectiveness.
¶ 15.         On
appeal, the State counters that the original-statement requirement helps assure
the authenticity of the nominating petitions themselves, rather than individual
signatures.  The State posits the following scenario:  If photocopies
or facsimiles of statements of nomination could be sent to the town clerk, an unscrupulous
candidate could obtain voter signatures on a statement for another candidate,
or on a sign-up sheet for a community event, and then could paste in a copy of
the list of names on a statement of nomination for their preferred candidate. 
A quick review of the record suggests that this reason falls on the
“contrived argument” side of the line.  Trudell, 2013 VT 18,
¶ 21.  Under the existing system, using the forms provided by
the Secretary of State, when multiple town clerks certify names on the same
statement, many simply append a page to the statement listing the number of
registered voters from their respective towns.  These separate pages often
simply certify that a given number of signers of “this petition” are registered
voters in the given town, without referring to the candidate listed on the
nominating statement.  Given how easy it would be under the
existing system for an unscrupulous campaign to swap out such certifications on
nominating statements, or to rely on forged signatures for that matter, we cannot
assign significant weight to the State’s asserted interest in averting the
specific and narrow type of fraudulent conduct it describes.
¶ 16.         The
State’s second rationale focuses on administrative convenience.  With the
original-statement requirement, the Secretary of State need only review one
copy of each statement, rather than multiple copies of each document, each with
different signatures certified by different town clerks.  The State’s
argument is reasonable, and allowing town clerks to certify copies could
increase the complexity of the Secretary of State’s review.  But the
Secretary of State could readily mitigate the complexity of allowing town
clerks to certify photocopies by, for example, requiring campaigns to attach
all copies of a particular page of a nominating statement together when
submitting them.  Although the administrative burdens of allowing town
clerks to certify names appearing on photocopies are real, they are not so substantial or insurmountable as to outweigh the burden
on plaintiffs’ First and Fourteenth Amendment rights. 
¶ 17.         We
note two other factors that distinguish this case from Trudell
and play some role, albeit minor, in our constitutional analysis.  In Trudell, we noted two significant distinctions between
the uniform filing deadline at issue in that case and
the Ohio restrictions struck down by the U.S. Supreme Court in Anderson.
 First, the early filing deadline in Anderson did not apply
uniformly to all candidates, and accordingly put independent candidates at a
disadvantage.  Trudell, 2013 VT 18, ¶ 9.  By contrast, the statute at
issue in Trudell applied uniformly to all
candidates, whether or not party-affiliated.  Second, the Ohio statute at
issue in Anderson regulated presidential elections, as opposed to state
or local elections, thus implicating “a uniquely important national interest”
and suggesting a commensurately weaker state regulatory interest.  Trudell,
2013 VT 18, ¶ 10.  The candidacy at issue in Trudell was for Congress.  Neither of these
distinctions applies in this case.  The restriction at issue applies only
to independent candidates and therefore imposes a burden on independent
candidates that does not apply to major party candidates,[4] and the
present case arose from plaintiff Anderson’s presidential run.  The first
factor adds a modest increment of weight to the “burden” side of the scale, and
the second diminishes the weight of the State’s interest.
¶ 18.         For
the above reasons, we agree with the trial court that the Secretary of State’s
requirement that town clerks certify only original statements when performing
their function pursuant to 17 V.S.A. § 2402(a)(4) unconstitutionally burdens
plaintiffs’ constitutional rights.  We thus affirm the trial court’s
judgment and permanent injunction for plaintiffs.
Affirmed.  

 


 


FOR THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate
  Justice

 







[1]  The requirement that town
clerks certify names only on original nominating petitions is not expressly set
forth in the statute, 17 V.S.A. § 2402(a)(4), and does not appear to be
reflected in any duly adopted rules.


       [2]  Although the November
2012 election is long behind us, the State argues that the issue presented is
not moot because it is capable of repetition but evades review.  See In
re S.N., 2007 VT 47 ¶ 7, 181 Vt. 641, 928 A.2d 510 (mem.) (describing requirements for
this narrow exception to the mootness doctrine).  Plaintiffs have not
briefed the issue either way.  We agree with the State.  See Norman
v. Reed, 502 U.S. 279, 288 (1992) (“There would be every reason to expect
the same parties to generate a similar, future controversy subject to identical
time constraints if we should fail to resolve the constitutional issues that
arose in 1990.”); Green v. Mortham, 989 F.
Supp. 1451, 1453 (M.D. Fla. 1998) (“[I]t is a well-settled principle that given
the brief duration of the election season ballot access cases are capable of
repetition yet susceptible to evading review.”). 
 


[3]  Plaintiffs also reiterate their
arguments that the certification requirement, which applies solely to
independent candidates and does not apply to major party candidates, is
unconstitutional wholly apart from the original statement requirement applied
by the Secretary of State.  They urge us to strike down the certification
requirement for independent candidates altogether,
rather than limiting our ruling to the requirement that town clerks certify
only original statements.  Plaintiffs did not, however, cross appeal the
trial court’s ruling, and we thus decline to rule on plaintiffs’ request that
we reverse the trial court’s order upholding the constitutionality of the
certification requirement generally. 


[4]  We do not address the question
of whether this differential burden is warranted in light of the distinct
circumstances of independent and major-party-affiliated candidates.  See supra,
¶ 6 n.3.



