2013 VT 18


Trudell
and Dorfman v. State and
Markowitz (2011-311)
 
2013
VT 18
 
[Filed
29-Mar-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 18

 

No. 2011-311

 

Gerald
Trudell and Myron Dorfman 


Supreme Court


 


 


 


On Appeal from


    
v.


Superior
Court, Washington Unit,


 


Civil
Division


 


 


State
of Vermont and Deborah Markowitz, 
Secretary of State


September
Term, 2012


 


 


 


 


Geoffrey W. Crawford, J.


 

Charles L. Merriman of Tarrant,
Gillies, Merriman &
Richardson, Montpelier, for 
  Plaintiffs-Appellants.
 
William H. Sorrell, Attorney General,
and Keith Aten and
Micaela Tucker, Assistant Attorneys
  General, Montpelier, for
Defendants-Appellees.
 
 
PRESENT:   Reiber,
C.J., Skoglund and Burgess, JJ., and Cohen
and Eaton, Supr. JJ.,
                    
Specially Assigned
 
 
¶
1.            
SKOGLUND, J.  Independent
candidate Gerald Trudell and voter
Myron Dorfman challenge the constitutionality of Vermont’s
schedule for filing
candidate petitions, alleging that the uniform deadline for all party
(major
and minor) and independent candidates is discriminatory and
impermissibly
impinges upon the associational and voting rights of candidates and
voters
under the First Amendment to the United States Constitution.
 Because we
conclude that the filing deadline is a reasonable, nondiscriminatory
regulation, justified by Vermont’s regulatory interests, we
affirm the decision
of the lower court in declaring the deadline constitutional.
¶
2.            
In 2009, Congress enacted the Military Overseas Voter
Empowerment (MOVE)
Act to address reports that U.S. troops stationed overseas had
difficulties
voting by absentee ballot.  See 42 U.S.C. §
1973ff-1(a)(8)(A).  The Act
imposed fixed deadlines by which states had to prepare their ballots.
 For
general elections, ballots are required to be completed 45 days in
advance of
the election.  Id.  Vermont
previously held primary elections
relatively late in the electoral cycle on the second Tuesday in
September.  To
comply with the requirements of the MOVE Act, Vermont enacted Act 73.
 2009,
No. 73 (Adj. Sess.), § 1.  Section 1 of Act
73 moved Vermont’s primary
election date to the fourth Tuesday in August—theoretically
the latest possible
date by which the Secretary of State could receive the primary results
from the
towns, complete the canvas process, prepare the ballot styles, and
receive the
general election ballots back from the printers in time to meet the
45-day
federal deadline.  17 V.S.A. § 2351 (setting primary
date to comply with MOVE
Act).  Because of the new primary election date, the
Legislature moved the
deadline for primary registration to mid-June.  Id.
§ 2356 (“not later
than 5:00 p.m. on the second Thursday after the first Monday in
June”). 
¶
3.            
The Legislature enacted an additional change: the
Legislature moved the
date by which independent candidates were required to file their
statements of
nomination to run in the general election so as to make that deadline
coincide
with the deadline by which party candidates were required to file their
primary
petitions.  Compare 2009, No. 73 (Adj. Sess.),
§1(codified at 17 V.S.A. § 2402(d)),
with 17 V.S.A. § 2402(d) (prior to amendment).
 Independent candidates were previously
permitted to file nominating petitions up to three days after the
primary
election.  The Director of Elections testified that a change
was required to
comply with the MOVE Act but believed that the Thursday before the
primary (two
working days plus the intervening weekend) would provide adequate time
to
review the independents’ petitions and identify all
candidates, including those
running on multiple tickets. 
¶
4.            
Instead of four calendar days before the primary election,
the Legislature
required independent candidates to register on the same day as primary
candidates.  That is, independents now have to file their
petition for candidacy
by the second Thursday after the first Monday in June, advancing the
registration date by approximately seventy days.  See 17
V.S.A. § 2356. 
¶
5.            
Plaintiff Gerald Trudell has a longstanding interest in
politics and the
environment.  To bring attention to environmental issues,
Trudell first ran for
Vermont’s seat in the U.S. House of Representatives in 2006,
claiming 1000
votes.  He ran again in 2008 and acquired 10,000 votes.
 In 2010, Trudell
decided to run again, two days before the newly-implemented June
deadline but
was unable to collect the requisite signatures for registration.
 In late
August, he filed a petition anyway but was denied a place on the ballot
due to
his delinquency.  He ran instead as a write-in candidate.
¶
6.            
Plaintiff Myron Dorfman is a Vermont resident and voter,
and occasional
supporter of Mr. Trudell.  Dorfman voted for Trudell in 2006.
 Dorfman, like
many Vermonters, is more attracted to individual candidates than to
parties,
generally.  He opposes a June registration deadline for
independent candidates
because he believes it limits his choice as a voter.  For
example, he would
have voted for Trudell in 2010, but Trudell was not on the ballot
because of
the advanced deadline.  Consequently, both Trudell and Dorfman
contend that the
new registration date for independent candidates violates their rights,
as
candidate and voter, under the First and Fourteenth Amendments of the
U.S.
Constitution and that the trial court erred in finding it
constitutional.  This
contention is unavailing.
¶
7.            
It is beyond cavil that the “rights of qualified
voters to cast votes
effectively and the rights of individuals to associate for political
purposes
are of the most fundamental significance under our constitutional
structure.”  Council
of Alt. Political Parties v. Hooks, 179 F.3d 64, 70 (3rd Cir.
1999) (quotations
omitted); see also Anderson v. Celebrezze, 460 U.S.
780, 787 (1983).  The
right to vote in any manner and the right to associate for political
purposes,
however, is not absolute.  Burdick v. Takushi,
504 U.S. 428, 433 (1992).
 Article I of the U.S. Constitution provides that states may
impose reasonable
time, place, and manner restrictions on voting, and thus, courts have
recognized that states retain the power to regulate their own
elections.  See U.S.
Const. art. I, § 4, cl. 1; Sugarman v. Dougall,
413 U.S. 634, 647
(1973).   Common sense, as well as constitutional
law, compels the conclusion
that government must play an active role in structuring elections, and
there
must be a substantial regulation of elections if they are to be fair
and
honest.  See, e.g., Storer v. Brown, 415
U.S. 724, 730 (1974). 
¶
8.            
The U.S. Supreme Court has set forth the test for
determining the
constitutionality of ballot access restrictions: 
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.”  
 
Burdick,
504 U.S. at 434 (quoting Anderson, 460
U.S. at 789).  Accordingly, 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.”  See Norman
v. Reed, 502 U.S. 279,
280 (1992).  And 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.”  Burdick,
504 U.S. at 434 (quotations
omitted). 
¶
9.            
In Anderson, the Court overturned an
Ohio statute requiring
independent candidates to file petitions, signed by 5000 voters, five
months
before major parties chose their candidates, and nearly eight months
before the
general election.  460 U.S. at 783 & n.1.
 The Court stressed two main
points.  First, the early filing deadline did not apply
equally to all
candidates, placing independent candidates at a disadvantage.  Id.
at
790-91.  Independent candidates who failed to file by the
early registration
deadline were precluded from appearing on the ballot while candidates
elected
through major party nominating conventions, regardless of whether they
filed a
nominating petition, were guaranteed a place on the ballot.  Id.
 Thus, by
early spring, minor parties were confined to their candidate selection,
“whereas
the major parties retained the flexibility to react to changing events
by
nominating candidates who did not emerge until months later.”
 Hooks,
179 F.3d at 72 (quoting Anderson, 460 U.S. at
790-91 n.11).  Additionally,
the Court concluded that the new filing deadline impeded the
signature-gathering efforts of independents due to the remoteness of
the
elections; caused foreseeable obstacles in recruiting and retaining
volunteers,
generating media publicity and campaign contributions, and spurring
interest
amongst voters; and made other organizing efforts more difficult.
 See Anderson,
460 U.S. at 792.  
¶
10.        
Second, the Court emphasized that the Ohio statute
regulated
presidential elections, not state or local elections.  Anderson,
460 U.S.
at 794.  It explained that presidential election procedures
“implicate a
uniquely important national interest” because the President
“represent[s] all
the voters in the Nation,” and “the State has a
less important interest in
regulating Presidential elections than statewide or local elections,
because
the outcome of the former will be largely determined by voters beyond
the
State’s boundaries.”  Id.
at 794-95.
¶
11.        
After finding that the early filing deadline severely
burdened the
independents’ associational rights, the Court considered the
State’s asserted
interests: voter education, equal treatment, and political stability.
 Anderson,
460 U.S. at 796.  The Court iterated that an informed voting
pool is an
important, legitimate state interest.  Id.
 However, because of the
advances in technology and the rapid dissemination of information, the
Court
found that voters could receive sufficient information in less than
five
months.  Id. at 797-98 (finding that
details about the election are
“instantaneously communicated nationwide” and that
it is “somewhat unrealistic”
to suggest that more than seven months are needed to inform the
electorate
about the candidate).[1] 
The Court also rejected the notion that a uniform deadline provided
“equal
treatment” because the procedures for getting on the ballot
were incongruent as
between independents and major party nominees.  Id.
at 799.  Finally,
the Court decided that the statute was not drawn to promote
“political
stability” or protect the parties from intra-party feuding.
 Id. at 801-05.
 Moreover, the Court held that the Ohio restriction was
unconstitutional
because the State’s proffered justifications were not
narrowly tailored to
advance compelling state interests and were outweighed by the severe
burdens
imposed on the independent presidential candidates.  Id.
at 806. 
¶
12.        
While election laws will “invariably impose some
burden upon individual
voters,” not all restrictions are unconstitutional.  Burdick,
504 U.S.
at 433.  In determining the nature and magnitude of the burden
Vermont’s
election procedures impose on independent candidates and voters,[2]
we must examine the entire ballot access scheme.  Hooks,
179 F.3d at 67;
Libertarian Party of Wash. v. Munro, 31 F.3d 759,
761-62 (9th Cir. 1994). 
“The inquiry is whether the challenged restriction unfairly
or unnecessarily
burdens the availability of political opportunity.”  Anderson,
460 U.S.
780, 793 (quotation omitted).  Put another way, we must
determine whether a
reasonably diligent independent candidate can gain access to the ballot
or if
instead he or she will rarely succeed.  Munro,
31 F.3d at 762.  Plaintiffs
have the initial burden of showing Vermont’s advanced
deadline seriously
restricts the availability of political opportunity.  See id.
at 762.
¶
13.        
Under Vermont law, for a candidate’s name to
appear on the Vermont
ballot, he or she must follow the primary election process or the
petition
process.  The primary election process is only available to
candidates
representing a “major political party,” which is
defined as any party garnering
at least five percent of the votes cast for that office in the most
recent
general election.  17 V.S.A.
§ 2103(23).  In fact, the primary election,
as explained by the Director of Elections in her testimony, serves only
as a
nomination process for the major political parties. 
 In 2012, Vermont
recognized three major political parties, namely Democrats,
Republicans, and Progressives.
 See T. Hallanbeck, “Vermont’s Liberty
Union Will Be Back As Major Party,” Burlington
Free Press, Nov. 8, 2012,
http://blogs.burlingtonfreepress.com/politics/2012/11/08
/vermonts-liberty-union-will-be-back-as-major-party/. 
¶
14.        
Candidates participating in the primary election process
start by filing
nominating petitions with the Secretary of State around mid-June
pursuant to 17
V.S.A. § 2356.  As part of the petition, candidates
for state and congressional
offices must submit 500 signatures.  Id.
§ 2355.  County offices
and state senate positions require only 100 signatures.  Id.
 If the
statutory requirements are met, candidates’ names appear on
the primary
election ballot, and if they are successful in winning their
party’s
nomination, their names are listed on the general election ballot. 
¶
15.        
Candidates not affiliated with one of the major political
parties must
use the petition process to appear on the ballot.  Independent
candidates, like
the major party candidates, are required to obtain the requisite
signatures for
the desired office.  See id. §
2401.  Prior to the statutory change,
independent candidates were required to file their petition three days
after
the primary election.  Now, independents, along with all major
party
candidates, must submit their petition and nomination statement by
mid-June.  See
id. § 2356; see also id.
§ 2402(d)(providing requisites of
nomination statement).  Nevertheless, if a candidate is unable
to get on the
ballot, there is always an opportunity for Vermont voters to write in
their
candidate of choice.  See id.
§ 2472(c). 
¶
16.        
That said, Vermonters have a particular affinity for
independent candidates.
 Vermont’s attachment to unorthodox voting goes back
to 1990 when the state
elected the first independent congressman in forty years, Bernie
Sanders.  Mr.
Sanders went on to be elected to the U.S. Senate and was reelected to
his
Senate seat again this year. See L. Eaves, “This Year, Record
Numbers of
Independents Elected,” IVN, Nov. 22,
2012, http://ivn.us/2012/11/22/this-year-record-numbers-of-independents-elected/. 
Though Mr. Sanders is by far one of the most visible independent
candidates of
Vermont, he is hardly alone.  In fact, in 2012, there were a
total of forty-six
independent candidates on the ballot in Vermont, with representatives
from
Liberty Union, United States Marijuana, VoteKISS, Republican, Peace and
Prosperity, Working Families, and Democrat parties.  See
Vermont Secretary of
State, Official Vermont General Election Ballot, available at http://vermont-elections.org/elections1/2012
ElectionResults2012%20Sample%20Ballot.pdf.  
¶
17.        
Plaintiffs allege that a uniform filing deadline makes all
members of
our society “bend their First Amendment, constitutional
rights of association
to a time table created for the benefit of two associational
groups,” by which
we assume they mean the two major national political parties.
 Yet, they fail
to succinctly specify how the advanced deadline imposes a burden on
candidates
or voters.  Plaintiffs do not complain of issues recruiting
volunteers to help
acquire the requisite 500 signatures.  See, e.g., Anderson,
460 U.S. at
792.  There is no filing fee that requires candidates to
solicit campaign
contributions.  Further, there is no indication that the
advanced deadline
creates a barrier in procuring media attention.  See, e.g., id.
 In
fact, the superior court found that: 
[T]he
general public pays limited attention to the primary races and
virtually none
to the independent candidates during the summer months. The primaries
see low
voter turnout in most years. Independent candidates obviously do not
appear on
primary ballots (unless they have registered as independents and
primary
candidates) and are rarely included in debates and candidate forums
until after
the primaries.  An independent candidate lucky or skilled
enough to attract
some media attention could get a small bump from an early registration
and announcement.
 Most languish unnoticed until the general election season is
underway. 
 
¶
18.        
While we agree that a June deadline requires a bit more
foresight and
advance planning from the independent candidates and can thwart
candidates who decide
to run in response to events arising after June and while we agree that
Vermonters have a strong interest in maintaining a solid independent
candidate
base; nonetheless, as the Supreme Court has recognized, “some
cut off period is
necessary.”  See Hooks, 179 F.3d
at 74 (quotation omitted).  And there
is no indication from the record that the cutoff here is unreasonable
or
unfairly deters independent candidates.  In fact, the record
suggests the
opposite—demonstrating the most dramatic increase in
registered independent candidates
in previous years, with a total of forty-six registered independent
candidates—ready and able to meet the statutory requirements.
 As the court
noted, Vermont fosters “an atmosphere in which independent
candidates
flourish.”  In addition, there is no evidence that
major party candidates are
advantaged by the system. 
¶
19.        
As such, we conclude that the Vermont filing deadline
applies equally to
all candidates and does not place independents at a particular
disadvantage for
accessing the ballot.  Rather, the registration deadline is a
reasonable,
nondiscriminatory regulation that imposes at most a minor burden on
plaintiffs’
rights. 
¶
20.        
 Even a minor burden requires an evaluation of
the State’s proffered
justifications for the advanced deadline.  The State contends
that its
interests in advancing the deadline for independent candidates are to:
1)
comply with federal election law; 2) enable the Secretary of
State’s Office to
physically complete and send ballots within the forty-five-day
deadline;
3) promote voter education and transparency; and 4) deter
“sore loser
candidates.”  “Because the burden is not
severe, the State need not proffer a
narrowly tailored regulation that advances a compelling state interest.
 Instead,
important regulatory interests provide a sufficient
justification.”  Hooks,
179 F.3d at 78.
¶
21.        
The State need not provide empirical evidence justifying
its interest;
however, the State cannot rely on hollow or contrived arguments as
justifications.  See, e.g., Price v. N.Y. Bd. of
State Elections, 540
F.3d 101, 110 (2nd Cir. 2008) (holding that, while there are many
plausible
reasons a state may not provide absentee ballots, New York’s
“contrived
argument that tabulating absentee ballots could cause a delay in
finalizing”
ballots was not sufficient justification to outweigh minor burden
imposed by
regulation).  Nevertheless, not all courts require a rigorous
showing of
legitimacy by the state and accept conceivable notions of
interest.  In fact,
some courts have raised state interests sua sponte.  For
example, the Third
Circuit found a New Jersey statute, which advanced the filing date for
independent candidates to be fifty-four days before the primary
election
(amended to the day of the primary), to be fair and not discriminatory,
merely
creating a mild burden for candidates and voters, alike.  Hooks,
179
F.3d 64.  The court concluded sua sponte that New Jersey had a
strong interest
in treating all candidates equally by requiring them to all file on the
same
day; that New Jersey’s deadline is designed to allow primary
voters to identify
and evaluate all candidates in advance of casting their votes at the
primary or
to at least have some knowledge of the political terrain; and that New
Jersey
has a legitimate interest in limiting frivolous candidacies and
maintaining a
stable and efficient election process, i.e., preventing “sore
loser”
candidacies.[3]
 Id. at 78-80.  Moreover, there is
no bright-line rule in assessing the
state’s interests; courts must take a hard look at the
benefits of the
regulation to see if they justify the burdens imposed on
voters’ and
candidates’ rights.
¶
22.        
We agree that the State has a legitimate interest in
complying with the
federal MOVE Act.  However, the MOVE Act merely requires
general election
ballots to be complete forty-five days in advance of the election.
 The Act
does not expressly require any change in the filing deadline for
independent
parties.  While it is of great import for the State to ensure
that the
Secretary of State’s Office is able to physically complete
and send ballots
within the forty-five-day federal deadline, the Director of Elections
testified
that her office could sufficiently meet the federal mandate if
independent
candidates filed their petitions four days before the primary
elections.  In
other words, the Secretary of State’s Office could process
independent
candidates’ petitions if filed during the first week of
August.  As
such, the Director’s testimony directly refutes the
State’s contention that the
uniform filing deadline is necessary to comply with the MOVE Act.
¶
23.        
The State next suggests the new registration deadline will
promote voter
education and transparency “because voters learn the entire
field of candidates
before they have to make a decision about voting in the
primary.”  There is no
debate that voter education is an important state interest.
 See Storer,
415 U.S. at 735; Anderson, 460 U.S. at 796.
 In the abstract, the
earlier one knows the political terrain, the earlier a voter can
evaluate the
candidates.  But the State fails to tie that truism to a
requirement that
independent candidates register at the same time as major party
candidates.  
¶
24.        
The State finally asserts that requiring independents to
file their
petition on the same as day as major party candidates prevents
sore-loser
candidates.  As noted above, a
“sore-loser” candidate is one who loses in a
major-party
primary election and then seeks to run in the same election as an
independent
or minor party candidate.  Other courts have held that various
state interests
are furthered by sore-loser statutes.  In Storer,
415 U.S. at 735, the
Supreme Court addressed a California sore-loser provision, and
emphasized the
importance of sore-loser statutes in discouraging intra-party feuding
and in
reserving “major struggles” for general election
ballots.  See also Backus
v. Spears, 677 F.2d 397, 399-400 (4th Cir. 1982).
 In Clingman v. Beaver,
544 U.S. 581, 596 (2005), the Court later explained that
“sore-loser statutes
prevent a candidate who has lost a party primary or nomination from
effecting a
‘splinter’ of a major political party, by joining a
minor party while retaining
the support of the major party’s voters, thereby undermining
the major party in
the general election.”  See S.C. Green
Party v. S.C. State Election Comm’n,
612 F.3d 752, 756 (4th Cir. 2010). 
¶
25.        
Vermont does not have a sore-loser statute.  The
State claims to have a
legitimate interest in creating a system that precludes so-called sore
losers and
prevents intra-party feuding. Two of the legislators testifying at
trial
thought it “unfair” to give such candidates
“two bites at the apple.”  Since
1974, sore-loser candidates have affected almost one out of every five
state-wide election.  However, while the new registration
deadline will
generally deter the sore-losers, party candidates are still permitted
to
register simultaneously for primaries as well as independents.
 Nonetheless,
these individuals registered as both party and independent will be
known in
advance, and there will no longer be any surprise when the candidate
who describes
himself or herself as a major party candidate runs as an independent
after
losing the primary.  Based on the supporting case law, the
State-claimed desire
to prevent sore-loser candidacy finds support.
¶
26.        
In sum, the early registration is reasonable,
nondiscriminatory, and
places a de minimis burden on voters and independent candidates, such
that we
find that the State’s interests, though attenuated, are
legitimate and
sufficiently justify any mild burden imposed.
¶
27.        
In addition to challenging the constitutionality of the
statute, plaintiffs
also contend that the trial court erred in relying on
legislators’ testimony
regarding the purpose for the change in deadline.  Courts
generally give little
weight to an individual legislator’s interpretation of the
law once enacted
because it cannot reflect the thought processes of the entire
Legislature.  See
Barber v. Thomas, 130 S. Ct. 2499, 2507 (2010).
 Here, three legislators
testified as to their understanding of the purpose behind the new
registration
deadline.  As noted above, two Senators testified that they
did not like sore-loser
candidates being allowed to run.  A former Representative
testified that she
thought the law would provide greater transparency.  Over
objection, the
court permitted the testimony to provide a
“historical” or “factual” basis
for
the hearings due to the State’s inability to procure
transcripts from the legislative
hearings themselves.  Plaintiffs allege that the court
improperly derived the
legislative intent of the statute from the three legislators’
testimony and concluded
that the supposed justification, as announced by the legislators,
satisfied the
State’s burden for its imposition on voters’
rights.  
¶
28.        
Erroneous admission of evidence is harmless, unless a
party’s
substantial right is affected.  See V.R.C.P. 61.  The
burden rests with the
plaintiff to show that the error resulted in prejudice.  See In
re B.S.,
163 Vt. 445, 454, 659 A.2d 1137, 1143 (1995). 
¶
29.        
It does not appear that the court gave considerable, if
any, weight to
these particular testimonies, merely noting the legislators’
opinions in its
decision.  In fact, it noted that “[t]his court does
not decide whether a
deadline which reduces the ‘sore loser’ phenomenon
is a good or a bad idea.” 
It simply held that “[t]he decision to make it more difficult
for primary
candidates to run after losing is a legitimate policy choice which the
Vermont
legislature voted into law.”  Plaintiffs fail to
address how they were
prejudiced by such testimony, and we fail to find any.
 Therefore, even if the
evidence were improperly admitted as historical evidence, the error, if
any,
was harmless.
¶
30.        
Finally, plaintiffs assert that the alteration in
deadlines for
independent candidates violates their rights under Articles 7 and 8 of
the
Vermont Constitution.  As this Court has previously held, a
party’s failure to
present any substantive analysis or argument on state constitutional
issues
constitutes inadequate briefing, which we decline to address.  State
v.
Jewett, 146 Vt. 221, 221, 500 A.2d 233,
234 (1985).
¶
31.        
Article 7 of the Vermont Constitution, or the Common
Benefits Clause, is
Vermont’s corollary to the Equal Protection Clause of the
United States
Constitution.  Article 7 has been perceived as a more liberal
analogue to the
Fourteenth Amendment.  Plaintiffs, without more, cite the Baker
decision
to assert that the registration deadline is unconstitutional under
Vermont law.
 See Baker v. State, 170 Vt. 94, 744 A.2d
864 (1999).  Because
plaintiffs fail to present any substantive analysis or articulation as
to why
Article 7 should accord a different read on the constitutionality of
the
statute, we decline to address the claim.
¶
32.        
With respect to Article 8, or the right-to-run provision,
plaintiffs
contend that because there is no constitutional corollary, the
protections
afforded by the Vermont Constitution are patently distinguishable from
the U.S.
Constitution and require no explanation.  While plaintiffs
correctly highlight
that there is no federal counterpart to the right-to-run provision,
such a void
does not dispense with plaintiffs’ requirement to present
their argument to
this Court nor does it provide plaintiffs with a
get-out-of-briefing-free card.
 In fact, the opposite would be true.  Without
demarcating how the statute at
issue is repugnant to the spirit and law of the Vermont Constitution,
plaintiffs fail to adequately brief their claim. 
Affirmed.

 

 


 


FOR
THE COURT:


 


 


 


 


 


 


 


 


 


 


 


Associate Justice

 
 
¶
33.        
REIBER, C.J., concurring.   I
acknowledge that the permissive
federal constitutional standard applied to nondiscriminatory
ballot-access
regulations compels the outcome we have reached in this
case.   I write,
however, to emphasize the common-sense observation that the advanced
deadline
for independent-candidate registration serves mainly to deprive
Vermonters of
potential choices at the ballot box.   It goes almost
without saying that a lot
can change in the months and weeks leading up to an election. 
An early
deadline will prevent or discourage from running otherwise qualified
contenders
whose candidacy arises in direct response to those changing
circumstances,
limiting the range of options available to Vermont citizens. 
That the earlier
deadline accomplishes this reduction in choice with a nearly
imperceptible
benefit is added cause for concern.  
¶
34.        
I note also that I share my colleagues’ dismay
at plaintiffs’ failure to
adequately brief their claims under the Vermont Constitution. 
It is rapidly
approaching three decades since we first clearly called the
bar’s attention to
the importance of our state charter as an independent and unique source
of
individual and collective rights.  See State v.
Jewett, 146 Vt. 221,
223, 500 A.2d 233, 235 (1985).   Plaintiffs might
well have found a standard in
the Vermont Constitution requiring more demanding scrutiny of election
regulations.  
¶
35.        
I am authorized to state that Judge Cohen joins this
concurrence.

 


 


 


 


 


 


 


 


Chief
Justice

 
 


[1]
 We note that Anderson was decided thirty
years ago and the speed with
which information is disseminated today is stunning.  
 


[2] 
As the United States Supreme Court has recognized,
“ ‘the rights of voters
and the rights of candidates do not lend themselves to neat separation;
laws
that affect candidates always have at least some theoretical,
correlative
effect on voters.’ ”  Anderson,
460 U.S. at 786 (quoting Bullock
v. Carter, 405 U.S. 134, 143 (1972)).


[3]
 A “sore loser” candidacy is one in which
an individual loses in a party
primary and then seeks to run in the same election as an independent or
minor
party candidate.  While the New Jersey statute in Hooks
was not designed
to prevent sore losers and therefore was not narrowly tailored to
effectuate a
compelling state interest, the Hooks court found
that New Jersey’s
interest in preventing “sore losers” rises to the
level of a legitimate,
important state interest.  179 F.3d at 80.


