                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 10-2068


BRYAN E. GREENE; JORDON M. GREENE; TODD MEISTER,

                Plaintiff – Appellants,
          and

BRADLEY D. SMITH,

                Intervenor – Appellant,

          v.

GARY O. BARTLETT, Director NCBOE; LARRY LEAKE; CHARLES
WINFREE; ROBERT CORDLE; ANITA S. EARLS; BILL W. PEASLEE,

                Defendants – Appellees.


Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Graham C. Mullen,
Senior District Judge. (5:08-cv-00088-GCM)


Argued:   September 22, 2011                 Decided:   October 13, 2011


Before TRAXLER, Chief Judge,          KEENAN,      Circuit   Judge,   and
HAMILTON, Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: Robert Milton Bastress, Jr., Morgantown, West Virginia,
for Appellants.     Alexander McClure Peters, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.
ON BRIEF: Jason E. Huber, CHARLOTTE SCHOOL OF LAW, Charlotte,
North Carolina, for Appellants.   Roy Cooper, Attorney General,
Susan K. Nichols, Special Deputy Attorney General, NORTH
CAROLINA DEPARTMENT   OF   JUSTICE,   Raleigh,   North   Carolina,   for
Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

               On August 6, 2008, Bryan Greene, Jordon Greene, and

Todd Meister brought this 42 U.S.C. § 1983 action against the

five members of the North Carolina Board of Elections and the

executive      director        of     the    North     Carolina       Board    of    Elections

alleging      that     North        Carolina    General     Statute          § 163-122(a)(2)

violated the First Amendment of the United States Constitution,

because       § 163-122(a)(2)               severely     burdens        the     ability       of

independent       candidates            for     the      United        States       House     of

Representatives to qualify for appearance on the general ballot.

In    their    complaint,        the    plaintiffs        also    alleged       that    § 163-

122(a)(2) violated the Equal Protection Clause of the Fourteenth

Amendment.           On     July      15,     2010,    Bradley        Smith     successively

intervened      in     the      action,       alleging    the     same       claims    as    the

original plaintiffs.

               In the district court, both the plaintiffs (including

the intervenor) and the defendants sought summary judgment.                                  The

district court granted the defendants’ motion, concluding that

§ 163-122(a)(2), which requires, among other things, a candidate

who    wishes    his      or    her    name     to    appear     on    the    ballot    as   an

independent          candidate         for      the     United         States       House     of

Representatives or any other district office to obtain petitions

signed    by    4%     of      the    registered       voters     in    their       respective

district, was not unconstitutional.                       According to the district

                                                3
court, § 163-122(a)(2) was not unconstitutional under the First

Amendment, primarily because the Supreme Court of the United

States has upheld a more restrictive ballot access percentage

requirement.          See    Jenness      v.     Fortson,    403     U.S.      431,    438-39

(1971) (upholding Georgia statute requiring signatures of 5% of

registered voters before independent candidate could be placed

on   ballot).      The       district      court     was    also     persuaded        by    two

additional      uncontroverted            facts.           First,        one    independent

candidate    for       the       United    States      House        of    Representatives

obtained     access         to    the     2010     ballot      by        meeting      the     4%

requirement.       Second, since 1992, over eighty candidates for

other district offices had met the 4% requirement.

            The district court also rejected the equal protection

claim raised by the plaintiffs (and intervenor).                               According to

the district court, § 163-122(a)(2) did not run afoul of the

Equal Protection Clause of the Fourteenth Amendment, because the

plaintiffs      and     the       intervenor         did    not      demonstrate            that

unaffiliated       candidates           for    the     United        States        House      of

Representatives         were        similarly        situated            to    unaffiliated

candidates for statewide office or to new political parties.

            Having reviewed the briefs, the joint appendix, and

the applicable law, and having had the benefit of oral argument,

we agree with the district court that the First Amendment claim

fails because there is no meaningful way in which to distinguish

                                               4
Jenness.      Moreover,      as   the       district   court      observed,    the

constitutionality of § 163-122(a)(2) under the First Amendment

is further supported by the two uncontroverted facts set forth

above.     We also agree that the equal protection claim founders,

because the plaintiffs and the intervenor did not demonstrate

that   unaffiliated    candidates       for   the   United   States    House   of

Representatives       were    similarly        situated      to     unaffiliated

candidates for statewide office or to new political parties.

Accordingly, like the district court, we conclude that § 163-

122(a)(2) does not run afoul of either the First Amendment or

the Equal Protection Clause of the Fourteenth Amendment.                       The

judgment of the district court is affirmed.



                                                                        AFFIRMED




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