                                                                       FILED
                                                United States Court of Appeals
                    UNITED STATES COURT OF APPEALS      Tenth Circuit

                                                                December 11, 2007
                                 TENTH CIRCUIT
                                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
 LIBERTARIAN PARTY OF NEW
 MEXICO; SIEBERT ICKLER;
 MICHAEL BLESSING; JOHN
 PFERSICH; STAN RACZYNSKI,

               Plaintiffs - Appellants,
          v.                                           No. 06-2303
 MARY HERRERA, in her official
 capacity as Secretary of the State of
 New Mexico; MARGARET C.
 TOULOUSE, in her official capacity
 as County Clerk of Bernalillo County,
 New Mexico, *

               Defendants - Appellees.


                                          ORDER


Before MURPHY, Circuit Judge, BRORBY, Senior Circuit Judge, and
McCONNELL, Circuit Judge.




      *
       Mary Herrera succeeded Rebecca Vigil-Giron as Secretary of State of the
State of New Mexico, and is substituted as a party to this appeal. Margaret C.
Toulouse was appointed to serve out the remaining term for Mary Herrera as
County Clerk of Bernalillo County, and is substituted as a party to this appeal.
See Fed. R. App. P. 43(c)(2).
      Appellants’ petition for rehearing is granted in part to amend the opinion

filed November 7, 2007. The revised opinion, filed nunc pro tunc to November 7,

2007, is attached.

      The petition for rehearing en banc was transmitted to all of the judges of

the court who are in regular active service. As no member of the panel and no

judge in regular active service on the court requested that the court be polled, that

petition is also denied.



                                               Entered for the Court,



                                               ELISABETH A. SHUMAKER, Clerk




                                         -2-
                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                              November 7, 2007
                                      PUBLISH                Elisabeth A. Shumaker
                                                                 Clerk of Court
                    UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT



 LIBERTARIAN PARTY OF NEW
 MEXICO; SIEBERT ICKLER;
 MICHAEL BLESSING; JOHN
 PFERSICH; STAN RACZYNSKI,

               Plaintiffs - Appellants,
          v.                                           No. 06-2303
 MARY HERRERA, in her official
 capacity as Secretary of the State of
 New Mexico; MARGARET C.
 TOULOUSE, in her official capacity
 as County Clerk of Bernalillo County,
 New Mexico, *

               Defendants - Appellees.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF NEW MEXICO
                     (D.C. NO. CIV-06-615 MV/ACT)


Bryan Sells (Laughlin McDonald with him on the briefs), American Civil
Liberties Union, Atlanta, Georgia, for Plaintiffs-Appellants.




      *
       Mary Herrera succeeded Rebecca Vigil-Giron as Secretary of State of the
State of New Mexico, and is substituted as a party to this appeal. Margaret C.
Toulouse was appointed to serve out the remaining term for Mary Herrera as
County Clerk of Bernalillo County, and is substituted as a party to this appeal.
See Fed. R. App. P. 43(c)(2).
David K. Thomson, Assistant Attorney General (Gary K. King, Attorney General
of New Mexico, with him on the brief), Santa Fe, New Mexico, for Defendants-
Appellees.


Before MURPHY, Circuit Judge, BRORBY, Senior Circuit Judge, and
McCONNELL, Circuit Judge.


MURPHY, Circuit Judge.




I.    Introduction

      The Libertarian Party of New Mexico and several of its candidates for

public office sought to be placed on the ballot in New Mexico for the November

7, 2006, general election. Failing to obtain the requisite signatures required under

New Mexico’s election law, N.M. Stat. Ann. §§ 1-8-2(B), 1-8-3(C), the Secretary

of State refused to place the candidates’ names on the ballot. The Libertarian

Party and four candidates brought suit for declaratory relief against the Secretary

of State and the County Clerk of Bernalillo County under 42 U.S.C. § 1983 and

filed a request for a preliminary injunction, alleging New Mexico’s two-petition

ballot-access scheme unconstitutionally burdens their First and Fourteenth

Amendment rights. The district court granted summary judgment to the

defendants and denied the Libertarian Party’s Federal Rule of Civil Procedure

56(f) request for discovery.



                                        -2-
      The Libertarian Party and four of its candidates (collectively referred to

here as the “Libertarian Party”) 1 challenge the district court’s grant of summary

judgment and its denial of the Rule 56(f) motion. Exercising jurisdiction pursuant

to 28 U.S.C. § 1291, this court affirms.

II.   Background

      New Mexico classifies political parties in two separate groups for the

purpose of placing candidates for public office on the ballot. Candidates (other

than presidential) from “major political parties” are nominated by secret ballot in

a primary election. N.M. Stat. Ann. § 1-8-1(A). To become a primary candidate,

one must obtain a certain number of signatures from members of the candidate’s

own party. Id. §§ 1-8-31(C)(4), 1-8-33. 2 A major political party is defined as any

      1
        This case remains a live case and controversy and this court has
jurisdiction to adjudicate this appeal. Although the 2006 election has passed,
New Mexico’s ballot access provisions will continue to control the Libertarian
Party’s efforts to place its candidates on the ballot. The Libertarian Party sought
declaratory as well as injunctive relief. Even though the case for an injunction
became moot after the election date passed, the principal controversy—whether
the New Mexico ballot access scheme for minor party candidates is
constitutional—continues to affect the Libertarian Party. As the Supreme Court
explained in Super Tire Engineering Co. v. McCorkle, the relevant inquiry is
whether there is a substantial controversy between the parties having adverse
legal interests to warrant the issuance of a declaratory judgment. 416 U.S. 115,
121–22 (1974). Because the Libertarian Party’s claims for declaratory relief are
justiciable, we need not determine whether the individual plaintiffs’ claims for
declaratory relief are moot. See Bd. of Educ. of Indep. Sch. Dist. No. 92 v. Earls,
536 U.S. 822, 827 n. 1 (2002) (“Because we are likewise satisfied that Earls has
standing, we need not address whether James also has standing.”).
      2
          The number of votes needed varies depending on the office. For
                                                                      (continued...)

                                           -3-
qualified party 3 which had at least one candidate who received at least five

percent of the total number of votes in the preceding general election for governor

or president of the United States. Id. § 1-1-9(A).

      Candidates from “minor political parties” must take a different route to the

ballot. A minor party nominates its candidates by the manner prescribed in its

internal party rules and regulations. Id. § 1-8-1(B). After the party nominates its

candidates, an appropriate party official must certify the names of the candidates

to the secretary of state or county clerk. Id. §§ 1-8-2(A), 1-8-3(A) & (B). This

certification must be accompanied by a petition containing a list of signatures and

addresses of voters for each candidate. Id. §§ 1-8-2(B), 1-8-3(C). Candidates

must obtain signatures equivalent to at least one percent of the votes cast in the




      2
        (...continued)
candidates seeking preprimary convention designation in a statewide or
congressional race, nominating petitions must be signed by a number of voters
equal to at least two percent of the total vote of the candidate’s party in the state
or congressional district, or the following number of votes, whichever is greater:
for statewide offices, two hundred thirty voters and for congressional candidates,
seventy-seven voters. Id. § 1-8-33(B). Candidates for other offices must obtain
petitions signed by at least three percent of the total vote of the candidate’s party
in the district or division or an alternative statutory number of votes if greater.
Id. § 1-8-33(C).
      3
        Any party which appeared on the 1988 general election ballot is
automatically deemed a qualified party, so long as it has not been disqualified
under N.M. Stat. Ann. §1-7-2(C), which is not at issue in this case. Other parties
must adopt internal rules and regulations, obtain the requisite petition signatures,
and file these documents with the state. Id. § 1-7-2(A).

                                         -4-
last election for governor or president. 4 Id. §§ 1-8-2(B), 1-8-3(C). Minor

political parties are defined as any qualified party which has not obtained the

status of major political party. Id. § 1-1-9(B). To become a minor political party,

a political group must file a new-party petition to obtain recognition. Id.

§ 1-7-2(A). The petition must contain the signatures of one-half of one percent of

the total number of votes cast in the state in the last preceding general election for

governor or president. Id. The upshot is that political groups which have not yet

obtained minor party status must go through two rounds of petitioning: one to

become a minor party and then one for each of the candidates it nominates.

      The Libertarian Party of New Mexico filed its new-party petition with the

Secretary of State in November 2005. Minor political party status was granted in

April 2006. Thereafter, the party held a convention and nominated candidates for

public office. The party certified its nominees to the Secretary of State, but failed

to obtain the candidate petition required for each candidate by N.M. Stat. Ann.

§ 1-8-2(B). When the Secretary of State refused to place the Libertarian Party

candidates on the ballot, the party and the candidates filed suit under 42 U.S.C.

§ 1983. The Libertarian Party sought a declaration that New Mexico’s two-

      4
        The number of signatures needed is pegged to the office sought. For
statewide offices, a minor party candidate must obtain one percent of the votes
cast in the last election for president or governor throughout the state. N.M. Stat.
Ann. §§ 1-8-2(B)(1), 1-8-3(C). For non-statewide offices, the minor party
candidate must obtain signatures equaling one percent of the number of votes cast
for governor or president within the particular district. Id. §§ 1-8-2(B)(2),
1-8-3(C).

                                         -5-
petition system violated the Constitution and a preliminary injunction mandating

the placement of their candidates on the ballot. The Libertarian Party alleged the

two-petition ballot-access system, which requires the party to first show a

modicum of support and then show additional support for each candidate, imposes

a substantial burden on the party’s ability to have its nominees appear on the

general election ballot.

       The Secretary of State filed a motion for summary judgment on August 17,

2006, approximately five weeks after the complaint was filed. The Libertarian

party requested more time for discovery pursuant to Rule 56(f) of the Federal

Rules of Civil Procedure. In a September 2006 order, the district court denied the

Rule 56(f) motion. The district court then granted summary judgment to the

defendants.

III.   Discussion

A. Rule 56(f) motion

       In response to the Secretary of State’s motion for summary judgment, the

Libertarian Party attached an affidavit pursuant to Fed. R. Civ. P. 56(f), arguing

that discovery was needed before the court could rule on the motion for summary

judgment. The affidavit stated with more time, the plaintiffs would:

              present expert and lay witness affidavits, answers to
              interrogatories, admissions, and documentary evidence
              that will create a genuine issue with respect to: (a) the
              character and magnitude of the burdens that New
              Mexico’s two-petition ballot-access scheme for new

                                          -6-
              political parties imposes on the plaintiffs’ First and
              Fourteenth Amendment rights; (b) the legitimacy and
              strength of any interests which the defendants may offer
              as justification for the scheme; and (c) the extent to
              which those interests make it necessary to burden the
              plaintiffs’ rights.

Aplt’s App. at 81 (Aff. of Bryan L. Sells). The affidavit went on to state the

Libertarian Party would specifically show that the magnitude of the burden is

severe, the interests offered by New Mexico are not compelling, and the scheme

is not necessary to advance New Mexico’s interest. In its response to the motion

for summary judgment, the Libertarian Party stated it would seek historical

evidence regarding the burdens New Mexico’s election laws place on new minor

party candidates.

      The district court denied the Rule 56(f) motion, finding historical evidence

was not necessary to assess the character and magnitude of the burdens created by

New Mexico’s ballot access scheme. The Libertarian Party challenges the denial

of their request for discovery. This court reviews the denial of a Rule 56(f)

motion for an abuse of discretion. Trask v. Franco, 446 F.3d 1036, 1042 (10th

Cir. 2006).

      Rule 56(f) provides:

              Should it appear from the affidavits of a party opposing
              the motion that the party cannot for reasons stated
              present by affidavit facts essential to justify the party’s
              opposition, the court may refuse the application for
              judgment or may order a continuance to permit
              affidavits to be obtained or depositions to be taken or

                                           -7-
             discovery to be had or may make such other order as is
             just.

       The Libertarian party argues that under Supreme Court precedent to resolve

the merits of its ballot-access claim, a district court must engage in a fact specific

inquiry and examine the burdens placed on candidates and parties. See Anderson

v. Celebrezze, 460 U.S. 780, 789 (1983). Appellants submit that historical

evidence showing the burdens faced by other similarly situated minor party

candidates would prove a severe burden which is not outweighed by any state

interest.

       The Secretary of State, echoing the district court’s ruling, counters that

historical evidence is not necessary because the New Mexico ballot-access

scheme is constitutional as a matter of law. Relying on Jenness v. Fortson, 403

U.S. 431, 442 (1971), and American Party of Texas v. White, 415 U.S. 767, 787

(1974), the Secretary of State contends the New Mexico petition requirement is

constitutional because more burdensome petition requirements were upheld in

those cases. In Jenness the Court upheld a Georgia requirement that minor party

candidates collect signatures equaling at least five percent of the total number of

voters eligible to vote in the last election for the particular office. 403 U.S. at

433, 442. The Court upheld a similar Texas requirement in which minor party

candidates had to demonstrate support from a number of voters equaling at least

one percent of the total vote cast for governor in the last preceding election with


                                           -8-
more stringent requirements on who qualified to sign a minor party candidate’s

petition. Am. Party of Texas, 415 U.S. at 776, 787–88. Further, this circuit

upheld Oklahoma’s five-percent petition requirement for minor party recognition,

noting the percent of support required was “undeniably constitutional.” Rainbow

Coal. of Okla. v. Okla. State Election Bd., 844 F.2d 740, 744 (1988).

      The district court’s conclusion that historical evidence was not needed in

light of Jenness and American Party of Texas appears to turn the Anderson

balancing test into a bright line test, ignoring the highly fact specific inquiry

required. We need not, however, resolve this issue. The district court did not

abuse its discretion when it denied the Libertarian Party’s Rule 56(f) motion

because the motion failed to identify any specific facts which would create a

genuine issue of material fact. A party seeking to defer a ruling on summary

judgment under Rule 56(f) must “file an affidavit that explain[s] why facts

precluding summary judgment cannot be presented. This includes identifying the

probable facts not available and what steps have been taken to obtain these facts.”

Trask, 446 F.3d at 1042 (quotation omitted). A party may not invoke Rule 56(f)

by simply stating that discovery is incomplete but must “state with specificity

how the additional material will rebut the summary judgment motion.” Ben Ezra,

Weinstein & Co. v. Am. Online Inc., 206 F.3d 980, 987 (10th Cir. 2000).

      The Libertarian Party’s Rule 56(f) affidavit fails to meet the specificity

required by this court. The affidavit does not identify any specific facts the

                                          -9-
Libertarian Party sought to uncover or how it will rebut the Secretary of State’s

motion for summary judgment. The affidavit merely recites the legal standards

put forth in Anderson and the need for general evidence to support its claim. For

example, an affidavit which asserts, as the affidavit does in this case, that the

plaintiff will “present evidence which will probably establish the fact that . . . the

magnitude of the burdens is severe. . .” neither informs the district court of

“probable facts not available” nor shows how this evidence will rebut the

Secretary of State’s motion for summary judgment. Based on the affidavit’s lack

of specificity, the district court did not abuse its discretion in denying the request

for discovery.

B. Summary Judgment

      The Libertarian Party argues even without additional time for discovery,

the record did not establish the defendants were entitled to summary judgment.

This court reviews a district court’s grant of summary judgment de novo, viewing

the evidence in the light most favorable to the non-moving party. Schulz v. City

of Longmont, 465 F.3d 433, 437 (10th Cir. 2006). Summary judgment is

appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(c). The movant bears the initial burden of

making a prima facie demonstration of the absence of a genuine issue of material

                                          -10-
fact and entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986). If, however, the moving party does not bear the burden of

persuasion at trial, it need not negate the nonmovant’s claim. Id. at 325. Such a

movant may make its prima facie demonstration by pointing out to the court a

lack of evidence on an essential element of the nonmovant’s claim. See id.

      If the movant meets this initial burden, the burden then shifts to the

nonmovant to “set forth specific facts” from which a rational trier of fact could

find for the nonmovant. Fed. R. Civ. P. 56(e); Lujan v. Nat’l Wildlife Fed’n, 497

U.S. 871, 888–90 (1990); Celotex, 477 U.S. at 324. To accomplish this, the facts

must be identified by reference to affidavits, deposition transcripts, or specific

exhibits incorporated therein. Alder v. Wal-Mart Stores, Inc., 144 F.3d 664, 671

(10th Cir. 1998).

      Under the Anderson v. Celebrezze balancing test, a 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
             [c]ourt 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
             burden the plaintiff’s rights. Only after weighing all
             these factors is the reviewing court in a position to
             decide whether the challenged provision is
             unconstitutional.




                                         -11-
460 U.S. 780, 789 (1983); see also Burdick v. Takushi, 504 U.S. 428, 434 (1992)

(affirming the Anderson standard).

      State statutes which restrict the access of political parties to the ballot

implicate associational rights as well as the rights of voters to cast their votes

effectively. Munro v. Socialist Workers Party, 479 U.S. 189, 193 (1986). These

associational rights, however, are subject to state limitation. The Supreme Court

has held that a state has an important interest in requiring “a significant modicum

of support before printing the name of a political organization’s candidate on the

ballot–the interest, if no other, in avoiding confusion, deception, and even

frustration of the democratic process at the general election.” Id. (quotation

omitted); see also Rainbow Coal. of Okla., 844 F.2d at 743.

      Under this paradigm, the Secretary of State met her initial burden by

demonstrating the absence of evidence supporting the Libertarian Party’s First

and Fourteenth Amendment claims. The Libertarian Party alleged that the one-

half percent party petition requirement, when combined with the one and one-half

percent candidate-petition, was unconstitutionally burdensome. It failed,

however, to offer any evidence to support this claim. The candidates themselves

did not attempt to obtain the signatures and therefore proffered no testimony as to

the burdens the requirement placed on them. Affidavits from other similarly

situated minor party candidates, such as the Green Party, were not obtained to

establish the character and magnitude of the injury imposed by the candidate

                                          -12-
petition. Although the Libertarian Party moved for a preliminary injunction, at

the time of summary judgment it had obtained no affidavits or deposition

transcripts and had not provided the district court with any exhibits that contained

facts to create a disputed material fact. See Alder, 144 F.3d at 671.

      To support its argument that the district court erred in granting the

Secretary of State summary judgment, the Libertarian Party argues that the

district court overlooked facts in the record from which a reasonable factfinder

could find for the plaintiff. Specifically, the Libertarian Party argues the petition

scheme held constitutional in American Party of Texas required candidates to

obtain 22,000 signatures, a number fewer than the raw number of signatures

required by New Mexico law. From this, the Libertarian Party reasons a

factfinder could find the New Mexico law was more burdensome. In New

Mexico, the party petition alone required the Libertarian Party to obtain more

than 38,000 signatures; in addition, the candidates still had to satisfy the one-

percent candidate-petition requirement.

      This argument was never presented to the district court and is, therefore,

not preserved for appeal. As a general rule a federal appeals court will not

consider an issue “not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120

(1976). This court has held that an argument which may be inferred from a trial

exhibit, but was not otherwise discussed or argued, will not be considered on

appeal. N. Natural Gas Co. v. Hegler, 818 F.2d 730, 734 (10th Cir. 1987); see

                                          -13-
also Lyons v. Jefferson Bank & Trust, 994 F.2d 716, 722 (10th Cir. 1993). The

Secretary of State introduced an exhibit which included the canvass results from

the 2004 general election. From this exhibit, the raw numbers needed for a

Libertarian Party candidate to obtain access to the ballot can be deduced. The

Libertarian Party, however, failed in the district court to argue that the raw

numbers, in comparison with those in American Party of Texas, could lead a

factfinder to conclude that the New Mexico ballot access scheme is

unconstitutionally burdensome. This argument is therefore foreclosed. 5

      Without any evidence to prove that the New Mexico ballot-access law is

unconstitutionally burdensome to minor party candidates, there was no genuine

issue of material fact for trial as to an essential element of the Libertarian Party’s

claim. The Secretary of State met her initial burden and the Libertarian Party

failed to offer evidence from which a reasonable factfinder could rule in its favor.

Therefore, the district court properly granted summary judgment for the Secretary

of State and County Clerk.




      5
        The Libertarian Party also argues the district court erred by concluding
New Mexico’s proffered rationale for the two-petition ballot access
scheme—avoiding voter confusion which results from ballot clutter—was
legitimate. Specifically, it argues the rationale cannot support both the party-
petition in addition to the candidate-petition requirement. Because the
Libertarian Party failed to create a genuine issue of material fact with regard to
the character and magnitude of the injury, an essential element to their case, we
need not address the state’s proffered interest.

                                         -14-
IV.   Conclusion

      For the foregoing reasons, this court affirms the district court’s denial of

the Plaintiff’s Rule 56(f) motion and grant of summary judgment to the

Defendants.




                                        -15-
