                                                 Filed:   July 28, 1997


                  UNITED STATES COURT OF APPEALS

                        FOR THE FOURTH CIRCUIT



                              No. 96-1832
                             (CA-94-47-D)



George R. Wood, etc.,

                                                 Plaintiff - Appellee,

         versus

M. Bruce Meadows, etc.,

                                               Defendant - Appellant.




                              O R D E R


    The Court amends its opinion filed July 1, 1997, as follows:

    On page 2, first full paragraph of the opinion, line 12 -- the
word "not" is deleted between the words "does" and "as."

                                       For the Court - By Direction



                                            /s/ Patricia S. Connor

                                                      Clerk
PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GEORGE R. WOOD, a/k/a George R.
"Tex" Wood,
Plaintiff-Appellee,

v.
                                                                 No. 96-1832
M. BRUCE MEADOWS, Secretary of
the State Board of Elections,
Commonwealth of Virginia,
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Virginia, at Danville.
Jackson L. Kiser, Senior District Judge.
(CA-94-47-D)

Argued: May 8, 1997

Decided: July 1, 1997

Before LUTTIG, Circuit Judge, COPENHAVER, United States
District Judge for the Southern District of West Virginia, sitting by
designation, and MICHAEL, Senior United States District Judge for
the Western District of Virginia, sitting by designation.

_________________________________________________________________

Reversed and remanded by published opinion. Judge Luttig wrote the
opinion, in which Judge Copenhaver and Senior Judge Michael
joined.

_________________________________________________________________

COUNSEL

ARGUED: James Walter Hopper, Senior Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Richmond, Virginia, for
Appellant. Matthew Dean Pethybridge, KRATMAN, PETHY-
BRIDGE & SWINDELL, P.C., Blacksburg, Virginia, for Appellee.
ON BRIEF: James S. Gilmore, III, Attorney General of Virginia,
David E. Anderson, Chief Deputy Attorney General, Frank S. Fergu-
son, Deputy Attorney General, OFFICE OF THE ATTORNEY GEN-
ERAL, Richmond, Virginia, for Appellant.

_________________________________________________________________

OPINION

LUTTIG, Circuit Judge:

Plaintiff-appellee George R. Wood sought to have his name
included on the Commonwealth's November 1994 general election
ballot as an independent candidate for the United States Senate.
Because Wood had failed to comply with Virginia's filing deadline
for independent candidates, see Va. Code Ann. §§ 24.2-506, 24.2-
507(1), the Commonwealth refused to place his name on the ballot.
Wood thereafter brought this suit, alleging that the Commonwealth's
filing deadline violated his rights and those of his supporters under
the First and Fourteenth Amendments of the Constitution of the
United States. The district court granted summary judgment in
Wood's favor, holding that the Commonwealth's filing deadline for
independent candidates for the United States Senate does, as
Wood alleges, violate both the First and Fourteenth Amendments.
Because the district court erred in concluding that its disposition of
this case is controlled by our decision in Cromer v. South Carolina,
917 F.2d 819 (4th Cir. 1990), and, as a result, failed to analyze
Wood's claim under the test set forth by the Supreme Court in
Anderson v. Celebrezze, 460 U.S. 780 (1983), we reverse and remand
to the district court for further proceedings.

I.

Virginia law requires that all candidates for public office, with the
exception of Presidential and Vice Presidential candidates, see Va.
Code Ann. § 24.2-543, file declarations of candidacy and nominating
petitions signed by one-half of one percent of registered Virginia vot-
ers by at least 150 days before the general election, see Va. Code

                    2
Ann. §§ 24.2-506, 507(1), 509, 510(1), 515, which is the day on
which political parties must hold their party primaries, see Va. Code
Ann. § 24.2-515. This 150 day filing deadline applies to independent
and party candidates alike. Independent candidates therefore must file
their declarations and petitions "by 7:00 p.m. on the second Tuesday
in June" before the November election, Va. Code. Ann. § 507(1),
which is 150 days before the general election.1 And, while political
parties are generally free to choose their candidates by party primary
or otherwise, see Va. Code. Ann. § 24.2-509, the party candidates
must file their declarations and petitions by at least 150 days prior to
the general election. Indeed, parties that select their candidates
through party primaries must require their candidates to submit their
declarations and petitions 60 days before the party primary, see Va.
Code Ann. § 24.2-522(A), which, in Virginia, is 210 days before the
general election, see Va. Code. Ann. § 24.2-515 (requiring that party
primaries must take place on the 150th day before the general elec-
tion). Parties that select their candidates through means other than a
party primary must complete their selection procedure by 150 days
before the general election. See Va. Code. Ann. § 24.2-510(1).

In this case, there is no dispute that Wood, an independent candi-
date for the United States Senate, failed to comply with the Common-
wealth's 150 day filing deadline. Instead, Wood challenges that
deadline as unconstitutional under the First and Fourteenth Amend-
ments, arguing that the deadline "unconstitutionally burdens the vot-
ing and associational rights of [him] and his supporters." Appellee's
Br. at 1.2 Before the district court, the Commonwealth advanced
administrative convenience as the "sole justification" for the 150 day
deadline, see J.A. at 126, contending that the 150 day deadline was
"necessary to verify the requisite signatures on the petition and to
_________________________________________________________________

1 General elections are held on the Tuesday following the first Monday
in November. Consequently, the "second Tuesday in June before the
November election" is 150 days prior to the general election.

2 In his complaint, Wood also alleged that his Equal Protection rights
were violated by the imposition of a shorter deadline (74 days) for Presi-
dential and Vice Presidential candidates, see Va. Code Ann. § 24.2-543,
than for independent candidates for the Senate. The district court did not
address this claim in its opinion below, and Wood has not raised it on
appeal. Accordingly, we do not address this claim.

                    3
print the ballots for the general election," J.A. at 120. The district
court, believing that its decision was "controlled" by our opinion in
Cromer, rejected the Commonwealth's rationale, holding that, under
Cromer, where a state's only asserted justification for a deadline is
administrative convenience, a deadline longer than ninety days prior
to the general election is per se unconstitutional.

II.

A.

In Anderson, the Supreme Court fashioned the test that must be
applied when determining whether a state's ballot access laws pass
constitutional muster. Specifically, in the course of striking down
Ohio's 229 day filing deadline for independent presidential candi-
dates, which required those candidates to submit statements of candi-
dacy and nominating petitions 229 days before the general election
and 75 days before the party primaries, see 460 U.S. at 783 n.1, as
violative of the "voting and associational rights" of an independent
candidate and his supporters, see id. at 782, the Court instructed, gen-
erally, that a court

        must first consider the character and magnitude of the
        asserted injury to the rights protected by the First and Four-
        teenth Amendments that the plaintiff seeks to vindicate. It
        then must identify and evaluate the precise interests put for-
        ward 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 inter-
        ests, it must also 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 posi-
        tion to decide whether the challenged provision is unconsti-
        tutional.

Id. at 789; see also Timmons v. Twin Cities Area New Party, 117 S.
Ct. 1364, 1370 (1997). The Court concluded that, under this standard,
"the `extent and nature' of the burdens Ohio . . . placed on the voters'
freedom of choice and freedom of association, in a[ ] [presidential]
election of nationwide importance, unquestionably outweigh the

                    4
State's minimal interest in imposing [the] March deadline." Anderson,
460 U.S. at 806.

In applying the Anderson standard, it must be determined whether
the challenged electoral law places "severe" restrictions on the First
and Fourteenth Amendment rights of candidates and voters, or, rather,
imposes only "reasonable, nondiscriminatory restrictions" on those
rights. See Burdick v. Takushi, 504 U.S. 428, 434 (1992). Where the
restrictions are "severe," they may be upheld only if they are "nar-
rowly drawn to advance a state interest of compelling importance."
See Burdick, 504 U.S. at 434; see also Timmons, 117 S. Ct. at 1370;
Fishbeck v. Hechler, 85 F.3d 162, 164 (4th Cir. 1996). However,
where the restrictions are "reasonable" and"nondiscriminatory," "`the
State's important regulatory interests are generally sufficient to jus-
tify' the restrictions," Burdick, 504 U.S. at 434, as "the State's
asserted regulatory interest need only be `sufficiently weighty to jus-
tify the limitation' imposed" on the candidates' and voters' rights, see
Timmons, 117 S. Ct. at 1372 (quoting Norman v. Reed, 502 U.S. 279,
288-89 (1992)). Indeed, "when a State's ballot access laws pass con-
stitutional muster as imposing only reasonable burdens on First and
Fourteenth Amendment rights," a particular restriction "will be pre-
sumptively valid, since any burden on the right to vote for the candi-
date of one's choice will be light and normally will be
counterbalanced by the very state interests supporting the ballot
access scheme." Burdick, 504 U.S. at 441.

We applied the Anderson standard in Cromer to invalidate South
Carolina's 200 day filing deadline for independent candidates for the
state legislature, which required such candidates to formally declare
their candidacy 200 days before the general election and 70 days
before the party primaries. There, we first considered the "two most
critical burdens on independent candidacies: sheer length of time
between the filing date and general election (as much as seven
months), and simultaneous filing deadlines for independents and pri-
mary candidates." Cromer, 917 F.2d at 826 n.4. We found these bur-
dens to be "practically total," concluding that, by requiring
independent candidates to make the "draconian decision" of whether
or not to run before the party candidates had even been selected, the
200 day filing deadline "effectively cut[ ] off the opportunity for such
[independent] candidacies to develop at a time that pre-dates the

                    5
period during which reasons for their emergence are most likely to
occur." Id. at 823-24. We then considered the only two interests
asserted by South Carolina, which were its interests in the "equal
treatment" of independent and party candidates and "feuding and fac-
tionalism reduction," id. at 824, finding these interests "lacking in sig-
nificance," id. Balancing the "essentially total" burdens on
independent candidacies against the two "insignificant" state interests,
we concluded that it was "obvious" that we would find the asserted
state interests "substantially outweighed" by the burdens imposed on
the voters' rights, and "the filing requirement therefore unconstitu-
tional." Id. at 825.

Even though South Carolina never asserted an interest in adminis-
trative convenience, and even though, absent any consideration of
administrative convenience, we thought it clear that South Carolina's
200 day filing deadline would be unconstitutional, we nonetheless
undertook to discuss what we characterized as "the most obvious state
interest justifying any pre-election filing deadline[,] . . . the need to
provide a decent interval for administrative processing and for voter
education." See id. at 825. And we even went so far as to offer our
view that

        the need to provide a decent interval for administrative pro-
        cessing and for voter education . . . surely could[justify a
        state's] require[ment] [that] independent candidates . . .
        declare and perfect their candidacies 60 to 90 days before a
        general election[, but] [b]eyond that period, some other
        interest would seem to be needed to justify an earlier decla-
        ration of independent candidacy.

Id. at 825.

The district court concluded that this last statement in particular
"controlled" the case sub judice, even though at issue here is an inde-
pendent candidate filing deadline which, unlike those in Anderson and
Cromer, is sixty days after the filing deadline for party primary candi-
dates, which is the same day as the party primaries, and which is 50
days closer to the general election than the deadline invalidated in
Cromer and 79 days closer to the general election than that struck
down in Anderson. Thus, rather than analyze the Anderson factors,

                    6
the district court simply reasoned that, even assuming that the Com-
monwealth's filing deadline was not a "severe" restriction, see J.A. at
127, under Cromer, any filing deadline greater than 90 days would be
per se unconstitutional where the only asserted state interest was in
administrative convenience. As the district court said,

        Cromer is the controlling case. Cromer establishe[d] 90
        days as the outside limit for filing deadlines absent some
        explanation additional to "administrative processing and
        voter education[,]"

J.A. at 127. Accordingly, the court ordered that

        [t]he Commonwealth of Virginia is hereby ENJOINED
        from enforcing the declaration of candidacy and petition fil-
        ing deadline imposed on independent candidates for the
        office of United States Senator, as established by Va. Code
        Ann. § 24.2-507(1). The Commonwealth shall designate a
        new filing date, not to precede the general election date by
        more than 90 (ninety) days.

J.A. at 115.

Although the district court can hardly be faulted for relying upon
our statements in Cromer, it is evident that those statements were
obiter dictum. In Cromer, the only issue before us was the constitu-
tionality of South Carolina's 200 day filing deadline, and, as noted,
the state had not even asserted administrative necessities in support
of its filing deadline. Our veiled reference to a possible bright-line
rule that a state's administrative needs could not justify a filing dead-
line of more than 90 days prior to the general election, see id. at 825
("Beyond [a 60 to 90 day] period, some other interest would seem to
be needed to justify an earlier declaration of independent candidacy.")
(emphasis added), therefore, was simply dicta, which we now dis-
avow. See Timmons, 117 S. Ct. at 1370 ("No bright line separates per-
missible election-related regulation from unconstitutional
infringements on First Amendment freedoms.").

Accordingly, the district court mistakenly, albeit understandably,
erred in relying upon the 90-day bright line rule referenced in Cromer

                    7
to invalidate Virginia's 150 day filing deadline, and in failing to
apply, in the first instance, the balancing test articulated by the
Supreme Court in Anderson.

B.

The Commonwealth urges that, rather than remand this case to the
district court for reconsideration under Anderson, we should decide,
on the record before us, that judgment in favor of the Commonwealth
is appropriate, and so direct the district court. We share the Common-
wealth's skepticism as to whether, as a matter of both law and fact,
Wood can show that the 150 day deadline imposes any cognizable
burden on his independent candidacy, much less a "severe" one.
Nonetheless, we believe that a remand to the district court, to further
develop the factual record, is appropriate.

The Commonwealth's 150 day deadline imposes significantly less
burdens on independent candidacies than did South Carolina's 200
day deadline which we invalidated in Cromer. The "two most critical
burdens" that South Carolina imposed upon independent candidates,
see Cromer, 917 F.2d at 826 n.4, are either not present in the Com-
monwealth's scheme, or present to a significantly lesser extent. It
goes without saying that the Commonwealth's 150 day deadline
imposes less "sheer length of time between [the] filing date and [the]
general election" than did South Carolina's 200 day deadline. See id.
And, whereas South Carolina required "simultaneous filing deadlines
for independents and primary candidates," id., thereby preventing
independent candidates from even knowing against whom they would
be running, id. at 823, the Commonwealth does not require indepen-
dent candidates to file until sixty days after party primary candidates,
on the day of the primary election. By this time, Virginia's field of
primary candidates is known, and, as the district court found, "there
[is] an excellent, if not inescapable, indication of who the [actual]
party nominees [will] be," J.A. at 125.

Moreover, both the Supreme Court and this court have commented
approvingly on or actually upheld in related contexts filing deadlines
identical to or more burdensome than that imposed by the Common-
wealth.

                    8
In Jenness v. Fortson, 403 U.S. 431 (1971), the Supreme Court
approved a filing deadline virtually indistinguishable from that now
employed by the Commonwealth. There, the Court upheld Georgia's
requirement that, by the second Wednesday in June preceding a
November election, independent candidates submit a nominating peti-
tion signed by five percent of the total number of eligible voters in
the previous election, see id. at 433-34. Although the Court's holding
specifically addressed only the constitutionality of Georgia's signa-
ture requirement, in the course of upholding that requirement, the
Court observed that Georgia had "not fix[ed] an unreasonably early
filing deadline for candidates not endorsed by established parties." Id.
at 438. See also Burdick, 504 U.S. at 436 (noting that Hawaii's
requirement that independent candidates participate in a "nonpartisan
primary" and, thus, submit nominating papers sixty days before the
primary, constituted "easy access to the ballot until the cutoff date").

And, in Hess v. Hechler, 925 F. Supp. 1140 (S.D.W.Va. 1995),
aff'd sub nom., Fishbeck v. Hechler, 85 F.3d 162 (4th Cir. 1996), we
upheld a more onerous filing deadline than that herein attacked. See
also Socialist Workers Party v. Hechler, 890 F.2d 1303 (4th Cir.
1989), cert. denied, 495 U.S. 932 (1990). There, we faced a challenge
to West Virginia's primary eve filing deadline, which required inde-
pendent and third party candidates to submit nominating petitions on
the Monday preceding the second Tuesday in May. In adopting by
published opinion the district court's "thorough reasoning," see
Hechler, 85 F.3d at 165, we characterized West Virginia's filing
deadline as a "slight burden" on the plaintiffs' First and Fourteenth
Amendment rights, see Hechler, 925 F. Supp. at 1154, ultimately
holding that, as such, it constituted a "reasonable restriction on [the]
plaintiffs' constitutionally protected voting and political association
rights," id. at 1155. Although we only addressed West Virginia's
restrictions as they applied to third party candidates, see id. at 1154
("[T]he court . . . does not address the constitutionality of West Vir-
ginia's statutory scheme insofar as it applies to independent candi-
dates."), the case is nonetheless instructive as to the extent of the
burden that an early filing deadline imposes upon a candidate and his
supporters. Indeed, the only rationale that Wood advances to distin-
guish Hechler from the case now before us, that "third parties . . .
have the potential to establish long-term party control over state gov-
ernment," see Appellee's Br. at 18 n.7, addresses only "the state's

                    9
heightened interest" in regulating third parties, see id., and not the
burden that a particular restriction imposes upon the candidates.

Finally, in Cromer, we all but approved, albeit implicitly, the Com-
monwealth of Virginia's filing deadline now under attack. See Va.
Code Ann. § 24.1-166(B)(1) (1985), amended by, § 24.2-507 (1993).
Thus, we declared the dissent's assertion that our holding in that case
called into question the electoral laws of thirty-two states, including
Virginia, see Cromer, 17 F.2d at 828-29 (Wilkinson, J., dissenting),
to be "unfounded," see id. at 825 n.4. Instead, we concluded, "only
six states other than South Carolina," Virginia not among them, con-
tained the "two most critical burdens upon independent candidacies"
-- i.e., the 200 days between the filing deadline and the general elec-
tion, and the requirement that independents and primary candidates
file simultaneously -- upon which our invalidation of the South Caro-
lina law rested, see id., and, thus, that only the electoral laws in those
six states would be called into question by our decision.

In light of this caselaw, we doubt whether Wood can show that the
Commonwealth's 150 day filing deadline imposes any significant
burden on the constitutional rights of Wood and his supporters, much
less a "severe" burden. Rather, it appears to us based on the limited
record before us that the Commonwealth has simply chosen "reason-
able, nondiscriminatory restrictions," treating independent and party
candidates at least equally in all cases, and, in many cases, allowing
independent candidates more time to file their declarations and peti-
tions than candidates of political parties. Cf. Burdick, 504 U.S. at 438
("[W]e have repeatedly upheld reasonable, politically neutral regula-
tions that have the effect of channelling expressive activity at the
polls.").

Nonetheless, we decline, on the record before us, the Common-
wealth's invitation to conduct the Anderson balancing ourselves. In
Anderson, the Supreme Court instructed that a fact-specific inquiry be
undertaken, in which the severity of the restrictions that a ballot
access law imposes on voters and candidates and the state's asserted
interests in the particular electoral restrictions are evaluated and
weighed against each other. Although the caselaw appears to fore-
close any claim that the Commonwealth's 150 day filing deadline
imposes any substantial burden on access to the ballot, the factual

                     10
record on this score remains largely undeveloped. And, as the Com-
monwealth conceded at oral argument, the record before us is like-
wise virtually barren of any evidence of the strength or legitimacy of
the Commonwealth's interests, administrative or otherwise, in the 150
day deadline.

Accordingly, the case is remanded to the district court for further
factual development both as to the burdens that the 150 day deadline
imposes upon independent candidates and their supporters, and as to
the interests of the Commonwealth in imposing that deadline, and for
the district court to apply, in the first instance, the test mandated by
the Supreme Court in Anderson. On remand, the district court should
not limit the Commonwealth's interests to that in administrative con-
venience, but should consider all interests that the Commonwealth
chooses to assert in defense of its 150 day filing deadline.

REVERSED AND REMANDED

                    11
