                                                          [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 09-14250                ELEVENTH CIRCUIT
                                                            FEBRUARY 10, 2010
                           Non-Argument Calendar
                         ________________________               JOHN LEY
                                                              ACTING CLERK

                      D. C. Docket No. 08-01016-CV-F-N

ANDY SHUGART,
JONATHAN GRAY,
                                                           Plaintiffs-Appellants,

                                    versus

BETH CHAPMAN,
in her official capacity as
Alabama Secretary of State,
                                                           Defendant-Appellee.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Alabama
                        _________________________
                              (February 10, 2010)

Before TJOFLAT, CARNES and WILSON, Circuit Judges.

PER CURIAM:
      Andy Shugart and Jonathan Gray appeal the district court’s dismissal of

their challenge to one of Alabama’s ballot access restrictions under the First and

Fourteenth Amendments of the United States Constitution. Alabama law requires

a person seeking to appear on the ballot as an independent or third-party candidate

for the U.S. House of Representatives to submit a petition containing the

signatures of at least three percent of the qualified electors who voted in the last

gubernatorial election for the district in which the person seeks to qualify. See

Ala. Code § 17-9-3(a)(3). It is undisputed that 6,155 signatures were required for

purposes of the 2008 general election for U.S. House of Representatives District 6.

By contrast, Alabama law requires a person seeking to appear on the Alabama

ballot as an independent candidate for President of the United States to submit a

petition containing the signatures of at least 5,000 qualified Alabama voters. See

Ala. Code. § 17-14-31(a). The appellants contend that the three-percent

requirement is unconstitutional because of the disparity between the number of

signatures needed to access the ballot for the House and the number of signatures

needed to access the ballot for President.

      Our prior precedent forecloses the appellants’ claim. In Swanson v. Worley,

490 F.3d 894 (11th Cir. 2007), we held that Alabama’s three-percent signature

requirement does not violate the First or Fourteenth Amendments. Id. at 903–05

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(“[W]e conclude that Alabama’s signature requirement by itself does not impose a

severe burden on plaintiffs’ rights but is a reasonable, nondiscriminatory

restriction.”). In so holding, we specifically addressed, and rejected, the argument

made by the appellants in this case:

      In presidential elections, independent candidates need to obtain only
      5,000 signatures to appear on the general election ballot in Alabama. See
      Ala.Code § 17-19-2(a) (2005) (current version at Ala.Code §
      17-14-31(a)). Plaintiffs contend that if a less restrictive signature
      requirement sufficiently satisfies the State’s interests in presidential
      elections, there is no justification for requiring more signatures through
      the three-percent signature requirement in statewide elections.
             However, presidential elections call for a different balancing of
      interests than statewide or local races. As the Supreme Court
      emphasized in Anderson, “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.” [Anderson v. Celebrezze, 460 U.S. 780,
      795, 103 S. Ct. 1564, 1573 (1983)]. Accordingly, we cannot say it is
      unreasonable for Alabama to apply more demanding regulations on
      statewide and local races than presidential races.

Id. at 905 n.12.

      The Supreme Court’s decision in Illinois State Board of Elections v.

Socialist Workers Party, 440 U.S. 173, 99 S. Ct. 983 (1973), does not compel a

contrary result. In that case the Court struck down an Illinois state law requiring

“substantially more” signatures to run as an independent for a Chicago city office

than for a statewide office. See id. at 177, 187, 99 S. Ct. at 986, 991. As the



                                          3
district court correctly recognized: “While Illinois State Board addressed the

difference between requirements to be on a statewide ballot and those to be on a

municipal ballot within that same state, this lawsuit challenges differences

between requirements to be in the ballot to stand for election to a U.S.

Congressional District and U.S. President.” That distinction is critical because

Alabama’s interests in regulating an office elected entirely by Alabama voters

(House District 6) are much greater than its interests in regulating an office elected

only in small part by Alabama voters (the U.S. President). See Swanson, 490 F.3d

at 905 n.12 (citing Anderson, 460 U.S. at 795, 103 S. Ct. at 1573); see also Wilson

v. Firestone, 623 F.2d 345, 346 (5th Cir. 1980) (distinguishing Illinois State Board

and rejecting equal protection challenge to a Florida law requiring fewer

signatures on the petition of an independent candidate for U.S. President than for

an independent candidate for a statewide office).1

       After carefully reviewing the record and the parties’ briefs, we conclude that

this case is materially indistinguishable from Swanson and Wilson. Alabama’s

legislative choice to have a modest requirement for independent Presidential

candidates does not defeat its decision to impose a higher requirement on


       1
        In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we
adopted as binding precedent all decisions of the former Fifth Circuit handed down before
October 1, 1981.

                                               4
independent candidates for offices elected only by Alabama voters.

      AFFIRMED.




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