Bryan Greene v. Gary Bartlett, No. 10-2068 (4th Cir. 2011)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-2068 BRYAN E. GREENE; JORDON M. GREENE; TODD MEISTER, Plaintiff Appellants, and BRADLEY D. SMITH,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 Before TRAXLER, Chief Judge, HAMILTON, Senior Circuit Judge. Decided: KEENAN, October 13, 2011 Circuit Judge, and Affirmed by unpublished per curiam opinion.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 Appellees. OF JUSTICE, Raleigh, North Carolina, for Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: On August 6, 2008, Bryan Greene, Jordon Greene, and Todd Meister brought this 42 U.S.C. § 1983 action against the five members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 alleging director that of North the North Carolina Carolina General Board Statute of Elections § 163-122(a)(2) violated the First Amendment of the United States Constitution, because § 163-122(a)(2) independent candidates severely for burdens the the United ability House States of 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. intervened On in July the 15, action, 2010, Bradley alleging the Smith same successively 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 independent or her candidate name to for appear the on United the ballot States as House an of Representatives or any other district office to obtain petitions signed by 4% of the registered district, was not unconstitutional. 3 voters in their respective According to the district 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). additional candidate The uncontroverted for obtained district the access requirement. the was facts. United to court persuaded First, States 2010 also House ballot one of by by two independent Representatives meeting the 4% 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 unaffiliated and the intervenor candidates for Representatives were the similarly did not United situated demonstrate States to House that of 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 Representatives candidates were for similarly the United situated States to House of unaffiliated candidates for statewide office or to new political parties. Accordingly, like the district court, we conclude that § 163122(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 5
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