Biener v. Calio

• Court: Court of Appeals for the Third Circuit
• Decided: March 19, 2004
• Docket: 03-1607
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

3-19-2004

Biener v. Calio Precedential or Non-Precedential: Precedential

Docket No. 03-1607

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Recommended Citation "Biener v. Calio" (2004). 2004 Decisions. Paper 885. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/885

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL Leslie G. Bohner, Esq. Drinker Biddle & Reath THE UNITED STATES COURT OF 18 th and Cherry Streets APPEALS FOR THE THIRD CIRCUIT One Logan Square ___________ Philadelphia, PA 19103

No. 03-1607 Charles H. Wampold, III, Esq. (Argued) ___________ Drinker, Biddle & Shanley 105 College Road East STEVEN BIENER; CAROL P. O. Box 627, Suite 300 GREENWAY, Princeton, NJ 08542 Appellants Counsel for Appellants

v. C. Drue Chichi, Esq. (Argued) Aleph Ann Woolfold, Esq. FRANK CALIO, The Honorable, State Department of Justice Election Commissioner; 820 North French Street DEMOCRATIC PARTY OF THE Wilmington, DE 19801 STATE OF DELAWARE Counsel for Appellee, The Honorable Frank Calio ___________ Charles J. Durante, Esq. (Argued) APPEAL FROM THE UNITED Connolly, Bove, Lodge & Hutz STATES DISTRICT COURT FOR THE 1007 North Orange Street DISTRICT OF DELAWARE P. O. Box 2207 Wilmington, DE 19899 (D.C. No. 02-cv-00514) Counsel for Appellee, Democratic District Judge: The Honorable Party DE Gregory M. Sleet ___________ Bonita P. Tenneriello, Esq. National Voting Rights Institute ARGUED OCTOBER 28, 2003 27 School Street Suite 500 BEFORE: SCIRICA, Chief Judge, Boston, MA 02108 NYGAARD, and AMBRO, Counsel for Amicus-Appellant Circuit Judges. ___________

(Filed: March 19, 2004) OPINION OF THE COURT ___________ ___________ NYGAARD, Circuit Judge. I. FACTS AND PROCEDURAL HISTORY Appellant Steven Biener, a Delaware citizen who sought nomination Unlike general elections, which as the Democratic Party’s candidate for are held by the state to select government the United States House of office-holders, primary elections are Representatives (“the House”), appeals conducted by the state on behalf of and the District Court’s grant of summary as a convenience to political parties to judgment against him. Biener and Carol assist them in selecting their candidates Greenway, a registered voter who is a for office. Under Delaware law, Biener supporter, sued the Democratic individual political parties share Party of the State of Delaware (“the responsibility with the state for election Party”) and Frank Calio, Delaware’s primaries. Political parties are state commissioner for elections, alleging authorized to set the filing fee amount, so that the $3000 filing fee for the 2002 long as it does not exceed 1% of the total Democratic primary was salary for the term of office the candidate unconstitutional. The District Court seeks. 15 Del. Code § 3103(a)-(c). In rejected Biener’s arguments under the 2002, the Party set the filing fee for Qualifications, Equal Protection, and candidacy to the House at $3000. Due Process Clauses and granted When a party opts to impose a summary judgment on behalf of the Party filing fee on candidates, Delaware law and Calio. provides only one exception. 15 Del. The Delaware statute provides a Code § 3103(d)-(e). Candidates who filing fee exception for indigent demonstrate they are indigent by virtue candidates who are unable to pay a fee. of qualification for federal benefits may, Biener challenges the lack of a ballot in lieu of a filing fee, access the primary access alternative for non-indigent ballot by obtaining signatures on a candidates. He asserts that he should petition. Id. have a choice not to pay the fee. We Biener sought to be included on conclude that the availability of a choice the ballot for the 2002 Democratic is outcome determinative for Biener’s primary as a candidate for the House. He Qualifications and Equal Protection ran on an anti-election spending and anti- Clause claims. Those claims fail. special interest platform, and did not Additionally, we conclude that there is solicit money for his campaign. Biener no due process violation. We will submitted the necessary paperwork to the therefore affirm the District Court’s grant state and the Party, but was informed that of summary judgment. because he is non-indigent he needed to remit the $3000 filing fee or would be left off the Democratic primary ballot.

2 Biener filed suit against Calio all jurisdictional questions, including seeking declaratory and injunctive relief. whether a plaintiff has standing to assert Calio filed an unopposed motion to join a particular claim. See Gen. Instrument the Party as a defendant, and that motion Corp. of Del. v. Nu-Tek Elec. & Mfg., was granted. The District Court denied Inc., 197 F.3d 83, 86 (3d Cir. 1999). We Biener relief, stating that Biener had not also review the District Court’s decision shown a likelihood of success on any of to grant summary judgment on a plenary his claims. basis. See Blair v. Scott Specialty Gases, 283 F.3d 595, 602-03 (3d Cir. 2002). A Once his complaint for grant of summary judgment is declaratory and injunctive relief was appropriate “if the pleadings, rejected, Biener paid the $3000 filing depositions, answers to interrogatories, fee. He then amended his complaint to and admissions on file, together with the seek a refund of the fee, which affidavits, if any, show that there is no constituted two-thirds of the entire genuine issue as to any material fact and amount expended on his campaign. that the moving party is entitled to a After paying the fee, Biener was judgment as a matter of law.” Fed. R. included on the Democratic primary Civ. P. 56(c). “In reviewing the grant of ballot and received 48% of the votes but summary judgment, we must affirm if the did not win the Democratic nomination. record evidence submitted by the non- Biener’s suit alleged that the filing movant ‘is merely colorable or is not fee requirement is unconstitutional on significantly probative.’” See Port Auth. three grounds: (1) it adds an of N.Y. & N.J. v. Affiliated FM Ins. Co., impermissible wealth requirement to the 311 F.3d 226, 232 (3d Cir. 2002) qualifications for House membership, (2) (quoting Anderson v. Liberty Lobby, Inc., it denies equal protection to non-indigent 477 U.S. 242, 249-50 (1986)). candidates who would like to seek office A. STANDING without paying a filing fee, and (3) it violates the Due Process Clause because As a threshold matter, we must it inappropriately delegates state power consider whether Biener has standing to to political parties. Calio and the Party make his claims. Our decision here is made a motion for summary judgment, informed by our recent opinion in which the District Court granted on all Belitskus v. Pizzingrilli, 343 F.3d 632 (3d three grounds. Cir. 2003). In that case, which involved a challenge to Pennsylvania’s election II. DISCUSSION filing fees, we rejected the argument We have jurisdiction pursuant to “that a candidate challenging a 28 U.S.C. § 1291, since this is an appeal mandatory filing fee must establish that of a final decision of a federal district payment of the fee would result in the court. We exercise plenary review over complete depletion of personal or

3 campaign funds in order to demonstrate him to act as a third-party, Biener lacks injury to a protected interest.” Id. at 640. standing to make this claim. See Pa. Psychiatric Soc’y v. Green Spring Health Servs., 280 F.3d 278, 288 (3d Cir. 2002) Biener, by paying the $3000 filing (“It is a well-established tenet of fee in protest, depleted two-thirds of his standing that a litigant must assert his or campaign funds. This is an injury in fact, her own legal rights and interests, and which is clearly traceable to the filing fee cannot rest a claim to relief on the legal set by the Party and Calio. The injury rights or interests of third parties.”) also can be redressed by a favorable (internal quotations omitted). decision in this court. Biener thus has standing to challenge the filing fee on his B. QUALIFICATIONS CLAUSE own behalf. See AT&T Communications The District Court held that of N.J., Inc. v. Verizon N.J., Inc., 270 Delaware’s filing fee for the Democratic F.3d 162, 170 (3d Cir. 2001) (reciting the primary does not violate the three elements of a case or controversy Qualifications Clause by improperly for purposes of standing: injury, adding a wealth requirement to the causation, and redressability); see also qualifications for House membership. Belitskus, 343 F.3d at 640 (citing Green The Qualifications Clause of the United v. Mortham, 155 F.3d 1332 (1998), an States Constitution states that “No Eleventh Circuit Court of Appeals case Person shall be a Representative who in which the candidate used campaign shall not have attained to the Age of contributions to pay the filing fee under twenty five Years, and been seven Years protest and the court did not question his a Citizen of the United States, and who standing). shall not, when elected, be an Inhabitant Biener also purports to make of that State in which he shall be claims on behalf of indigent or near- chosen.” U.S. C ONST. art. I, § 2, cl. 2. indigent individuals. For example, Supreme Court precedent establishes that Biener alleges that Delaware’s states have no power to add to these age, alternative to filing fees for indigent citizenship, and residency requirements. candidates is illusory because so few U.S. Term Limits, Inc. v. Thornton, 514 people qualify as indigent under the U.S. 779, 798-99 (1995) (citing a long statutory definition. Biener does not list of cases in numerous courts that contend, however, that he is in the group conclude states lack the authority to of near-indigent individuals who are supplement the qualifications in the allegedly prevented from availing Qualifications Clause). Furthermore, themselves of this ballot-access states should not attempt to disguise alternative. Because he is not a member qualifications for office as qualifications of that group nor does he possess a for election as a way to circumvent this “close relationship” worthy of allowing rule, or they risk the qualifications for

4 election being found unconstitutional. residency requirements; loyalty oath Id. at 831 (“[D]ressing eligibility to stand requirements; voter registration for Congress in ballot access clothing requirements; and restrictions on those trivializes the basic principles of our convicted of felonies. See, e.g., id. at democracy that underlie [the 799; Schaefer v. Townsend, 215 F.3d Qualifications] clause[].”) (internal 1031, 1039 (9th Cir. 2000); Campbell v. quotations omitted). The issue here is Davidson, 233 F.3d 1229, 1231 (10th whether the filing fee for the Democratic Cir. 2000). Unlike these impermissible primary constitutes an additional qualifications, the filing fee for the qualification for House membership. Democratic primary is not inherent in the candidate. See Fowler v. Adams, 315 Biener’s Qualifications Clause F.Supp. 592, 594 (M.D. Fla. 1970) claim is based in large part on Thornton, (stating that a filing fee, unlike the in which the Supreme Court found a Article I, Section 2, Clause 2 term-limitation statute unconstitutional “Qualifications,” “is not personal to the as an impermissible attempt to add to the candidate but may be paid by anyone in qualifications for office established by his behalf”). the Constitution. Id. at 837-38. Latching onto Thornton, Biener argues that In a recent case before this Court, Delaware’s filing fee is an eligibility we rejected a Qualifications Clause requirement for office and thus an challenge to the Hatch Act because impermissible wealth qualification. In “[t]he Act allows a citizen a choice.” support of his claim, Biener points to the Merle v. United States, 351 F.3d 92, 97 debate by the Framers of the Constitution (3d Cir. 2003). There, we took notice over whether to include a wealth or that a “resign to run” law may force the property-holding requirement in the prospective candidate to make a choice Qualifications Clause, and their ultimate between federal employment and running decision that qualifications would be for elective office, but does not limited to age, citizenship, and residency. constitute an “additional qualification for the office of United States Thornton and the “impressive and Representative.” Id. Likewise, a uniform body of judicial decisions” cited candidate financially able to pay a filing therein where courts have struck down fee, but unwilling to do so, is not being laws on the basis that they improperly subjected to an impermissible wealth added qualifications to those found in the requirement. Qualifications Clause focus on qualifications that were inherent in the Finally, we disagree with Biener’s candidate. See, e.g., Thornton, 514 U.S. contention that Thornton capsized at 800. For instance, all of the following existing precedent upholding states’ qualifications have been found rights to require filing fees. See Fowler, unconstitutional: term limits; district 315 F.Supp. at 594; Cassidy v. Willis,

5 323 A.2d 598, 602 (Del. 1974); Bodner Supreme Court struck down an election v. Gray, 129 So.2d 419, 420-21 (Fla. primary filing fee where it was an 1961); Kenneweg v. Allegheny County “absolute prerequisite” to participation. Comm’rs, 62 A. 249, 251 (Md. 1905). Bullock v. Carter, 405 U.S. 134, 137 Even after Thornton, states still have the (1972). The filing fees in that case were right to regulate elections by imposing set by the county executive committees reasonable requirements on candidates. of the individual political parties and In Thornton, the Court held that “an were subject to limitations only in some amendment with the avowed purpose and counties. Id. at 137-38. The proceeds of obvious effect of evading the the fee went to the party. Id. at 137. The requirements of the Qualifications Bullock court said that despite the Clause[] by handicapping a class of political parties’ involvement with the candidates cannot stand.” 514 U.S. at filing fees, “the mechanism of such 831. Here, there is no avowed purpose to elections is the creature of state evade the constitution and exclude a legislative choice and hence is state class; instead, the purpose of the filing action within the meaning of the fee is to keep Delaware’s ballots Fourteenth Amendment.” Id. at 140 manageable. Moreover, the logical (internal citations and quotations consequences of Biener’s argument omitted). would jeopardize states’ use of signature The Bullock court “closely requirements. scrutinized” the filing fee, looking at C. EQUAL PROTECTION CLAUSE whether the fee was reasonably necessary to the accomplishment of legitimate state Next, we address whether the objectives. Id. at 144. The Court District Court erred when it granted recognized that states have a legitimate summary judgment for Appellees Calio interest in regulating the number of and the Party on the Equal Protection candidates on the ballot to “prevent the Clause claim. Like the District Court, clogging of its election machinery, avoid we hold that there is no equal protection voter confusion, and assure that the violation. Equal protection jurisprudence winner is the choice of a majority, or at mandates a ballot-access alternative for least a strong plurality.” Id. at 145. those unable to pay a filing fee. Additionally, it is a legitimate objective Delaware law complies with this for states to protect the ballot from precedent by providing an alternative for including frivolous or fraudulent indigent candidates. Here, Biener alleges candidates. Id. But “[t]o say that the only an unwillingness, not an inability, to filing-fee requirement tends to limit the pay. In its history, the Supreme Court ballot to the more serious candidates is has considered only two election filing not enough.” Id. The Court held the fee cases, both of which were decided on differing treatment must also bear some equal protection grounds. In 1972, the

6 relevance to the objective, and that in provide a reasonable alternative means of Bullock the fee was not reasonably ballot access to indigent candidates. Id. necessary because other means to protect at 647. We applied a heightened level of the state’s valid interests were available. scrutiny because indigent plaintiffs were Id. at 145-46. The decision was challenging a mandatory filing fee. Id. at motivated by a concern that without an 644-45. alternative means of ballot access The issue here is whether the affluent candidates were advantaged. Id. filing fee violated the Equal Protection at 144. Clause by extending alternate means of A few years later, in Lubin v. ballot access only to indigent candidates.1 Panish, an indigent candidate brought a The parties agree that Biener cannot avail class-action suit to prevent California himself of Delaware’s alternate means of from enforcing its filing fee. 415 U.S. accessing the ballot—receiving the 709 (1974). The California Elections requisite number of signatures on a Code made forms required for campaign petition—because he is not nomination and election issuable only indigent or even near-indigent. Biener’s once candidates paid a non-refundable claim is that Delaware’s filing fee is filing fee. Id. at 710. The fee amount unconstitutional because it lacks an was tied to the salary of the office equivalent alternative for non-indigent sought. Id. As in Bullock, the Supreme candidates.2 Court applied a close scrutiny test and Biener urges us to find held that the fee was unconstitutional Delaware’s filing fee unconstitutional because no alternate means of ballot under Bullock and Lubin. But Biener’s access was available for indigent reliance on Bullock and Lubin is candidates. Id. at 717-18. According to misplaced because the candidates in both the Court, Lubin was a less cases were indigent. See Bullock, 405 straightforward case than Bullock because California’s fees were not as exorbitant. Id. at 715 n.4. 1. Biener does not challenge the More recently, we considered the reasonableness of the $3000 filing fee. constitutionality of Pennsylvania’s 2. Biener makes an argument that election filing fees. Because the ruling Delaware’s definition of indigence is occurred after briefs were filed in this useless because so few people qualify for case, we sought comment from the the alternative means of ballot access. parties on the applicability of Belitskus, See 15 Del. Code § 3101(e). As 343 F.3d 632. In Belitskus, we held that discussed supra, Biener lacks standing to Pennsylvania’s filing-fee requirement make this argument, as he does not was unconstitutional under the Equal purport to be in the class of near-indigent Protection Clause because it failed to persons who are excluded.

7 U.S. at 146 (“the candidates . . . depends on the filing fee’s effect on affirmatively alleged that they were Biener’s rights. Id. We need not unable, not simply unwilling, to pay the automatically apply close scrutiny just assessed fees”); see also Cassidy, 323 because this case deals with ballot A.2d at 601 (noting that in Lubin the access. See Burdick v. Takushi, 504 U.S. “inability to pay the fee . . . is so much a 428, 433-34 (1992). part of the decision that we cannot ignore In Belitskus, we followed the it here”). Biener turns Bullock and Lubin flexible standard set forth in Anderson v. on their heads when he argues that Celebrezze for determining the indigents are advantaged under appropriate level of scrutiny in ballot Delaware’s current system because they access cases. 460 U.S. 780, 789 (1983), have an alternative that other candidates cited in Belitskus, 343 F.3d at 643. We do not. Biener’s assertion that we should decline to apply the Anderson balancing reach the same result as Bullock is test here. In Belitskus, such an inquiry discouraged by the language of that case, was appropriate because First where the Court said the opinion should Amendment considerations were at issue. not be read to “cast doubt on the validity Unlike Belitskus, Biener’s challenge of reasonable candidate filing fees . . . in relies solely on the Fourteenth other contexts.” 405 U.S. at 149. Amendment and he makes no allegations Because Biener is not claiming based on freedom of association. See indigence, Bullock, Lubin, and Belitskus, Belitskus, 343 F.3d at 643 n.8 (noting while not determinative, are informative that Anderson was not expressly decided on the Equal Protection analysis. “In on equal protection grounds and thus determining whether or not a state law “some uncertainty exists regarding its violates the Equal Protection Clause, we applicability to equal protection-based must consider the facts and challenges,” but applying Anderson circumstances behind the law, the nonetheless because “neither party interests which the State claims to be challenges its application”); Anderson, protecting, and the interests of those who 460 U.S. at 787 n.7 (“In this case, we are disadvantaged by the classification.” base our conclusions directly on the First Williams v. Rhodes, 393 U.S. 23, 30 and Fourteenth Amendments and do not (1968) (cited in Bullock, Lubin, and engage in a separate Equal Protection Belitskus). Clause analysis.”).3 Our first inquiry in an equal protection challenge is the appropriate level of scrutiny. See Reform Party of 3. Even if we were to apply the Allegheny County v. Allegheny County Anderson balancing test, our conclusion Dep’t of Elections, 174 F.3d 305, 314 (3d that we would use a rational basis test Cir. 1999) (en banc). The scrutiny test would remain unchanged.

8 Rather than apply Anderson, we objective “of the highest order.” Lubin, proceed on a traditional equal protection 415 U.S. at 715 (referencing Bullock, analysis, whereby only suspect classes 405 U.S. 134); Bullock, 405 U.S. at 145- and fundamental rights receive 46 (stating in dicta that “there may well intermediate or strict scrutiny. The right be some rational relationship between a to run for office has not been deemed a candidate’s willingness to pay a filing fee fundamental right. Bullock, 405 U.S. at and the seriousness with which he takes 142-43. Biener also cannot establish an his candidacy”). Keeping the ballot infringement on the fundamental right to manageable is an interest sufficient to vote, because “voter’s rights are not meet the low standard of review. See infringed where a candidate chooses not Belitskus, 343 F.3d at 647 (stating that to run because he is unwilling to comply distinguishing serious from non-serious with reasonable state requirements.” See candidates is a legitimate interest, but it Adams v. Askew, 511 F.2d 700, 703 (5th is not enough where there is no Cir. 1975). As the filing fee does not reasonable alternative means of ballot infringe upon a fundamental right, nor is access for indigents). Biener in a suspect class, we consider the In concluding that Biener has claims under a rational basis test. See id. suffered no equal protection violation at 703-04 (applying a rational basis test here, we follow the conclusion reached to hold that an alternative to a filing fee by the Fifth Circuit Court of Appeals in was required only for indigent Adams. 511 F.2d 700. There, the Court candidates). was faced with non-indigent candidates Having established that the who paid the requisite filing fee under appropriate test is rational review, the protest and sued for a refund alleging the question becomes whether the filing fee fee was unconstitutional. Id. at 701. meets that standard. See, e.g., Romer v. Basing its decision on Bullock and Lubin, Evans, 517 U.S. 620, 632 (1996) (noting the Fifth Circuit Court of Appeals held that even under the most deferential of that candidates who were able, but standards, “we insist on knowing the simply unwilling, to pay a filing fee are relation between the classification not entitled to another route to the ballot. adopted and the object to be obtained”). Id. at 702. The court found The justification for the filing fee offered determinative that “it is not the statute by both the State of Delaware and the which perforce restricts the ballot but the Party is that it will help distinguish candidate’s decision to pay or not to serious from non-serious candidates to pay.” Id. at 703 (emphasis added). keep the ballot manageable. The Voters’ rights are not infringed Supreme Court has recognized that the where a candidate chooses not to interest in keeping ballots manageable, run because he is unwilling to often manifested in a filing fee, is an comply with reasonable state

9 requirements. They are no more 189, 196 (1989) (internal citations and affected by a candidate’s quotations omitted). The threshold issue unwillingness to pay a reasonable here is whether Biener possesses a filing fee than they are when he protected liberty or property interest in refuses to comply with financial access to the Democratic primary ballot. disclosure laws, or, for that In an analogous case, the Supreme Court matter, a reasonable petitioning held that impositions on the right to run requirement. for state political office do not implicate the Due Process Clause. See Snowden v. Id. We quite agree. The availability of Hughes, 321 U.S. 1, 7 (1944). We do not choice is fatal to Biener’s equal decide here whether the Snowden protection claim. holding would extend to federal elective D. DUE PROCESS CLAUSE offices, because even if we were to follow the result of the Supreme Court Next, Biener alleges an improper and hold that the right to run for federal delegation of power under the Due elected office warrants due process Process Clause. Biener argues that protection, doing so would not save because Delaware allows political parties Biener’s due process claim. to set and retain filing fees, 15 Del. Code § 3103 is unconstitutional.4 We will Generally, the Fourteenth affirm the District Court, because there is Amendment protects individuals only no due process violation where, as here, against government action, unless the the state limits the private party’s state has delegated authority to a private discretion and the private party operates party, thereby making the actor a “state within the established limitations. The actor” and implicating the Due Process Due Process Clause of the Fourteenth Clause. See Nat’l Collegiate Athletic Amendment provides that “no State shall Ass’n v. Tarkanian, 488 U.S. 179, 195 . . . deprive any person of life, liberty, or (1988). The Due Process Clause limits property without due process of law.” the manner and extent to which a state The Clause “was intended to prevent legislature may delegate legislative government from abusing its power, or authority to a private party acting as a employing it as an instrument of state actor. See, e.g., Yick Wo v. oppression.” Deshaney v. Winnebago Hopkins, 118 U.S. 356, 373-74 (1886). County Dep’t of Soc. Servs., 489 U.S. Only if the state legislature imposes sufficient limitations is the exercise of authority by the private party 4. Delaware’s authority to set filing constitutional. See, e.g., Seattle Title fees itself is not at issue. Nor is there a Trust Co. v. Roberge, 278 U.S. 116, 121- contention that the Party has exceeded 22 (1928) (concluding that the delegation the scope of authority delegated to it by of zoning power to individual the state.

10 landowners violated the due process imposing an upper limit.5 Contrary to clause because the ordinance allowed no Biener’s contention that the Party opportunity for review and left the “controls the price of admission to the private parties “free to withhold consent electoral process,” it is the state that sets for selfish reasons or arbitrarily . . . the only price that matters to potential [based on] will or caprice”); Eubank v. candidates who generally pay the filing City of Richmond, 226 U.S. 137, 143-44 fee out of campaign coffers—the (1912); Gen. Elec. Co. v. New York State maximum price. Dep’t of Labor, 936 F.2d 1448, 1455 (2d We have not found, nor has Cir. 1991) (noting that delegation Biener asserted, any instance where a without standards allows the private federal appellate court deemed a state party to exercise selfish or arbitrary delegation unconstitutional under the motivations or whims). Without Due Process Clause for any reason but a sufficient limitations, the delegation of lack of standards allowing exercise of the authority can be deemed void for authority on a whim or caprice. There is vagueness as allowing ad hoc decisions no evidence that the Party could exercise or giving unfettered discretion to the its ability to set filing fees selfishly, private party. arbitrarily, or based on will or caprice. In this case, the District Court See Roberge, 278 U.S. at 121-22. held that Delaware’s limitation on the Biener’s reference to Bartley v. Davis, a filing fee amount is a sufficient 1986 case from the Delaware Court of limitation on the Party’s authority to Chancery, fails to convince us that the prevent the delegation from running delegation of authority for setting filing afoul of the Due Process Clause. We fees has been abused by the Party. agree. Delaware delegates to political parties the authority to set the filing fee for election primaries, so long as the fee III. CONCLUSION does not exceed 1% of the total salary for In sum, Delaware’s filing fee is the term of office the candidate seeks. constitutional under the Qualifications, 15 Del. Code § 3103. The State also Equal Protection, and Due Process allocates 100% of the fee to the Party for Clauses. We will affirm the District it to keep, or choose to rebate to the Court’s summary judgment order. candidate in whole or in part. Effectively, the State of Delaware has created a means of revenue production for the Party, but caps the profitability by 5. What use the Party puts filing fee proceeds to is irrelevant to our analysis. We consider only whether the delegation of authority by the State of Delaware is facially impermissible.