Gottlieb v. Lamont

• Court: Court of Appeals for the Second Circuit
• Decided: April 11, 2023
• Docket: 22-449
• Status: Unpublished

Opinion

22-449 Gottlieb v. Lamont

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 11th day of April, two thousand twenty-three.

PRESENT: ROBERT D. SACK, SUSAN L. CARNEY, JOSEPH F. BIANCO,

Circuit Judges.

Andy Gottlieb, on behalf of themselves and all others similarly situated, Lorna Chand, on behalf of themselves and all others similarly situated, Jason W. Bartlett,

Plaintiffs-Appellants, Robert Halstead,

Intervenor-Plaintiff-Appellant,

v. 22-449

Ned Lamont, Governor of the State of Connecticut, Denise Merrill, Secretary of the State of Connecticut, Democratic State Central Committee, Defendants-Appellees. ∗

FOR PLAINTIFFS-APPELLANTS: ALEXANDER T. TAUBES, Esq., New Haven, CT.

FOR DEFENDANTS-APPELLEES NED LAMONT, GOVERNOR OF THE STATE OF CONNECTICUT AND DENISE MERRILL, SECRETARY OF THE STATE OF CONNECTICUT: ALMA ROSE NUNLEY, Assistant Attorney General, for William Tong, Attorney General of Connecticut, Hartford, CT.

Appeal from the judgment of the United States District Court for the District of Connecticut

(Hall, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Plaintiffs appeal from the district court’s grant of summary judgment, entered on February

15, 2022, in favor of defendants-appellees Ned Lamont, Governor of the State of Connecticut,

Denise Merrill, Secretary of the State of Connecticut, and the Democratic State Central

Committee. We assume the parties’ familiarity with the underlying facts, procedural history of

the case, and issues on appeal, to which we refer only as necessary to explain our decision to

affirm.

Plaintiff Andy Gottlieb was a Democratic candidate for the Connecticut State Senate’s 12th

District in 2018. However, his name was not placed on the party’s primary ballot because he

neither received enough delegate votes at the party’s convention nor submitted sufficient valid

petition signatures. Similarly, plaintiff Jason Bartlett, a Democratic candidate for the Connecticut

∗ The Democratic State Central Committee did not file a notice of appearance in this Court. In addition, plaintiff Richard Lacourciere was removed from the operative complaint. The clerk of court is respectfully instructed to amend the caption to conform with the above.

2 State Senate’s 10th District in 2020, failed to gain ballot access through either the convention or

petition method. Plaintiff Lorna Chand, a registered voter in Connecticut, was Gottlieb’s

campaign treasurer. Plaintiffs brought this action pursuant to 42 U.S.C. § 1983, challenging

Connecticut’s primary ballot access laws under the First and Fourteenth Amendments, alleging

that such laws “place an unconstitutional severe undue burden on candidates running for office in

state primaries and party voters seeking to vote for the candidate of their choice.” App’x at 15.

Under Connecticut law, candidates of major political parties seeking to have their name

placed on their party’s primary ballot must either: (1) receive the party’s endorsement at the party

convention; or (2) earn at least 15% of the delegate vote at the party convention; or (3) submit

petition forms with valid signatures from a certain percentage of party members. Plaintiffs

primarily take issue with the petition requirements.

The specific requirements for the petition route vary based on the office. Candidates for

statewide or congressional office must obtain signatures from 2% of enrolled party members in

the state or congressional district in a forty-two-day period. Candidates for district or municipal

office must secure signatures from 5% of enrolled party members in that district or municipality

in a fourteen-day window. Regardless of the office, signatures must be obtained from enrolled

party members in the district where the candidate seeks office, and the petition circulator must

attest to the veracity of the signatures. Party members are not prohibited from signing multiple

petitions nor are they required to commit to voting for the petitioning candidate in the primary.

Plaintiffs argue that these petition requirements serve simply to protect incumbents, and

that the requirements infringe on candidates’ and voters’ constitutional rights to ballot access. To

evaluate this claim, the district court applied what has come to be known as the Anderson-Burdick

framework. See Burdick v. Takushi, 504 U.S. 428 (1992); Anderson v. Celebrezze, 460 U.S. 780

3 (1983). Under Anderson-Burdick, the district court concluded that “plaintiffs have failed to bring

forth evidence upon which a reasonable jury could conclude that Connecticut’s overall scheme for

accessing the primary ballot imposes a severe burden on them.” Gottlieb v. Lamont, No. 3:20-cv-

623, 2022 WL 375525, at *13 (D. Conn. Feb. 8, 2022). In particular, with respect to plaintiffs’

challenge to the petition requirements, the district court held that “[t]hough the requirements

certainly are a burden on candidates – perhaps even a significant one – they do not constitute a

severe burden that virtually excludes candidates from the ballot.” Id. at 12 (alterations adopted)

(internal quotation marks and citation omitted). Based on that conclusion, the district court

determined that strict scrutiny did not apply and, instead, conducted the requisite balancing test

under Anderson-Burdick. Under that balancing test, the district court held

“that there is no evidence in the record upon which a reasonable jury could conclude that the state’s

interest in promulgating these regulations [regarding petition requirements] does not outweigh the

reasonable and nondiscriminatory burdens they impose on plaintiff[s’] rights.” Id. at 14.

Accordingly, the court granted summary judgment to defendants. 1

On appeal, plaintiffs argue, among other things, that the district court erred because the

petition requirements severely burden ballot access and thus are subject to strict scrutiny, which

defendants have failed to satisfy. In the alternative, plaintiffs contend that, even if the burden is

not “severe” under Anderson-Burdick, Connecticut’s interests do not outweigh the burden on

plaintiffs’ rights with respect to the petition requirements.

1 The district court also granted summary judgment to defendants on the alternative ground that the convention route to ballot access was constitutional, and thus the petition pathway was a fortiori constitutional because it merely broadened opportunities for ballot access. Gottlieb, 2022 WL 375525, at *13 (citing LaRouche v. Kezer, 990 F.2d 36 (2d Cir. 1993)). However, because we conclude that the petition requirements are constitutional under the Anderson-Burdick balancing test for the reasons discussed below, we need not—and do not—address this alternative ground.

4 We review de novo a district court’s decision to grant summary judgment, construing the

evidence in the light most favorable to the party against whom summary judgment was granted

and drawing all reasonable inferences in that party’s favor. Guan v. City of New York, 37 F.4th

797, 804 (2d Cir. 2022). Summary judgment is appropriate only if “there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a).

As the district court correctly ruled, challenges to state restrictions on ballot access are

analyzed under the Anderson-Burdick framework, which consists of a two-step inquiry. Burdick,

504 U.S. at 434. First, the court asks if the regulation’s burden on the constitutional rights in

question is “severe” or “reasonable” and “nondiscriminatory.” Id. If the burden is “severe,” then

the regulation is subject to strict scrutiny. Id. (citing Norman v. Reed, 502 U.S. 279, 289 (1992)).

By contrast, if the burden is only “reasonable” and “nondiscriminatory,” then “‘the State’s

important regulatory interests are generally sufficient to justify’ the restrictions.” Id. (quoting

Anderson, 460 U.S. at 788). “Review in such circumstances will be quite deferential, and we will

not require ‘elaborate, empirical verification of the weightiness of the State’s asserted

justifications.’ Nonetheless, in cases . . . where the burden imposed by the law is non-trivial, we

must weigh the State’s justification against the burden imposed.” Price v. N.Y. State Bd. of

Elections, 540 F.3d 101, 109 (2d Cir. 2008) (quoting Timmons v. Twin Cities Area New Party, 520

U.S. 351, 364 (1997)).

As set forth below, we conclude that the district court correctly determined, based upon the

uncontroverted evidence in the record, that the burden imposed by the petition requirements (as

well as by the overall primary ballot access laws) is not severe and that Connecticut’s asserted

regulatory interests outweigh any such burden.

5 At step one, the “hallmark of a severe burden is exclusion or virtual exclusion from the

ballot.” Libertarian Party of Conn. v. Lamont, 977 F.3d 173, 177 (2d Cir. 2020) (internal quotation

marks and citation omitted). Thus, our lodestar is whether a “reasonably diligent candidate could

be expected to be able to meet the requirements and gain a place on the ballot.” Id. at 178 (internal

quotation marks and citations omitted). We consider the “burden imposed by the challenged

regulation . . . not . . . in isolation, but within the context of the state’s overall scheme of election

regulations.” Lerman v. Bd. of Elections N.Y.C., 232 F.3d 135, 145 (2d Cir. 2000).

Plaintiffs argue that Connecticut’s petition requirements impose a severe burden because,

in their view, the requirements “virtually exclude all but the most well-connected and well-

resourced candidates from access to the primary ballot.” Appellants’ Br. at 12. Specifically,

plaintiffs maintain that the fourteen-day petition gathering window for district and municipal races

is unduly short, the notarization requirement is unnecessary, and the number of signatures required

is too high. We find plaintiffs’ arguments unpersuasive.

As a threshold matter, the Supreme Court has upheld petitioning requirements where

candidates were required to obtain signatures equivalent to 5% of registered voters. See, e.g.,

Jenness v. Fortson, 403 U.S. 431 (1971). This Court has thus observed that “a requirement that

ballot access petitions be signed by at least 5% of the relevant voter pool is generally valid, despite

any burden on voter choice that results when such a petition is unable to meet the requirement.”

Prestia v. O’Connor, 178 F.3d 86, 88 (2d Cir. 1999) (per curiam). Moreover, the uncontroverted

historical statistics regarding primaries in Connecticut do not support a finding that the requisite

percentage by itself, or in combination with the other petition requirements, prevent a reasonably

diligent candidate from gaining a place on the primary ballot.

6 It is undisputed that, between 2006 and 2018, 200 primaries were conducted in

Connecticut. During each election cycle in that timeframe, there were at least seventeen and as

many as forty-nine non-endorsed candidates who participated in primaries. As noted by the district

court, in 2018, forty-nine non-endorsed candidates were able to access the ballot in party primaries,

and eighteen of those candidates accessed the ballot through petitioning. Similarly, in 2016, there

were seventeen non-endorsed candidates on the primary ballots, including ten candidates who had

gained access through petitioning. In addition, primary elections for Governor and Lieutenant

Governor have taken place for at least one major party in every statewide election from 2006

through 2018, and in 2018 non-endorsed petitioning candidates from both major parties attained

primary ballot access for the office of governor. Thus, the uncontroverted evidence supports the

conclusion that the overall primary ballot access laws, including the petition requirements, do not

result in the “exclusion or virtual exclusion” of “reasonably diligent” candidates from the primary

ballots for office in Connecticut. Libertarian Party of Conn., 977 F.3d at 177–78 (internal

quotation marks and citations omitted).

In response to this uncontroverted evidence, plaintiffs offer no proof that reasonably

diligent candidates are unable to gain ballot access through petitioning. Plaintiffs identified only

two candidates who attempted, and failed, to obtain ballot access via petitions. However, the

circumstances surrounding those candidates hardly demonstrate that the petition requirements

present an insurmountable or virtually insurmountable obstacle to a reasonably diligent candidate.

Indeed, both candidates obtained more raw signatures than were required to appear on the primary

ballots but failed to qualify because of errors that invalidated numerous signatures. 2 Furthermore,

2 The first candidate, Bartlett, who sought to petition onto the primary ballot for the State Senate’s 10th District in 2020, obtained approximately 1,400 signatures during the 14-day window. This was above the requisite amount, but Bartlett did not qualify by petition because he did not meet certain requirements

7 one of the original plaintiffs, Lacourciere, was not named as a plaintiff in the operative complaint

after he successfully petitioned onto the primary ballot for State Representative in the 24th

Assembly District in 2020.

Plaintiffs, relying on data contained in an “expert report” authored by Gottlieb, assert that

Connecticut has one of the lowest primary election rates of any state. The district court excluded

Gottlieb’s report because the court concluded that Gottlieb was not qualified to testify as an expert

on election law. Plaintiffs do not challenge that ruling on appeal. In any event, plaintiffs have

failed to establish a causal link between Connecticut’s petition requirements and its assertedly low

rate of primaries. There could be a myriad of factors, apart from a state’s primary ballot access

restrictions, that affect its rate of primaries. Plaintiffs presented no evidence that demonstrates

how, if at all, Connecticut’s petition requirements impact the rate at which primary elections are

held in the state.

In short, given the uncontroverted evidence of numerous candidates who have successfully

attained ballot access in Connecticut primaries (including through petitioning) and the absence of

evidence demonstrating that reasonably diligent candidates are excluded or virtually excluded

from the primary ballot by the petition requirements, the district court correctly determined that

plaintiffs failed to raise a genuine issue of material fact as to whether the petition route in particular,

or the overall primary process scheme in general, imposes a severe burden on plaintiffs’

constitutional rights. See Libertarian Party of Conn., 977 F.3d at 177. Thus, strict scrutiny does

regarding petition pages. The second candidate, Gottlieb, who sought to petition onto the primary ballot for the State Senate’s 12th District in 2018, collected over 1,000 signatures and fell only 32 signatures short of the requisite number for the primary ballot. His bid failed because several of the signatures he submitted were invalidated. Gottlieb later secured primary ballot access, however, in the 2022 primary for the office of State Representative in the 98th Assembly District.

8 not apply, and, instead, we evaluate the petition requirements under Anderson-Burdick’s balancing

test. 3

Under that balancing test, “the State’s important regulatory interests are generally

sufficient to justify” reasonable and nondiscriminatory restrictions. Burdick, 504 U.S. at 434

(quoting Anderson, 460 U.S. at 788). Here, Connecticut asserted an important regulatory interest

in “conducting orderly, fair, and transparent elections.” Appellees’ Br. at 52 (citing Eu v. S.F.

Cnty. Democratic Cent. Comm., 489 U.S. 214, 233 (1989)). To further this interest, a state may

require “a candidate to have a ‘modicum of support’ within their district before their name appears

on the ballot . . . to ‘avoid, confusion, deception, and even frustration of the democratic process.’”

Lerman, 232 F.3d at 151 (alteration adopted) (quoting Jenness, 403 U.S. at 442). That interest

may be advanced by requiring candidates to “obtain a minimum number of signatures from district

residents.” Id. Additionally, it is well established that states have an important interest in ensuring

“the stability of their political systems” and avoiding “party-splintering and excessive

factionalism.” Timmons, 520 U.S. at 366–67. By making candidates wait until after or shortly

before the nominating convention to begin gathering signatures, Connecticut’s timing

requirements for gathering petitions advance this goal by “encourag[ing] major party candidates

to seek the support of the most engaged members of the party,” “rather than bypass[ing] the

conventions altogether.” Dist. Ct. Dkt. No. 72-3 at 17 ¶¶ 62–63. And Connecticut’s signature

requirements serve to “ensure that only well-organized candidates with support among the enrolled

party members appear on the primary ballot.” Id. ¶ 65. We conclude that these important state

3 On appeal, plaintiffs limited their arguments under the Anderson-Burdick balancing test to the petition requirements and thus have abandoned any challenge at step two as to the other components of Connecticut’s overall primary ballot access framework. See LoSacco v. City of Middletown, 71 F.3d 88, 92 (2d Cir. 1995).

9 interests outweigh the burdens imposed by the petition requirements for primary ballot access in

Connecticut. Accordingly, the district court correctly determined that defendants were entitled to

summary judgment.

* * *

We have considered plaintiffs’ remaining arguments and conclude that they are without

merit. For the foregoing reasons, we AFFIRM the judgment of the district court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court