Democracy Rules!

By Merrill Bent

Anderson v. State of Vermont 2013 VT 73

We all expect a certain level of red tape in our democratic system.  The joke that bureaucratic process follows us throughout our lives and possibly beyond is neither new nor unique.  At the same time, there can be little doubt that rules and regulations serve an important purpose and are often crucial to maintaining an orderly and efficient system. 

But when political power concentrated in the hands of one or two competing factions, this type of regulation may¾either in fact or mere appearance¾be used to disadvantage those not in power. 

It’s a familiar story.

For every efficiency gained through process, another, darker potential purpose lurks in a governmental regulation to be abused to disempower or silence certain groups (poll tax and Arizona discrimination bills, anyone?).  These mis-uses have become an integral part of our national memory and our jurisprudence.  Through countless legal battles, our courts have developed a substantial body of law to determine when the rules “cross the line” and violate our constitutional rights.

Today’s case raises just such an issue and is viewed by the SCOV through the lens of our constitutional jurisprudence.

The lead plaintiff of this case was an independent candidate for President of the United States in 2012.  Under Vermont law, any candidate can get his or her name on the general election ballot by submitting a statement of nomination along with the signatures of at least 1,000 qualified voters to the Secretary of State.  The statement of nomination must also include certification from the town clerk of each of the towns in which the signing voters are registered, confirming their registration in that town.

Plaintiff and his supports (who became co-plaintiffs) were able to get 1,400 signatures, but the candidate was nonetheless left off the ballot because the Secretary of State would not accept the required town clerk certifications on copies of the nominating petition, insisting that the certifications had to appear on the original petitions.  In other words, Plaintiff and his supporters needed to take each page of the petition to each town clerk where a voter resided and obtain direct verification from the clerk.  No faxing or e-mailing copies of the petition. 

If this seems odd, two other points made it no less so.  First, the town clerk did not verify the signatures submitted.  Each clerk simply confirmed that the name listed either was or was not a registered voter in the town.  If you are thinking that this could be done with a typed list, well, now you’re thinking like a trial court judge.  Second, this entire verification-at-the-municipal-level requirement was applicable only to independent candidates, not those running under a major party (who needed only to collect the signatures and submit to the Secretary who would use the state-wide voter checklists to confirm).

Plaintiffs challenged the constitutionality of the requirement.  While the trial court rejected plaintiffs’ argument that the certification requirement was wholly invalid (and therefore did not eliminate the requirement), it granted plaintiffs injunctive relief finding that the requirement that certification be only on an original nominating petition unduly burdened their rights under the First and Fourteenth Amendment.  The trial court gave plaintiffs an extension to file certified statements of nomination, and also instructed town clerks to certify signatures on legible copies of the nominating petition within two business days.

The State appealed.

The SCOV reviews the trial court’s legal determinations de novo, meaning without any deference, whereas the trial court’s findings of fact will stand unless the SCOV concludes that they were clearly error.  Here, the facts are not in dispute.

In the case of elections, states are permitted to adopt regulations in order to maintain fair and honest elections as long as those regulations do not unduly burden voters’ constitutional rights.  Courts apply a balancing test to determine whether such regulations are constitutional, weighing the asserted burden on voters’ constitutional rights against the importance of the State’s interest in imposing the restriction at issue. 

Where the burden on voters’ rights is “severe,” the regulation must be narrowly tailored to advance a compelling state interest.  Where the burden is less great, the review is more deferential, and an “important” state interest will usually be enough to justify the restriction. 

In any case, a court must examine not only the underlying interests articulated by the state, but also the connection between those interests and the restriction in question.  In other words, the state’s interest must truly be tied to the constraint it seeks to impose.

Accordingly, the SCOV first analyzes the burden that the original-only certification requirement imposes on voters’ rights.  As a result of the requirement, if an independent presidential campaign obtains signatures on the petition from voters residing in different Vermont towns, the petition must then be passed around from town to town.  In this case, the campaign volunteers had to spend hours driving from one town to the next to get certifications.  The SCOV also acknowledged that the burden was heightened by the fact that different town clerks keep different hours, and there was no requirement that they complete their certification within a specified time frame.

In conducting its analysis, the SCOV points to the fact that the campaign could collect signatures for different towns on different pages of the petition or by starting their efforts earlier.  Recognizing that these solutions are by no means perfect, the SCOV concludes that while the restriction is not severe, it is also not trivial.

The SCOV then analyzes the interests articulated by the State in support of the restriction: deterring fraud and promoting orderly elections.  Finding no question that these interests are important, the SCOV examines whether the interests are in fact served by the requirement that the clerks certify only an original petition.  The statutory provision at issue in this case does not require the town clerks to authenticate the signatures on the nominating petitions, but only to match the names against the voter registry and certify that the signatures do, in fact, belong to registered voters.  As such, the SCOV concludes that the additional requirement that clerks certify only original nomination petitions does not actually promote the state interest underlying the statute. 

The SCOV rejects some of the State’s arguments that the original petition requirement is necessary as “contrived,” and finds that others, while reasonable, were nonetheless insufficient to outweigh the burden on voters’ constitutional rights.

Finally, the SCOV notes that the fact that the restriction applied only to independent, and not major-party candidates, increases the weight of the burden on constitutional rights, and the fact that the challenged restriction relates to presidential elections and implicates a “uniquely important national interest,” diminishes the weight of the State’s interest.

The SCOV’s straightforward constitutional analysis demonstrates our “check” on overreaching regulation in action.  While it’s too late for plaintiffs’ aspirations for the 2012 election, perhaps we can thank the SCOV for a more diverse ballot in 2016!  Maybe we will get the Whig candidate we have all been awaiting.