next case johnson versus mr davis here good morning ma'am please the court i'm mark davis i represent the appellant's robert johnston and the libertarian party of maryland the fundamental problem in this case is that the district court treated a motion to dismiss as if it were a quick and dirty summary judgment motion in deciding a motion to dismiss a district court as to a supposed to accept the facts alleged as true and resolve any factual issues in favor of the plaintiff but that's not what happened here here the plaintiffs alleged that the ten thousand signature requirement doesn't advance any state interest at all given that the state already has data reflecting a much higher level of party affiliation now the district court rejected that allegation based largely on factual questions on which we were never allowed to present evidence st the court wondered whether maryland removes voters who move out of state from its voter  we assume that maryland complies with federal law that requires it to do so but ultimately we'd like to take discovery on that issue and present evidence to show that marijuana in fact does the court wondered whether of maryland removes voters  die you know similarly we assume that maryland complies with the law that we'd like to take discovery on that and present evidence the court wondered how recent the twenty two thousand party affiliations are and you know we'd like to take discovery on that and you know present evidence we think there is reason to think that these are our recent given the growth in the party so to tell us who's relate to the statute in this case because i'm assuming you you you haven't contested that the libertarian party in the last a few a cowboy election didn't get one percent of total vote that puts them into the i think everybody agrees we're back to the st year or so unlike some previous cases where where people were challenging the nature of the tutor system that's not our argument we think everybody agrees we're back at the vs here an argument is ok so maryland has said we have an interest in this st year of and ensuring that you have a sufficient moloch in the political support we're not contesting that that's a valid interest but what we're saying is you have information in maryland already in your possession that shows an even greater level of support than what you're asking us for how is that not a challenge to the two tier system aren't you basically i mean i know you resist that in your brief but you're simply saying it's sort of it's unacceptable for the state to require more more signatures under tear two then it would under tear one well the there are multiple ways of in enacting  tier system and there actually two parts to the nd tier of maryland system so i don't actually understand you to be challenging anything that has to tears but i do understand you to be saying it is sort of per se invalid there is no need to require more that was a aspect of the two tier system i may be mistaken the case law but i thought we had a case saying that it is reasonable for a state to have a relatively lower threshold for ballot access in the st instance and then require more support to retain its part if they had the cases do say that and we're not challenging that so for example maryland we don't have a problem with maryland for example saying if you don't get one percent of the vote in the last election then you have to sue you know ten thousand supporters ten thousand people are not arguing that in all circumstances the stoop to your system house to collapse we're challenging the application of the nd of the st year in one particular system has never been approved before i'm not aware of any prior case that has challenge to that has made the argument that when and already has information in its possession showing an even greater level of support that the state can nevertheless force a party to go through expensive busywork to prove something that it already knows that's an argument that's never been raised in any of the prior cases and i think that under the circumstance what the supreme court said in crawford  emphasize that it doesn't matter how small we think the burden is or our do we think the burden is if there is any burden it has to be balanced against a state interest and our allegation which we made in the complaint is that there is the state interest does not advanced one iota by requiring ten thousand petition signatures now the state can try to take issue with that and present evidence and we can present evidence but we think we're entitled to prove the allegation evidence if it's just a modest burden why isn't it enough to say look the state could reasonably think that it wants to require more support to retain party status than it does to initially get on the ballot and in addition to that because under tier one those particular those signatures can only be two years old it is reasonable for the state to assume that that is better evidence as to current levels of support and signatures that are permitted to be older yeah i think that that's something that's worth talking about because the state has i'm sorry the state has repeatedly said that all they have to do is articulate an interest and then basically the game's over and i think the state is over emphasized that that's not how the standard works in footnote six mclaughlin the court said that even when the burden is not severe that doesn't convert this to rational basis or the rational basis review says you know all the state us to do is articulate some interest and then we're done so i think what the and the court did use this language and how elkhorn it quoted the supreme court in ten mins but what it said was that the state doesn't have to offer elaborate empirical verification of the weighting any evidence other than stating general principles so in al corn the i think the dispositive fact was that the court found that the plaintiff had not alleged any burden of any constitutional case it wasn't about whether somebody could access the ballot everybody agreed that the plaintiff in that case was going to be on the ballot it was a case about whether the where on the ballot the order that ten mins has made clear that the court stated that it's not a binary thing there's there are burdens somewhere between you know whatever you want to call it modest or trivial on you know we can be true for anybody sell themselves to issue and well i think and i mean the the state has tried to say that you shouldn't consider that because we're trying to make some sort of unique individual ised assessment and i think our point is that the libertarian party is the most successful rd party ever in maryland if it takes up the libertarian party as whole budget this is going to take the whole budget of any rd party isn't there a pretty  i thought so independent and rd parties often appear on the ballot in maryland it is true that independent parties have often appeared on the ballot if you look at the history though you'll see a long history of these parties sort of going through the motions of getting ten thousand signatures and then not doing much else and dropping off in the district court the state submitted some of the history of these parties and you'll see something like twelve political parties  maryland history and right now there is only one recognized political party rd party in maryland which is the bread and roses party which is a brand new party so i think our point here in considering the burden is yes we've historically met the ten thousand signature requirement but we've done so at great cost and you know if if doing so requires the party to expend its entire budget there's not much left to do other things like engage in political speech like try to win voters over the things that you expect a party to do and a practical question struck me as if you if you say you have twenty something else and register  libertarians how hard would it be to go to those twenty thousand to get your ten thousand signatures seems like you'd want to do that anyway to raise money and develop leadership teams in each county and all that sort of stuff i understand  i'm not an expert in you know how how we would go about doing that and whether or what the sort of rate of response would be to that sort of i assume it would be some sort of mailing but i have to say that since the party has historically found that the most efficient way to get signatures is to conduct these campaigns and grocery store parking lots i have to infer that that is they found that to be the most efficient way to get the signatures if we're going to infer that if we're going and to infer that can we also then and st something about the level of current support that actually is indicated by the twenty two thousand dollars affiliates i don't think so  state and i mean i know that it's faster way to get ten thousand signatures to go to safeway than to go to your list of twenty two thousand doesn't that tell you something about the list well i think that may be true of any political party people people get these mailers bulk mailers and my guess is that most of them end up in the trash without being opened regardless of who it's from you know i mean in terms of but you know going back to your question again the level of support it's a factual question and you know i think that we could've we would like to get discovery from the state on you know what percentage of the registrations that we have are are new looking at the records of the state does put online we see consistently every month substantially more people were transferring into the party than we're transferring out now if you believe the state's theory that these are all sort of stale you would expect support for the party to be decreasing not increasing that i don't want to beat this dead horse that all seems like it would be really relevant if we were under something like a strict scrutiny standard but we're not and it's not as though it's facially and plausible for the state to think look signatures that were gathered in the last two years are overall going to be a better indicator of current support than signatures that have no we you know we don't know when they were collected and i feel like in we have said that you don't need a particular eyes showing a necessity when you're when you're talking about a modest burden and so i don't quite understand why this matters so i think i understand the question but i think my answer is that we're think the supreme court has used the term has to be relevant to court it has to actually further the interests that the state is asserting and when you have particularized allegations in the complaint that give reason to think that petition signatures aren't telling the state anything new we've alleged for example that ninety nine point five percent of petition signatures come from democrats or republicans it really doesn't show you anything about the current level of support for the party we've alleged know the petition doesn't ask anybody whether they actually support the party it alleges you know that doesn't tell you very much about the level of support and so i think part of the question here it's a comparative thing right which one which one is better and we've alleged facts in the complaint that suggest that party affiliations are much stronger level indicator of support than our petition signatures and i think that the motion to dismiss stage you're not interested in going to this base to pick up the ten thousand signatures not if it's costly i'm sorry i see my time is right if you've got to revote all right thank you very much mr trent  think your honor may it please the court when it's under a trying time with the attorney general's office of the state of maryland the constitution authorizes states to require a party to demonstrate a modicum of support before granting that party access to its ballot maryland does this in two ways it establishes a low threshold of ten thousand signatures on a petition for parties to initially gain access and then it requires a demonstration of growth over two election cycles for the party to remain recognized without having to go through that the petition process again there's no question that the scheme is constitutional on its face this court has already affirmed the scheme more restrictive version of the scheme in the mother's case and more recently in the scheme in north carolina that is far more restrictive than the one that maryland has adopted now the plaintiffs think that maryland should mother measure the modicum of support differently because they have found a measure that's easier for them to me maybe they're right that as a policy matter maryland should go this route but whether they or any other party would prefer to base recognition or modicum of support on the number of registered voters or the number of votes their candidate received in the last election the number of subscribers to their newsletter the number of attendees at their annual convention that's a question for the general assembly of maryland if this court is not required to even consider the change the plaintiffs are proposing the dismissal should be a the alleged burdens here are not in dispute the plaintiffs allege the time and resources required gather ten thousand dollars signatures are weighty and severe what is in dispute is whether the district court properly considered those allegations of burden in concluding  burden was not severe on a twelve b six motion it's clear that it did it reference to those very allegations of time and resources that the plaintiffs alleged in ruling but the plaintiff's problem is that even accepting those allegations is true it does not amount to a severe burden as a matter of law the mother's case this court found that ten thousand signatures was was was was modest the poseur row case this court found her prison excuse me this court found that eighty five thousand signatures in come in conjunction with a post primary filing date which is what we have in maryland did not rise to the level of a severe burden the plaintiffs say that discovery is necessary for the st time in their reply brief because the costs of collecting stis signatures may not be stated from two thousand and fourteen it actually allows for the distribution of petition forms on line and permits signers of the petition to still sign and witness the form that they sign what that means is that the libertarian party can communicate by email or via online distribution of his petition with its twenty two thousand members to effectively distribute petition forms and have those returned in any event the position of case again held that eighty five thousand dollars signatures in combination with the throughout most of its history to successfully attracted at least ten thousand signatures for party recognition now notwithstanding the law and notwithstanding the plaintiff's own history of success in a painting access to the ballot maryland they argue that they should be given the opportunity the ten thousand dollars signature requirement is uniquely burdensome for them this is wrong for several reasons st they have employed facts to suggest that they have a plausible claim that it isn't any meaningful way they constitutionally burdensome in any meaningful way the time and expense of collecting signatures is burdensome we know this and to some extent that's the point plaintiffs say that parties of limited resources should be constitutionally exempt from that requirement but that is an exemption that in the cont of rd parties would swallow the rule particularly given that what we have here is a libertarian party seeking this relief the libertarian party is by recent standards the most successful rd party in in maryland recent history and so in the record it  and twenty five there's a list of other parties that voters in maryland have chosen voluntarily to affiliate with there are several dozen parties listed on that on that form it was submitted in connection with a preliminary injunction motion i refer to it only to show that there are many other parties out there who with resources that are almost certainly less less broad and less expansive than those of libertarian party who would similarly take advantage of this rule i'm just curious what's the bread and roses party the bread and roses party i don't want to speak for what their their their aim is they have a website if you care to visit it but they are a party that just recently gained access i think it was january two thousand and nineteen there founder had initially sought the democratic nomination in the two thousand lot since then that would bring them on to the next subchapter that's correct but they would be free in this election to nominate a candidate for the presidential ballot for any other any other election that takes place in america can i ask you a question about the  purposes historically what the state has done is it receives petitions filed by not just by political parties but ella questions and a petition of that nature and there is a specific statutory standard required that the state board cannot does not have the authority to disregard regarding when a state signature needs to be accepted but if based on the state to the state board of elections records their online voter registration database they can ascertain that somebody signing the petition even if they left off a middle initial or even if they used a common nickname instead of their given name is the same person that's on the voter rolls they will go ahead even if by as a matter of maryland law they're not allowed to accept and validate that signature for purposes of counting it on the petition they will go ahead and change the information the voter registration database because they don't have the same legal restriction that you just phrase that on the one hand the board is rejecting signatures pursuant to the statute but on the other hand accepting them as genuine for other purposes so why can't the district court decide whether or not that violates the plaintiff's right well there are for their four reasons for why it's not right st there's not a petition that's been filed just the very absence of a petition means that this court would be rendering advisory opinion on what the signature standard means a nd thought well my guess is that this isn't part of the pleading but i thought somewhere in the briefs the libertarian party preferred that it was in fact collecting signatures they mention that in their briefs it's i don't believe it's in the any sort of record or it's alleged in the complaint i think let me let me go to that point which there hasn't been a there hasn't been a petition filed it hasn't been determined to be insufficient the reason for why it's insufficient hasn't been determined to result from the application of the signature standard so it's three reasons right there but  don't believe they filed a petition that the rigors of a petition before there would be any analysis of whether a signature was invalid that's correct the litigants determine when the petition gets filed because the signatures get reviewed to make sure the registered voters cetera but the the reason for why this isn't present even given assuming that that's true that they're out there collecting signatures they say they need a ruling from this court so they can instruct their circulat circulators can instruct voters as to how to sign the petition forms the problem with that is even accepting that allegation is true it just doesn't make sense based on the nature based on how it is the state board goes about  taking the information from petitions and changing the information in the voter registration database it's a process that is that is very fact specific with regard to individuals on the voter rolls if the information presented by the petition gives the state board comfort that yes we know who this person is and again i can't tell you i think in any given as a general matter what that information is but if we can tell from the name and address etc then we'll go ahead an update the record the pla ruling from this court that says state board of elections any time you can identify the person you should also accept that signature for that for the purposes of counting the signatures on the petition the problem from an ex ante perspective is that the the  plaintiff circulators and the voters themselves who signed the petition aren't going to know what that mix of information is and so the instruction given to signers should be this is what the law requires you sign one of your given names you sign your  and if there is an another given name you should have at least an initial of that name and you can't use nicknames because it wouldn't make sense to say two signers oh well we have a ruling that says whenever the state board can identify you it doesn't matter so i just don't understand how the instructions are going to be any different i get that but i guess when the party's perspective is they're suggesting that the board's practices are arbitrary because on the one hand they're accepting them for one purpose on the other hand rejecting them for another well i still don't see how that's a ripe issue presented to the court because they haven't been harmed by it at all it's just not presented their their petitions haven't been rejected nor is it the case as i just mentioned that they would go about doing things or should go about doing things any differently on the basis of a ruling that from the score from the district court did say that this the way that maryland count signatures is improper i do take your point about it one of the things we look at is how burdensome is it to wait until this really gets a little more concrete when you're saying it doesn't matter because  the same thing when you're looking for signatures but how will this work how how so they will file a petition and let's just assume hypothetically half the signatures get kicked out and some portion of them that would be a more appropriate time to do that as we would make more sense sort of for everyone including the government just to have the district court deal with this claim now so you know what you can and can't do well i mean i understand that impulse i just i just think it's it's asking the court to render a decision that may not arise and i think the constitution really counsels against doing that point one and point two is this court has actually already reviewed in adjudicated this issue that's been presented in the context of  petition to get a ballot question on on the ballot what happened in that case is the court found that ballot questions don't implicate the right to vote that you know party ballot ballot access does or individual cut ballot access does and so it wasn't the kind of case that subject to the same anderson burdick analysis but what the court did said ok well except that this doesn't implicate the right to vote it still raises valid concerns about you know about you know how these things are supposed to be counted and so will will soon that there's no burden or there's a modest burden but will go ahead and examine under the nd prong of the andersen burdick test whether the this furthers a state interest so the court treated the burden as modest and then examined under burdick whether this further to state his interest again without reference to empirical support just as long as state can articulate a valid interest and the court found that it did this is the kendall versus balls or case and so it would be another reason the court court really as is is bound by that if it finds that the burden is is is a modest one rus that let me address another interest i think is specifically related to the release the plaintiffs are seeking again this is not the rightness this is not count two this is back to count one the court has any more questions about count two and this is the interest in administrative efficacy and efficiency that the state board of election has it in and managing the process by which parties get admitted or get recognized by the state of maryland and that's if if the plaintiffs are right that a party could marshal alternative evidence to support the modicum of support that they have in the community in order to obtain recognition by the state every instance of a party seeking to obtain recognition would become a court case because what neat would have to happen is the state would have to determine whether well is the evidence is being presented here is that even though it doesn't it's not the ten thousand dollars signatures and it's not the nd tier is this enough is this an alternative basis that we should be granting recognition for the plaintiffs they're using registered voters now the nd tier that we have in maryland also has one component of that is you can remain qualified if you have a sufficient number of registered voters not sufficient numbers one percent of registered voters if the libertarian party as of december st two thousand and eighteen had some forty thousand registered voters as opposed two hundred and twenty two thousand then it would remain qualified under maryland law and players want to get rid of that i understand but if that were the case with any other party just looking at the registered voters the green party has some i don't believe they have ten thousand registered voters or at least as of december st but they have some some some some number there the implication of what the plan is or asking for is that the green party come and say well we're only going to submit a petition with three thousand dollars signatures whatever their number of registered voters ten thousand dollars minus whatever their end of registered voters is because under the libertarian party case we should get credit for the registered voters we have doesn't stop there the green party is the nd most successful party in maryland history there are dozens of other parties that have people who either affiliated with or that have attempted to gain access to the ballot they would all be subject obtained fourteen thousand votes in the prior election and they were bristling at having to collect ten thousand signatures so to regain access the same argument argument could be made in that circumstance is why should we have to go to collect put petition signature one a month and a half ago our libertarian candidate got fourteen thousand dollars votes in this case a libertarian candidate in two thousand and eighteen i believe received some twenty thousand dollars votes and so that argument would be available to the libertarian party hasn't chosen to make it but some other party might choose to make it and once you open the open the floodgates is the wrong knowledge but once you say that the states reasonable way of measuring a modicum of support in the community can be accepted if the state can if a party can come forward with alternative means of showing that well then the sky's the limit subscribers to the newsletter attendees to the convention there are any number of ways that a party can say well no these signatures are expensive for us it's burdensome for us we have this other way of showing we have support in the community that exceptions from that just because a party here says it's going to be expensive for us to comply so unless the court has any questions i'll rest my paper sir thank you very much thank you mr they wish you have some time left this is an as applied challenge and this particular question has never been raised in the past the issue in the past cases was when the state knows nothing in a vacuum doesn't have you know can it require parties  to demonstrate a certain level of political support in the cases of said yes you know one percent might be enough for and matters it was three percent but this particular issue has never been raised in prior cases where the state already knows information its own records already  i don't think we would be able to argue that that's a problem unless there were something different about the wire is the fact that maryland has provided a different opportunity for a party to get on the ballot a burden well  problem with these various percentages the courts have said that the percentages are in some sense arbitrary and the state sort of gets to choose what what'll of support you know as long as it's within a reasonable range what level of support it want but once the state has chosen and admitted what its interests is if its interests here is in finding that ten thousand people support the party then it can't take i don't think it has any interest in not in ignoring evidence in its own possession that there's already a greater level of support so that even though that opens warms the bases were retention under tier two yeah i think the it's the fact that the state has decided under  tier two that it might accept some larger number of affiliations i don't think changes the fact that it's your one it's saying that what you need to demonstrate is support from ten thousand people and so i you know it's it's arbitrary to say that we are going to ignore evidence in our own possession that's already in our records so on going back to the question of efficiency i don't think our argument opens the floodgates at all  council references this potential that other parties could ask the state to look at other evidence or cobble together various pieces of evidence and i agree there the state would likely have a strong argument in those cases that the interests and administr seek counsel against that but the differences in this case we're not asking the state to cobble anything together we're not asking the look at evidence that they've never seen before we're asking you to look at something they already know that's already reflected in their own records maryland but also signed within the last two years otherwise it's not equivalent so they are i agree on the st point well on the st point i mean they're already supposed to be doing that if there are complying with the law then you know they're supposed to be removing voters who move out of state they're supposed to be removing dead people and on the question of the recency i don't think it's our position that there's sort of a tree you're cut off position that there is that is there to your one requirement isn't it that you have ten thousand signatures gathered within the last two years petition signatures gathered within the last two years but i think our point is that even the voters have a very strong interest a very strong incentive if they change their mind to register as a democrat or republican so they can participate in those primaries so the center just like a guy who signed the libertarian card at his frat party and then he turned twenty two and decided i'm not a libertarian anymore but he didn't reregister and then he forgoes the right to vote in the in any primary but there are strong reasons to think that people would  change and to the extent that's happening it would happen both ways or it's it's counter i'm sorry because i don't want to get us into a factual argument i thought your argument was these are sort of entirely redundant things and so it's irrational to ask for more than ten thousand signatures under tear two because you will take ten thousand under tyramine these are redundant but they're not quite we done because tier one has that to your thing attached to it so i don't see how at a minimum you wouldn't be asking the state to go through those twenty two thousand signatures and make sure all of them were signed in the last two years so i see my time is up can i go hit a so i think the answer is that you're saying t just assume that the two year thing is silly the state shouldn't worry about the two years so our point is that party affiliations regardless of their age are stronger evidence of support even of the current level political support then petitions from nine hundred and ninety nine percent of which are signed by people who don't even agree with the party ok thank you very much will come down it recounts a loop on our last case