they please the court my name is robert basters and i'm here to represent the appellant's in this case who are two political parties in north carolina the north carolina constitution party and the north carolina green party and their individual members and presidential candidates the district court in granting summary judgment for the state in this case committed two errors one was denying the plaintiff the opportunity to conduct discovery and then of course on the merits itself thereafter the complaint was amended plaintiff sought a pulmonary injunction the district court provided us with a hearing on that there was no discovery done before the hearing and no testimony at the hearing it was strictly competing affidavits the court denied that motion in early may and the parties then met for the rule twenty six f conference at that conference the defendants gave notice to the plaintiffs that that we wanted to explore the nature of the state's interests the only evidence we had of what the stage justification for the mid may deadline was a very cursory and self serving affidavit from the desire to help you and that the state doesn't provide information that's more specific why do you need discovery the record is what it is well i think you may want to point out that it's insufficient you don't want to get more sufficient well getting some rejection well that will be my argument on the merits when i get there but i think we had the we should have had the opportunity to challenge what these articulated interests were they did and they did point to some interests and we wanted to say well you know justify these what's the explanation for these and to cross examine the state's witnesses with read guards to the articulate interest in the state also has data that we want to demonstrate the burdens imposed by the state system and particularly the challenge may deadline for example we wanted information with regards to candidates who had successfully challenged it successfully qualified for the ballot in the past and those who had not who had in other words attempted to to qualify but had were unsuccessful in their efforts that and the data with regards to voter identification or voter in the light or all in the hands of the state and we wanted the opportunity to discover it ok it was relevant how would that have helped your claim well the the underlying and appreciate the point the the underlying standard in this case five precise interests that the state puts forward to justify the burden on first amendment rights and then of course it must be done if i would what that burden is and specify that burden and further look at to the extent to which the burden is necessary to achieve the articulated state interests and that that is a balancing process and it's one which requires a careful sifting of the facts and very fact intensive analysis and one which is not amenable to a that's correct and so if you focus just on the double line you're basically saying i want it's a line drawing i want more time in the state gave me it's not just more time it's all it can be because that's all you're challenging is the fact what you have a primary that has to be held by july one you're trying to register a party and  deadline for the counties is may seventeenth then that deadline for the state is june one that's correct which is thirty days before the primary now you're saying that that line drawing of putting the seventeen and john wanting dates are unconstitutional is a too great a burden apparently you want when you want two more weeks or more weeks we have not specified a date i will say this that i think that the state interest can easily be accommodated action is how much time do you want to make it so it's not burdensome i mean you got three thousand signatures out of a needed eighty five thousand so you're sort of suggesting that  thirty days you're going to be able to it's going to be meaningful to you to get the eighty five thousand signatures you need well i don't think the particular facts of how many signatures were gathered in this case is relevant to the constitutionality of the date of the of the presidential filing and you've even been hurt by that line your questioning line drawn if it's like setting the age of eighteen for drinking obviously my nineteen will be fine seventeen  fine twenty two might be fine there is a judgment call made by the legislature and there's a burden put on people under eighteen can't drink here they picked a deadline of june one for the state and they have a statutory requirement which you're not john ging you have to have a convention by july one so you have to be constituted thirty days at least thirty days before now you're saying that that deadline is state can do that i mean it's got to has to verify petition signatures so necessarily it can have an earlier deadline for third parties and i'm affiliated candidates then for the major parties but it's got to have it's got to be related to some ar reasonable and articulated interesting is what deadline would not be burdensome for you if you have i mean the state has to if you come up with eighty five thousand signatures and addresses the state has to be able to verify that's correct then they have to send them to the county and they have to put on ballots you have to have a convention i mean this this is all a process a mechanical process that has to take place and while you can challenge a deadline  not just more time what i was referring to what i was referring to is the fact that it's in those months the summer months before the general election that are most critical in the petitioning process it's not just two more months it's about north carolina's party yes well it's a presidential election and it's different from regulation of the state election you'd have to ask for a different convention time to write you can't be  qualifying as a party in august and then have a convention on july one you use the state could easily bifurcate the presidential process from the rest of the process as eighteen other states have done and they are listed in agree on that right that would that we can agree on yes so you have to deal with there's a whole lot of water over the bridge now on after the interesting case about what is there is not permissible what you have to prove and what the burden has to be and so you're dealing not in the ideal which you would regard as the ideal world but in the world that's been created by the law and what you have to come up with t show a birth well i would agree with all of that but i would say that you know in the election law there are all the time courts are in terms of applying the andersen standard or reviewing line drawing decisions that the that the state has deadlines on that kind of court just a year later in customer versus pontiac he said even though ross areas line was was ok at eleven months suspension of switching parties twenty three months was too in not on its face a problem then we as you said earlier we balance that's correct ok so that we are looking now to the balancing so what what is your best case well anderson i anderson is a leading case for us not just because it sets out the standard and deals with the filing deadline because it but it also makes the distinction between presidential races and other kinds of race it's at the state's interest don't get quite the same degree of deference as they do with regards to resit regulation of presidential elections and that's key to this case because we're not arguing that the may seventeenth deadline is unconstitutional  the point being that the may deadline interferes with this presidential process the parties in this case for example the political parties in this case did not even nominate their candidates until after the  take that back the constitution party's candidate was selected in mid april the green party candidate was not selected until mid july which is typical of what political parties do with regards to the nomination of presidential electors it's not true in the other races and the reason for that is the political parties simply make a judgment to nominate their their candidates in the summer months or late spring to take advantage of the benefit cation of late september and so the point being those summer months are critical in the presidential election race and of course they also those parties also want to maximize their media coverage because the media coverage is of course free publicity for and they're able to do that more effectively in the heat of the presidential race as it extends into july and august months and of course there have been numerous cases which we cite in the brief there's a whole string of them in which courts have struck down deadlines ranging anywhere from february to august and indeed there was another case which was not in the brief tennessee green party versus hard get in which a district court struck down i believe was on august fourth deadline for presidential filings just this past june so there are plenty of cases which do carefully examine these filing deadlines as applied to presidential candidates seize and and they're all they're all cited i believe on pages thirty four and thirty five for a  brief and indeed there are very few cases if any state hasn't cited them i don't think which has sustained a filing deadline as early as may as applied to presidential elections they are simply a different animal and of course  articulate why they're different because the unlike the regulation of state office elections there are extra analogies to north carolina's regulation of presidential election what it does affects other states and affects the the effectiveness of my clients canada sees across the country if they cannot get on the ballot in north carolina it makes them less effective and gives them a smaller voice on the national stage and of course that's what you need in order to compete in a presidential election but i've pretty much veered into the merits here but i did want to emphasize the fact that we did not have any opportunity here to conduct our discovery we did well i started to explain that and got sidetracked the reason for that was this state told us they were going to move for this despite its of motion and we said we would we would file a full fifty sixty response which turned out happened and we agreed not to begin discovery until after the court ruled pretty much as an accommodation of the state the defendants who were after all involved in a ministering election at that time and i think it was our sense that we didn't want to unnecessarily interfere with that administration if the court was going to grant the summary of the dispositive motion in any event and so we basically agreed to hold off until the court ruled and of course the court very quickly other individuals to cooperate without the capacity to use compulsory process and the like i mean they had no stake in this case and frankly it was just difficult for us to to to make that effort successful to successfully make that effort we did of course submit affidavits from our clients and we submitted an affidavit from an expert witness with regards to the burdens imposed by the early filing deadline and to the fact that the such filing deadline do not exist in other states in other words north carolina is really an outlier with regards to presidential filing deadlines it's the if not the earliest it's certainly one of the earliest in the countries in the country almost all of them of the other states are in july and august this is relevant because i think it undercuts any articulated state interest well they're not articulated very well there really they really have not been fleshed out from that affidavit i mentioned earlier but the fact that other states are you talked about how many hours takes to get every petition the how many minutes or whatever it is to get every question signed up and how many people it would take and all this that sounds to me like two percent joe it's the deadline is eighty five thousand names on a petition it deprived the burden is it deprives the parties of being able to petition at the most valuable moment for petitioning and for convincing voters of your platform it's when the voters are engaged it's when the there's a focus on the presidential election in it's a time when you can get to the voters summer months are the times for petitioning  scrutiny doesn't argue any other standard i'm curious i think your colleague in response to my questions said it was a reasonable nondiscriminatory that we look at the preservation is reasonable  nondiscriminatory if it is then we don't look at strict scrutiny but the state never even argues that your honor the state determined that judge mellon correctly found that north carolina's may seventeenth deadline was constitutional even using strict scrutiny and just argue that that is what is the state's position or what the correct standard is the state's position your honor is the correct standard could be a lower standard that could what you have to have a  judgment correctly determined that that this is a facial challenge to the may seventeenth deadline standing alone the two percent signature requirement has already been upheld by this court in the mclaughlin decision and therefore this may seventeenth deadline standing alone  no burden possibly some minimal burden judge moland in his decision said even if it imposed some significant burden which the state would not agree with it even if it does then all the state compelling interests in having this interlocking web of deadlines which constitute the states play and for running order large or record demonstrates it has virtually no court is looking at narrowly tailoring they're actually looking at the state's full complex playing and of running orderly elections they're taking a step back and looking at all be interlocking deadlines switch for north carolina to begin in february with  major party candidates filing then may eighth is the primary then may seventeenth is the deadline for sippin the night and i don't understand that but direct answer to my question yes or no would be appreciated and that is do they maintain that the may seventeen deadline is narrowly drawn yes you're right well then what distinguishes north carolina is interests from those of other states with later deadlines north carolina has determined that this plan is the plan which meets all the competing interests of voters new parties independent candidates to run an orderly election not about me asking you for it and i understand that that's north carolina's position believe me but what i'm trying to do is to get you to flesh out for me why this is necessary or appropriate in north carolina this earlier deadline in contrast to other states what what does what considerations exist in north carolina don't exist there well one big consideration is that north carolina has a great deal of men and women serving in our armed forces who need absentee ballots to be sent to them overseas and the department of defense has recommended a sixty day timeframe for those ballots to go out to the overseas servicemen and women and that pushes that deadline down to september is that in this record that there are more absentee ballots coming out of north carolina than any other state i mean i i can't i can't say i've studied every state but i would be sort of surprised if north carolina had the most well that's one consideration for north carolina the other consideration is that this may seventeenth deadline falls after north carolina's primary north carolina has a primary and there are many other states that also have early primaries like north carolina but that primary following ma eighth then also sets their deadlines so courts have determined that it is important to have the signature requirements for the petitions coming in after the primary and in north carolina it does come in after the primary north carolina has also set a later date for the petition signatures for independent candidates they come in june fourteenth of two thousand and twelve and may seventeenth for new parties june fourteenth for the independents and while the plaintiffs are making their argument before your honor's today saying that they're concerned about presidential candidates their case the posture of their case is to be a new party and to have access to north carolina's ballot to run a field to candidates as new parties and that is significantly different where you have all these deadlines but that's not to say that they all couldn't be moved to accommodate a later that line for the sorting out of these that where there is no burden placed on the plaintiffs there's no constitutional reason why north carolina would have to change its whole and i tire scheme i do agree with that but if the plane of said made out of burden you're not suggesting that north carolina could not accommodate a later date in moving one deadline this may seventeenth deadline many other deadlines would also have to be moved well so what if if they had met their burden that would be the result  could show that may seventeenth is the only date that would allow for an orderly conduct of this election and there is no evidence in the record for just that your honor why the standard is important to you  honor the standard is important and it should be a much lower level of scrutiny applied where there is minimal to no burden but furthermore this court in mclachlan carefully set out that it's looking at the complex whole of north carolina's deadlines as well as the merely rating factors such as allowing significant time for the parties to gather these signatures that that states are not forced to show that each and every deadline meets a strict strict scrutiny standard in and of itself standing alone doesn't help your case that the plaintiff simply can't tell us what a alternative deadline would be yes your honor the plaintiffs have never put forward what an alternative deadline would be and they seem to focus more on independent candidates they talk they've mentioned cases where the deadlines for independence petition filing have been struck down when they are significantly pre primary but in this case there are cases about new parties and as you just pointed out it's post yes your honor to after the primary day they're basically asking to redraw the deadlines and they're basically shoving no burden in judgment or not even i mean they're not because they're not telling us we're looking at where the line should be drawn that's correct you want us to do it yes your honor and they haven't acknowledged the importance of all these other interlocking deadlines such as in the month of june the new parties would have their state conventions to nominate their candid parties have not changed therefore mclachlan should be the absolute controlling law for this case  in the mclaughlin case but the state would submit that that is certainly part and parcel of having the two percent requirement there has to be a deadline by which those signatures are submitted and the port didn't find any problem with a deadline falling after the primary north north carolina would also present to this court that judge mullen correctly determined that no further discovery was needed his rule fifty six d motion  his rule fifty six the order denying the plaintiff's motion was correctly determined it was the plaintiffs themselves who agreed that no discovery would be conducted for certain period of time and most of the information that they sought was readily available in the public realm gary bartlett's after the declaration in the record states that the north carolina state board of elections on their web site tracks the new party switch or attempting to get onto the ballot furthermore the information that other states had regarding new parties attempting to get on to their ballots was just as readily available to the plaintiffs as it would have been to the defendants and as you did not seek out and submit further affidavits when they were given the chance i missed most of our earlier on that one your honor i believe it is in the defendant's briefs that there are fourteen other states with as early deadlines if not earlier and if i cared to refer to that page i could look at exactly which one or earlier would you like me not ok there are fourteen other states that have as early if not earlier that lines there are also nine other states with early mullen correctly determined that north carolina's may seventeenth deadline it's constitutional the deadline is part of a complex web of interlocking deadlines beginning in february and then going on through the summer in north carolina has significant ameliorating factors which judge mullin noted such as the people signing the petition do not have to then say they're actually affiliated with that new party they can vote in primaries they can be registered with that's partly because more than two percent i mean whether it's easier or not well maybe maybe the of the election season and yes your honor but giving the plaintiffs three of one half years they have numerous election seasons to be gathering their signatures and the libertarian party it i think it's even broader longer than that because three half year period is simply the date by which you determine how many signatures are needed to be able to get on the ballot based on the prior gubernatorial election but in theory there's nothing to stop any party from beginning to gather signatures even before then they're right requirement that is because in north carolina what this court determined in mclaughlin was that the firsthand required signature requirement and an affiliated candidate it could not put a name next to the name of the party next to his name and affiliated candidate in north carolina is an affiliated in order to have that new party designation the new party would have to qualify for the ballot and therefore the new party would have to obtain the two percent signature requirement for qualifying for the ballot and that was determined to be a burden on the access to an actually a pretty high burden but we had the may seventeenth deadline being part and parcel of that burden this court determined that that burden actually passed strict scrutiny standard and was constitutional so we need to look at each restriction individually in isolation no your honor the state would submit that the court has always looked at i looked at the whole of all the  interlocking deadlines as a complex whole looking at how the state is actually restricting access to the ballot what does what does the state do north carolina and north carolina we have three and a half years to get signatures we have the two percent requirement and then we have the may seventeenth deadline your honor if the court were just to look at the may seventeenth deadline by itself a facial challenge that would pass constitutional muster because there would be no basis to say it was on constitute your honor to pose the idea that maybe the plaintiffs could have come forward and somehow said we have our eighty two thousand signatures this may seventeenth deadline is preventing us from getting those last few thousand signatures that we need and then in that case with the may seventeenth deadline be unduly burdensome to  that's not the case here and even in that scenario they would have had three and a half years to gather their signatures it wouldn't just be the may seventeenth deadline standing alone isn't that what happened in the the earlier scenario where your former colleague apparently a part of that there might be a problem with this just set of regulations given the number of signatures that a particular party had acquired right up before the deadline yes your honor in that case they had forty thousand un verified signatures what they needed was forty five thousand verified signatures and they had to forecast that within one month they could gather another sixty thousand to seventy thousand signatures and in that case it was recommended attorney general that the letter recommending to extend the deadline in that deadline was extended that that happened prior to this court's analysis and decision in the mclachlan case and that also happened back in the hundred eighty s when the absentee ballot provision was only requiring thirty days the absentee ballots only had to be ready thirty days prior to the general election now it's a full sixty days and when that the deadline that deadline has never been moved again that was the only time that it was moved it yes thank your honor the statement asked that this court will uphold judge mullens determination that the deadline was constitutional the state's plan with regards to its various deadlines they could leave them all employees if they want to if the state wants to but it has to provide some accommodation in presidential election races the and the the state makes the argument that there are only and only as applied to look at your circumstances as it applies to you we challenge in is as applied to a presidential party and the green party to their presidential candidates yes parties well the parties and their candidate were the difference in their yes there's a difference the the fourteen other states the council mentioned fails to take into account that each of those states offers an alternative routes by which candidates can get on the ballot so it's actually there the drop dead deadline is later in each of those states and it's can get on the ballot later here in the north carolina to this we really ought to keep focus on the fact that you're fighting a deadline for the registration parties based on eighty five thousand signatures can we're not challenging the state's ability to say ok if you want to qualify as a new party then you have to file by may seventeenth we're not challenging that what we're saying is to the extent that precludes the constitution party and the green party from running presidential candidates this deadline is unconstitutional it's too early with regards to the presidential election race the state does have employed in place a fairly well  conceived map if you will of the electoral process the problem is that that map ignores the differences that occur with regards to presidential elections and as for  party that is has been frowned upon in other states that they would have to have a reason as to why the party must a dental and put it put it candidates on the ballot at a point earlier than the major parties but  without knowing what that reason would be it's hard for me to respond to that but the state would have to have a reason and i'll just close by saying that that the date of the deadline of a filing deadline has significant consequences to the parties in the course there are lots of cases dealing with file filing deadlines in the burdens of that they impose on parties particularly with regards to presidential candidates and particularly early in the in that process thank you will come down