PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 13-1368

AL PISANO; NORTH CAROLINA CONSTITUTION PARTY; NORTH 

CAROLINA GREEN PARTY; NICHOLAS TRIPLETT,

Plaintiffs – Appellants,

v.

KIM WESTBROOK STRACH, as Executive Director of the North 

Carolina Board of Elections; JOSH HOWARD, as Member of the 

North Carolina Board of Elections; RHONDA AMOROSO, as 

Member of the North Carolina Board of Elections; PAUL 

FOLEY, as Member of the North Carolina Board of Elections; 

MAJA KRICKER, as Member of the North Carolina Board of 

Elections; JOSHUA MALCOLM, as Member of the North Carolina 

Board of Elections,

Defendants – Appellees.

Appeal from the United States District Court for the Western 

District of North Carolina, at Charlotte. Graham C. Mullen, 

Senior District Judge. (3:12-cv-00192-GCM)

Argued: October 29, 2013 Decided: February 27, 2014

Before NIEMEYER, MOTZ, and DIAZ, Circuit Judges.

Affirmed by published opinion. Judge Diaz wrote the opinion, in 

which Judge Niemeyer and Judge Motz joined. 

ARGUED: Robert Milton Bastress, Jr., Morgantown, West Virginia, 

for Appellants. Susannah Porter Holloway, NORTH CAROLINA 

DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees. 
2

ON BRIEF: Jason E. Huber, CHARLOTTE SCHOOL OF LAW, Charlotte, 

North Carolina, for Appellants. Roy Cooper, North Carolina 

Attorney General, Susan K. Nichols, Special Deputy Attorney 

General, NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North 

Carolina, for Appellees.
3

DIAZ, Circuit Judge:

North Carolina provides three ways for a candidate to 

appear on a general election ballot when running for a partisan 

federal, state, county, or municipal office.1 First, a 

“recognized” political party may nominate candidates. Second, 

unaffiliated candidates may petition to appear on a general 

election ballot. Third, and most relevant here, a “new” 

political party may nominate candidates. 

In this appeal, Al Pisano, Nicholas Triplett, the North 

Carolina Constitution Party, and the North Carolina Green Party

raise an as-applied challenge to North Carolina’s May 17 

petition-filing deadline for the formation of new political 

parties.2 They contend that the deadline violates the First and 

Fourteenth Amendments because it imposes an unjustified, severe 

burden on their ability to field presidential candidates. They 

also assert that the deadline violates the Equal Protection 

Clause of the Fourteenth Amendment because it places an 

additional, substantial burden on them that is not imposed on 

unaffiliated candidates or recognized political parties.

 1 An individual may also qualify as a write-in candidate for 

a non-municipal, partisan office. See N.C. Gen. Stat. § 163-

123.

2 Al Pisano is the chairperson of the North Carolina 

Constitution Party. Nicholas Triplett is a vice chairperson of 

the North Carolina Green Party.
4

The district court held that discovery was not necessary to 

determine the constitutionality of the deadline and upheld its 

validity, noting that the deadline has no impact on Plaintiffs’ 

constitutional rights. Even assuming that it did, however, the 

court concluded that the deadline is justified, and any burden 

it imposes is ameliorated by other aspects of North Carolina’s 

statutory framework. For the reasons that follow, we affirm. 

I.

We begin with a brief sketch of the relevant statutory 

framework before turning to the issues presented. 

A.

North Carolina election law provides that a recognized 

political party may nominate candidates for federal, state, and 

local offices. McLaughlin v. N.C. Bd. of Elections, 65 F.3d 

1215, 1218 (4th Cir. 1995). Recognized political parties must 

nominate their candidates by primary election unless only one 

candidate from that party seeks election for a particular 

office. Id. at 1219; see also N.C. Gen. Stat. § 163-110. North 

Carolina recognizes a political party if it polled at least two

percent of the entire votes cast in the state for governor or 

for presidential electors. See N.C. Gen. Stat. § 163-96(a)(1).

A new political party may also nominate candidates. See

id. § 163-98. To do so, a qualifying new party must select its 
5

candidates by party convention and submit its nominees by July 

1. Id. To qualify as a new party, a group must file petitions 

with the State Board of Elections before 12:00 PM on June 1 in 

the election year in which the group desires to participate. 

Id. § 163-96(a)(2), (b1). A separate petition must be filed for 

each county in which the group gathers signatures. See id.

§ 163-96(b), (b1).

The petitions must collectively be “signed by registered 

and qualified voters in [North Carolina] equal in number to two 

percent (2%) of the total number of voters who voted in the most 

recent general election for Governor,” with at least 200 

signatures from each of at least four congressional districts. 

Id. § 163-96(a)(2). In addition to complying with the June 1 

deadline, a group must submit each petition for verification to 

the chairperson of the county board of elections in the county 

where the signatures were obtained by 5:00 PM on May 17.3

 Id.

§ 163-96(b1). 

 3 The statute does not expressly say that May 17 is the 

operative deadline. Rather, it requires that the petitions be 

submitted to the chairperson “of the county board of elections 

in the county in which the signatures were obtained no later 

than 5:00 P.M. on the fifteenth day preceding the date the 

petitions are due to be filed with the State Board of 

Elections.” N.C. Gen. Stat. § 163-96(b1). Although Plaintiffs 

initially contended that the operative deadline was May 16, see 

First Am. Compl. ¶ 19 , they now concede the additional day. 
6

Groups seeking to form new political parties are not 

limited to a short time frame for gathering signatures and have 

notice of the number of signatures required three-and-one-half 

years before the deadline. This is so because the number of 

required signatures is based on the total number of votes cast 

in the previous gubernatorial election. See id. § 163-96(a)(2). 

North Carolina does not preclude voters from signing petitions 

based on their party affiliation or from signing multiple 

petitions.

North Carolina held a primary election on May 8, 2012. The 

Republican presidential candidate was nominated in August, and 

the Democratic presidential candidate was nominated in 

September. The general election was held on November 6. To 

nominate candidates for North Carolina’s general election

ballot, a group needed to collect and timely submit 85,379 

signatures, a figure amounting to two percent of the total 

number of votes cast in North Carolina’s 2008 gubernatorial 

election.

B.

The North Carolina Constitution Party and Al Pisano filed 

suit against the Executive Director of the State Board of 

Elections and its members on March 27, 2012. On April 6, they 

filed an amended complaint, joined by the North Carolina Green 

Party and Nicholas Triplett. Plaintiffs allege that the May 17 
7

deadline violates the First and Fourteenth Amendments and the 

Equal Protection Clause because it severely burdens their 

ability to field presidential candidates. Although Plaintiffs 

do not challenge North Carolina’s two percent signature 

requirement, they argue that the deadline, in combination with 

the signature requirement, creates an impermissible barrier to 

ballot access. Plaintiffs moved in the district court for a 

preliminary injunction to prevent enforcement of the May 17 

petition-filing deadline in the 2012 presidential election, 

which the district court denied. 

The parties subsequently held a conference in which they 

agreed not to take discovery until the district court ruled on 

Defendants’ motion for summary judgment or Plaintiffs’ motion 

under Federal Rule of Civil Procedure 56(d) for discovery. The 

district court denied the Rule 56(d) motion on October 18, 2012, 

concluding that discovery was not needed to decide whether the 

May 17 deadline is unconstitutional. The court allowed 

Plaintiffs time to file additional affidavits before the court 

ruled on the summary judgment motion, but Plaintiffs did not 

take advantage of that opportunity. 
8

On March 1, 2013, the district court granted Defendants’ 

motion for summary judgment.4 It first stated that the filing 

deadline has no impact on Plaintiffs' rights and that it is

instead the unchallenged two percent signature requirement that 

imposes a severe burden. The court then concluded, however,

that the filing deadline is constitutional even if it does 

impose a burden. Applying strict scrutiny, the court determined 

that the deadline is narrowly tailored and that any burden it 

imposes “is significantly lessened by the alleviating factors in 

the overall statutory scheme.” J.A. 96-97. The district court 

also rejected Plaintiffs’ equal protection claim, holding that 

groups seeking to form new political parties are not similarly 

situated to unaffiliated candidates or recognized political 

parties. This appeal followed.

II.

A.

Plaintiffs first argue that the district court erred in 

denying their Rule 56(d) motion. Rule 56(d) mandates that 

 4 The district court ruled on the merits of Plaintiffs’ 

claims after the November 2012 general election. The case is 

not moot, however, because Plaintiffs’ challenge to the May 17 

deadline falls under the “capable of repetition, yet evading 

review” exception to the mootness doctrine. See Norman v. Reed, 

502 U.S. 279, 287-88 (1992) (internal quotation marks omitted). 
9

summary judgment be denied when the nonmovant “has not had the 

opportunity to discover information that is essential to his 

opposition.”5 Ingle ex rel. Estate of Ingle v. Yelton, 439 F.3d 

191, 195 (4th Cir. 2006) (internal quotation marks omitted). A 

court should hesitate before denying a Rule 56(d) motion when 

the nonmovant seeks necessary information possessed only by the 

movant. Id. at 196-97. But a court may deny a Rule 56(d)

motion when the information sought would not by itself create a 

genuine issue of material fact sufficient for the nonmovant to 

survive summary judgment. Id. at 195. We review a district 

court’s denial of a Rule 56(d) motion for abuse of discretion. 

Greater Balt. Ctr. for Pregnancy Concerns, Inc., 721 F.3d at 

280.

Plaintiffs sought the following discovery: (1) production 

of any state records regarding minor parties’ attempts to gain 

ballot access for presidential candidates in North Carolina; (2) 

a deposition of Gary Bartlett, then Executive Director of the 

State Board of Elections, to explore North Carolina’s 

justifications for the May 17 deadline; and (3) information from 

officials in other states as to the efficacy of later filing 

 5 “By amendment that took effect on December 1, 2010, former 

Rule 56(f) was carried forward into subdivision (d) without 

substantial change.” Greater Balt. Ctr. for Pregnancy Concerns, 

Inc., v. Mayor of Balt., 721 F.3d 264, 275 n.6 (4th Cir. 2013) 

(en banc).
10

deadlines. They contend that this discovery was essential to 

their ability to oppose summary judgment.

We conclude that the district court did not abuse its 

discretion on this issue. To begin with, the record includes 

information regarding other minor parties’ efforts to gain 

ballot access in recent years. Between 1996 and 2012, the 

Libertarian Party qualified as a new party four times and 

qualified once as a recognized political party based on previous 

election results. The Reform Party qualified as a new party 

twice, and the Natural Law Party and the Americans Elect Party 

each qualified as a new party once. We also know that as of 

April 17, 2012, five groups other than Plaintiffs had expressed 

interest in forming new political parties but had not submitted 

any signatures. In addition, the State Board of Elections posts 

the status of current statewide petitions in each county on its 

website. Plaintiffs do not appear to dispute this record 

evidence; they simply want more.

Plaintiffs complain that they do not know precisely how 

many groups have attempted but failed to qualify as new 

political parties. True enough, but we are satisfied that this 

information by itself would not create a genuine issue of 

material fact sufficient to preclude summary judgment, given 

that the question before us is principally one of law, and there 

is a wealth of case law assessing similar challenges. 
11

Second, with respect to North Carolina’s reasons for the 

May 17 deadline, the record provides justifications. In a sworn 

declaration, Bartlett highlighted the problems that the state 

fears would arise without ballot-access requirements, including 

“tremendous voter confusion and chaos.” J.A. 19. At bottom, 

Plaintiffs want to compel North Carolina to say more in support 

of the May 17 deadline. But the fact that Plaintiffs believe 

the state has provided only ephemeral support for the deadline 

goes to the merits of their claim--not to whether the district 

court properly denied the Rule 56(d) motion. 

Finally, Plaintiffs sought information from officials in 

other states about possible alternatives to the May 17 deadline, 

presumably to attack the merits of North Carolina’s choice. The 

district court, however, did not bar Plaintiffs from obtaining 

and presenting that evidence. To the contrary, it gave 

Plaintiffs ample opportunity to offer additional affidavits 

before considering the summary judgment motion, but Plaintiffs 

simply chose not to do so. 

We find no abuse of discretion on this record. 

B.

We next consider whether the May 17 petition-filing 

deadline violates Plaintiffs’ First and Fourteenth Amendment 

rights. We review the district court’s grant of summary 
12

judgment de novo. See S.C. Green Party v. S.C. State Election 

Comm’n, 612 F.3d 752, 755 (4th Cir. 2010).

It is well established that ballot-access restrictions 

“implicate substantial voting, associational and expressive 

rights protected by the First and Fourteenth Amendments.” 

McLaughlin, 65 F.3d at 1221. In analyzing whether state 

election laws impermissibly infringe on such rights, the Supreme 

Court has instructed us to weigh

‘the character and magnitude of the asserted injury to 

the rights protected by the First and Fourteenth 

Amendments that the plaintiff seeks to vindicate’

against ‘the precise interests put forward by the 

State as justifications for the burden imposed by its 

rule,’ taking into consideration ‘the extent to which 

those interests make it necessary to burden the 

plaintiff’s rights.’

Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson

v. Celebrezze, 460 U.S. 780, 789 (1983)).

Applying the Anderson/Burdick framework, we have stated 

that election laws that impose a severe burden on ballot access

are subject to strict scrutiny, and a court applying strict 

scrutiny may uphold the restrictions only if they are “narrowly 

drawn to advance a state interest of compelling importance.” 

McLaughlin, 65 F.3d at 1220 (internal quotation marks omitted). 

On the other hand, “if a statute imposes only modest burdens, 

then a State’s important regulatory interests will usually be 

enough to justify reasonable, nondiscriminatory restrictions.” 
13

S.C. Green Party, 612 F.3d at 756 (internal quotation marks 

omitted).

When deciding whether a state’s filing deadline is 

unconstitutionally burdensome, we evaluate the combined effect 

of the state’s ballot-access regulations. See Wood v. Meadows, 

207 F.3d 708, 711 (4th Cir. 2000) (“When determining whether a 

given state’s filing deadline unconstitutionally burdens 

candidates’ and voters’ rights, a court must examine that 

state’s ballot access scheme in its entirety.”).

Although the district court relied on our decision in 

McLaughlin when it applied strict scrutiny, we do not believe 

that McLaughlin addresses the appropriate level of scrutiny that 

we should apply here. There, we considered several challenges 

to North Carolina’s then-applicable statutory framework, 

including its retention requirement to qualify as a recognized 

political party. See 65 F.3d at 1220. Then, as now, North 

Carolina imposed a two percent signature requirement on groups 

seeking to form new political parties. See id. at 1219. At the 

time, however, the state also required that a notarized 

affidavit and a five-cent verification fee accompany each 

signature.6

 Id. at 1218. Furthermore, a political party could 

 6 The district court had invalidated the notarized affidavit 

and five-cent verification fee requirements, and the state did 

not cross appeal. Id. at 1220.
14

only retain the right to field candidates if its nominee for 

governor or for president received at least ten percent of the 

votes cast in the previous general election for governor or 

president.7 Id. at 1219. 

In McLaughlin, the Libertarian Party challenged the ten 

percent retention requirement, as it had satisfied the 

requirements to form a new political party multiple times. Id.

at 1219-20. We recognized that the burden imposed by North 

Carolina’s then-applicable restrictions was “undoubtedly severe” 

because, “as history reveal[ed], those regulations ma[d]e it 

extremely difficult for any ‘third party’ to participate in 

electoral politics.” Id. at 1221. Moreover, we expressed 

concern about the regulations’ impact on candidates for local 

offices. In effect, the regulations prevented any third-party 

candidates for local offices from designating their party 

affiliation on the ballot unless their group met the two percent 

or ten percent requirements--even if the corresponding number of 

signatures or votes far exceeded the number of people entitled 

to vote for that local office. Id. at 1224. Concluding that 

strict scrutiny applied because the restrictions imposed a 

severe burden, see id. at 1221, we nevertheless rejected the

 7 The ten percent requirement has since been repealed. See

Electoral Fairness Act, 2006 N.C. Sess. Laws 234 § 1 (changing 

the ten percent requirement to a two percent requirement). 
15

Libertarian Party’s challenge in light of applicable Supreme 

Court precedent, id. at 1225-26. We did not expressly decide, 

however, whether North Carolina’s filing deadline is 

constitutional.8 

Nor does McLaughlin mandate that we apply strict scrutiny 

in this case. In McLaughlin, we considered a significantly more 

restrictive statutory framework in the context of a different 

type of challenge. North Carolina no longer requires groups 

seeking new party status to submit notarized affidavits and 

verification fees, nor does it impose a ten percent retention 

requirement. See N.C. Gen. Stat. § 163-96. Thus, the pre-1996 

history that we discussed in McLaughlin is immaterial to the 

question at hand: whether the current statutory framework 

imposes a severe burden. In addition, Plaintiffs challenge the 

filing deadline only in the context of presidential elections, 

which involve the entire statewide electorate. Thus, our 

concern in McLaughlin about the regulations’ effect on 

candidates in local elections is irrelevant here.

With this background in mind, we address the 

constitutionality of the May 17 petition-filing deadline as 

 8 We note that since our 1995 decision in McLaughlin, minor 

parties have met the two percent signature requirement eight 

times in presidential election years, and the Libertarian Party 

placed its candidate on the 2012 ballot by satisfying the ballot 

retention provision.
16

applied to Plaintiffs. Consistent with the Supreme Court’s 

analytical framework, “we base our conclusions directly on the 

First and Fourteenth Amendments and do not engage in a separate 

Equal Protection Clause analysis.” Norman, 502 U.S. at 288 n.8 

(quoting Anderson, 460 U.S. at 786 n.7); see also Libertarian 

Party of Ohio v. Blackwell, 462 F.3d 579, 586 n.6 (6th Cir. 

2006)(same); Council of Alt. Political Parties v. Hooks, 179 

F.3d 64, 70 n.7 (3d Cir. 1999)(same).

C.

1.

We first address whether the filing deadline imposes a 

severe burden on Plaintiffs’ constitutional rights. Plaintiffs 

assert that the May 17 deadline, in combination with the 

unchallenged two percent signature requirement, creates an 

impermissible barrier to ballot access.9

 Specifically, 

Plaintiffs contend that the May 17 deadline prevents them from 

gathering signatures at the height of the presidential election 

 9 Plaintiffs place great emphasis on a 1988 letter from 

North Carolina’s Office of the Attorney General that suggests 

the May 17 deadline is unconstitutional. In that letter, 

however, the Attorney General’s Office appears to have read 

Anderson to require strict scrutiny review in all cases 

challenging ballot access restrictions. The Court has since 

clarified that Anderson does not compel strict scrutiny review 

in all cases, but instead only when the burden imposed is 

severe. See Burdick, 504 U.S. at 434. In any event, this 

letter has no bearing on our resolution of this case.
17

season. According to them, early filing deadlines impose a 

severe burden by requiring parties to gather signatures when the 

election is remote, before voters focus on the campaigns. 

Plaintiffs emphasize that the May 17 deadline comes before most 

of the presidential candidates have been selected and before the 

candidates’ political platforms are defined. 

Plaintiffs’ argument ignores important alleviating factors 

in North Carolina’s statutory framework. North Carolina does 

not limit groups to a short time frame for gathering signatures, 

and groups are on notice of the number of signatures they need 

to collect three-and-one-half years before the deadline. 

Plaintiffs thus have ample opportunity to collect signatures 

when voters are engaged, such as during primaries and other 

elections. And they have a large pool from which to collect 

signatures, as the state does not preclude voters from signing 

petitions based on their party affiliation or from signing 

multiple petitions. 

Plaintiffs also misconstrue the timeline for presidential 

election cycles. Although the Republican and Democratic parties 

did not officially nominate their candidates for president until 

August and September of 2012, the names of potential recognizedparty candidates and their platforms were known well before the 

May 17 deadline. Given that North Carolina held a primary on 

May 8, 2012, the May 17 deadline allowed Plaintiffs to engage 
18

voters during the height of the primary season. Indeed,

Plaintiffs could have collected signatures from registered 

voters at polling locations during the early voting period and 

on the day of the May primary.

The cases Plaintiffs cite, wherein courts have struck down 

filing deadlines, are inapposite, principally because the 

deadlines in those cases preceded the state’s primary.10 See,

e.g., Anderson, 460 U.S. at 804 n.31, 806 (striking down Ohio’s 

filing deadline for unaffiliated presidential candidates, which 

fell in March--75 days before a June primary); Nader v. Brewer, 

531 F.3d 1028, 1038-40 (9th Cir. 2008) (striking down Arizona’s 

filing deadline for unaffiliated candidates, which fell in June-

-90 days before the primary); MacBride v. Exon, 558 F.2d 443, 

446, 448-49 (8th Cir. 1977) (striking down Nebraska’s deadline 

for the formation of new political parties, which fell in 

February--90 days before the primary). As the Sixth Circuit has 

explained, “the great weight of authority . . . has 

distinguished between filing deadlines well in advance of the 

primary and general elections and deadlines falling closer to 

 10 Plaintiffs cite one federal district court case that did 

not address whether the filing deadline fell before or after the 

presidential primary. See Nader 2000 Primary Comm., Inc. v. 

Hazeltine, 110 F. Supp. 2d 1201, 1208-09 (D.S.D. 2000) (striking 

down June 20 deadline for unaffiliated presidential candidates). 

We do not find the reasoning of that case persuasive.
19

the dates of those elections.” Libertarian Party of Ohio, 462 

F.3d at 590. 

Election law schemes with modest signature requirements and 

filing deadlines falling close to or after the primary election 

are the relevant points of comparison. We, and several of our 

sister circuits, have found that such schemes do not impose 

severe burdens. See, e.g., Swanson v. Worley, 490 F.3d 894, 

905-06, 910 (11th Cir. 2007) (upholding Alabama’s primary-day 

filing deadline, in combination with a three percent signature 

requirement, for unaffiliated candidates in local and statewide 

elections); Lawrence v. Blackwell, 430 F.3d 368, 370, 375 (6th 

Cir. 2005) (upholding Ohio’s primary-eve filing deadline for 

unaffiliated congressional candidates, in combination with a one 

percent signature requirement); Wood, 207 F.3d at 713-14, 717

(upholding Virginia’s primary-day filing deadline, in 

combination with a 0.5% signature requirement, for unaffiliated

candidates in local and statewide elections).

Plaintiffs have not shown that North Carolina’s scheme 

burdens them in any meaningful way. In that respect, this case 

is far different from Anderson, where the Supreme Court held 

Ohio’s March 20 filing deadline for unaffiliated presidential 
20

candidates unconstitutional.11 See 460 U.S. at 806. There, the 

deadline fell 75 days before a June primary. Id. at 804 n.31.

Anderson’s supporters submitted a petition that satisfied all of 

Ohio’s statutory requirements, but the state refused to accept 

it solely because it was about two months late.12 Id. at 782. 

The Court explained that the March filing deadline burdened 

unaffiliated candidates who decided to run before the deadline 

because they were forced to gather signatures “[w]hen the 

primary campaigns [were] far in the future and the election 

itself [was] even more remote.” Id. at 792. The deadline also 

excluded any unaffiliated presidential candidate who decided to 

run after the deadline. Id. Ultimately, the Court concluded 

 11 Plaintiffs’ challenge is also far different from cases in 

our circuit in which we have found that ballot-access 

requirements impose a severe burden and fail strict scrutiny. 

See, e.g., Libertarian Party of Va. v. Judd, 718 F.3d 308, 317-

19 (4th Cir. 2013) (holding that residency restrictions on 

petition witnesses fail strict scrutiny because the restrictions 

impose a severe burden and the state “produced no concrete 

evidence of persuasive force explaining why the plaintiffs’ 

proposed solution . . . would be unworkable or impracticable”). 

In Judd, we explained that there was a general consensus among 

our sister circuits that residency restrictions on petition 

witnesses created a severe burden. Id. at 317. Here, there is 

no such consensus, and the weight of authority cuts against 

Plaintiffs’ position. 

12 Anderson’s name nonetheless appeared on Ohio’s ballot 

because the district court held that the filing deadline was 

unconstitutional, and the state did not seek to stay the 

district court’s order. Id. at 783-84. The appeal was pending 

on the date of the presidential election. Id. at 784.
21

that the burden the filing deadline imposed “unquestionably 

outweigh[ed] the State’s minimal interest in imposing a March 

deadline.” Id. at 806.

Unlike the March 20 deadline in Anderson, however, North 

Carolina’s May 17 petition-filing deadline falls after the 

state’s May primary. And although not dispositive, Plaintiffs 

here did not come close to meeting the other petition 

requirements for the 2012 general election--most notably the two

percent signature requirement. By April 17, 2012, the North 

Carolina Constitution Party had submitted only 3,521 signatures-

-2,827 of which had been verified by the relevant counties--out 

of a required 85,379. The North Carolina Green Party had 

submitted no petitions by that date. Moreover, neither party 

submitted any petitions between the date of the May primary and 

the filing deadline. 

In sum, we are not persuaded that the May 17 deadline, 

considered in the context of North Carolina’s ballot-access 

scheme, imposes a severe burden on Plaintiffs’ ability to form 

new parties and nominate candidates. To the contrary, because 

Plaintiffs have ample time and opportunity to collect the 

reasonable number of required signatures, we conclude that the 

burden on Plaintiffs is modest.
22

2.

Because the deadline does not impose a severe burden, we 

decline to apply strict scrutiny to Plaintiffs’ claim.13 

Instead, we simply “balance the character and magnitude of the 

burdens imposed against the extent to which the regulations 

advance the state’s interests in ensuring that ‘order, rather 

than chaos, is to accompany the democratic processes.’” 

McLaughlin, 65 F.3d at 1221 (quoting Storer v. Brown, 415 U.S. 

724, 730 (1974)). North Carolina’s “asserted regulatory 

interests need only be sufficiently weighty to justify the 

limitation imposed on the [plaintiffs’] rights.” See Timmons v. 

Twin Cities Area New Party, 520 U.S. 351, 364 (1997) (internal 

quotation marks omitted).

To support its choice of a May 17 deadline, North Carolina 

relies on its general interest in regulating the election 

process. There is “an important state interest in requiring 

 13 In its appellate brief, the state did not contest the 

district court’s application of strict scrutiny to Plaintiffs’ 

challenge. We, however, are not bound by that concession but 

rather must independently determine the proper standard of 

review. See Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 

(1991) (“When an issue or claim is properly before the court, 

the court is not limited to the particular legal theories 

advanced by the parties, but rather retains the independent 

power to identify and apply the proper construction of governing 

law.”); see also United States ex rel. May v. Purdue Pharma 

L.P., 737 F.3d 908, 913 n.3 (4th Cir. 2013) (citing Kamen and 

explaining that a party’s failure to raise a particular argument 

“does not preclude our consideration and application of it”).
23

some preliminary showing of a significant modicum of support 

before printing the name of a political organization’s candidate 

on the ballot--the interest, if no other, in avoiding confusion, 

deception, and even frustration of the democratic process at the 

general election.” Jenness v. Fortson, 403 U.S. 431, 442

(1971). States are not required “to make a particularized 

showing of the existence of voter confusion, ballot 

overcrowding, or the presence of frivolous candidacies prior to 

the imposition of reasonable restrictions on ballot access.”14 

Munro v. Socialist Workers Party, 479 U.S. 189, 194-95 (1986). 

Indeed, states have an interest "in ensuring orderly, fair, and 

efficient procedures for the election of public officials." See

S.C. Green Party, 612 F.3d at 759. This interest necessarily 

requires the imposition of some cutoff period “to verify the 

validity of signatures on the petitions, to print the ballots, 

and, if necessary, to litigate any challenges.” See Am. Party 

of Tex. v. White, 415 U.S. 767, 787, n.18 (1974).

Plaintiffs concede the state’s interest in regulating 

elections generally, but they argue that its interest in 

regulating presidential elections is diminished. It is true 

 14 As the record shows, North Carolina’s ballot is often 

lengthy, which has contributed to lines at the polls and 

increased costs for additional tabulators in counties that use 

paper ballots.
24

that “in a Presidential election a State’s enforcement of more 

stringent ballot access requirements, including filing 

deadlines, has an impact beyond its own borders.” Anderson, 460 

U.S. at 795. Indeed, a state has a “less important interest in 

regulating Presidential elections than statewide or local 

elections, because the outcome of the former will be largely 

determined by voters beyond the State’s boundaries.” Id. Even 

so, states maintain an interest in regulating presidential 

elections. 

We conclude that North Carolina’s choice of a May 17 

deadline is reasonable, especially in context. The deadline 

falls after the state’s May primary and precedes other important 

deadlines. Notably, the counties need time to verify signatures 

before the June 1 deadline. And even putting the June 1 

deadline aside, North Carolina also requires qualifying new 

parties to select their nominees by party convention and submit 

their names by July 1. These deadlines permit the government to 

verify signatures and prepare the ballot before the November 

election. Accepting Plaintiffs’ argument would require us to 

overturn all of North Carolina’s pre-election deadlines for new 

parties. Having determined that the May 17 deadline is 

reasonable, we decline this invitation. 

Balancing “the character and magnitude of the burdens 

imposed against the extent to which the regulations advance the 
25

state’s interests,” McLaughlin, 65 F.3d at 1221, we find that 

North Carolina’s choice of May 17 as the operative deadline 

outweighs the modest burden imposed on Plaintiffs. Accordingly, 

we hold that the May 17 petition-filing deadline is 

constitutional as applied to Plaintiffs.

III.

For the reasons given, the district court’s judgment is 

AFFIRMED.