UNITED STATES COURT OF APPEALS 

for the 

DISTRICT OF COLUMBIA CIRCUIT 

No. 21-1213 

DR. JILL STEIN AND JILL STEIN FOR PRESIDENT, 

Petitioners, 

- v. - 

FEDERAL ELECTION COMMISSION, 

Respondent. 

ON APPEAL FROM AN ORDER ENTERED BY THE FEDERAL ELECTION 

COMMISSION AT FEC-LRA 1021 

PETITIONERS’ PETITION FOR REHEARING 

AND REHEARING EN BANC

Oliver B. Hall 

CENTER FOR COMPETITIVE DEMOCRACY

P.O. Box 21090 

Washington, D.C. 20009 

(202) 248-9294 (ph) 

oliverhall@competitivedemocracy.org

Counsel for Petitioners

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TABLE OF CONTENTS 

TABLE OF AUTHORITIES..........................................................

STATEMENT PURSUANT TO FED. R. APP. P. 35(b)...........................

INTRODUCTION..................................................................... 

ARGUMENT...........................................................................

I. Rehearing Should Be Granted Because the Panel Opinion Fails 

to Rule on the Merits of Petitioners’ Claim That Section 9032(6) 

Is Unconstitutional as Applied.........................................

II. Rehearing Should Be Granted Because the Panel Opinion 

Overlooks the Points and Binding Precedents on Which 

Petitioners Rely to Demonstrate That Section 9032(6) Is 

Unconstitutional as Applied............................................

A. The Panel Opinion Overlooks Petitioners’ Argument That 

Section 9032(6) Serves No Legitimate Governmental 

Interest............................................................

B. The Panel Opinion Overlooks Petitioners’ Argument That 

Section 9032(6) Frustrates the Purpose of the Act..........

C. The Panel Opinion Overlooks Petitioners’ Argument That 

Section 9032(6) Imposes Unequal Burdens on 

Petitioners’ First Amendment Rights.........................

CONCLUSION.........................................................................

CERTIFICATE OF SERVICE 

CERTIFICATE OF COMPLIANCE

ii 

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6 

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TABLE OF AUTHORITIES 

Cases 

Buckely v. Valeo, 

424 U.S. 1 (1976).................................................2,4,5,6,9,10,12,14 

Com. to Elect Lyndon LaRouche v. FEC, 

613 F.2d 834 (D.C. Cir. 1979)..................................................12,14 

LaRouche v. Federal Election Commission, 

996 F.2d 1263 (D.C. Cir. 1993)........................................1,9,10,11,12 

New York Times Co. v. Sullivan, 

376 U.S. 254 (1964).................................................................12 

Simon v. Federal Election Com’n., 

53 F.3d 356 (D.C. Cir. 1995).........................................................9 

Statutes 

26 U.S.C. § 9032(6)....................................................................1,2,3,4 

Rules 

Fed. R. App. P. 35(b).........................................................................1 

Fed. R. App. P. 40.............................................................................1 

Advisory Opinions 

AO 1975-44 (Socialist Workers 1976).....................................................3 

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Pursuant to Federal Rules of Appellate Procedure 35(b) and 40, Petitioners 

Dr. Jill Stein and Jill Stein for President (“Petitioners”) respectfully move for 

rehearing and rehearing en banc of the Court’s July 21, 2023 Judgment (ECF No. 

2008922) and Opinion (ECF No. 2008923) (“Panel Opinion” or “Pan. Op.”). 

STATEMENT PURSUANT TO FED. R. APP. P. 35(b) 

This appeal presents a novel question of exceptional importance: whether 

Section 9032(6) of the Presidential Primary Matching Payment Account Act (“the 

Act”) is unconstitutional as applied because it serves no legitimate governmental 

interest, frustrates the purpose of the Act and produces arbitrary results that impose 

unequal burdens on Petitioners’ fundamental First Amendment rights. See 26 U.S.C. 

§ 9032(6). This question is exceptionally important because the Panel Opinion 

upholds Section 9032(6), bringing it into direct conflict with this Court’s decision in 

LaRouche v. Federal Election Commission, 996 F.2d 1263, 1267 (D.C. Cir. 1993), 

and because the Panel Opinion’s resolution of this appeal threatens the continuing 

viability of the Act as applied to minor party candidates. 

INTRODUCTION

Litigants are entitled to a ruling on the merits of their claims. No principle is 

more fundamental to our system of justice and the rule of law. Yet in this appeal the 

Panel failed to fulfill its most rudimentary function as an appellate body: it denied 

Petitioners’ appeal by rejecting a claim that Petitioners do not make, while failing to 

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rule on the merits of the claim that Petitioners actually assert. In so doing, the Panel 

overlooked the critical points of law and precedents of this Court on which 

Petitioners rely to demonstrate that Section 9032(6) is unconstitutional as applied. 

Rehearing should be granted to correct these errors. 

ARGUMENT 

I. Rehearing Should Be Granted Because the Panel Opinion Fails to 

Rule on the Merits of Petitioners’ Claim That Section 9032(6) Is 

Unconstitutional as Applied. 

The Panel Opinion misapprehends the factual and legal basis for Petitioners’ 

Equal Protection claim. It incorrectly rejects that claim on the ground that “the public 

funding limits at issue are indistinguishable from those upheld in Buckley.” (Pan. 

Op. at 7 (citing Buckely v. Valeo, 424 U.S. 1 (1976).) But Petitioners do not challenge 

the Act’s public funding limits and they are not “at issue” in this appeal. As 

Petitioners expressly state in their opening brief, they assert “a narrow challenge to 

the constitutionality of a single provision” of the Act – Section 9032(6). (Brief of 

Appellants (ECF No. 1952624) (“Pet. Br.”) at 31.) That provision does not establish 

the Act’s funding limits, but rather establishes the date on which candidates’ 

eligibility to receive funds under the Act ends. It is therefore irrelevant – even if true 

– that the Act’s funding limits are “indistinguishable” from those challenged in 

Buckley, and the Panel Opinion’s assertion that this conclusion disposes of 

Petitioners’ claim is error. (Pan. Op. at 7.) 

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Under Section 9032(6), candidates become ineligible to receive matching 

funds after the last date of the major parties’ conventions. (Pan. Op. at 4-5.) This 

provision applies not only to major party candidates, but also to minor party 

candidates, even if they continue to incur ballot access costs that otherwise qualify 

for funding under the Act, (Pan. Op. at 5), and notwithstanding the express 

conclusion of the Federal Election Commission (“the Commission”) that “the 

petition process required of the presidential candidates of the minor parties [is] the 

equivalent of the primary elections and convention process of the major party 

candidates.” AO 1975-44, at 2 (Socialist Workers 1976). As a result, Section 9032(6) 

guarantees that major party candidates are eligible for funding during the entire 

length of their primary election campaigns, but terminates a minor party candidate’s 

eligibility for funding in the midst of theirs whenever the major parties happen to 

hold early nomination conventions. (Pan. Op. at 5.) That occurred in 2016, leading 

to the Repayment Order at issue in this appeal, (Pan. Op. at 5), but not in 2012, when 

Petitioners remained eligible for funding for the entire duration of their primary 

election campaign an no repayment order issued. (Pet. Br. at 9-12.) 

In this appeal, Petitioners do not challenge the Act’s funding limits, as the 

Panel Opinion incorrectly states, (Pan. Op. at 6-7), but rather the arbitrary and 

discriminatory manner in which funds are issued under the Act due to the application 

of Section 9032(6). The basis for Petitioners’ Equal Protection claim is that Section 

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9032(6), as applied to terminate Petitioners’ eligibility for funding in the midst of 

their 2016 primary election campaign, serves no legitimate governmental interest, 

frustrates the purpose of the Act and produces arbitrary results that impose unequal 

burdens on Petitioners’ First Amendment rights. (Pet. Br. at 31-40.) The Panel 

Opinion overlooks these points and relies on Buckley as the sole authority for its 

decision to reject Petitioners’ claim. (Pan. Op. at 5-7.) But Buckley did not address 

Petitioners’ claim and the Panel Opinion’s reliance on its reasoning is misplaced. 

In Buckley, the minor party plaintiffs asserted an Equal Protection challenge 

to several recently-enacted statutes that provided for public financing of Presidential 

election campaigns. See Buckley, 424 U.S. at 85-86. As relevant here, the plaintiffs 

challenged the general election funding provisions on the ground that they “supply 

larger, and equal, sums to candidates of major parties, ... limit new-party candidates 

to post-election funds, and deny any funds to candidates of parties receiving less 

than 5% of the vote.” Id. at 97. The plaintiffs also challenged the primary election 

funding provisions “because they do not provide funds for candidates not running in 

party primaries...”. Id. at 105. The plaintiffs argued that these provisions “work 

invidious discrimination against minor and new parties in violation of the Fifth 

Amendment.” Id. at 97. 

As the Panel Opinion observes, the Supreme Court rejected the Buckley 

plaintiffs’ arguments, holding that “restrictions on public financing are constitutional 

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if they further an important government interest and do not ‘unfairly or unnecessarily 

burden[] the political opportunity of any party or candidate.’” (Pan. Op. at 5 (quoting 

Buckley, 424 U.S. at 95-96).) The Panel Opinion cites two governmental interests 

that justified the funding limits in Buckley: (1) the “interest in not funding hopeless 

candidacies with large sums of public money”; and (2) “the important public interest 

against providing artificial incentives to splintered parties and unrestrained 

factionalism.” (Pan. Op. at 5-6 (citing Buckley, 424 U.S. at 96).) Notably, neither of 

these interests is furthered by the arbitrary cut-off date that Section 9032(6) imposes 

on minor party candidates’ eligibility to receive funding under the Act, and the Panel 

Opinion itself does not suggest that they do. 

Instead, the Panel Opinion concludes that “[t]he funding limits at issue here 

easily survive review under [the] standards” articulated in Buckley. (Pan. Op. at 6.) 

To reiterate, however, Petitioners do not challenge the “funding limits” imposed by 

the Act. Unlike the plaintiffs in Buckley, Petitioners do not assert that the Act’s 

funding limits are invidiously discriminatory because they authorize greater funding 

for major party candidates and lesser funding for minor party candidates based on 

such candidates’ demonstrated level of voter support. See Buckley, 424 U.S. at 97. 

Rather, Petitioners accept the constitutionality of that scheme under the binding 

precedent that Buckley establishes. Petitioners nonetheless assert that Section 

9032(6), as applied here, violates Equal Protection by guaranteeing that major 

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parties are eligible to receive funding for the entire duration of their primary election 

campaigns, but arbitrarily terminates minor parties’ eligibility to receive funding in 

the midst of theirs in election cycles when the major parties happen to hold early 

nomination conventions. 

By mischaracterizing Petitioners’ claim as a challenge to the Act’s funding 

limits, rather than the more narrow challenge that Petitioners assert against Section 

9032(6), the Panel Opinion fails to rule on the merits of that claim. Further, as 

explained infra at Part II.A-C, the Panel Opinion does not address the very points 

and binding precedents of this Court on which Petitioners rely to support their claim. 

Simply put, the Panel Opinion purports to reject Petitioners’ claim by rejecting a 

claim that Petitioners do not assert. The Panel Opinion’s failure to rule on the merits 

of Petitioners’ claim warrants rehearing. 

II. Rehearing Should Be Granted Because the Panel Opinion 

Overlooks the Points and Binding Precedents on Which Petitioners 

Rely to Demonstrate That Section 9032(6) Is Unconstitutional as 

Applied. 

A. The Panel Opinion Overlooks Petitioners’ Argument That 

Section 9032(6) Serves No Legitimate Governmental 

Interest. 

The Panel Opinion concedes that restrictions on public funding must “further 

an important governmental interest” to withstand constitutional scrutiny. (Pan. Op. 

at 5 (quoting Buckley, 424 U.S. at 95-96).) Petitioners argue that Section 9032(6) 

fails this test because no governmental interest is served by a provision that makes 

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minor party candidates eligible for funding under the Act for the entirety of their 

primary election campaigns in one election cycle, as Section 9032(6) did for 

Petitioners in 2012, while terminating their eligibility in the midst of their primary 

election campaign in the next election cycle, as Section 9032(6) did for Petitioners 

in 2016, based on nothing more than the happenstance of when the major parties 

decide to hold their nomination conventions. (Pet. Br. at 34-38.) The Panel Opinion 

fails to address this argument. 

The Panel Opinion conspicuously fails to identify any governmental interest 

that Section 9032(6) furthers. (Pan. Op. at 6-7.) Instead, the Panel Opinion avers that 

the Act’s “funding limits” – which Petitioners do not challenge – “implicate the 

important government interests in limiting public funding for candidates with slim 

support.” (Pan. Op. at 6.) But if the Panel Opinion intends to suggest that Section 

9032(6) also furthers these interests, the Panel Opinion is in error. The record 

demonstrates that the provision is woefully inadequate to the task. 

Petitioners were entitled to funding for the entire duration of their primary 

election campaign in 2012 because the major parties held their nomination 

conventions on September 6, 2012, and Petitioners had completed their ballot access 

petition drives on that date. (Pet. Br. at 9-10.) In 2016, however, Petitioners’ 

eligibility for funding was terminated on August 6, 2016 – even though they were 

still engaged in multiple ballot access petition drives, the cost of which qualifies for 

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funding under the Act – only because the major parties held earlier nomination 

conventions that year. (Pet. Br. at 11.) The discrepancy between these disparate 

outcomes – full eligibility in 2012 and partial eligibility in 2016 – is attributable to 

only one factor: the date on which the major parties held their nomination 

conventions. (Pet. Br. at 10-11.) 

Contrary to the Panel Opinion’s implication, Section 9032(6) does not further 

the “government interests in limiting public funding for candidates with slim 

support.” (Pan. Op. at 6.) Because the provision terminates candidates’ eligibility to 

receive funding based solely on the date on which the major parties’ nomination 

conventions end, irrespective of the candidates’ level of public support, Section 

9032(6) is not even rationally related to that interest. Indeed, under Section 9032(6), 

a candidate with less support who runs in an election when the major parties hold 

later nomination conventions will be entitled to a longer period of eligibility than a 

candidate with more support who runs in an election when the major parties hold 

earlier nomination conventions. That does not further the governmental interest the 

Panel Opinion cites, but eviscerates it. 

The Panel Opinion does not identify any other governmental interest that 

Section 9032(6) might conceivably protect. (Pan. Op. at 6-7.) The Commission also 

failed to identify any legitimate governmental interest that the provision furthers. 

The Commission asserted that Section 9032(6) furthers Congress’s intent to ensure 

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that major and non-major party candidates are eligible to receive funding under the 

Act for the same “length of time,” (App. 70 (Repayment Determination at 17)), but 

as Petitioners have explained, (Pet. Br. at 35), the Commission failed to cite any 

authority for that assertion and it directly conflicts with this Court’s conclusion that 

“it was Congress’s explicit intention that the funds be issued on a nondiscriminatory 

basis.” LaRouche, 996 F.2d at 1267 (citation omitted). 

Section 9032(6) is plainly discriminatory. It guarantees that major party 

candidates are eligible to receive funding under the Act for the entire duration of 

their primary election campaigns but terminates minor party candidates’ eligibility 

in the midst of theirs whenever the major parties hold early nomination conventions. 

Neither the Panel Opinion nor the Commission identify any governmental interest 

that such discrimination might serve. Section 9032(6) is therefore unconstitutional 

under Buckley because nothing in the record supports the conclusion that it furthers 

“an important governmental interest.” Buckley, 424 U.S. at 95-96. The Panel 

Opinion’s failure to address this argument warrants rehearing. 

B. The Panel Opinion Overlooks Petitioners’ Argument That 

Section 9032(6) Frustrates the Purpose of the Act. 

This Court has repeatedly recognized that the purpose of the Act is “to provide 

partial federal financing for the campaigns of qualifying presidential primary 

candidates.” Simon v. Federal Election Com’n., 53 F.3d 356, 357 (D.C. Cir. 1995); 

see LaRouche, 996 F.2d at 1267 (“The object of the statute is to enhance the ability 

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of candidates to present their positions and themselves to voters in presidential 

primaries.”) Further, as this Court and the Supreme Court have emphasized, 

Congress intended that “the funds be issued on a nondiscriminatory basis,” 

LaRouche, 996 F.2d at 1267, that does not “give an unfair advantage to established 

parties....” Buckley, 424 U.S. at 96-97. Petitioners argue that Section 9032(6) 

frustrates the purpose of the Act as applied to minor parties by arbitrarily terminating 

their eligibility to receive funds in election cycles when the major parties hold early 

nomination conventions. (Pet. Br. at 36-38.) 

The Panel Opinion fails to address this argument. Instead, the Panel Opinion 

reasons that because “Congress could permissibly deny all public funding” to 

Petitioners “based on [their] lack of widespread support...,” it follows that Congress 

could take “the less restrictive step” of providing Petitioners with funding that is 

“less generous than the funding provided to primary candidates of major parties.” 

(Pan. Op. at 6.) But once again the Panel Opinion misconstrues Petitioners’ claim. 

Petitioners accept that Congress can constitutionally provide minor party candidates 

with less funding than major party candidates under Buckley. Petitioners nonetheless 

contend that Section 9032(6) is invidiously discriminatory because it guarantees that 

major party candidates remain eligible to receive the greater funding to which they 

are entitled for the entire duration of their primary election campaigns, but arbitrarily 

terminates minor party candidates’ eligibility to receive the lesser funding to which 

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they are entitled in the midst of their primary election campaigns whenever the major 

parties hold early nomination conventions. Petitioners’ challenge is not to the Act’s 

“funding limits,” as the Panel Opinion incorrectly states, (Pan. Op. at 6), but to 

Section 9032(6)’s arbitrary and premature termination of their eligibility to receive 

the lesser funding to which they are entitled. 

The Panel Opinion’s failure to address this argument places it in direct conflict 

with LaRouche. In LaRouche, this Court unequivocally concluded that Congress 

intended that funds be issued under the Act “on a nondiscriminatory basis,” 

LaRouche, 996 F.2d at 1267, and Section 9032(6) makes that impossible in any 

election cycle when the major parties hold early nomination conventions. In such 

elections, major party candidates are eligible to receive funding for the entire 

duration of their primary election campaigns, but minor party candidates are not. By 

upholding such disparate treatment, the Panel Opinion sanctions a discriminatory 

statutory scheme. Such a holding cannot be reconciled with LaRouche. Rehearing is 

therefore warranted to resolve the conflict between the Panel Opinion and LaRouche. 

C. The Panel Opinion Overlooks Petitioners’ Argument That 

Section 9032(6) Imposes Unequal Burdens on Petitioners’ 

First Amendment Rights. 

It is well-settled that statutes such as the Act, which provide benefits rather 

than imposing prohibitions, “remain subject to First Amendment limits.” LaRouche, 

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996 F.2d at 1269.1 Furthermore, a public financing system violates the Fifth 

Amendment guarantee of equal protection if it “unfairly or unnecessarily burden[s] 

the political opportunity of any party or candidate.” Buckley, 424 U.S. at 96. 

Petitioners contend that Section 9032(6) unfairly and unnecessarily burdened their 

First Amendment rights by terminating their eligibility for funding in the midst of 

their 2016 primary election campaign. 

Once again, the Panel Opinion fails to address this argument. The Panel 

Opinion merely observes that the Act did not “weaken” Petitioners “in absolute 

terms or relative to major-party candidates.” (Pan. Op. at 6.) But the dispositive issue 

is not whether the Act conferred some benefit upon Petitioners. See LaRouche, 996 

F.2d at 1269. Rather, the issue is whether Section 9032(6) “unfairly or unnecessarily 

burdened” Petitioners by terminating their eligibility for funding in the midst of their 

2016 primary election campaign. Buckley, 424 U.S. at 96. The record demonstrates 

that it did. 

1 Both this Court and the Supreme Court have recognized that the Act “has an 

important impact on the exercise of First Amendment rights, inasmuch as campaign 

funds are often essential if ‘advocacy’ [of beliefs and ideas] is to be truly or optimally 

‘effective.’” Com. to Elect Lyndon LaRouche v. FEC, 613 F.2d 834, 844 (D.C. Cir. 

1979) (quoting Buckley, 424 U.S. at 65-66). That is especially true as applied to “a 

candidate [who] either lacks national prominence or belongs to a minor party outside 

the mainstream of American politics.” Id. It is therefore “particularly important to 

ensure that the Commission is applying the eligibility criteria for primary matching 

funds in an even-handed manner.” Id. (noting “our national commitment to open and 

robust discussion of all political viewpoints”) (citing New York Times Co. v. Sullivan, 

376 U.S. 254, 270 (1964)).)

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As previously explained, Section 9032(6) unequally burdens Petitioners not 

because it provides them with “less generous” funding than major party candidates 

under the Act – indeed, Section 9032(6) has no bearing at all on the Act’s funding 

limits – but because it guarantees that major party candidates remain eligible to 

receive funding for the entire duration of their primary election campaigns but 

terminates minor party candidates’ eligibility in the midst of theirs whenever major 

party candidates hold early nomination conventions. Further, that disparate treatment 

is plainly unnecessary because it serves no governmental interest whatsoever. See 

supra Part II.A. Consequently, the Panel Opinion’s conclusion that the Act’s funding 

scheme “strengthens the position of minor and new party candidates” does not 

dispose of Petitioners’ claim under Buckley. (Pan. Op. at 7.) 

Finally, the Panel Opinion, should it remain undisturbed, will have a 

devastating impact on the fundamental First Amendment rights of all minor party 

candidates who may qualify for funding under the Act in future election cycles. See 

supra n.1. Such candidates have no control over when the major parties decide to 

hold their nomination conventions. Nor do minor party candidates have control over 

the deadlines the states establish for submitting their nomination petitions and 

thereby completing their primary election campaigns. If Section 9032(6) remains in 

effect, however, minor party candidates may be eligible for funding for the entire 

duration of their primary election campaigns, as Petitioners were in 2012, or their 

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eligibility may be terminated in the midst of their primary election campaigns, which 

happened to Petitioners in 2016 and gave rise to the Repayment Order at issue here. 

The uncertainty engendered by Section 9032(6) therefore threatens the Act’s 

continuing viability as applied to minor party candidates. A statutory scheme that 

promises such candidates federal funding for their primary election campaigns, 

subject to the risk that their eligibility to receive the funding may be terminated in 

the midst of those campaigns, is unworkable. 

As this Court has recognized, it is “particularly important to ensure that the 

Commission is applying the eligibility criteria for primary matching funds in an 

even-handed manner.” Com. to Elect Lyndon LaRouche, 613 F.2d at 844 (quoting 

Buckley, 424 U.S. at 65-66). The Panel Opinion fails to heed that admonition. 

Rehearing should be granted to correct that error. 

 

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CONCLUSION 

For the foregoing reasons, the Petition for Rehearing and Rehearing En Banc 

should be granted. 

Dated: August 21, 2023 Respectfully submitted, 

/s/Oliver B. Hall 

Oliver B. Hall 

CENTER FOR COMPETITIVE DEMOCRACY

P.O. Box 21090 

Washington, D.C. 20009 

(202) 248-9294 

oliverhall@competitivedemocracy.org 

Counsel for Petitioners

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CERTIFICATE OF SERVICE 

I hereby certify that on August 21, 2023, I caused the foregoing document to 

be filed using the Court’s CM/ECF system, which will effect service upon all counsel 

of record. 

/s/Oliver B. Hall 

Oliver B. Hall 

CERTIFICATE OF COMPLIANCE 

I certify that this petition complies with the type-volume limitation of Fed. R. 

App. P. 35(b)(2)(A) because it contains 3,296 words (including footnotes and 

endnotes). This petition complies with the typeface requirements of Rule 32(a)(5) 

and the type style requirements of Rule 32(a)(6) because it has been prepared in a 

proportionately spaced typeface using Microsoft Word, Times New Roman, size 14 

point. 

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