No. ______

In the 

Supreme Court of the United States

__________________

DR. JILL L. STEIN; JILL STEIN FOR PRESIDENT,

Petitioners,

v.

FEDERAL ELECTION COMMISSION,

Respondent.

__________________

On Petition for Writ of Certiorari to the

United States Court of Appeals 

for the District of Columbia Circuit

__________________

PETITION FOR WRIT OF CERTIORARI __________________

Oliver B. Hall

 Counsel of Record

CENTER FOR COMPETITIVE DEMOCRACY

P.O. Box 21090

Washington, D.C. 20009

(202) 248-9294

oliverhall@competitivedemocracy.org

Counsel for Petitioners

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001
i

QUESTION PRESENTED

The Presidential Primary Matching Payment

Account Act establishes a scheme that provides public

financing for the presidential primary campaigns of

qualified candidates. Candidates may use the funds

received for any qualified campaign expense incurred

during the matching payment period, which ends no

later than the last day of the last major party

nominating convention. See 26 U.S.C. § 9032(6). But

while major party candidates are entitled to appear on

state general election ballots automatically once they

are nominated, minor party candidates must petition

to qualify – a process the Federal Election Commission

recognizes as “the equivalent” of their primary election

campaigns. Minor party candidates’ ballot access

expenditures are therefore qualified campaign

expenses, but only if incurred during the matching

payment period. Because many state ballot access

deadlines fall after the major parties hold their

nominating conventions, minor candidates are

ineligible to use matching funds to pay for petition

drives in those states. The question presented is:

Whether 26 U.S.C. § 9032(6) violates the equal

protection of law by guaranteeing that major party

candidates are eligible to receive public financing for

the entirety of their presidential primary campaigns

while arbitrarily terminating minor party candidates’

eligibility in the midst of theirs?
ii

STATEMENT OF RELATED PROCEEDINGS

There are no proceedings related to this case.
iii

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

STATEMENT OF RELATED PROCEEDINGS . . . . ii

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

OPINIONS AND ORDERS ENTERED 

IN PROCEEDINGS BELOW ................ 1

STATEMENT OF JURISDICTION . . . . . . . . . . . . . 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED. . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 2

A. The Presidential Primary Matching Payment

Account Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

B. This Lawsuit . . . . . . . . . . . . . . . . . . . . . . . . . . 7

C. The Decision Below . . . . . . . . . . . . . . . . . . . . . 9

REASONS FOR GRANTING THE WRIT. . . . . . . . 10

I. SECTION 9032(6) FRUSTRATES THE

PURPOSE OF THE ACT, SERVES NO

LEGITIMATE GOVERNMENTAL INTEREST

AND UNFAIRLY AND UNNECESSARILY

BURDENS MINOR PARTY CANDIDATES. . . 10

A. SECTION 9032(6) FRUSTRATES THE

PURPOSE OF THE ACT BY

TERMINATING QUALIFIED MINOR

PARTY CANDIDATES’ ELIGIBILITY IN

THE MIDST OF THEIR PRIMARY

ELECTION CAMPAIGNS. . . . . . . . . . . . . . . 11
iv

B. SECTION 9032(6) DOES NOT FURTHER

ANY LEGITIMATE GOVERNMENTAL

INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . 14

C. SECTION 9032(6) UNFAIRLY AND

UNNECESSARILY BURDENS THE

POLITICAL OPPORTUNITY OF MINOR

PARTY CANDIDATES, INCLUDING

PETITIONERS. . . . . . . . . . . . . . . . . . . . . . . . 17

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

APPENDIX

Appendix A Opinion in the United States Court of

Appeals for the District of Columbia

Circuit 

(July 21, 2023). . . . . . . . . . . . . . . . App. 1

Appendix B Judgment in the United States Court

of Appeals for the District of Columbia

Circuit 

(July 21, 2023). . . . . . . . . . . . . . . App. 12

Appendix C Statement of Reasons in Support of

Repayment Determination after

Administrative Review in the Federal

Election Commission

(October 29, 2021). . . . . . . . . . . . App. 14

Appendix D Order Denying Petition for Panel

Rehearing in the United States Court

of Appeals for the District of Columbia

Circuit 

(August 31, 2023) . . . . . . . . . . . . App. 41
v

Appendix E Order Denying Petition for Rehearing

En Banc in the United States Court of

Appeals for the District of Columbia

Circuit 

(August 31, 2023) . . . . . . . . . . . . App. 43
vi

TABLE OF AUTHORITIES

CASES

Buckley v. Valeo, 

424 U.S. 1 (1976). . . . . . . . . . . . . . . 2, 3, 9, 10, 11,

12, 13, 14, 16, 17, 18

Com. to Elect Lyndon LaRouche v. FEC, 

613 F.2d 834 (D.C. Cir. 1979). . . . . . . . . . . . . . . 17

Jenness v. Fortson, 

403 U.S. 431 (1971). . . . . . . . . . . . . . . . . . . . . . . 18

LaRouche v. Federal Election Com’n, 

996 F.2d 1263 (D.C. Cir. 1993). . . . . . 2, 11, 12, 16

Lubin v. Panish, 

415 U.S. 709 (1974)........................ 3

New York Times Co. v. Sullivan, 

376 U.S. 254 (1964). . . . . . . . . . . . . . . . . . . . . . . 17

Simon v. Federal Election Com’n., 

53 F.3d 356 (D.C. Cir. 1995). . . . . . . . . 2, 3, 11, 12

Stein v. Federal Election Com’n, 

77 F.4th 868 (D.C. Cir. 2023) ................ 1

CONSTITUTION

U.S. CONST. amend. V . . . . . . . . . . . . . . . . . . . . . 1, 10

STATUTES AND REGULATIONS

11 C.F.R. § 100.2(c)(4) ........................ 4

11 C.F.R. § 9032.9(a)(1) ....................... 6
vii

11 C.F.R. § 9033.5(c) ......................... 6

11 C.F.R. § 9034.4(a) (1995). . . . . . . . . . . . . . . . . . . 12

11 C.F.R. § 9034.5(a)(1) ....................... 6

11 C.F.R. § 9034.5(a)(2) ....................... 6

11 C.F.R. § 9038.1 ........................... 6

26 U.S.C. §§ 9031-9042 . . . . . . . . . . . . . . . . . . . . . 2, 5

26 U.S.C. § 9032(6). . . . . . . . . . . . . . . . . i, 1, 2, 3, 4, 5,

6, 7, 8, 9, 10, 11,

12, 13, 14, 15, 16, 17, 18

26 U.S.C. § 9032(9). . . . . . . . . . . . . . . . . . . . . . 4, 5, 12

26 U.S.C. § 9034(a)........................... 5

26 U.S.C. § 9037 ............................. 5

26 U.S.C. § 9038(a)........................... 6

26 U.S.C. § 9038(b)(1) ........................ 6

26 U.S.C. § 9038(b)(2) ........................ 6

26 U.S.C. § 9041 . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 9

26 U.S.C. § 9041(a). . . . . . . . . . . . . . . . . . . . . . . . . . 11

28 U.S.C. § 1254 ............................. 1

52 U.S.C. § 30101 et seq. ...................... 4
viii

OTHER AUTHORITIES

Advisory Opinion (“AO”) 1975-44 (Socialist Workers

1976 National Campaign Committee) ......... 4

AO 1995-45 (Dr. John Hagelin for President, 1996

Committee) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Final Audit Report of the Commission on Jill Stein

for President (October 11, 2011 – August 31,

2014), 4 n.9, available at https://www.fec.gov/

resources/legal-resources/enforcement/

audits/2012/Jill_Stein_for_President/FinalAudit

ReportoftheCommission1323020.pdf .......... 7
1

OPINIONS AND ORDERS ENTERED 

IN PROCEEDINGS BELOW

The repayment order entered by Respondent

Federal Election Commission on October 29, 2021 is

reported as LRA 1021. 

The opinion of the Court of Appeals reviewing the

agency order is reported at Stein v. Federal Election

Com’n, 77 F.4th 868 (D.C. Cir. 2023).

STATEMENT OF JURISDICTION

The Court of Appeals had jurisdiction over this case

pursuant to 26 U.S.C. § 9041. It entered its Opinion

and Judgment on July 21, 2023. App. 1, 12. The Court

of Appeals denied rehearing and rehearing en banc on

August 31, 2023. App. 41, 43. 

On November 28, 2023, Chief Justice Roberts

entered an order extending the time to file a petition

for certiorari until January 12, 2024. This Court has

jurisdiction pursuant to 28 U.S.C. § 1254.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment of the Constitution of the

United States provides, in relevant part, that:

No person shall ... be deprived of life, liberty, or

property, without due process of law. 

U.S. CONST. amend. V.
2

Section 9032(6) of the Presidential Primary

Matching Payment Account Act states:

The term “matching payment period” means the

period beginning with the beginning of the

calendar year in which a general election for the

office of President of the United States will be

held and ending on the date on which the

national convention of the party whose

nomination a candidate seeks nominates

its candidate for the office of President of the

United States, or, in the case of a party which

does not make such nomination by national

convention, ending on the earlier of (A) the date

such party nominates its candidate for the office

of President of the United States, or (B) the last

day of the last national convention held by a

major party during such calendar year.

26 U.S.C. § 9032(6).

STATEMENT OF THE CASE

Congress enacted the Presidential Primary

Matching Payment Account Act (“the Act”) in 1974 “as

a means of eliminating the improper influence of large

private contributions” in presidential elections. Buckley

v. Valeo, 424 U.S. 1, 96 (1976); see 26 U.S.C. §§ 9031-

9042. The object of the Act is “to enhance the ability of

candidates to present their positions and themselves to

voters in presidential primaries.” LaRouche v. Federal

Election Com’n, 996 F.2d 1263, 1267 (D.C. Cir. 1993).

The Act achieves its purpose by providing “partial

federal financing for the campaigns of qualifying

presidential primary candidates.” Simon v. Federal
3

Election Com’n., 53 F.3d 356, 357 (D.C. Cir. 1995). As

applied to qualifying minor party candidates, however,

the Act contains a poison pill, see 26 U.S.C. § 9032(6),

which frustrates the Act’s purpose, serves no legitimate

governmental interest, and “unfairly or unnecessarily

burden[s]” such candidates’ “important interest in the

continued availability of political opportunity.” Buckley,

424 U.S. at 1 (quoting Lubin v. Panish, 415 U.S. 709,

716 (1974)).

Section 9032(6) provides that all candidates who

qualify for funding under the Act – whether they seek

the nomination of a major party or a minor party –

become ineligible to receive funding on the date they

are nominated or the last day of the last major party

nominating convention, whichever is earlier. See 26

U.S.C. § 9032(6). Because major party candidates are

entitled to automatic ballot access in all 50 states and

the District of Columbia once they are nominated at

their party’s convention, § 9032(6) ensures that they

remain eligible to receive funding under the Act for the

entirety of their primary election campaigns. Minor

party candidates, by contrast, generally must petition

for placement on state general election ballots after

they win their party’s nomination, see Buckley, 424

U.S. at 106, and the deadline for doing so in many

states often falls after the major parties hold their

nominating conventions. App. 3-4.

Respondent Federal Election Commission (“the

Commission”) has long recognized 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
4

candidates.” Advisory Opinion (“AO”) 1975-44, 2

(Socialist Workers 1976 National Campaign

Committee); see also AO 1995-45 (Dr. John Hagelin for

President, 1996 Committee). The Commission’s

regulations promulgated pursuant to the Federal

Election Campaign Act, see 52 U.S.C. § 30101 et seq.,

likewise recognize that minor party candidates’

primary election date may be defined as “the last day

to qualify for a position on the general election ballot”

of any state. 11 CFR § 100.2(c)(4). Accordingly, Minor

party candidates’ expenditures for ballot access petition

drives are “qualified campaign expenses” for purposes

of the Act – that is, the funds such candidates receive

under the Act may be used to pay for their petition

drives. See 26 U.S.C. § 9032(9).

But § 9032(6) imposes a catch. It terminates minor

party candidates’ eligibility to receive funds under the

Act – even if they are engaged in the petition drives the

Commission recognizes as “the equivalent” of their

primary election campaigns – whenever the major

parties happen to conclude their nominating

conventions. Thus, while § 9032(6) guarantees that

major party candidates remain eligible for the entirety

of their primary election campaigns, the provision

terminates minor party candidates’ eligibility in the

midst of theirs based on sheer happenstance. Minor

party candidates may be eligible to receive the funding

for which they qualify under the Act for the duration of

their primary election campaigns, or not, based on

nothing more than the date on which the major party

nominating conventions conclude. Section 9032(6)

therefore produces arbitrary and disparate results as

applied to minor party candidates that bear no rational
5

relation to any legitimate governmental interest. It

terminates their eligibility regardless of their

qualification and irrespective of the level of voter

support they demonstrate, simply because the major

party primary elections have concluded. 

A. The Presidential Primary Matching

Payment Account Act

The Act provides partial federal financing for the

campaigns of qualifying presidential primary

candidates. See 26 U.S.C. §§ 9031-9042. A candidate

who is determined to be eligible under the Act is

entitled to receive payments from the Presidential

Primary Matching Payment Account to match

individual contributions up to $250. See 26 U.S.C.

§§ 9034(a), 9037. Candidates may only use these funds

to defray “qualified campaign expenses,” which are

defined as expenses incurred in connection with the

candidate’s campaign for nomination that do not

violate federal or state law. See 26 U.S.C. § 9032(9).

The Commission has long recognized that expenses

incurred by a minor party presidential candidate for

the purpose of qualifying for placement on state ballots

are qualified campaign expenses under the Act. App.

28. Such expenses, however, must be incurred during

the “matching payment period.” See 26 U.S.C.

§ 9032(6). The matching payment period begins on the

first day of the calendar year in which the presidential

election will occur. See id. As applied to a candidate

who seeks the nomination of a party that nominates by

national convention and of parties that do not – i.e.,

minor parties – the matching payment period ends on

the earlier of the date on which the national party
6

nominates its candidate for President, or the last day

of the last national convention held by a major party

during that year. See id. The end of the matching

payment period is the candidate’s Date of Ineligibility.

See 11 C.F.R. § 9033.5(c). After a candidate’s Date of

Ineligibility, expenses incurred by the candidate’s

committee are not qualified campaign expenses under

the Act, with limited exceptions. See 11 C.F.R.

§ 9032.9(a)(1).

The Act requires the Commission to conduct an

examination and audit of the qualified campaign

expenses of every publicly funded candidate after the

campaign for the nomination ends. See 26 U.S.C.

§ 9038(a); 11 C.F.R. § 9038.1. The audit includes an

examination of the candidate’s Net Outstanding

Campaign Obligations, which is the difference between

the “total of all outstanding obligations for qualified

campaign expenses as of the candidate’s date of

ineligibility” and the total value of all cash, assets and

amounts owed to the candidate’s committee as of that

date. 11 C.F.R. § 9034.5(a)(1), (2). If the Commission

determines that “any portion of the payments made to

a candidate from the matching payment account was in

excess of the aggregate amount of payments to which

[the] candidate was entitled,” the candidate must repay

“an amount equal to the amount of excess payments.”

26 U.S.C. § 9038(b)(1). Likewise, if the Commission

determines that any portion of the payments was used

for a purpose other than to defray qualified campaign

expenses, the candidate must repay “an amount equal

to such amount.” 26 U.S.C. § 9038(b)(2).
7

B. This Lawsuit

Petitioners are a minor party presidential

candidate, Dr. Jill Stein, and her political committee.

Petitioners qualified for funding under the Act in both

the 2012 and 2016 presidential election cycles. App. 3-

4, 38 n.23. The repayment order at issue here, which

requires petitioners to repay $175,272, arises from the

2016 presidential cycle. App. 3-4. The facts relating to

petitioners’ 2012 presidential campaign are relevant,

however, because they demonstrate the arbitrary and

disparate results that flow from the application of

§ 9032(6) to minor party candidates.

In 2012, petitioners received $372,130 in matching

funds under the Act. See Final Audit Report of the

Commission on Jill Stein for President (October 11,

2011 – August 31, 2014), 4 n.9, available at

https://www.fec.gov/resources/legal-resources/

enforcement/audits/2012/Jill_Stein_for_President/Fin

alAuditReportoftheCommission1323020.pdf (accessed

January 5, 2024). Dr. Stein’s party nominated her on

July 14, 2012, but she was obliged to petition for ballot

access in several states after that date. App. 38 n.23.

Coincidentally, the last state ballot access deadline Dr.

Stein had to meet in 2012 was September 6, which was

also the last day of the last major party nominating

convention that year. App. 38 n.23. As a result, the

Commission determined that Dr. Stein remained

eligible for funding under the Act until that date – i.e.,

for the entirety of her primary election campaign – and

all her ballot access expenses in 2012 were deemed

qualified campaign expenses. App. 38 n.23. Therefore,

no repayment order issued. 
8

In 2016, petitioners received approximately

$590,000 in matching funds. App. 4. Dr. Stein’s party

nominated her on August 6, 2016, and once again she

was obliged to petition for ballot access in several

states after that date. App. 28, 32. Unlike 2012,

however, the major parties concluded their nominating

conventions on July 28, 2016 – several weeks earlier

than the last state ballot access deadline Dr. Stein had

to meet. App. 32. The Commission therefore

determined that Dr. Stein became ineligible under the

Act on August 6, the date on which her party

nominated her, even though her primary election

campaign was ongoing. App. 31. It concluded that

petitioners “could not receive the benefit of any ... 

ballot access date after July 28, 2016,” because that

was “the last date of the last major party nominating

convention.” App. 31-32. Consequently, all ballot access

expenditures petitioners made after August 6, 2016 –

which otherwise constitute “qualified campaign

expenses” under the Act – were not in fact qualified

campaign expenses and petitioners could not use

matching funds to pay for them. App. 32. Based on this

determination, the Commission ordered petitioners to

repay $175,272 of the matching funds they had

received. App. 18.

Section 9032(6), as applied, rendered Dr. Stein

eligible for funding under the Act for the entirety of her

2012 primary election campaign and no repayment

order issued. In 2016, however, Section 9032(6)

terminated Dr. Stein’s eligibility in the midst of her

primary election campaign, leading to the $175,272

repayment order at issue here. The sole basis for this
9

disparate result is that the major parties held later

nominating conventions in 2012 than in 2016. 

Petitioners timely requested administrative review

of the Commission’s repayment order on June 17, 2019.

App. 22. In a Statement of Reasons entered on

October 29, 2021, the Commission upheld its order and

directed petitioners to repay $175,272 to the United

States Treasury. App. 16, 40. Petitioners timely

petitioned for review to the Court of Appeals pursuant

to 26 U.S.C. § 9041. App. 2.

C. The Decision Below

In the proceedings below, petitioners asserted a

narrow challenge to the constitutionality of § 9032(6) as

applied. App. 2. Petitioners claim that § 9032(6) is

unconstitutional under Buckley insofar as it rendered

them ineligible to expend matching funds on ballot

access petition drives because it frustrates the purpose

of the Act, serves no legitimate governmental purpose,

and unfairly and unnecessarily burdens minor party

candidates. See Buckley, 424 U.S. at 94-97. The Court

of Appeals rejected petitioners’ petition but failed to

address their constitutional claim on the merits.

App. 2, 6-8.

Rather than addressing petitioners’ narrow asapplied challenge to the constitutionality of § 9032(6),

the Court of Appeals misconstrued their claim as a

broad facial challenge to the “funding limits” imposed

by the Act. App. 6-8. In its brief discussion of

petitioners’ constitutional claim, the Court of Appeals

did not address § 9032(6) at all. App. 6-8. The Court of

Appeals simply concluded that “the public funding
10

limits at issue here are indistinguishable from those

upheld in Buckley,” and rejected petitioners’ equal

protection claim on that basis. App. 8.

Petitioners timely petitioned for rehearing and

rehearing en banc on the ground that they do not

challenge the “funding limits” upheld in Buckley, but

rather assert an as-applied challenge to § 9032(6). The

Court of Appeals denied rehearing and rehearing en

banc on August 31, 2023. App. 41, 43.

REASONS FOR GRANTING THE WRIT

I. SECTION 9032(6) FRUSTRATES THE

PURPOSE OF THE ACT, SERVES NO

LEGITIMATE GOVERNMENTAL INTEREST

AND UNFAIRLY AND UNNECESSARILY

BURDENS MINOR PARTY CANDIDATES.

When this Court rejected a facial challenge to the

constitutionality of the Act nearly 50 years ago in

Buckley, it acknowledged that a public financing

scheme would violate the Fifth Amendment’s

guarantee of equal protection of law if it “unfairly or

unnecessarily burdened the political opportunity of any

party or candidate.” Buckley, 424 at 96. The undisputed

facts of this case demonstrate that the Act does so as

applied here due to the operation of § 9032(6) – a

provision that was not at issue in Buckley. See id. at

90-97, 105-108. Further, neither the Commission nor

the Court of Appeals identified any legitimate

governmental interest that the provision might further

by tying minor party candidates’ eligibility under the

Act to the date of the major parties’ nominating

conventions. The undisputed facts also demonstrate
11

that § 9032(6) unfairly and unnecessarily burdens

minor party candidates, including petitioners. Section

9032(6) is therefore unconstitutional under Buckley. 

Crucially, however, the Court of Appeals made clear

in the proceedings below that it detects no infirmity in

§ 9032(6), App. at 6-8, 41, 43, and that Court has

exclusive jurisdiction over constitutional challenges to

the provision. See 26 U.S.C. § 9041(a). Review by this

Court is therefore warranted now, because the decision

below conflicts with Buckley and no conflict among the

lower courts can or will emerge on this issue. Further,

the material facts are genuinely undisputed and the

question presented was squarely raised and thoroughly

briefed in the proceedings below. This Court should

grant certiorari to correct the Court of Appeals’ error

and ensure the continued viability of the Act as applied

to minor party candidates.

A. SECTION 9032(6) FRUSTRATES THE

PURPOSE OF THE ACT BY TERMINATING

QUALIFIED MINOR PARTY CANDIDATES’

ELIGIBILITY IN THE MIDST OF THEIR

PRIMARY ELECTION CAMPAIGNS.

The Court of Appeals has repeatedly recognized that

the purpose of the Act is “to provide partial federal

financing for the campaigns of qualifying presidential

primary candidates.” Simon, 53 F.3d at 357; see

LaRouche, 996 F.2d at 1267 (“The object of the statute

is to enhance the ability of candidates to present their

positions and themselves to voters in presidential

primaries.”) This is not a guarantee of full funding for

a presidential candidate’s primary campaign, but that

is only because the statute establishes a matching
12

program: once candidates are deemed eligible, they are

“entitled to receive payments ... to match individual

contributions up to $250.” Simon, 53 F.3d at 357. This

funding is intended “to defray ‘qualified campaign

expenses,’” which are defined as “expenses incurred in

connection with the campaign for the presidential

nomination that do not violate federal or state law.” Id.

(citing 26 U.S.C. § 9032(9); 11 C.F.R. § 9034.4(a)

(1995)).

Here, it is undisputed that petitioners’ ballot access

expenditures all would be “qualified campaign

expenses” under the Act but for one factor: petitioners

incurred some of these expenses outside the matching

payment period, as defined by § 9032(6). App. 28, 29-

30. Section 9032(6) thus rendered petitioners ineligible

to receive funding for qualified campaign expenses

based solely on the fact that they incurred the expenses

after the major party conventions. App. 30-32. But as

the Commission acknowledges, minor party candidates’

ballot access petition drives are the equivalent of major

party candidates’ primary elections. Further, Congress

expressly intended that “the funds be issued [under the

Act] on a nondiscriminatory basis,” LaRouche, 996 F.2d

at 1267, which does not “give an unfair advantage to

established parties....” Buckley, 424 U.S. at 96-97. By

arbitrarily terminating minor party candidates’

eligibility to receive funds in election cycles when the

major parties happen to hold early nomination

conventions, § 9032(6) frustrates the purpose of the Act

and the congressional intent behind it.
13

The Court of Appeals failed to address this

argument. Instead, the Court of Appeals reasoned 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.” App.

at 7. But this misconstrues petitioners’ claim.

Petitioners accept that Congress can constitutionally

provide minor party candidates with less funding than

major party candidates under Buckley. See Buckley,

424 U.S. at 96, 99. Section 9032(6) nonetheless

frustrates the purpose of the Act because it guarantees

that major party candidates remain eligible to receive

the greater funding to which they are entitled for the

entirety of their primary election campaigns, but

arbitrarily terminates minor party candidates’

eligibility to receive the lesser funding to which 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 Court of Appeals

incorrectly averred, App. at 7, but to § 9032(6)’s

arbitrary and premature termination of their eligibility

to receive the lesser funding to which they are entitled.
14

B. SECTION 9032(6) DOES NOT FURTHER

ANY LEGITIMATE GOVERNMENTAL

INTEREST.

The Court of Appeals conceded that restrictions on

public funding must “further an important

governmental interest” to withstand constitutional

scrutiny. App. at 6 (citing Buckley, 424 U.S. at 95-96).

Section 9032(6) fails this test because no governmental

interest is served by a provision that makes 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. The Court of Appeals did not address this

argument.

The Court of Appeals conspicuously failed to

identify any governmental interest that § 9032(6)

furthers. App. at 7-8. Instead, the Court of Appeals

averred 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.” App. at 7. But if the

Court of Appeals intended to suggest that § 9032(6)

also furthers these interests, it is in error. The record

demonstrates that the provision is woefully inadequate

to the task.
15

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. 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 funding

under the Act – only because the major parties held

earlier nomination conventions that year. 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. 

Contrary to the Court of Appeals’ implication,

§ 9032(6) does not further the “government interests in

limiting public funding for candidates with slim

support.” App. at 7. Because the provision terminates

qualified 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, § 9032(6) is not even

rationally related to that interest. Under § 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 Court of Appeals cited, but

eviscerates it.
16

The Court of Appeals did not identify any other

governmental interest that § 9032(6) might conceivably

protect. App. at 7-8. The Commission also failed to

identify any legitimate governmental interest that the

provision furthers. The Commission asserted just one

interest: that § 9032(6) furthers Congress’s intent to

ensure that major and non-major party candidates are

eligible to receive funding under the Act for the same

“length of time,” App. 37, but the Commission failed to

cite any authority for that assertion. Moreover, it

cannot be reconciled with the Court of Appeals’

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 entirety 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 Court of Appeals nor the

Commission identified 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. Certiorari is warranted to

correct the Court of Appeals’ error in upholding the

provision.
17

C. SECTION 9032(6) UNFAIRLY AND

UNNECESSARILY BURDENS THE

POLITICAL OPPORTUNITY OF MINOR

PARTY CANDIDATES, INCLUDING

PETITIONERS.

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)).) Section 9032(6) prevents the Commission from

doing so.

When major party nominees win their party’s

nomination, they are guaranteed placement on every

state’s general election ballot. By ending the matching

funds period on the date of a major party candidate’s

nomination, therefore, Section 9032(6) ensures that

such candidates are eligible to receive matching funds

during the entire period of their primary election

campaign. By ending minor party candidates’ matching

funds period on that same date, however, Section

9032(6) cuts off their eligibility irrespective of whether
18

they continue to incur ballot access expenses that

otherwise qualify as “qualified campaign expenses”

under the Act. App. at 28.

Here, petitioners reasonably anticipated that their

2016 ballot access expenses would be deemed qualified

campaign expenses under the Act, as they were in

2012. App. at 28 n.23. That did not occur, for no reason

other than a change in the date of the major party

conventions. App. at 32. The consequence is dramatic:

petitioners now face a $175,272 repayment order they

would not owe if a major party held its convention in

September, as it did in 2012, instead of in June, as it

did in 2016. App. at 28 n.23. As applied here, therefore,

Section 9032(6) “unfairly or unnecessarily burden[s]

the political opportunity” of a minor party candidate

like Dr. Stein. Buckley, 424 U.S. at 96. It rendered Dr.

Stein ineligible to receive matching funds for ballot

access expenses that otherwise would be deemed

qualified campaign expenses under the Act based solely

upon the fact that the major parties changed their

convention dates. App. at 28.

This Court has long recognized that a statute may

be invidiously discriminatory precisely because it treats

differently situated candidates alike. See Jenness v.

Fortson, 403 U.S. 431, 442 (1971). “Sometimes the

grossest discrimination can lie in treating things that

are different as though they were exactly alike,” the

Court explained. Id. (citation omitted). Section 9032(6)

is the statutory embodiment of such invidious

discrimination. The Court should grant certiorari to

rectify this discrimination and ensure the Act’s
19

continued viability as applied to minor party

candidates.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Oliver B. Hall

 Counsel of Record

CENTER FOR COMPETITIVE DEMOCRACY

P.O. Box 21090

Washington, D.C. 20009

(202) 248-9294

oliverhall@competitivedemocracy.org

Counsel for Petitioners