# United Stat es Court of Appeals For the First C ircuit

No. 04-1803 RICHARD P. McCLURE and MARTHA McCLURE, Plaintiffs, Appellants,

v. WILLIAM F. GALVIN, Secretary of the Commonwealth; ELIZABETH L. DELANEY, Town Clerk, Town of Chelmsford; JANE DOE, Chelmsford Election Poll Clerk,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Richard G. Stearns, U.S. District Judge ]
Before Lynch, Circuit Judge , Stahl, Senior Circuit Judge , Lipez, Circuit Judge .

Richard P. McClure pro se. James J. Ar guin , Assistant Attorney General, with whom Thomas F. Reilly , Attorney General, was on brief, for appellee William F. Galvin.

Brian W. Riley , La uren F. Goldberg , and Kopelman and Paige, P.C. on brief for appellee Elizabeth L. Delaney. October 8, 20041 McClure's wife, Martha McClure, was also namedas a plaintiff

in the suit and submitted an affidavit. She alleges that she was, by virtue of her husband's exclusion, prohibited f rom vo ting for the candidate whose political beliefs are most in line with her own, and she claimed to be suing on behalf of all other voters similarly situated. We do not discuss her claims further as they make no difference in the disposition of the case. -2- LYNCH, Circuit Judge . Richard McClure filed suit against the Secretary of the Com monwealth of Massachusetts and others, alleging an interference with both his right to vote and his right to run for political o ffice under the First and Fourteenth Amendments of the United States Constitution. He sought injunctive and declaratory relief, requiring that he be placed on the ballot
as an independent candidate in the race for a state senate seat. 1

In March of 2004, McClure had sought certification from
a town clerk to be placed on the ballot as an unenrolled candidate for state senate in Massachuse tts. "Unenrolled" means not affiliatedwith any political party. The town clerk refused to issue the certification because McClure had votedin the Democratic party presidential primary on March 2, 2004. Pursuant to a state statute, Mass. Gen. Laws ch. 53, § 37, such voting automatically enrolledMcClure as a Democrat. Pursuant to another state statute, ch. 53, § 6, one running for an in-state office as an independent must not be enrolled in a poli tical party for the ninety days preceding the filing deadline for primaries for candidates running for state senate. As a result, McClure's temporary enrollment automaticallydisqualified him from running for the state senate as-3-

an independent because the deadline for filing an intent to run for that office was les s than n inety days after the date of the Democratic primary in which he voted.

The district court, after an exp edit ed hearing, denied McClure's motion for a preliminary injunction and dismissed his claimon May 17, 2004. McClure v. Galvin , No. Civ.A. 04-CV-10826- RGS, 2004 WL 1092325, at *4 (D. Mass. May 17, 2004). We now affirm this judgment. I.

The statutory scheme at issue here requires some elaboration.

Massachusetts General Laws chapter 53, section 6 provides that an unenrolled candidate for elected office will not have her
name printed on the ballot unless a certific ate confirming this unenrolled status is obtained from the registrar of voters of the town where the would-be candi date is a registered voter. Such a certification will not be granted "to any such candidate who shall have been an enrolledmember of any political party during the time prior to the last day for filing nomination papers as provided in section ten, and on or after the day by which a primary candidate is required by section forty-e igh t to establish enrollment in a political party." Mass. Gen. Laws ch. 53, § 6. In turn, chapter 53, section 48 states that an enrolled candidate seeking to enter
a party primary must have been a member of that party for the-4-

ninety days before the filing deadline for that primary, which is the "last Tuesday in May" for candidates for state sena te. The beginning date of the nonenrollment period for independent
ca ndida tes is thus ninety days prior to the last Tuesday in May. Next, chapter 53, section 10 establishes the "last Tuesday in May"
as the deadline for filing candidacies for in-state offices for the general elections, and the last Tuesday in M ay thus ac ts as the ending date for the nonenrollment period. The effect of chapter 53, section 6 in 2004 was to require unenrolled candidates seeking
a place on the ballot for state senate not to have been enrolled as
a member of any political party between February 24, 2004, andMay 25, 2004. This year, the state presidential primary was held within the ninety-day period.

The nonenrollment period for independent candidates for state-wide (e.g. , gove rnor) and federal (e.g., United States Senator) offices begins one week later, ninety days prior to the first Tuesday in June. Mass. Gen. Laws ch. 53, § 48. The ninetydayperiod thus did not include the presidential primaries for individuals running for these offices.

Asimilar scheme is in place for enrolled candidates. See Mass. Gen. Laws ch. 53, § 48 (individual seeking ballot placement for elected office as a member of any party, and who thus seeks to run in a party primary, needs a certificate "certifying that he has been enrolled as a member of the political party whose-5-

nomination he seeks throughout the ninety days prior to the last dayherein provided for filing nomination papers [for the primary] with the state secretary. . . ."). In fact, since section 6 incorporates section 48 by refer enc e, the beginning date of the period within which candidates running for a given office under a partybanner must have been a member of that party is the exact
same date as the beginning date of the period within which unenrolledcandidates must not have been enrolled as a member of anyparty. For state senate candidates, this ke y dat e is ninety days prior to the last Tuesday in May. See Mass. Gen. Laws ch. 53, § 48.

Massachusetts General Laws chapter 53, section 37 a s currentlyin effect states that voters who are unenrolled at the time of appearing to vote in a primary may generally vote in any par ty's primary. Upon appearing to vote in a primary, a ballo t clerk asks unenro lle d voters in which primary they "desire[] to vote"; theymay then vote in that primary. Mass. Gen. Laws ch. 53, § 37. Generally, an unenrolled voter can vote in party primaries without losing her unenrolled status.

There is an exception, however, for presidential primaries; in a presidential primary, upon voting, "the voter shall become enrolled in and shall remain a member of the political party whose ballot he received until he files a certificate, signed under the pains and penalties of perjury, with the boardof registrars of2 Arecent amendment to section 37 will take effect on October

13, 2004, fully openi ng up even the presidential primaries to unenrolledvoters. Unenrolled voters will no longer have to enroll in a par ty, e ven temporarily, in order to vote in a presidential primary. Thus, the problem presented in this case should not recur. -6- voters, requesting to have his enrollment changed to another party
or political designation or cancelled . . . ." Mass. Gen. Laws ch. 53, § 37. The change of status back to unenrolled is effective once the board receives the certificate. See Mass. Gen. Laws ch. 53, § 38. There is no set amount of time that one must remain a member of the party in whose primary one has just voted; unenrollment can take place immediately.

Before a 19 94 ame ndment to chapter 53, section 37, all primary voting by unenrolled voters (not simply such voting in presidential primaries) automatically enrolled previously unenrolledvoters in that party. See Mass. Gen. Laws Ann. ch. 53, § 37, Historical and Statutory Notes. Since the 1994 amendment, however, only the presidential primaries have had that effect; an unenrolledvoter may vote in all other primaries without losing her unenrolled status. 2

Voters currently enrolled in one party in Massachusetts may not generally vote in any other party's primary, and they may not switch their enrollment to another party within twenty days of
a primary. Mass. Gen. Laws ch. 53, § 38. One effect of these laws is that no voter in Massachusetts, enrolled or unenrolled, may vote-7-

in more than one party's primary on a given primary day. See Mass. Gen. Laws ch. 53, §§ 37, 38.

McClure is a registered voter in Chelmsford, Massachusetts, and was a registered Republican until February 10, 2004; on that date he disenrolled and changed his status to unenrolled. On March 2, 2004, McClure went to the polls to vote in the Democratic party's presidential primary in Massachusetts. In his affidavit, he states that on that date, the ballot clerk asked himin which party's presidential primary he wouldlike to vote and when he asked for a Democratic party ballot, the clerk put a large "D" next to his name. McClure then told the ballot clerk that he didnot want to enroll in the Democratic party; the clerk told him that he would not be enrolled in the Democratic p arty and handed hima "cert ific ate" indicating that he was "establishing [his] voter status as 'unenrolled.'" After voting, a different clerk (an "exit clerk") took this certifi cate from McClure. Elizabeth Delaney, the town clerk of the Town of Chelmsford, stated, in her affidavit, that the effect of this cert ifi cate was merely to immediatelychange McClure's enrollment status back to "unenrolled." However, he was briefly enrolled as a Democrat.

On March 25, 2004, McClure, hav ing satisfied the other requirements to be an unenrolled candidate for state senate whose
name appears on the ballot, applied to the Chelmsford town clerk for a voter registration certificate. The town clerk had called-8-

himthe previous day (March 24) and told him over the phone that she would not be able to grant such a certificate because McClure votedin the Democratic presidential primary on March 2, 2004, which enrolled him as a Democrat within ninety days of the May 25 deadline for filing. In this conversation, McClure informed her of the misinformation he received from the ballot clerk. The town clerk responded that the election laws are very complex, one cannot expect a checker at the polls to understand all of their details, andMcClure should have called her as chief election official if he hadany questions or doubts. On March 26, 2004, the town clerk formally and in writing denied McClure's certificate. II. Mc Clure filed suit in federal district court i n Massachusetts on April 26, 2004, alleging that the ninety-day enrollment restriction effectuated by Massachusetts General Laws chapter 53, sections 6 and 37 violated his First Amendment speech andassociati on rights as a voter and as a candidate for public office. He also asserted that it violated his Equal Protection Clause rights because it constituted invidious discrimination against unenrolled voters. He finally alle gedboth that the statutory scheme itself gave unconstitutionally inadequate notice to McClure and that the negligence of various town and state officials led to a similar lack of notice. McClure sought declaratory relief, injunctive relief, and attorney's fees.-9- Given the time constraints involved, the district court grantedMcClure's motion for an expedited hearing on his motion for
a p reliminary injunction, and then denied the prelimina r y injunction and dismissed the claim under Fed. R. Civ. P. 12(b)(6). McClure , 2004 WL 1092325, at *1, *4. The district court, relying
on the Supreme Court's decision in Storer v. B rown , 415 U.S. 724 (197 4), h eld that McClure could not state a claim on the merits. McClure , 2004 WL 1092325, at *2-*3. Storer upheld a California law preventing candidates from having their names placed on the ballot in a general election as independents if they had registered with
a political party at any time within one year prior to the date of the primary election that precededthat general election. Storer , 415 U.S. at 728. The district court heldthat the scheme at issue in Storer was identical in its r elev ant respects to the one at issue here, thus foreclosing the bulk of McClure's claim. McClure , 2004 WL 1092325, at *2-*3.

The district court also held that McClure's att empt to distinguish Storer failed; the fact that the scheme at issue here only applied to presidential primaries and not to all primaries is
a "distinction . . . without a meaningful difference" because "[i]t is impossible to see how a statute that places an even less er burden on an independent voter who desires to seek public office could be more violative of a voter's rights." Id. at *3. As for the rest of McClure's claims (arguing lack of fair notice), the-10-

court cited the principle that citizens are presumed to know the law and added that the ballot clerk's negligence provided no basis for a viable estoppel claim. Id.

McClure appealed the denial of the preliminary injunction andthe dismissal of the claim to this court. McClure has not, however, raised on appeal his claim s of lack of fair notice or misrepresentation by the ballot clerk; those claims are waived. The only claim before this court is that the statutory scheme unduly burdens McClure's rights to vote and to run for office. III. Appellate review of a trial court's denial of a preliminaryinjunction is deferential: we will reverse such a denial only if the district court "mistook the law, clearly erred in its factual assessments, or otherwise abused its discretion in granting" the preliminary injunction. McGuire v. Reilly , 260 F.3d 36, 42 (1st Cir. 2001). Of course, a material error of law constitutes an abuse of discretion. Review of the dismissal of a claim under rule 12(b)(6) for failure to state a claim upon which relief can be granted is de novo . Martin v. Applied Cellular Tech., Inc. , 284 F.3d 1, 5 (1st Cir. 2002). In the end, both the dismissal of the claim and the denial of the preliminary injunction turn on pure issues of law.-11- The standard of review for a law that burdens ballot access and voting rights is not static; rather, the Supreme Court has suggested something of a sliding scale approach and has noted that there is no "bright line" to separate unconstitutional state election laws from constitutional ones. Timmons v. Twin Cit ies Area New Party , 520 U.S. 351, 359 (1997). We must "weigh the 'character and magnitude' of the burden the [s]tate's rule imposes [on rights to vote and run for office] against the interests the state contends justifies that burden, and consid er the extent to which the [s]tate's concerns make the burden necessary. . . . Regulations imposing severe burdens on plaintiffs' rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a [s]tate's 'important regulatory interests' will usually be enough to justify 'reasonable, nondiscriminatory restrictions.'" Id. at 358 (quoting Burdick v. Takushi , 504 U.S. 428, 434 (1992)) (citations omitted).

McClure is correct that the state's interests h ere are weaker than the interests stated in Storer . The burden imposed on McClure's rights here is also not severe. In the end, the state's important regulatory interests, while more fragmented than those in Storer , are sufficient to justify that burden.

McClure argues that the scheme forces him t o make a difficult choice between two crucial rights, voting and running for office, because the scheme does not allow him, within a ninety-day-12-

period, both to run for state senate as an independent and to vote in a party's presidential primary. But voting in a presidential primary has never been treated in the same way as voting in a general election, and indeed, voting in the primary of a party to which one does not belong is not a constitutional right. See Cal. Democratic Partyv. Jones , 530 U.S. 567, 573 n .5 (2 000) ("As for the associational 'interest' in selecting the candidate of a group to which one does not belong , that falls far short of a constitutional right, if indeed it can even fairly be characterized as an interest. It has been described in our cases as a 'desire'

. . . ."). It is ins tead an associational right of a political partyto decide whether it wants to include nonmembers in its own primaries; this is a decision that the state generally must respect in its regulation of primaries. See id. a t 5 75; Tashjian v. Republican Party of Conn. , 479 U.S. 208, 214-16 (1986); Cool Moose Partyv. Rhode Island , 183 F.3d 80, 85 (1st Cir. 1999).

The Massachusetts scheme, of course, does not operate to exclude existing Democrats fromvoting in the presidential primary andthen running for office as Democrats; it only prevents those who are unenrolled or enrolled in a different party from both voting in the Democratic presidential primary and then running for office under their old party designation. The choice that McClure points to is only a choice between running for political office (wh ich is surely an important political right) and voting in-13-

another organization's primary (which is not a constitutional right at all). The state places no great burden on McClure when it asks himto re frain from the latter in order to participate in the former. The remaining burden imposed on McClure by this statute is that it forces him to think ninety days ahead before the filing deadline if he plans on becoming an unenrolled candidate, because he needs to be careful that he does not vote in a disqualifying primary within this time period. But Storer heldthat a potential candidate was not significantly burdened by a statute that forced himto think ahead one full year before becoming an independent candidate. 415 U.S. at 734, 736.

The significance of the burden on M cClure is further reduced by the fact that it falls evenly on all political groups. The Supreme Court has said that review of election regulations will be far sharper if there is discrimination against certain distinct political groups. See, e.g. , Anderson v. Celebrezze , 460 U.S. 780, 793-9 4 (1983). McClure argues that the Massachusetts schem e discriminates against unenrolled voters, but this is not so. The scheme applies evenhandedly to enrolled individuals of all parties
as well as to unenrolled individuals. All candidates are banned fromrunning for office using one enrollment status if they have heldsome other enrollment status for the ninety days before the primary filin g de adlines. The rule thus equally burdens-14-

Repu blicans, Democrats, and independents. If anything, the laws give unenrolled voters more rights than other voters by permitting them to vote in any party's primary (at least if they are willing to change designations); individuals enrolled in a party cannot

v ote in a different party's primary unless they changed their enrollment more than twenty days before the primary. Mass. Gen. Laws ch. 53, § 38.

McClure also argues that the election laws discriminate against individuals running for in-state as opposed to state-wide andfederal offices, because the filing deadline for in-state offices is one week earlier than the filing deadlines for other offices. Thus the presidential primaries occurred within the ninety-dayperiod for in-state offices but not fo r stat e-wide or federal offices. It is not rational to infer from this fact an intent on the part of a state to discriminate against potential instate officials as a group while favoring potential state-wide and federal officials. No evident reason for an inference of such discrimination exists. At any rate, the defendants give entirely legitimate reasons for the different deadlines. Candidates for state-wide and federal offices generally have higher si gnatu re requirements to get on the ballot than candidates for in-state offices. See Mass. Gen. Laws ch. 53, § 6. Also, administratively, it makes more sense for election officials to have two different-15-

deadl ines as opposed to one, to avoid an excessive workload. We see no invidious discrimination here.

Having found that the laws place little burden on McClure, we weigh that burden against the s tate 's regulatory interests in utilizing its scheme. The defendants point to the state interests articulated in Storer , which were c onside red "compelling" in the context of that case. See Storer , 415 U.S. at 736. Those interests included preventing "splintered parties" and "unrestrained factionalism" and protecting "the stability of [the state's] political system." Id. As Storer explained, the statute "protects the direct primary process by refusing to recognize independent candidates who do not make early plans to leave a party andtake the alternative course to the ballot. I t wor ks against independent candidacies prompted by short-range political goals, pique, or personal quarrel. It is also a substantial barrier to a partyfielding an 'independent' candidate to capture and bleed off votes in the general election that might well go to another party." Id. at 735.

McC lure's chief argument is that Storer must b e distinguishedbecause of the state' s pe culiar scheme as to primaries. McClure admits that the Massachusetts provision barring candidates from running as independents if they have been enrolled
as members of other parties within ninety days of the filing deadline, Mass. Gen. Laws ch. 53, § 6, is very similar to (and in-16-

fact much less stringent than) the provision at issue in Storer . However, he challenges the wayhe became enrolled, by voting in the Massachusetts presidential primary, pursuant to Massachusetts Ge neral Laws chapter 53, section 37. He argues that people like him, who were enrolled in a party only through v ot ing in a presidential primary and who were enrolled for a very short period of time, cannot constitutionally be disqualified from being placed
on the ballot as independents because the state has no important interest in disqualifying such people.

McClure assert s t hat many of the interests at play in Storer do not apply to his case because the enrollment requirements here only apply to presidential primaries, and McClure is seeking to run in a state race. Thus, the concern in Sto rer about soreloser candidates who run as independents in order to bring intrapartydisputes outside of the par ty is not present in his case. McClure also argues that the fact that Massachusett s only forces unenrolledvoters who vote in presidential primaries, and not other sorts of primaries, to affiliate with a party, and that even when such affiliation is forced, it need only be very brie f bec ause a voter (like McClure) can immediately unenroll, shows that the state interest in closing primaries to non-affiliates is weak. McClure notes that the Massachusetts Supreme Judicial Court has stated that the Massachusetts primary scheme "blur[s] any meaningful distinction between open and closed primaries." Metros v. Sec'y of-17-

the Commonwealth , 484 N.E.2d 1015, 1021 n.9 (Mass. 1985)(quoting Langone v. Sec'y of the Commonwealth , 446 N.E.2d 43, 47 (Mass. 1983)) (internal quotation marks omitted).

This case is not precisely on all fours with Storer : the state interests at play in the Massachusetts scheme are far weaker than the state interests at play in the California scheme at issue in Storer . Concerns about sore losers and short-term candidacies motivated by intra-party quarrel are not particularly well served by this scheme. Still, the scheme does help serve so me other important state interests. It provides some assurance that unenrolledcandidates actually are independent of party affiliations. Also, like the law upheld in Storer , it forces potential candidates for office to think ahead be fore t he filing dea dline, thus weeding out frivolous candidacies and onl y permitting serious candidates to go forward.

It is true that th ese state interests would be served
more strongly by a scheme which made all primaries truly closed (thus forcing all primary voters to have prior enrollment in the party) and which disallowed all voters in such truly closed primaries from running for office under another party's banner or
as an unenrolled candidate. The state's 1994 switch from a scheme that required party affiliation from unenrolled voters for voting in all primaries to a scheme that required affiliation only for voting in presidential primaries reflected a move towards the-18-

opening up of the primary system to independent voters. The purpose seems to have been to increase voter participation as a whole i n those el ectoral contests. See 1993 Mass. Acts ch. 475 (one key purpose of the emergency bill in which the 1994 amendments
were embedded was to "increase electoral participation in the commonwealth").

But the state had an important reason for retaining the enrollment requirement for presidential primaries: it was trying to
serve the will of the parties themselves. The Democratic Party of the United States has a charter provision stating that delegates to the p arty 's national convention must be chosen through processes which "restrict participati on to Democrats only." The Charter & The Bylaws of the Democratic Party of the United States, art. 2, § 4(e). No party has ch allenged the enrollment requirement for presidential party primaries since the 1994 amendment. States generallymust respect the wishes of parties about who should be includedin their own primaries, see Jones , 530 U.S. at 575; Tashjian , 479 U.S. at 214-16; Cool Moose Party , 183 F.3d at 85, so clearly acceding to these wishes constitutes an important state interest.

As well, the state coul d easily conclude that presidential primaries were different from othe r types of primaries; these types of primaries couldjustifiably be thought of as much more susceptible to inundation from non-affiliated voters-19-

than other primaries because their turnout tends to be so much higher and the interest that they inspire so much broader. Further, there is less need to open these presidential primaries in order to encourage voter participation.

The state (again reflecting the interests of the two political parties) can thus have a strong interest in trying to curb the impact of non-affiliated voters on a party presidential primary. See Jones , 530 U.S. at 581-82 (law fo rcing part ies to open primaries to all voters was unco nstitutional because it "adulterat[ed]" their candidate selection process); Rosario v. Rockefeller , 410 U.S. 752, 760-62 (1973 ) ( upholding statute designedto prevent inter-party raiding in primaries). Forcing presidential primaryvoters to enroll in the party ameliorated this potential problem. Disqualification from getting on the ballot as
an independent is only a small piece of the disincentive scheme that is ope rating. For example, while McClure immediately disaffili atedf rom the Democratic party, many voters do not; the enrollment thus has the effect of making it more difficult for voters to vote in any primary involving another party during the next election cycle. Thus, even if the state chose, as it did in 1994, to open up other primaries, its interest in moving incrementallyand not opening presidential primaries is a s trong
one. It is sufficient to survive the level of scrutiny we apply under Timmons .-20- McClu re 's final argument is that there were various alternative ways in which the state could have tailored its scheme to achieve the same ends wit h l ess of an infringement on his interests. For example, the state could have pushed back the filing deadline for in-s tate o ffices roughly a week, thus moving the presidential primaries out of the ninety-day window. But our review here is far from strict scrutiny and we will not speculate
as to all of the other conceivable ways in which the state could have set up its framework. It is en ough that the existing framework serves the significant state interests noted above.

We hold tha t th e state interests in this statutory framework outweigh the infringement on McClure's rights. Because
we resolve the case on these grounds, we need not reach the state's argument that McClure's delay in prosecuting this appeal renders it impracticable to fashion appropriate, non-disruptive relief. IV. The district court's denial of a preliminary injunction and dismissal of the claim are affirmed .