United States Court of Appeals

For the First Circuit

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. Arguin, Assistant Attorney General, with whom

Thomas F. Reilly, Attorney General, was on brief, for appellee

William F. Galvin.

Brian W. Riley, Lauren F. Goldberg, and Kopelman and

Paige, P.C. on brief for appellee Elizabeth L. Delaney. 

October 8, 2004
1McClure's wife, Martha McClure, was also named as a plaintiff

in the suit and submitted an affidavit. She alleges that she was,

by virtue of her husband's exclusion, prohibited from voting 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. 

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LYNCH, Circuit Judge. Richard McClure filed suit against

the Secretary of the Commonwealth of Massachusetts and others,

alleging an interference with both his right to vote and his right

to run for political office 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 Massachusetts. "Unenrolled" means not

affiliated with any political party. The town clerk refused to

issue the certification because McClure had voted in the Democratic

party presidential primary on March 2, 2004. Pursuant to a state

statute, Mass. Gen. Laws ch. 53, § 37, such voting automatically

enrolled McClure 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 political party for the ninety days

preceding the filing deadline for primaries for candidates running

for state senate. As a result, McClure's temporary enrollment

automatically disqualified him from running for the state senate as
-3-

an independent because the deadline for filing an intent to run for

that office was less than ninety days after the date of the

Democratic primary in which he voted. 

The district court, after an expedited hearing, denied

McClure's motion for a preliminary injunction and dismissed his

claim on 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 certificate confirming this

unenrolled status is obtained from the registrar of voters of the

town where the would-be candidate is a registered voter. Such a

certification will not be granted "to any such candidate who shall

have been an enrolled member 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-eight 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
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ninety days before the filing deadline for that primary, which is

the "last Tuesday in May" for candidates for state senate. The

beginning date of the nonenrollment period for independent

candidates 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 May thus acts 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, and May

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., governor) 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 ninetyday period thus did not include the presidential primaries for

individuals running for these offices. 

A similar 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
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nomination he seeks throughout the ninety days prior to the last

day herein provided for filing nomination papers [for the primary]

with the state secretary. . . ."). In fact, since section 6

incorporates section 48 by reference, the beginning date of the

period within which candidates running for a given office under a

party banner must have been a member of that party is the exact

same date as the beginning date of the period within which

unenrolled candidates must not have been enrolled as a member of

any party. For state senate candidates, this key date is ninety

days prior to the last Tuesday in May. See Mass. Gen. Laws ch. 53,

§ 48. 

Massachusetts General Laws chapter 53, section 37 as

currently in effect states that voters who are unenrolled at the

time of appearing to vote in a primary may generally vote in any

party's primary. Upon appearing to vote in a primary, a ballot

clerk asks unenrolled voters in which primary they "desire[] to

vote"; they may 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 board of registrars of
2A recent amendment to section 37 will take effect on October

13, 2004, fully opening up even the presidential primaries to

unenrolled voters. Unenrolled voters will no longer have to enroll

in a party, even 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 1994 amendment to chapter 53, section 37, all

primary voting by unenrolled voters (not simply such voting in

presidential primaries) automatically enrolled previously

unenrolled voters 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

unenrolled voter 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

him in which party's presidential primary he would like 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

did not want to enroll in the Democratic party; the clerk told him

that he would not be enrolled in the Democratic party and handed

him a "certificate" indicating that he was "establishing [his]

voter status as 'unenrolled.'" After voting, a different clerk (an

"exit clerk") took this certificate from McClure. Elizabeth

Delaney, the town clerk of the Town of Chelmsford, stated, in her

affidavit, that the effect of this certificate was merely to

immediately change McClure's enrollment status back to

"unenrolled." However, he was briefly enrolled as a Democrat. 

On March 25, 2004, McClure, having 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-

him the previous day (March 24) and told him over the phone that

she would not be able to grant such a certificate because McClure

voted in 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,

and McClure should have called her as chief election official if he

had any questions or doubts. On March 26, 2004, the town clerk

formally and in writing denied McClure's certificate. 

II.

McClure filed suit in federal district court in

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

and association 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 alleged both 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

granted McClure's motion for an expedited hearing on his motion for

a preliminary injunction, and then denied the preliminary

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. Brown, 415 U.S. 724

(1974), held 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 preceded that general election. Storer,

415 U.S. at 728. The district court held that the scheme at issue

in Storer was identical in its relevant 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 attempt 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 lesser

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

and the dismissal of the claim to this court. McClure has not,

however, raised on appeal his claims 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

preliminary injunction 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 Cities

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 consider 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 here 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 to make a

difficult choice between two crucial rights, voting and running for

office, because the scheme does not allow him, within a ninety-day
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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 Party v. Jones, 530 U.S. 567, 573 n.5 (2000) ("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 instead an associational right of a political

party to 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. at 575; Tashjian v.

Republican Party of Conn., 479 U.S. 208, 214-16 (1986); Cool Moose

Party v. Rhode Island, 183 F.3d 80, 85 (1st Cir. 1999). 

The Massachusetts scheme, of course, does not operate to

exclude existing Democrats from voting in the presidential primary

and then 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

(which is surely an important political right) and voting in
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another organization's primary (which is not a constitutional right

at all). The state places no great burden on McClure when it asks

him to refrain 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 held that a potential

candidate was not significantly burdened by a statute that forced

him to think ahead one full year before becoming an independent

candidate. 415 U.S. at 734, 736.

The significance of the burden on McClure 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,

793-94 (1983). McClure argues that the Massachusetts scheme

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

from running for office using one enrollment status if they have

held some other enrollment status for the ninety days before the

primary filing deadlines. The rule thus equally burdens
-14-

Republicans, 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

vote 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

and federal 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-day period for in-state offices but not for state-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 signature

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
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deadlines 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 state's regulatory

interests in utilizing its scheme. The defendants point to the

state interests articulated in Storer, which were considered

"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

and take the alternative course to the ballot. It works against

independent candidacies prompted by short-range political goals,

pique, or personal quarrel. It is also a substantial barrier to a

party fielding an 'independent' candidate to capture and bleed off

votes in the general election that might well go to another party."

Id. at 735. 

McClure's chief argument is that Storer must be

distinguished because of the state's peculiar 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 way he became enrolled, by voting in the

Massachusetts presidential primary, pursuant to Massachusetts

General Laws chapter 53, section 37. He argues that people like

him, who were enrolled in a party only through voting 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 asserts that 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 Storer about sore

loser candidates who run as independents in order to bring intraparty disputes outside of the party is not present in his case.

McClure also argues that the fact that Massachusetts only forces

unenrolled voters 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 brief because 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
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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 some other

important state interests. It provides some assurance that

unenrolled candidates actually are independent of party

affiliations. Also, like the law upheld in Storer, it forces

potential candidates for office to think ahead before the filing

deadline, thus weeding out frivolous candidacies and only

permitting serious candidates to go forward.

It is true that these 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
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opening up of the primary system to independent voters. The

purpose seems to have been to increase voter participation as a

whole in those electoral 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 party's national convention must be chosen through processes

which "restrict participation to Democrats only." The Charter &

The Bylaws of the Democratic Party of the United States, art. 2, §

4(e). No party has challenged the enrollment requirement for

presidential party primaries since the 1994 amendment. States

generally must respect the wishes of parties about who should be

included in 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 could easily conclude that

presidential primaries were different from other types of

primaries; these types of primaries could justifiably 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 forcing parties to

open primaries to all voters was unconstitutional because it

"adulterat[ed]" their candidate selection process); Rosario v.

Rockefeller, 410 U.S. 752, 760-62 (1973) (upholding statute

designed to prevent inter-party raiding in primaries). Forcing

presidential primary voters 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 operating. For example, while McClure immediately

disaffiliated from 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

incrementally and not opening presidential primaries is a strong

one. It is sufficient to survive the level of scrutiny we apply

under Timmons. 
-20-

McClure's final argument is that there were various

alternative ways in which the state could have tailored its scheme

to achieve the same ends with less of an infringement on his

interests. For example, the state could have pushed back the

filing deadline for in-state offices 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 enough that the existing

framework serves the significant state interests noted above. 

We hold that the 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.