1 GLD
- 247 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 12

- 2551

___________ IRVING COURTLEY JONES , Appellant

v. CITY OF PHILADELPHIA VOTER REGISTRATION; COMMONWEALTH OF PENNSYLVANIA OFFICE OF ATTORNEY G ENERAL

____________________________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C. Civil No. 2

- 12

- cv - 02331 ) District Judge: Honorable J

. William Ditter , Jr.

____________________________________ Sub mitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 August 2, 2012 Before: FUENTES, GREENAWAY, JR. and BARRY , Circuit Judges (Opinion filed: August 29, 2012 )

_________ OPINION

_________ PER CURIAM2 Irving C. Jones app eals , pro se , from the District Court’s order dismissing his complaint and amended complaint pursuant to 28 U.S.C. § 1915(e)(2)(B) (ii) . For the reasons set forth below, we will affirm.
I.
Jones allege d in his complain t that he was denied the right to vote in Pennsylvania’s April 2012 primary election. Jones is a member of the Communist Party, which Jones concede d does not utilize primary election s to select its nominees for general election s . Accordingly , in a primary election like the one in April , Jone s only voted on bond issues and ballot questions. T here were no such bond issues or ballot questions on the April 2012 ballot . Nonetheless, Jones went to his local polling place intending to cast
a vote affirmatively signifying that he supported no candi date of the two major parties

. The officials at the polling place attempted to set up a voting machine to record Jones’s

“ non - vote , ” but they were unable to do so . The officials then considered whether to allow him to cast a paper ballot . However, after speaking with someone in technical support , they ultimately did not permit him to cast a vote.
Jones sought an order requiring the Commonwealth to provide a way for “non
votes ” such as his to be registered. In the alternative, he sought an order requir ing Pennsylvania to conduct open primaries. He also requested an end to Pennsylvania’s voter identification law , which he descr ibed as “unnecessary and intimidat ing.”3 After granting Jones’s motion to proceed in forma pauperis , the District Court screened his complaint for legal sufficiency and dismissed it under 28 U.S.C. § 1915(e)(2) (B) (ii) for failure to state a claim upon which relief can be granted. Jones timely appealed.
II. We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District Court’s sua sponte dismissal under 28 U.S.C. § 1915(e)(2) (B) (ii)

. Allah v. Seiverling , 229 F.3d 220, 223 (3d Cir. 2000). The legal standard for dismissing a complaint for failure to state a claim under § 1915(e)(2) (B) (ii) is the same as that for dismissing a complaint pursuant to Fed. R. Civ. P. 12(b)(6). See id

. “ To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to

‘ state a claim to relief that is plau sible on its face .’” Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly
III. , 550 U.S. 544, 570 (2007))

.

We agree with the District Court that Jones failed to state a claim based on the alleged denial of his right to vote in the April 2012 primary election

. 1

1 Jones invoked the Voting Rights Act and the 15th Ame ndment as the basis for his lawsuit. Section 2 of the Voting Rights Act, which was enacted pursuant to the enforcement powers of the 15th Amendment, prohibits denial or abridgement of the right to vote “on account of race or color” or on the basis that a person is a “member of a language minority group” 42 U.S.C. §§ 1973(a), 19 73 b(f)(2); see also Ortiz v. Ci ty of Phila. Office of City Comm’ rs Voter Registration Div. , 28 F.3d 306, 309 (3d Cir. 1994)

. Although Jones state d that he is African American, he h as not alleged that he was denied Jones is not a4 member of a political part y that selects its nominees by primary election in Pennsylvania. 2 He contends that he is nonetheless entitled to vote in the primary elections that select the candidates for other parties. Thi s view has been consistently rejected by t he Supr eme Court, which has concluded that “ nonparty members ’ keen desire to partic ipate in selection of the party’ s nominee

. . . ‘is overborne by the countervailing and legitimate right of the party to determine its own membership qualifications .’” Cal. Democratic Party v. Jones , 530 U.S. 567, 583

- 84 (2000) (quoting Tashjian v. Republican Party of Conn. , 479 U.S. 208, 216 n.6 (1986) ); see also Clingman
v. Beaver Of course, Jones does not actually want to help another political part y select its nominees for the general election. Rather, he desires to have the right to register a protest
vote conveying that he “did not wish to vote for any candidate of either party

. ” H owever,

as the D istrict Court correctly observed, the function of the election is to winnow out , 544 U.S. 581, 592

- 97 (2005)

.

the right to vote based on his race. Construing his pro se complaint liberally, the District Court proceeded to analyze his claims as brought under 42 U.S.C. § 1983 to enforce his right to vote or right to political expre ssion under the First and Fourteenth Amendments, and we will do the same

. 2 As we discussed in Ro gers v. Corbett , 468 F.3d 188, 190

- 91 (3d Cir. 2006), Pennsylvania utilizes a two

- tiered approach for nominating candidates for general election. Under this system, “major” parties in Pennsylvania

— in effect , only the Democrat ic and Republican parties

— nominate their candidates for the general election by way of a primary election, and “minor” parties, other political bodies, and independent candidates place nam es on the general election ballot by nomination petitions. Id. (citing 25 P a . S tat

. Ann. §§ 2831, 2862, 2872.2 & 2911). Pennsylvania’s primary elections are “closed” primaries in that a person who is not a member of a party is not entitled to vote in the primary election of such a party. 25 P a . S tat

. Ann. §§ 2812 & 2832.5 candidates, not to provide Jones a forum for expressing his disapproval of the major party candidates

. See Burdick v. Takushi , 504 U.S. 428, 438 (1992) ; see also id.

W e also agree that Jones lacks standing to challenge Pennsylvania’s voter identification law. at 441 ( r ejecting a challenge to a ban on write

- in voting as “ nothing more than the insistence that the State record, count, and publish individual protests against the election system or
the choices presented on the ballot” )

. Accordingly, we agree with the Distri ct Court that Jones has no constitutional right to affirmatively vote for “no candidate” in the party primaries for which he is not a party member.

See Lujan v . Defenders of Wildlife , 504 U.S. 555, 560 (1992). His complaint indicated that he already possesses state

- issued identification. And he has not alleged that he has been or will be denied the right to vote under that law , or that he has otherwise suffere d any cognizable injury

. 3
IV. Accordingly, because this appeal presents no substantial question, we will summarily affirm the judgment of the District Court. See

3 We agree with the District Court that further amendment of Jones’s complaint would be futile. See Grayson v. Mayview State Hosp. , 293 F.3d 103, 113, 14 (3d Cir. 2002). Third C ircuit LAR 27.4 and
I.O.P. 10.6