386 F.

3d 36

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.
No. 04-1803.

United States Court of Appeals, First Circuit.

Heard October 7, 2004.
Decided October 8, 2004.

Appeal from the United States District Court for the District of
Massachusetts, Richard G. Stearns, J.
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.
Before LYNCH, Circuit Judge, STAHL, Senior Circuit Judge, LIPEZ,
Circuit Judge.
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
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.
4

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 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.
6

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 ninety-day 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
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 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.

10

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

11

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

12

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.

13

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 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.
14

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.

15

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, 94 S.Ct. 1274,
39 L.Ed.2d 714 (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, 94 S.Ct. 1274. 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.

16

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 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.

17

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.
18

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.

19

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, 117 S.Ct. 1364, 137 L.Ed.2d 589
(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, 117 S.Ct. 1364
(quoting Burdick v. Takushi, 504 U.S. 428, 434, 112 S.Ct. 2059, 119 L.Ed.2d
245 (1992)) (citations omitted).

20

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.

21

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 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, 120 S.Ct. 2402, 147 L.Ed.2d 502 (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,
120 S.Ct. 2402; Tashjian v. Republican Party of Conn., 479 U.S. 208, 214-16,
107 S.Ct. 544, 93 L.Ed.2d 514 (1986); Cool Moose Party v. Rhode Island, 183
F.3d 80, 85 (1st Cir.1999).
22

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 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.

23

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, 94 S.Ct. 1274.

24

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, 79394, 103 S.Ct. 1564, 75 L.Ed.2d 547 (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 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.
25

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 in-state 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 deadlines as opposed to one, to
avoid an excessive workload. We see no invidious discrimination here.

26

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,
94 S.Ct. 1274. 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, 94 S.Ct. 1274.

27

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 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.
28

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
intra-party 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 the Commonwealth, 396 Mass. 156, 484 N.E.2d
1015, 1021 n. 9 (1985)(quoting Langone v. Sec'y of the Commonwealth, 388
Mass. 185, 446 N.E.2d 43, 47 (1983)) (internal quotation marks omitted).

29

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.

30

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 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").
31

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, 120
S.Ct. 2402; Tashjian, 479 U.S. at 214-16, 107 S.Ct. 544; Cool Moose Party,
183 F.3d at 85, so clearly acceding to these wishes constitutes an important
state interest.

32

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 nonaffiliated voters 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.

33

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, 120 S.Ct. 2402 (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, 93 S.Ct. 1245, 36 L.Ed.2d 1 (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.

34

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.

35

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, nondisruptive relief.

IV.
36

The district court's denial of a preliminary injunction and dismissal of the claim
are affirmed.

Notes:
1

McClure'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

A 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