HALL, Circuit Judge:
Plaintiffs, a group of prospective political candidates, petition circulators, and voters, appeal from the May 23, 2008, order of the United States District Court for the Eastern District of New York (Garaufis, J.) awarding summary judgment to the Board of Elections in the City of New York and upholding the State's "Party Witness Rule" ("the Rule"). The Rule, contained in New York Election Law § 6-132, limits who a candidate for a political party's nomination can use to circulate so-called "designating petitions," which allow the candidate to appear on the party's primary ballot. Unless the circulator is a notary public or commissioner of deeds, the Party Witness Rule restricts designating petition circulators to "enrolled voter[s] of the same political party as the voters qualified to sign the petition," N.Y. Elec. Law § 6-132(2), the party in whose primary the candidate seeks to run. Because Plaintiffs are without a right to have non-party members participate in a political party's nomination process, the judgment of the district court is AFFIRMED.
New York enacted the Party Witness Rule in the early 1950s, apparently in response to incidents of "party raiding," whereby members of one party would actively participate in the primary of a rival party in the hope of influencing that party's candidate nomination and thus improving their own chances in the general election. (See Governor's Bill Jacket, N.Y. Laws of 1951, Ch. 351, pp. 12-13, Ex. to Pls.' Mem. of Law in Supp. of Mot. for Summ. J., Dist. Ct. Dk. No. 39.) The Rule operates as a restriction on the class of persons a potential candidate can use to circulate so-called "designating petitions," which allow the candidate to appear on a party's primary ballot.
Plaintiffs consist principally of two groups. The first, Phillip J. Smallman and John G. Serpico, are former unsuccessful
In the district court, Plaintiffs sought a declaratory judgment under 42 U.S.C. § 1983 that the Party Witness Rule violated their constitutional rights protected by the First and Fourteenth Amendments. They requested an injunction preventing the defendant New York City Board of Elections from enforcing the Rule. They claimed that the Rule restrained their ability to speak freely and to associate with others for political purposes and that the notary public exception in § 6-132(2) deprived the subscribing witness plaintiffs of equal protection under the law. Not challenged were New York Election Law §§ 6-140 and 6-142 that allow candidates to secure "independent nominations" to appear on the general election ballot, bypassing the party system entirely. Anyone may serve as a subscribing witness to an independent nomination petition so long as that person is a "duly qualified voter of the State of New York." Id. § 6-140(1)(b).
Both sides moved for summary judgment and the district court granted judgment for the Board. In so doing, it relied heavily on the United States Supreme Court's decision in New York State Board of Elections v. Lopez Torres, 552 U.S. 196, 128 S.Ct. 791, 169 L.Ed.2d 665 (2008), which reemphasized political parties' First Amendment freedom to control their own nomination process. The district court stated that the essence of Plaintiffs' complaint was "that they have been denied the opportunity to influence and meaningfully participate in the nominee-selection process in Kings County because they are not members of the Democratic Party, which is the dominant party in New York." Maslow v. Bd. of Elections, No. 06-CV-3683 (NGG), 2008 WL 2185370, at *9, 2008 U.S. Dist. LEXIS 41293, at *28 (E.D.N.Y. May 23, 2008). Given Lopez Torres and the long line of precedent that came before it, the district court concluded that Plaintiffs did not assert a cognizable injury. Id. at *9-*10, 2008 U.S. Dist. LEXIS 41293, at *28-*29. Plaintiffs appeal; for substantially the same reasons given by the district court, we affirm.
The material facts of this case are not in dispute.
All election laws impose at least some burden on the expressive and associational rights protected by the First Amendment. Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). To determine whether a particular burden rises to the level of a constitutional violation, we weigh the "character and magnitude" of a plaintiff's injury against the state's interests supporting the regulation. Id. at 434, 112 S.Ct. 2059 (citation and quotation marks omitted). The level of scrutiny we apply to the state's justification depends on the rule's effect on First Amendment rights. Id. Logically, the greater the burden, the more exacting our inquiry. Id. Where the burden on a plaintiff's First Amendment rights is trivial, a rational relationship between a legitimate state interest and the law's effect will suffice. Cf. Price v. N.Y. State Bd. of Elections, 540 F.3d 101, 109 (2d Cir.2008) (requiring laws that impose minor non-trivial burdens be reasonably tailored and justified by an important state interest).
The Party Witness Rule imposes little or no burden on Plaintiffs' First Amendment rights. Although Plaintiffs claim that the Rule operates as a restraint on political speech, at bottom they assert an associational right to have non-party members participate in party primary elections. Because political parties have a strong associational right to exclude non-members from their candidate nomination process, Plaintiffs have no constitutional right pursuant to which such participation may be effected.
The Supreme Court has emphasized—with increasing firmness—that the First Amendment guarantees a political party great leeway in governing its own affairs. See Lopez Torres, 552 U.S. at 202-03, 128 S.Ct. 791; Cal. Democratic Party v. Jones, 530 U.S. 567, 574-75, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000); Timmons v. Twin Cities Area New Party, 520 U.S. 351, 357-58, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997); Eu v. S.F. Cnty. Democratic Cent Comm., 489 U.S. 214, 224, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989); Tashjian v. Republican Party of Conn., 479 U.S. 208, 216 n. 6, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986); Democratic Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107, 122, 101 S.Ct. 1010, 67 L.Ed.2d 82 (1981); see also Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 462-63, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008) (Scalia, J., dissenting). As these cases make clear, the First Amendment affords political parties an autonomy that encompasses the right to exclude non-members from party functions, and "[i]n no area is the political association's right to exclude more important than in the process of selecting its nominee." Cal. Democratic Party, 530 U.S. at 575, 120 S.Ct. 2402.
A political party's associational right to exclude forecloses the possibility that non-party members have an independent First Amendment right to participate in party affairs. Id. at 583-84, 120 S.Ct. 2402 (citing Tashjian, 479 U.S. at 215 n. 6, 107 S.Ct. 544); see also Rosario v. Rockefeller, 410 U.S. 752, 758, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973); Nader v. Schaffer, 417 F.Supp. 837, 847 (D.Conn.1976) (three-judge panel), summarily aff'd, 429 U.S. 989, 97 S.Ct. 516, 50 L.Ed.2d 602 (1976). Specifically, the Supreme Court has stated: "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."
Here, Plaintiffs seek to open the political parties' candidate nomination process to subscribing witnesses from outside of the parties' membership. If this claim is based on their own associational rights (see Pls.-Appellants' Br. 35), it fails. The subscribing witness plaintiffs, as non-members, are in no position to assert the parties' associational rights, and are without any right of their own to exert influence over the nomination process. See Lopez Torres, 552 U.S. at 203-04, 128 S.Ct. 791; Cal. Democratic Party, 530 U.S. at 573 n. 5, 120 S.Ct. 2402. Likewise, the candidate plaintiffs are not the exclusive representatives of the political parties as a whole and cannot unilaterally exercise the parties' associational rights. Cf. Tashjian, 479 U.S. at 213-17, 107 S.Ct. 544 (concluding that a party has a fundamental associational right to invite non-members to participate in the selection of its nominees for general election).
To the extent that Plaintiffs' claim is based on the candidate plaintiffs' access to the ballot and voter plaintiffs' coadunate right to vote (see Pls.-Appellants' Br. 35-40),
The candidate plaintiffs in this case have ample access to the ballot both in the primary and general elections. New York Election Law §§ 6-140 and 6-142 provide for independent access to the general election ballot upon collection of a certain number of signatures. In Lopez Torres, the Supreme Court considered these very provisions and stated that the ballot access provided by them "easily pass[es] muster" under the relevant precedent.
Above all else, Plaintiffs attempt to transform their associational claim into a free speech claim by arguing that the circulation of designating petitions is "interactive political speech" that New York may only restrain subject to strict scrutiny. For support they rely on Buckley, 525 U.S. at 186-87, 119 S.Ct. 636, Meyer v. Grant, 486 U.S. 414, 422 & n. 5, 108 S.Ct. 1886, 100 L.Ed.2d 425 (1988), and our decision in Lerman, 232 F.3d at 146. Those cases recognize petition circulating as a form of highly protected political speech. But Plaintiffs are only restrained from engaging in speech that is inseparably bound up with the subscribing witness plaintiffs' association with a political party to which they do not belong. As Plaintiffs have no right to this association, see, e.g., Cal. Democratic Party, 530 U.S. at 575, 120 S.Ct. 2402, they have no right to engage in any speech collateral to it.
As Plaintiffs have not demonstrated any non-trivial burden to their First Amendment rights, we need not closely analyze New York's justification for the Party Witness Rule. We only note that the State has a legitimate interest in protecting its political parties from party raiding, see Rosario, 410 U.S. at 760-62, 93 S.Ct. 1245, which was clearly contemplated by members of the State Legislature when the Rule was adopted. The Party Witness Rule helps combat party raiding by denying hostile non-party elements access to one part of a political party's nomination process.
For the foregoing reasons, the decision of the district court is AFFIRMED.