BOGGS, Circuit Judge.
Appellants are the Libertarian Party of Kentucky, the Libertarian National Committee, the Constitution Party of Kentucky, and Ken Moellman, Jr., an individual voter and former Libertarian Party candidate for Kentucky state office. The gravamen of appellants' complaint is that Kentucky law unconstitutionally burdens appellants' First and Fourteenth Amendment rights to freedom of political association and equal protection by categorizing the Libertarian Party and Constitution Party as "political groups," which must petition to list their candidates for state and local office on election ballots, rather than as "political parties" or "political organizations," which enjoy "blanket" ballot access for all the candidates they nominate. The district court concluded that the Commonwealth of Kentucky's three-tiered ballot-access scheme was a constitutional means of exercising the Commonwealth's power to regulate elections. We affirm.
The Commonwealth of Kentucky classifies a political association as (1) a "political party" if it received at least twenty percent of the total vote cast in the last presidential election, (2) a "political organization" if it received at least two percent of the vote of the state in the last presidential election, or (3) a "political group" if it fails to qualify as a "political party" or a "political organization." Ky. Rev. Stat. § 118.015. Political candidates who are members of a political party or political organization may gain ballot access by winning their party's nomination at a convention or in a primary election. Id. §§ 118.305, .325, .105. Members of a political group, on the other hand, must obtain voters' signatures on a qualifying petition in order to gain ballot access. Id. § 118.305(1)(d). The signature requirement is 5,000 for a statewide office; 400 for the United States House of Representatives; 100 for a county officer, member of the Kentucky General Assembly, or Commonwealth's Attorney; and twenty-five or fewer for various other local offices.
Appellants' argument is essentially this: the two-percent requirement for blanket party access to the general-election ballot is "impossible, or virtually impossible" to satisfy, and the alternative means of fielding candidates by petition is unconstitutionally burdensome — not as applied to any individual candidate for a specific office, but rather as applied to the Libertarian Party and Constitution Party as political associations, because these associations must incur high costs of gathering and filing petitions in order to field a slate of candidates for state and local office. Appellants' Br. 11. Appellants argue that by allowing political parties and organizations blanket ballot access without the need for petitioning, and by requiring groups like the Libertarian Party and Constitution Party to incur heavy burdens by filing petitions, the Commonwealth's ballot-access laws deny appellants equal protection and "appear designed" to "keep candidates other than the Democrat and Republican candidates off the ballot." Id. at 23. Appellants challenge the Commonwealth's laws "both facially and as applied," id. at 29, and appellants' arguments "have characteristics of as-applied and facial challenges." Green Party of Tenn. v. Hargett, 791 F.3d 684, 692 (6th Cir. 2015) (citing John Doe No. 1 v. Reed, 561 U.S. 186, 194, 130 S.Ct. 2811, 177 L.Ed.2d 493 (2010)).
We have previously held that the 5,000-signature requirement to petition for statewide-office ballot access is consistent with the Equal Protection Clause. Anderson v. Mills, 664 F.2d 600, 606-07 (6th Cir. 1981). The Eastern District of Kentucky has also upheld the 5,000-signature requirement in a challenge under the First and Fourteenth Amendments involving appellant Libertarian Party of Kentucky. Libertarian Party v. Davis, 601 F.Supp. 522, 523-25 (E.D. Ky. 1985). Both cases involved challenges arising from the denial of ballot access to specific candidates. We have not yet, however, evaluated the constitutionality of the two-percent requirement for blanket party access to the general-election ballot under either the First Amendment or the Fourteenth Amendment, nor have we evaluated the constitutionality of the petitioning requirements as applied to a political association as a whole.
The United States Supreme Court, in Anderson v. Celebrezze, 460 U.S. 780, 788-89, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), and Burdick v. Takushi, 504 U.S. 428, 434, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992), established a three-step framework for evaluating state restrictions on ballot access. The first step of Anderson-Burdick is to consider the "character and magnitude" of the restriction: "severe" restrictions are subject to heightened scrutiny, "minimally burdensome" restrictions are subject to rational-basis review, and regulations falling in the middle warrant a "flexible analysis" that weighs the state's interests and chosen means of pursuing them against the burden of the restriction. Green Party of Tenn. v. Hargett, 767 F.3d 533, 544 (6th Cir. 2014) (citing Anderson and Burdick). The second step is to "identify and evaluate" the state's interests and justifications for its restrictions. Id. at 546. The third step is to assess the "legitimacy and strength" of those interests to determine whether the restrictions are constitutional burdens on ballot access. Ibid.
At the first step, we hold that the burden of the Commonwealth's ballot-access restrictions on appellants is not "severe." The hallmark of a severe burden is exclusion or virtual exclusion from the ballot. Compare Lubin v. Panish, 415 U.S. 709, 719, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974) (striking $701.60 filing fee for ballot-access petition because it excluded indigent candidates from running for office with no reasonable alternative means of access), and Williams v. Rhodes, 393 U.S. 23, 24, 35, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) (striking "series of election laws," including requirement that minor political parties file a petition signed by the number of voters equal to fifteen percent of the votes cast in the preceding gubernatorial election, because it "made it virtually impossible" for any party other than the Republican Party and Democratic Party to gain ballot access), with Jenness v. Fortson, 403 U.S. 431, 438, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1970) (upholding a requirement that five percent of all registered Georgia voters sign candidate's petition for ballot access and noting that even serious restrictions on third parties' ballot access are generally upheld unless they truly operate to "freeze the political status quo").
The burden of the Commonwealth's ballot-access scheme on appellants thus falls well short of "severe": while the blanket-access requirement of gaining two percent of the votes in a presidential election may impose some financial costs on the Libertarian Party and the Constitution Party to the extent that meeting the threshold may require greater campaign efforts, those costs certainly do not constitute exclusion or virtual exclusion from the ballot. After all, the requirement that a minor party secure two percent of the actual votes cast in a presidential election is not substantially different from a requirement that a party secure signatures of two percent of the registered voters in a jurisdiction: indeed, the absolute number of votes required (35,944 out of 1,797,212 cast in the 2012 election, for example) is significantly lower than the number of signatures that would be required under a regulation that required the signatures of two percent of registered voters (65,224 out of 3,261,183) — and even such a burden would fall well below the five-percent requirement that the Supreme Court upheld in Jenness, 403 U.S. at 442, 91 S.Ct. 1970. See State Bd. of Elections, Commonwealth of Ky., Official 2012 General Election Results (2012), http://elect.ky.gov/SiteCollectionDocuments/Election%20Results/2010-2019/2012/2012genresults.pdf; State Bd. of Elections, Commonwealth of Ky., Voter Registration Statistics Report (2016) (August report by district), http://elect.ky.gov/statistics/Documents/voterstatsdistrict-20160811-031801.pdf.
Further, the two-percent requirement for blanket ballot access cannot constitute exclusion or virtual exclusion because blanket access is only one of two ballot-access mechanisms. The alternative option of filing petitions for each candidate's candidacy
Although appellants argue that meeting the two-percent requirement "is impossible, or virtually impossible," Appellants' Br. 11, third parties in Kentucky have done exactly that several times in recent election cycles: the American Party in 1968, the Anderson Coalition in 1980, and the Reform Party in 1996. Appellants contend that "if [a] party is only interested in state politics," it is "impossible" for such a party to gain blanket ballot access. Appellants' Br. 12 (citing the Progressive Party of Vermont, which has eight state legislators but does not field any presidential candidates, as an example of the sort of political group that would find it very difficult to gain blanket ballot access under a statute like Kentucky's). But while that argument may have some force, since a party that failed ever to field a presidential candidate would be unable to gain two percent of the votes in a presidential election, the hypothetical burden of Kentucky's regulation on a hypothetical party has no bearing on appellants, and we do not decide how severe, if at all, such a burden would be.
Moreover, appellants have not demonstrated that the "combined effect," Priest, 970 F.Supp. at 699, of the Kentucky regulation is to impose a severe burden on their access to the ballot. Indeed, the Libertarian Party has satisfied the petitioning requirement and fielded a candidate for President of the United States in every presidential election since 1988. Even the Constitution Party — which boasts fewer than 400 registered voters in Kentucky — has placed a presidential candidate on the ballot in 2000, 2004, and 2008. See State Bd. of Elections, Commonwealth of Ky., Voter Registration Statistics Report (2016) (August report by district), http://elect.ky.gov/statistics/Documents/voterstatsdistrict-20160811-031801.pdf. Unlike the pre-primary filing deadlines in Hooks, 121 F.3d at 880, McLain, 637 F.2d at 1163-64, and Priest, 970 F.Supp. at 698, Kentucky allows political groups to file petitions for candidacy three months before the general election, and provides such groups approximately nine months to gather a quantity of signatures that amounts in almost all cases to less than 0.3% of the number of registered voters in the political unit that corresponds to each office. Ky. Rev. Stat. §§ 118.365(5), .315(2).
Appellants further argue that the burden of the regulation is severe because of the cost on the party of filing separate petitions for each office for which the party wishes to field a candidate. Appellants argue that if they wished to field a candidate for every state and county office over a four-year term,
Having concluded that the burden on appellants is not so "severe" as to warrant strict scrutiny, we also conclude that the burden is not so "minimal" as to warrant rational basis review. Green Party of Tenn. v. Hargett, 767 F.3d at 546 (citing Burdick, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245). A burden is minimal when it "in no way limit[s] a political party's access to the ballot." Libertarian Party of Ohio v. Blackwell, 462 F.3d at 587 (citing Timmons v. Twin Cities Area New Party, 520 U.S. 351, 354, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997) (holding "minimal" any burden imposed by a regulation that prohibited an individual from appearing on the ballot as the candidate for more than one party), and Clingman v. Beaver, 544 U.S. 581, 593, 125 S.Ct. 2029, 161 L.Ed.2d 920 (2005) (upholding statute allowing only registered members of a party and registered independents to vote in a primary election)). Here, the burden of the Kentucky regulation on appellants is at least somewhat greater than minimal because appellants must either earn sufficient votes in a presidential election to gain political-organization status, presumably at more-than-minimal cost in terms of time, effort, and money, or engage in petitioning that is not required of major political parties, with the result that minor parties will necessarily spend time, effort, and money gathering signatures that they could otherwise spend campaigning for candidates. To the extent that a minor party therefore fields fewer candidates or earns fewer votes than it would if it enjoyed blanket ballot access without having to earn it, the Kentucky regulation imposes a more-than-minimal burden. Since the Kentucky regulation thus falls somewhere "in between" minimal and severe, Green Party of Tenn. v. Hargett, 767 F.3d at 546, we will next engage in the "flexible analysis," Anderson v. Celebrezze, 460 U.S. at 789, 103 S.Ct. 1564, that the district court rightly employed.
At the second step of Anderson/Burdick, we hold that Kentucky has an important interest in ensuring that candidates demonstrate a "significant modicum of support," Jenness, 403 U.S. at 442, 91 S.Ct. 1970, before gaining access to the ballot, primarily in order to avoid voter confusion, ballot overcrowding, and frivolous candidacies.
Under Article I, Section 4, of the United States Constitution, it falls to the states to prescribe the "times, places and manner of holding Elections," subject to some federal oversight. U.S. Const. art. I, § 4, cl. 1. The Supreme Court has held that "as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some order, rather than chaos, is to accompany the democratic process." Storer, 415 U.S. at 730, 94 S.Ct. 1274 (finding a significant state interest in avoiding ballot confusion to be a valid justification for requiring independent candidates to be politically disaffiliated with other
The Commonwealth of Kentucky has asserted interests in avoiding the voter confusion, ballot overcrowding, and frivolous candidacies that would likely arise in increasing frequency as the number of parties with blanket ballot access increased. The district court rightly noted that the privilege of blanket access is significant, for any party with blanket access may field as many candidates as it nominates to every state and local election for a four-year term, adding a potentially great number of candidates to ballots statewide. The interests cited are central to the regulation of elections: for example, much of the controversy attendant to the 2000 presidential election in Florida was occasioned by the fact that Florida permitted ten parties to be included on the presidential ballot, leading to a variety of confusing and unorthodox ballot designs that would not have been necessary with a smaller number of parties. Thus, the Commonwealth may sensibly require the kind of broad-level support that is measured by a political group's ability to garner two percent of the vote in a presidential election.
Finally, at step three of Anderson/Burdick, we hold that the Commonwealth of Kentucky's legitimate interests in regulating elections are sufficiently strong to justify its chosen means of achieving them, even if less restrictive means might be available. Appellants contend that rather than requiring political groups to obtain two percent of the votes in a presidential election in order to enjoy blanket ballot access, Kentucky should alternatively allow mid-term or gubernatorial election results to qualify a political association as a political party or organization. Appellants' Br. 13. Our job, however, is not to second-guess the legislative decisions of the Kentucky General Assembly but only to evaluate whether those decisions pass constitutional muster, and for the reasons discussed above in Parts II-A and II-B, the strength of Kentucky's interests in avoiding voter confusion, ballot overcrowding, and frivolous candidacies outweighs the modest burden of the ballot-access regulations on appellants.
As for the petitioning requirement, appellants argue that they should be able to file a single petition rather than separate petitions for each candidate. While such a scheme would almost certainly require less time and effort of appellants if they chose to field many candidates in a given election year, it is not the system that Kentucky has chosen and that we now uphold.
We also affirm the district court's grant of Attorney General Beshear's motion to dismiss. The district court properly held that the Attorney General was not a proper defendant because the Attorney General's general enforcement powers did not provide a basis on which to grant appellants relief.
Accordingly, the district court's judgment is AFFIRMED.