Indiana Green Party v. Diego Morales

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2756
I NDIANA GREEN P ARTY , et al.,
Plaintiffs-Appellants,
v.
DIEGO M ORALES ,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:22-cv-00518 — James R. Sweeney II, Judge.
____________________
A RGUED A PRIL 10, 2024 — DECIDED A UGUST 19, 2024
____________________
Before R IPPLE, HAMILTON , and BRENNAN , Circuit Judges.
R IPPLE, Circuit Judge. Like most states, Indiana has long re-
quired candidates seeking a place on its general election ballot
to first demonstrate a significant modicum of support among
registered voters. A candidate can make such a demonstra-
tion by obtaining signatures numbering at least 2 percent of
the total votes cast in their election district in the last election
for the position of Secretary of State of Indiana. Alternatively,

-- 1 of 20 --

2 No. 23-2756
a candidate can obtain the nomination of a party that gar-
nered 2 percent of the votes cast in that election.
This case presents a challenge, under the First and Four-
teenth Amendments, to the constitutionality of that legislative
scheme. The plaintiffs contend that the number of signatures
required for candidates seeking access by petition is too high,
that the process for submitting petitions is too burdensome,
and that the deadline for submitting petitions is too early.
They also challenge Indiana law’s indexing of its party-level
access option to the results of the most recent Secretary of
State election.
The district court granted summary judgment to the de-
fendant, Indiana’s Secretary of State. We now affirm the judg-
ment of the district court. States have broad authority to im-
pose reasonable, nondiscriminatory restrictions on access to
the ballot. The restrictions challenged here easily pass the
scrutiny that the Supreme Court and this court have em-
ployed in similar cases.
I
BACKGROUND
A.
A candidate for elected office who desires to have his or
her name printed on Indiana’s general election ballot has two
options. First, the candidate can gain access by petition. Ind.
Code § 3-8-6-2. To do so, the candidate must collect, from reg-
istered voters in the election district the candidate seeks to
represent, signatures numbering 2 percent of the votes cast in
the last Secretary of State election in that election district. Ind.
Code § 3-8-6-3. A candidate seeking a statewide office in 2024,
for instance, must collect 36,943 signatures, which is the

-- 2 of 20 --

No. 23-2756 3
number of signatures equal to 2 percent of the votes cast in
the relevant election district (the state) in the 2022 election for
Secretary of State. There is no requirement that signatures be
distributed geographically; candidates can collect signatures
from anywhere in the relevant election district. The voters
must sign the petitions by hand, but the signatures need not
be notarized. Ind. Code § 3-8-6-6(b).
Candidates can begin collecting signatures once Indiana’s
Election Division has published the petition forms for the rel-
evant election. The Election Division typically publishes these
forms well in advance of the general election; for the 2024
election, it published them in the summer of 2023. Once can-
didates have collected the required signatures, they must ob-
tain a certification from the voter registration office of the
counties whose voters signed their petitions. Ind. Code
§ 3-8-6-10. The county’s voter registration office certifies
whether each of the individuals listed on the petitions is reg-
istered to vote at the address provided. Ind. Code § 3-8-6-8.
Candidates have until June 30 of the election year to submit
signed petitions to the counties for certification. Ind. Code
§ 3-8-6-10(b). After county-level certification is complete, the
petitions are forwarded to the Election Division. Ind. Code
§§ 3-8-6-8, -10(c), -10(e).
We considered the constitutionality of this petitioning
process in Hall v. Simcox, 766 F.2d 1171 (7th Cir. 1985). The
plaintiffs in that case, the Communist Party and some of its
candidates and voters, sued shortly after Indiana increased its
signature requirement from 0.5 percent to 2 percent in 1980.
They focused their challenge on the newly enacted 2 percent
signature requirement, rather than on the county-level sub-
mission requirement or the deadline for submitting petitions.

-- 3 of 20 --

4 No. 23-2756
We upheld the 2 percent signature requirement on account of
the “abundant judicial authority … for allowing states to set
even higher minimum percentages than Indiana has done.”
Id. at 1173.
The other way for a candidate to obtain a place on the gen-
eral election ballot is to obtain the nomination of a party that
is entitled to place its full slate of candidates on the general
election ballot. A party has this level of ballot access (herein-
after, “full slate access”) if its candidate garnered at least
2 percent of the votes cast in the most recent election for Sec-
retary of State of Indiana. Ind. Code § 3-10-2-15. The Republi-
can and Democratic Parties have had full slate access in all
recent election cycles, and the Libertarian Party of Indiana has
had full slate access in all election cycles since 1994. Further,
if a party’s candidate in the most recent election for Secretary
of State of Indiana received at least 10 percent of the votes cast
in that election, then Indiana funds its primary elections. Ind.
Code § 3-10-1-2. In all recent election cycles, the Republican
and Democratic Parties have obtained this level of support
and have therefore had state-funded primary elections.
If an individual does not get on the ballot through either
of these paths, the individual can become a write-in candidate
by filing a timely declaration of intent with the Election Divi-
sion. Ind. Code §§ 3-8-2-2.5, 3-8-7-30(a).1
1 Indiana added this write-in option shortly after a federal district court
held that Indiana’s ban on write-in voting violated the First and Four-
teenth Amendments. See Paul v. State of Indiana Election Bd., 743 F. Supp.
616, 626 (S.D. Ind. 1990); Ind. Pub. L. 4-1991, § 6.

-- 4 of 20 --

No. 23-2756 5
B.
The plaintiffs in the present case are the Indiana Green
Party, the Libertarian Party of Indiana, and candidates and
other individuals associated or formerly associated with those
parties. They brought this action against the Secretary of State
of Indiana in the United States District Court for the Southern
District of Indiana. They assert claims under the First Amend-
ment, as incorporated against the states by the Fourteenth
Amendment,2 as well as under the Fourteenth Amendment’s
Equal Protection Clause.
After discovery, the parties filed cross-motions for sum-
mary judgment. The plaintiffs submitted declarations from
seventeen individuals in support of their summary judgment
motion. These individuals include a former Indiana state leg-
islator, a political science professor, the current chairpersons
of the Indiana Green Party and the Libertarian Party of Indi-
ana, individuals affiliated with several independent and
third-party presidential candidacies, and other individuals fa-
miliar with Indiana’s ballot access requirements.
The district court granted summary judgment to the de-
fendant, Indiana’s Secretary of State. In its opinion explaining
that decision, the district court addressed some, but not all, of
the plaintiffs’ arguments. It concluded that, given Supreme
Court and Seventh Circuit precedent, requiring the signatures
of 2 percent of the electorate was constitutionally permissible.
It further concluded that the June 30 filing deadline for sub-
mitting signatures to the counties was also permissible, given
the Supreme Court’s decision in Jenness v. Fortson, 403 U.S.
431, 433–34, 438 (1971), which involved an earlier filing
2 See Gitlow v. New York, 268 U.S. 652, 666 (1925).

-- 5 of 20 --

6 No. 23-2756
deadline. The district court did not address the burdens cre-
ated by, or the interests served by, Indiana’s county-level sub-
mission requirement. It also did not address the plaintiffs’
challenge to Indiana’s indexing of the full slate access option
to the results of the most recent Secretary of State election.
The plaintiffs appealed.
II
DISCUSSION
We review a district court’s grant of summary judgment
de novo. Hero v. Lake Cnty. Election Bd., 42 F.4th 768, 771 (7th
Cir. 2022). Summary judgment is appropriate if the movant
“shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “Where, as here, both parties filed cross-
motions for summary judgment, all reasonable inferences are
drawn in favor of the party against whom the motion was
granted.” Gill v. Scholz, 962 F.3d 360, 363 (7th Cir. 2020).
A.
“It is well-settled that ‘[t]he impact of candidate eligibility
requirements on voters implicates basic constitutional rights’
to associate politically with like-minded voters and to cast a
meaningful vote.” Stone v. Bd. of Election Comm’rs for City of
Chicago, 750 F.3d 678, 681 (7th Cir. 2014) (quoting Anderson v.
Celebrezze, 460 U.S. 780, 786 (1983)). “[T]he constitutional right
of citizens to create and develop new political parties … de-
rives from the First and Fourteenth Amendments and ad-
vances the constitutional interest of like-minded voters to
gather in pursuit of common political ends, thus enlarging the
opportunities of all voters to express their own political pref-
erences.” Norman v. Reed, 502 U.S. 279, 288 (1992). Thus,

-- 6 of 20 --

No. 23-2756 7
“[r]estrictions upon the access of political parties to the ballot
impinge upon the rights of individuals to associate for politi-
cal purposes, as well as the rights of qualified voters to cast
their votes effectively.” Munro v. Socialist Workers Party, 479
U.S. 189, 193 (1986).
“These rights, however, are not absolute.” Libertarian Party
of Illinois v. Rednour, 108 F.3d 768, 773 (7th Cir. 1997). “States
may, and inevitably must, enact reasonable regulations of
parties, elections, and ballots to reduce election- and cam-
paign-related disorder.” Timmons v. Twin Cities Area New
Party, 520 U.S. 351, 357 (1997). Indeed, our Constitution ex-
pressly “grants to the States a broad power to prescribe the
‘Times, Places and Manner of holding Elections for Senators
and Representatives,’” and this “power is matched by state
control over the election process for state offices.” Tashjian v.
Republican Party of Connecticut, 479 U.S. 208, 217 (1986) (quot-
ing U.S. Const. art. I, § 4, cl. 1).
In evaluating restrictions on access to the ballot, we em-
ploy a fact-intensive balancing test articulated by the Court in
Anderson, and refined in Burdick v. Takushi, 504 U.S. 428 (1992).
Under that test,
[A court] must first consider the character and
magnitude of the asserted injury to the rights
protected by the First and Fourteenth Amend-
ments that the plaintiff seeks to vindicate. It
then must identify and evaluate the precise in-
terests put forward by the State as justifications
for the burden imposed by its rule. In passing
judgment, the Court must not only determine
the legitimacy and strength of each of those in-
terests, it also must consider the extent to which

-- 7 of 20 --

8 No. 23-2756
those interests make it necessary to burden the
plaintiff’s rights. Only after weighing all these
factors is the reviewing court in a position to de-
cide whether the challenged provision is uncon-
stitutional.
Anderson, 460 U.S. at 789. If the challenged provisions impose
“only ‘reasonable, nondiscriminatory restrictions’ upon the
First and Fourteenth Amendment rights of voters, ‘the State's
important regulatory interests are generally sufficient to jus-
tify’ the restrictions.” Burdick, 504 U.S. at 434 (quoting Ander-
son, 460 U.S. at 788). But if the challenged scheme imposes a
“severe” burden on First and Fourteenth Amendment rights,
the regulations are subject to strict scrutiny and may only sur-
vive if “narrowly drawn to advance a state interest of compel-
ling importance.” Burdick, 504 U.S. at 434 (quoting Norman,
502 U.S. at 289).
Because this test requires a “practical assessment of the
challenged scheme’s justifications and effects,” we must con-
sider the specific facts of the case to determine the extent of
the burdens imposed and the weight of the State’s asserted
interests. Stone, 750 F.3d at 681; see Crawford v. Marion Cnty.
Election Bd., 553 U.S. 181, 190 (2008); Gill, 962 F.3d at 364–65.
Further, in weighing the burdens against the State’s interests,
each avenue to ballot access “must be considered in its en-
tirety.” Tripp v. Scholz, 872 F.3d 857, 870 (7th Cir. 2017) (quot-
ing Hall, 766 F.2d at 1174).
B.
We now turn to the application of the Anderson-Burdick
test to the Indiana statutory scheme that is before us. We start
with the plaintiffs’ challenge to the petitioning process. The

-- 8 of 20 --

No. 23-2756 9
plaintiffs focus their challenge on the quantity of signatures
required, the requirement that candidates submit signatures
to counties for certification, and the June 30 deadline for sub-
mitting signatures. We conclude that these requirements for
candidates seeking access by petition cannot be fairly charac-
terized as imposing severe burdens. These requirements,
moreover, are justified by sufficiently weighty state interests.
1.
The percentage of signatures required (2 percent) certainly
does not itself impose a severe burden. As we said in Hall,
“there is abundant judicial authority, much in the Supreme
Court itself and therefore beyond our power to reexamine, for
allowing states to set even higher minimum percentages than
Indiana has done.” Hall, 766 F.2d at 1173; see Jenness, 403 U.S.
at 438 (5 percent); Cowen v. Sec’y of State of Georgia, 22 F.4th
1227, 1234 (11th Cir. 2022) (5 percent); Tripp, 872 F.3d at 869
(5 percent); Libertarian Party of Illinois, 108 F.3d at 773, 777 (5
percent); Arutunoff v. Oklahoma State Election Bd., 687 F.2d
1375, 1380 (10th Cir. 1982) (5 percent); Beller v. Kirk, 328 F.
Supp. 485, 486 (S.D. Fla. 1970), aff’d without opinion sub nom.
Beller v. Askew, 403 U.S. 925 (1971) (3 percent).3 Further, in
many of these cases, the required percentage was applied to a
broader base than it is here. In Jenness and Cowen, the base was
all registered voters. 403 U.S. at 433; 22 F.4th at 1230. Because
many registered voters do not actually vote, this is a larger
group than actual voters, the base here. In Arutunoff, the base
3 See also American Party of Texas v. White, 415 U.S. 767, 789 (1974) (“De-
manding signatures equal in number to 3% to 5% of the vote … is not in-
valid on its face … .”); Storer v. Brown, 415 U.S. 724, 738 (1974) (stating that
requiring signatures numbering 5 percent of the electorate is not, by itself,
“excessive”).

-- 9 of 20 --

10 No. 23-2756
in some election years was the vote for President, 687 F.3d at
1379, which tends to be larger than the vote in “off-year” elec-
tions in which there is no candidate for President.
The timeframe within which candidates can collect signa-
tures is also not severely burdensome. Candidates can begin
collecting signatures as soon as the Election Division pub-
lishes the petition forms. For the 2024 election, publication oc-
curred in the summer of 2023, permitting candidates a far ear-
lier start than in other cases in which the timeline for collect-
ing petitions was upheld. See Jenness, 403 U.S. at 433–34 (mid-
December start); Libertarian Party of New Hampshire v. Gardner,
843 F.3d 20, 30 (1st Cir. 2016) (January 1 start). Candidates
then have until June 30 of the election year to submit their pe-
titions to the relevant counties. This June 30 deadline is far
later than deadlines the Supreme Court and this court have
deemed to be too early. See Anderson, 460 U.S. at 782, 805–06
(mid-March); Lee v. Keith, 463 F.3d 763, 768 (7th Cir. 2006)
(mid-December). It also falls well after the major parties’ pri-
mary elections (which are usually in early May), thus giving
independent candidates or minor parties disappointed with a
major party’s selections an opportunity to mount a petition
drive.4
The requirement that candidates submit petitions to each
county’s voter registration office is also not unduly burden-
some. This procedure does require additional time and effort
on the part of petition circulators, both on the front end (while
4 Cf. Graveline v. Benson, 992 F.3d 524, 537 (6th Cir. 2021) (collecting cases
in which courts struck down laws requiring independent candidates or
minor parties to file qualifying petitions well in advance of the state’s pri-
mary elections).

-- 10 of 20 --

No. 23-2756 11
collecting signatures) and on the back end (when submitting
them to the counties for certification). This requirement, how-
ever, is not any more burdensome than notarization require-
ments that have been upheld in prior cases. In Tripp v. Scholz,
for example, we upheld a requirement that each petition sheet
contain a notarized affidavit certifying the authenticity of the
signatures on the sheet. We concluded that, although the no-
tarization requirement “certainly impose[d] some logistical
burden on plaintiffs’ ballot access rights, it cannot be fairly
characterized as ‘severe.’” 872 F.3d at 869. Like the notariza-
tion requirement in Tripp, the county-level submission proce-
dure does add “‘an extra step’ to the nomination process re-
quiring ‘additional time and effort,’” id. at 867, but the burden
it imposes is not severe.
The plaintiffs emphasize the time and expense of comply-
ing with Indiana’s petitioning requirements. They note evi-
dence they submitted in the district court regarding the costs
of using paid staff or professional petitioning firms to collect
signatures, and they state that keeping volunteers engaged in
signature collection is difficult. The Supreme Court consid-
ered a similar argument in American Party of Texas v. White,
415 U.S. 767 (1974). The Court noted that the minor parties in
that case “must undergo expense, to be sure, in holding their
conventions and accumulating the necessary signatures to
qualify for the ballot.” Id. at 793–94. But it declined to con-
clude that such expenses rendered Texas’s otherwise reason-
able ballot access requirements unduly burdensome. The
Court also stated in its opinion that “[h]ard work and sacrifice
of dedicated volunteers are the lifeblood of any political or-
ganization.” Id. at 787. Given American Party of Texas, the po-
tential expense of paying staff or professional circulators to

-- 11 of 20 --

12 No. 23-2756
collect signatures does not render Indiana’s otherwise emi-
nently reasonable requirements severely burdensome.
The experience of candidates seeking ballot access by pe-
tition in Indiana further indicates that these petitioning re-
quirements are not severely burdensome. See Storer v. Brown,
415 U.S. 724, 742 (1974) (noting that “[p]ast experience [is] a
helpful … guide” in evaluating ballot access restrictions).
There have been nine successful statewide petition drives in
Indiana since the 2 percent signature requirement was en-
acted. The Libertarian Party of Indiana conducted two of
those drives in 1992 and 1994, and it has maintained full slate
access since 1994. Other candidates have also completed peti-
tion drives in races other than statewide races.5 To be sure,
not all candidates who have attempted petition drives have
succeeded. The Indiana Green Party, for instance, has tried
multiple times to qualify candidates for statewide elections,
sometimes by instructing voters to download petitions and
submit their signatures themselves. Those attempts failed.
Under all the circumstances, however, Indiana’s ballot access
history supports our conclusion that the burden of satisfying
the 2 percent signature requirement is not severe. Compare
Tripp, 872 F.3d at 865 (evidence that four candidates had suc-
cessfully completed petition drives in congressional elections
indicated that burden was not severe), with Lee, 463 F.3d at
768–69 (evidence that no candidate had completed a petition
drive for state legislative office since a burden was imposed
indicated that it was severe).
5 See, e.g., R.60-13 at 2.

-- 12 of 20 --

No. 23-2756 13
2.
We now come to the second half of the Anderson-Burdick
analysis: an evaluation of whether the interests on which the
state relies are “sufficiently weighty to justify” the burdens
imposed. Norman, 502 U.S. at 288–89. Because the petitioning
requirements do not impose “severe burdens” on the plain-
tiffs’ rights, we need not consider whether the requirements
are “narrowly tailored [to] advance a compelling state inter-
est.” Timmons, 520 U.S. at 358. We instead conduct a “less ex-
acting review,” under which “a State’s important regulatory
interests will usually be enough to justify reasonable, nondis-
criminatory restrictions.” Id. (internal quotation marks omit-
ted).
We start with the 2 percent requirement. In Hall, we held
that the 2 percent requirement served an important interest in
avoiding the voter confusion that could result from an over-
crowded ballot. 766 F.2d at 1175. Here, Indiana identifies this
goal, among others, as an important regulatory interest justi-
fying the 2 percent requirement.
The Supreme Court has recognized “an important state in-
terest in requiring some preliminary showing of a significant
modicum of support before printing the name of a political
organization’s candidate on the ballot,” to “avoid confusion,
deception, and even frustration of the democratic process.”
Jenness, 403 U.S. at 442. Further, by regulating the number of
candidates on the ballot, “the State understandably and
properly seeks to … assure that the winner is the choice of a
majority, or at least a strong plurality, of those voting, without
the expense and burden of runoff elections.” Bullock v. Carter,
405 U.S. 134, 145 (1972). These interests are “sufficiently

-- 13 of 20 --

14 No. 23-2756
weighty to justify” the 2 percent signature requirement. Nor-
man, 502 U.S. at 288–89.
The plaintiffs submit that Indiana can protect these regu-
latory interests with a lower signature requirement, like the
0.5 percent requirement in effect in the state before 1980. They
fault Indiana for not submitting evidence that its 2 percent
signature requirement is needed to protect these interests. But
there is no need for the State to “make a particularized show-
ing of the existence of voter confusion, ballot overcrowding,
or the presence of frivolous candidacies” before imposing re-
strictions to prevent these harms. Munro, 479 U.S. at 194–95.
State legislatures are permitted “to respond to potential defi-
ciencies in the electoral process with foresight rather than re-
actively.” Id. at 195. “Even a ‘speculative concern that altering
the challenged signature requirement would lead to a large
number of frivolous candidates … and, consequently, voter
confusion is sufficient.’” Stone, 750 F.3d at 685 (7th Cir. 2014)
(quoting Navarro v. Neal, 716 F.3d 425, 432 (7th Cir. 2013)).
The plaintiffs contend that the current signature require-
ment was not fashioned to serve these legitimate interests but
instead was enacted for purely partisan purposes. They rely
entirely upon a declaration from Mitchell Harper, a former
Indiana state legislator who opposed the legislation raising
the signature requirement from 0.5 percent to 2 percent. In his
declaration, Harper described his experiences with this legis-
lation from its introduction in committee to its final passage.
Harper “never heard any Representative mention a regula-
tory interest that the legislation was intended to protect.”6 In-
stead, it appeared to him that the 2 percent signature
6 R.60-4 at 5.

-- 14 of 20 --

No. 23-2756 15
requirement was motivated solely by “political score settling”
surrounding one independent candidate’s achievement of
ballot access in a mayoral election in 1979.7
This single legislator’s assessment of his colleagues’ intent
does not undermine the constitutionality of Indiana’s 2 per-
cent signature requirement. As the Supreme Court explained
in a case involving Anderson-Burdick balancing, “if a nondis-
criminatory law is supported by valid neutral justifications,
those justifications should not be disregarded simply because
partisan interests may have provided one motivation for the
votes of individual legislators.” Crawford, 553 U.S. at 204. Har-
per’s declaration at most indicates that “partisan interests
may have provided one motivation for the votes of individual
legislators.” Id. The declaration provides no basis for disre-
garding the “valid neutral justifications” that support Indi-
ana’s 2 percent signature requirement. Id.
The other challenged elements of Indiana’s petitioning
process are also justified by important state interests. The June
30 filing deadline for petitions serves Indiana’s interest in giv-
ing both the state and its counties sufficient time to verify the
eligibility of candidates who have submitted petitions and to
prepare the ballots for election day. Moreover, the require-
ment that petitions be submitted directly to county voter reg-
istration offices serves Indiana’s interest in efficiently allocat-
ing its own resources. Some state officials need to receive the
petitions and review the signatures to ensure their compli-
ance with the statutory requirements. The legislature cer-
tainly made a reasonable determination that the counties are
best suited to perform this task, because their employees are
7 Id.

-- 15 of 20 --

16 No. 23-2756
more likely to be familiar with the signers’ communities, and
the counties collectively have more resources to dedicate to
verifying signatures. These interests are sufficient to justify
the burdens imposed.
The existence of a write-in option also supports our con-
clusion that Indiana’s requirements for candidates seeking
ballot access by petition are constitutional. As the Supreme
Court has recognized, this alternative means of access to the
general election ballot can help free up the electoral process,
to the benefit of minor parties and independent candidates.
See Storer, 415 U.S. at 736 n.7 (noting that the existence of a
write-in option can support the constitutionality of ballot ac-
cess restrictions); Jenness, 403 U.S. at 438 (relying on fact that
“Georgia freely provides for write-in votes,” to uphold Geor-
gia election scheme). See also Hero, 42 F.4th at 776 (relying on
alternative means to access Indiana’s general election ballot,
including Indiana’s write-in option, in concluding that re-
striction was not severely burdensome). We do not mean to
suggest that a state could, merely by adding a write-in option,
immunize itself from a challenge to a requirement that candi-
dates seeking to get their name on the ballot obtain an exces-
sive number of signatures. But here, Indiana’s write-in op-
tion—added after we upheld an identical signature require-
ment in Hall, see Ind. Pub. L. 4-1991, § 6—eliminates any
doubt we might have about the signature requirement’s con-
stitutionality.
C.
The Libertarian Party of Indiana and the Indiana Green
Party also challenge the indexing of full slate access to the re-
sults of the most recent Secretary of State election. They con-
tend that this feature of Indiana election law “obliges them to

-- 16 of 20 --

No. 23-2756 17
redirect their resources away from races for higher-profile of-
fices that present the parties’ best opportunity to grow and
build support among the electorate, and toward a race for a
largely administrative office that garners little attention
among the electorate.”8
The requirement that a party seeking full slate access gar-
ner 2 percent of the votes in a Secretary of State election does
not impose a severe burden. To begin, a 2 percent requirement
for full slate access is not that high. See Arutunoff, 687 F.2d at
1379 (upholding requirement that parties garner 10 percent of
the votes cast in any recent gubernatorial or presidential elec-
tion, to maintain full slate access); Libertarian Party of Illinois,
108 F.3d at 775–76 (upholding requirement that parties garner
5 percent in various elections to maintain full slate access). A
party with moderate support among the electorate should,
with reasonable diligence, be able to garner that many votes
in one election without using all of its resources to do so.
The existence of the petitioning route as a reasonable al-
ternative means of ballot access further supports our conclu-
sion that the burden is not severe. When states allow parties
such an alternative, the tying of full-state access to “a political
organization’s demonstrated support in a designated race
does not ‘force’ the organization ‘to divert its resources in any
particular way.’” SAM Party of New York v. Kosinski, 987 F.3d
267, 275 (2d Cir. 2021) (quoting Person v. New York State Bd. of
Elections, 467 F.3d 141, 144 (2d Cir. 2006)). Parties that do not
want to use the full slate option are free to have their candi-
dates seek access by petition. In short, the fact that “blanket
access is … one of two ballot-access mechanisms” and “[t]he
8 Pls.’ Opening Br. 19.

-- 17 of 20 --

18 No. 23-2756
alternative option of filing petitions for each candidate’s can-
didacy” is “a reasonable means of ballot access” undercuts the
plaintiffs’ challenge to the full slate access mechanism. Liber-
tarian Party of Kentucky v. Grimes, 835 F.3d 570, 575–76 (6th Cir.
2016).
The indexing of full slate access to the results of the most
recent Secretary of State election furthers important state in-
terests. The ability of a party to place its full slate of candi-
dates on the ballot is obviously significant. Indiana might rea-
sonably have concluded that this option should be reserved
for parties with something resembling across-the-ballot sup-
port, rather than parties with only one or two viable candi-
dates. Other circuits have fielded similar challenges to states’
decisions to tie full slate access to the results of particular elec-
tions. Those circuits have generally concluded that these are
the types of decisions that lie within the sound discretion of
the states.9
D.
The plaintiffs also urge us to reverse and remand because
the district court failed to conduct the fact-sensitive analysis
called for by Anderson-Burdick. They note that the district
court did not address the burdens imposed by, and the inter-
ests served by, the county-level submission requirement and
the full slate access option. They also note that the district
9 See SAM Party of New York, 987 F.3d at 277–78 (state could condition full
slate access on party’s success in presidential elections); Person, 467 F.3d
at 144 (state could condition full slate access on party’s success in guber-
natorial elections); Green Party of Arkansas v. Martin, 649 F.3d 675, 686 (8th
Cir. 2011) (state could condition full slate access on party’s success in gu-
bernatorial and presidential elections).

-- 18 of 20 --

No. 23-2756 19
court did not address whether Indiana’s petitioning require-
ments, considered in combination, imposed a severe burden.
The plaintiffs rely primarily on two decisions in which
courts ordered remands for further consideration of the con-
stitutionality of ballot access restrictions: Storer v. Brown and
Gill v. Scholz. In Storer, independent candidates had only
24 days to collect signatures numbering 5 percent of the elec-
torate, and none of the signatures could be gathered from per-
sons who voted in the previous primary election. The Su-
preme Court remanded for further factfinding, because the
Court did not have before it adequate information relating to
the number of persons who did not vote in the primary elec-
tions and thus were eligible to sign the candidates’ petitions.
The Court emphasized that “[d]ecision in this context, as in
others, is very much a matter of degree, very much a matter
of considering the facts and circumstances” of each case. 415
U.S. at 730 (internal citation and quotation marks omitted). In
Gill, independent congressional candidates needed to obtain
signatures numbering 5 percent of the electorate within
90 days. We ordered a remand for further analysis by the dis-
trict court, because the district court failed to address the
plaintiff’s arguments related to the geographic size and rural
nature of his district, and it relied on inapposite ballot access
history. We stressed that courts must “conduct fact-intensive
analyses when evaluating state electoral regulations.” 962
F.3d at 365.
Given decisions such as Storer and Gill, we certainly agree
with the plaintiffs that courts must pay careful attention to the
specifics of each case when evaluating the constitutionality of
ballot access restrictions. We also agree with the plaintiffs that
the district court in this case did not conduct the sort of

-- 19 of 20 --

20 No. 23-2756
analysis that we and the Supreme Court have required. We
cannot accept, however, the plaintiffs’ submission that we re-
mand this case to the district court. This case, unlike Storer
and Gill, is not a close one. It is clear that the restrictions chal-
lenged here do not severely burden the plaintiffs’ First and
Fourteenth Amendment rights. Indiana’s signature require-
ment is only 2 percent of the votes cast in a mid-term election,
far lower than the 5 percent requirements at issue in Storer,
Jenness, Gill, and the other cases we noted earlier in the opin-
ion. Indiana allows candidates ample time to collect signa-
tures, and the additional hurdle imposed by the county-level
submission requirement is no greater than those upheld as
part of more burdensome schemes. Moreover, the require-
ment that parties retain at least 2 percent of the vote in Secre-
tary of State elections to maintain full slate access is reasona-
ble in light of the petitioning alternative and the significance
of the ability of a party to place its full slate of candidates on
the ballot. The interests that Indiana asserts are more than suf-
ficient to justify the burdens imposed by these restrictions.
Conclusion
For the reasons stated in this opinion, the judgment of the
district court is affirmed.
AFFIRMED

-- 20 of 20 --