Libertarian Party of New Hampshire v. Gardner

126 F. Supp. 3d 194, 2015 DNH 164, 2015 U.S. Dist. LEXIS 113855, 2015 WL 5089838
CourtDistrict Court, D. New Hampshire
DecidedAugust 27, 2015
DocketCase No. 14-cv-322-PB
StatusPublished
Cited by6 cases

This text of 126 F. Supp. 3d 194 (Libertarian Party of New Hampshire v. Gardner) is published on Counsel Stack Legal Research, covering District Court, D. New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Libertarian Party of New Hampshire v. Gardner, 126 F. Supp. 3d 194, 2015 DNH 164, 2015 U.S. Dist. LEXIS 113855, 2015 WL 5089838 (D.N.H. 2015).

Opinion

MEMORANDUM AND ORDER

PAUL BARBADORO, District Judge.

Political organizations can gain access to the New Hampshire general-election ballot either by receiving at least four percent of the total votes cast for Governor or U.S. Senator in the preceding election or by submitting nomination papers signed by enough of the State’s registered voters to equal at least three percent of the total votes cast in the prior election. In 2014, the New Hampshire state legislature amended the State’s ballot-access laws to require nomination papers to be signed during the same year as the general election. In this action, the Libertarian Party of New Hampshire (“LPNH”) contends that the new same-year requirement is an impermissible ballot-access restriction that violates the First and Fourteenth Amendments to the United States Constitution.

I. BACKGROUND1

A. The Same-Year Nomination Papers Requirement

Candidates for political office in New Hampshire typically gain access to the general-election ballot by winning their party’s primary election.2 Only political organizations that qualify as “political parties” under New Hampshire law, however, hold primaries. To qualify as a “political party,” a political organization must receive at least four percent of the total votes cast for Governor or U.S. Senator in the preceding election. N.H.Rev.Stat. Ann. § 652:11. Rather than participate in the primary process, other political organizations that seek to place their candidates on the general-election ballot — which I will call “third parties” for the sake of convenience — must submit enough nomination papers signed by New Hampshire registered [196]*196voters to equal three percent of the total votes cast in the prior general election. See N.H.Rev.Stat. Ann. §§ 655:40-a, 655:42, III. A registered voter may sign only one valid nomination paper during each election cycle. N.H.Rev.Stat. Ann. § 655:40-a.

To qualify for the general-election ballot, third parties must submit the requisite number of nomination papers to local election officials in the towns or wards where each signer is registered to vote no later than the Wednesday five weeks before the primary. N.H.Rev.Stat. Ann. § 655:41, I. Local officials must then certify the validity of all nomination papers no later than two weeks before the primary. Id. Because the New Hampshire primary falls on the second Tuesday in September, this requirement effectively establishes an early August deadline for the submission of nomination papers. See N.H.Rev.Stat. Ann. §§ 653:8, 655:41,1.

In July 2014, the New Hampshire legislature passed House Bill 1542 (“HB 1542”), which amended Section 655:40-a to provide that “[n]omination papers shall be signed and dated in the year of the election.” N.H.Rev.Stat. Ann. § 655:40-a (emphasis added). Because nomination papers must be filed by August, the new law requires third parties that seek to access the general-election ballot to collect the requisite number of nomination papers within a window of roughly seven months, extending from January 1 until early August of the election year itself. See N.H.Rev.Stat. Ann. §§ 653:8, 655:40-a.

The record contains few details that explain why the legislature passed HB 1542. When the House Election Law Committee referred the bill to the full House, it explained:

This bill was requested by the Secretary of State. It requires that nominating petitions for a political organization seeking placement on the ballot for the state general election shall be signed and dated in the year of the election, beginning January 1 of the political cycle. This will reduce the number of invalid signatures, due to death or relocation, which might arise if signatures are submitted earlier.

Doc. No. 37-3 at 13.

Representative Melanie Levesque, one of the bill’s sponsors, observed before the bill’s passage:

When a third party attempts to collect nominating papers, they normally would start right after the general election. This would lead to signatures that could be two years old, and very difficult to verify. Collecting these papers in the same year of the election facilitates verification, although limiting the time in which to collect signatures.

Id. at 20 (minutes summarizing testimony).

After this litigation began, LPNH submitted interrogatories to the State that requested, among other things, a “des-cri[ption of] all state interests that [the State] claim[s] HB 1542 advances.” Id. at 62. In response, the State said:

In order to obtain ballot status a political organization should be able to show some reasonable level of support to justify the increased and significant cost of printing ballots and the additional complexity added to the ballot design impacting the voters [sic] ability to read and understand the ballot. The time frame for collecting signatures in the current statute makes it less likely that the supervisors of the checklist will be asked to review petitions where the signatory has either passed away, moved, or has otherwise been disqualified.

Id.

B. LPNH

The Libertarian Party is a prominent third party in the United States. Describ[197]*197ing its philosophy as “live and let live,” it favors a limited government that respects “the right of each person ... to engage in any activity that is peaceful and honest.” Doc. No. 36-1 at 6-7. LPNH constitutes the national Libertarian Party’s institutional presence in New Hampshire. It claims that it “has a demonstrated history of engaging in political activity in New Hampshire and is, by far, the most active and well known third party in the state.” Id. at 7.

LPNH, however, has struggled recently to garner widespread support in New Hampshire. Richard Tomasso, the current state chairman of LPNH, estimates that only about 150 New Hampshire residents are registered members of the national Libertarian Party, and fewer than that are registered members of LPNH itself. See Doc. No. 37-6 at 4 (Tomasso Dep. at 9:7-11:6). Only about twelve people attended LPNH’s last party convention in March 2015. Id. (Tomasso Dep. at 11:22-12:1). LPNH identifies no current member of the New Hampshire legislature as one of its members. Id. (Tomasso Dep. at 18:21-19:7).

LPNH last qualified for ballot access in New Hampshire as a formal political party in 1996, when the threshold required to avoid the nomination papers requirement stood at three rather than four percent of votes cast in the previous general election. Since then, it has qualified for ballot access under the nomination papers process twice, in 2000 and again in 2012.

Based on voter turnout in the 2010 general election, qualifying for ballot access in 2012 by nomination papers required third parties to collect 13,843 valid signatures.3 But because some signers inevitably prove to be ineligible, rendering the nomination papers that they sign invalid, any organization that runs a petition4 drive must collect a larger number of unverified, or “raw,” signatures to ensure that it will obtain enough valid signatures.

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126 F. Supp. 3d 194, 2015 DNH 164, 2015 U.S. Dist. LEXIS 113855, 2015 WL 5089838, Counsel Stack Legal Research, https://law.counselstack.com/opinion/libertarian-party-of-new-hampshire-v-gardner-nhd-2015.