UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Libertarian Party of New Hampshire
v. Case No. 14-cv-322-PB Opinion No. 2015 DNH 164 P William M. Gardner, Secretary of State of the State of New Hampshire, in his official capacity
MEMORANDUM AND ORDER
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
1 The facts summarized in this section are undisputed. I draw them from both the summary judgment record and evidence and testimony taken during an evidentiary hearing that I held in this action on July 13, 2015. Evidence admitted during that hearing is cited in this Memorandum and Order as either “Def.’s Ex.” Or “Pl.’s Ex.” Summary judgment exhibits are cited by their docket number.
2 New Hampshire also allows individual candidates to run unaffiliated with any political organization by submitting a specified number of nomination papers. See N.H. Rev. Stat. Ann. §§ 655:40, 655:42, III. 2 general-election ballot - which I will call “third parties” for
the sake of convenience - must submit enough nomination papers
signed by New Hampshire registered voters 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, I.
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 3 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).
4 After this litigation began, LPNH submitted interrogatories
to the State that requested, among other things, a “descri[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. Describing 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. 5 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
3 The record contains much less information about the 2000 ballot-access drive, and the parties emphasize the 2012 drive as the principal example of LPNH’s experience in meeting the nomination papers requirement. Therefore, I focus here on the 6 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. For this reason, LPNH
sought to collect approximately 19,000 total signatures during
the 2012 drive, which assumed a seventy-five percent petition
validity rate.
LPNH began its 2012 petition drive in late July 2011 after
the Libertarian National Committee (the “LNC”), the governing
board of the national Libertarian Party, agreed to give $28,000
to LPNH to support its drive. LPNH spent those funds on paid
professional petitioners because, it explains, “paid support –
including professional petitioners – is a necessity in
conducting a successful petition drive of this magnitude.”5 Doc.
2012 drive and not on the 2000 drive. I note, however, that the 2000 drive appears to have been similar to the 2012 drive in most material respects: LPNH began its drive early, in mid-1999, and finished only “a couple weeks before” the August 2000 deadline. See Doc. No. 37-8 at 7.
4 The term “petitions” is often used as shorthand for “nomination papers” in this context, including by the parties to this action.
5 The record suggests that paid petitioners are often more effective than volunteers for several reasons, including 7 No. 37-8 at 6. LPNH gathered 13,787 raw signatures between
August 1 and September 23 of 2011, the vast majority of which
were collected by the paid petitioners, who charged anywhere
from $1 to $2 per signature during that period. In other words,
LPNH gathered nearly seventy percent of the raw signatures it
sought to collect within a 77-day period, largely relying on
funds it received from the LNC.
After September 23, 2011, the initial $28,000 infusion from
the LNC ran out. LPNH lacked its own funds to hire paid
petitioners on any significant scale, so it aimed instead to
finish the petition drive by relying on volunteers supplemented
by any paid petitioners that it could afford with its limited
resources. But this strategy met with limited success.
Although the intervening months between September 2011 and the
August 2012 deadline offered at least two promising
opportunities for petition collection – the Presidential primary
in January 2012, and town elections in March 2012 – LPNH
struggled to recruit even a handful of volunteers to collect
petitions on either occasion. See Doc. No. 37-6 at 30 (Tomasso
Dep. at 115:12-13) (explaining that LPNH “manage[d] to get a
financial motivation and professional experience. 8 couple people out for” the January Presidential primary); Def.’s
Ex. Z (March 2012 email from Tomasso reporting that LPNH “had
very poor turnout for help on town election day”).
Between roughly September 2011 and late July 2012, LPNH
collected only about 5,000 additional raw nomination papers. As
the early August deadline loomed, the LNC decided to allocate an
additional $4,000 to LPNH to hire paid petitioners and finish
the drive. This final effort succeeded, and LPNH submitted its
last nomination papers for verification just before the August
2012 deadline.
All told, LPNH spent roughly $40,000 of its own and the
LNC’s funds on the 2012 petition drive, although LPNH contends
that this figure does not reflect certain out-of-pocket
expenses. Most of these funds were spent on professional
petitioners, who charged anywhere from $1 to $3 per signature
for their services at various times during the drive. Although
some of the paid petitioners charged more per petition as the
deadline approached and the demand for their services rose, at
least one paid petitioner continued to charge only $1 per
signature as late as April 2012. See Doc. No. 37-6 at 21
(Tomasso Dep. at 78:15 - 79:7).
Based on voter turnout in the 2014 midterm elections, LPNH 9 will need to submit approximately 14,800 valid nomination papers
to qualify for the 2016 general-election ballot. Assuming a
validity rate of seventy-five percent, therefore, it will likely
need approximately 20,000 total unverified nomination papers to
meet the requirement. LPNH estimates that funding a paid
petition drive for the 2016 election will cost roughly $50,000.
Doc. No. 36-1 at 31. This figure is higher than the $40,000
cost of the 2012 drive, LPNH asserts, because the January 1
start date will limit petition collection to the election year
itself, when paid petitioners charge more for their services.
C. Procedural History of This Action
LPNH brought this action against William Gardner, the New
Hampshire Secretary of State, in July 2014 shortly after the
General Court passed HB 1542. It seeks a declaration that the
same-year requirement prescribed by HB 1542 is unconstitutional
and an order enjoining the State from enforcing it. Doc. No. 1
at 16-17. The parties proceeded through an expedited discovery
schedule and submitted cross-motions for summary judgment.6 I
6 In April 2015, the Republican National Committee (the “RNC”) moved to intervene as defendants in this case. See Doc. No. 30. For reasons that I explained on the record during an April 20, 2015 hearing, I denied the RNC’s request to intervene as defendants but permitted it to participate as an amicus curiae.
10 held a hearing for oral argument on the cross-motions on June
18, 2015. The parties have stipulated that I can resolve their
dispute at the summary judgment stage.7
II. STANDARD OF REVIEW
Summary judgment is appropriate when the record reveals “no
genuine dispute as to any material fact and [that] the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). The evidence submitted in support of the motion must be
considered in the light most favorable to the nonmoving party,
drawing all reasonable inferences in its favor. See Navarro v.
Pfizer Corp., 261 F.3d 90, 94 (1st Cir. 2001).
A party seeking summary judgment must first identify the
absence of any genuine dispute of material fact. Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). A material fact “is one
‘that might affect the outcome of the suit under the governing
7 Although the parties agreed that this case could be resolved on cross-motions for summary judgment, I held an evidentiary hearing on July 13, 2015 to address LPNH’s factual claim that the State’s petitioning process was already burdensome even before HB 1542’s adoption. Having heard the evidence that bears on this claim, I am satisfied that there is no genuine dispute as to any material facts that would prevent me from resolving this case on cross-motions for summary judgment.
11 law.’” United States v. One Parcel of Real Prop. with Bldgs.,
960 F.2d 200, 204 (1st Cir. 1992) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). If the moving party
satisfies this burden, the nonmoving party must then “produce
evidence on which a reasonable finder of fact, under the
appropriate proof burden, could base a verdict for it; if that
party cannot produce such evidence, the motion must be granted.”
Ayala–Gerena v. Bristol Myers–Squibb Co., 95 F.3d 86, 94 (1st
Cir. 1996); see Celotex, 477 U.S. at 323.
On cross motions for summary judgment, the standard of
review is applied to each motion separately. See Am. Home
Assurance Co. v. AGM Marine Contractors, Inc., 467 F.3d 810, 812
(1st Cir. 2006) (applying the standard to each motion where
cross motions were filed); see also Mandel v. Bos. Phoenix,
Inc., 456 F.3d 198, 205 (1st Cir. 2006) (“The presence of cross-
motions for summary judgment neither dilutes nor distorts this
standard of review.”). Hence, I must determine “whether either
of the parties deserves judgment as a matter of law on facts
that are not disputed.” Adria Int'l Group, Inc. v. Ferré Dev.,
Inc., 241 F.3d 103, 107 (1st Cir. 2001).
12 III. ANALYSIS
Ballot-access restrictions implicate two separate, but
related, constitutional rights that derive from the First and
Fourteenth Amendments: “the right of individuals to associate
for the advancement of political beliefs,” and “the right of
qualified voters, regardless of their political persuasion, to
cast their votes effectively.” Williams v. Rhodes, 393 U.S. 23,
30 (1968). These rights extend to the formation of political
parties because “voters can assert their preferences only
through candidates or parties or both. . . . The right to vote
is heavily burdened if that vote may be cast only for major-
party candidates at a time when other parties or other
candidates are clamoring for a place on the ballot.” Anderson
v. Celebrezze, 460 U.S. 780, 787 (1983) (internal quotation
omitted).
At the same time, states have a strong interest in
conducting orderly elections. “[A]s a practical matter, there
must be a substantial regulation of elections if they are to be
fair and honest and if some sort of order, rather than chaos, is
to accompany the democratic process.” Storer v. Brown, 415 U.S.
724, 730 (1974). Thus, although every ballot-access regulation
“inevitably affects” the rights of effective voting and 13 association, “the state’s important regulatory interests [in
conducting orderly elections] are generally sufficient to
justify reasonable, nondiscriminatory restrictions.” Anderson,
460 U.S. at 788. “This legitimate interest in reasonable
regulation is based not only on ‘common sense,’ Burdick v.
Takushi, 504 U.S. 428, [433 (1992)], but also on the
[Constitution’s] Article I reservation to the States of the
power to prescribe ‘Times, Places and Manner of holding
Elections for Senators and Representatives.’ U.S. Const., Art.
I, § 4, cl. 1.” Libertarian Party of Me. v. Diamond, 992 F.2d
365, 370 (1st Cir. 1993).
To balance these competing interests, “the Supreme Court
has developed a flexible sliding scale approach for assessing
the constitutionality of [ballot-access] restrictions.” Barr v.
Galvin, 626 F.3d 99, 109 (1st Cir. 2010) (internal quotation
omitted). In its pathmarking ballot-access decision in Anderson
v. Celebrezze, the Supreme Court explained how courts should
apply this approach to determine the validity of challenged
ballot-access restrictions:
[A court] must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put 14 forward by the State as justifications for the burden imposed by its rule. . . . Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.
460 U.S. at 789. Under Anderson and its progeny, a restriction
that imposes a “severe” burden on ballot access cannot survive
unless it is “narrowly drawn to advance a state interest of
compelling importance.” Burdick, 504 U.S. at 434 (internal
quotation omitted); see also Timmons v. Twin Cities Area New
Party, 520 U.S. 351, 358 (1997); Barr, 626 F.3d at 109. In
contrast, restrictions that impose reasonable and
nondiscriminatory burdens on ballot access require only a
“corresponding [state] interest sufficiently weighty to justify
the limitation.” Norman v. Reed, 502 U.S. 279, 288-89 (1992);
see Anderson, 460 U.S. at 788. The outcome of this analysis
depends heavily on the challenged restriction’s factual context.
See Anderson, 460 U.S. at 789 (“The results of this evaluation
will not be automatic; as we have recognized, there is ‘no
substitute for the hard judgments that must be made.’”) (quoting
Storer, 415 U.S. at 730)).
Following Anderson and its progeny, therefore, I first
consider whether HB 1542 imposes a severe burden on ballot
access. After determining that the law instead imposes only a 15 reasonable and nondiscriminatory burden on LPNH’s ability to
access the ballot, I then identify the state interests that HB
1542 serves and conclude that those interests are sufficient to
sustain the law against LPNH’s challenge.
A. Burden Imposed by HB 1542
To establish its claim that HB 1542 imposes a severe burden
on ballot access, LPNH first contends that its experiences
during its 2000 and 2012 petition drives demonstrate that the
State’s petitioning process was already onerous before the same-
year requirement was introduced. LPNH then argues that HB 1542
elevates this already-arduous burden into a severe one because
it: (1) impermissibly shortens the time during which nomination
papers may be collected; (2) improperly places the petitioning
window squarely within the prime campaigning season that
precedes the general election; and (3) forces third parties to
“sit on the sidelines” during the year before the general
election. I begin by addressing each of these asserted burdens
individually. I then consider whether the nomination papers
process viewed as a whole, including HB 1542, imposes a severe
burden on third-party ballot access.
1. Compression of the Petition Collection Window
LPNH first objects to HB 1542 because, on its face, the law 16 shortens the collection window for nomination papers from 21
months to seven months. In LPNH’s view, a seven-month petition-
collection period is too short, especially considering that the
period encompasses the winter months when, in its view, it is
practically impossible to collect nomination papers.
Both the Supreme Court and the First Circuit, however, have
repeatedly upheld petition requirements comparable to HB 1542 in
both the number of petitions required and the length of time
allowed to collect them. These precedents effectively foreclose
any argument that the petitioning window provided by HB 1542 is
too short on its face. In Jenness v. Fortson, for instance, the
Supreme Court upheld Georgia’s policy requiring third parties to
collect petitions from five percent of all eligible voters over
180 days. 403 U.S. 431, 433, 438 (1971). The Court also upheld
a much shorter petitioning period in American Party of Texas v.
White, where the challenged Texas policy required third parties
to collect petitions numbering one percent of actual votes cast
in the last election – which, at the time, entailed 22,000
petitions – within 55 days. 415 U.S. 767, 783, 786 (1974).
Similarly, in Storer v. Brown, the Court observed that,
“[s]tanding alone, gathering 325,000 signatures in 24 days would
not appear to be an impossible burden,” although it remanded 17 that case for further factual development. 415 U.S. 724, 740
(1974). And in Barr v. Galvin, citing American Party of Texas,
the First Circuit characterized a Massachusetts requirement to
collect 10,000 signatures within 60 days as “modest” rather than
severe. 626 F.3d 99, 110 (1st Cir. 2010); see also Stone v. Bd.
of Election Comm’rs, 750 F.3d 678, 684 (7th Cir. 2014) (“Ninety
days does not strike us as an excessively short time to collect
12,500 signatures . . . . We previously saw no problem with a
ninety-day window to collect 25,000 signatures.”) (citing Nader
v. Keith, 385 F.3d 729, 736 (7th Cir. 2004)).
I recognize that the analysis of ballot-access restrictions
is not bound by any “‘litmus-paper test’ that will separate
valid from invalid restrictions,” Anderson, 460 U.S. at 789,
based solely on percentage thresholds and time limits. But
these cases, although not dispositive, provide a consistent and
useful set of benchmarks with which to evaluate the burden
imposed by a shortened petition-collection window. See Norman,
502 U.S. at 295 (using Jenness five percent threshold as
benchmark in evaluating Illinois ballot restriction); Munro v.
Socialist Workers Party, 479 U.S. 189, 193-94 (1986) (citing
Jenness and American Party of Texas as benchmarks in ballot-
access cases). Taken together, these cases demonstrate that the 18 time allowed by HB 1542 on its face for petition collection is
objectively reasonable, and LPNH cites no persuasive case to the
contrary.
Instead, and reminding this Court of Anderson’s fact-
specific framework, LPNH argues that two unique characteristics
particular to New Hampshire distinguish this case and render the
petition-collection window prescribed by HB 1542 a severe burden
on ballot access. First, LPNH maintains that New Hampshire’s
harsh winters preclude signature collection during the winter
months, shortening the petitioning period even beyond what HB
1542 allows on its face. I am unpersuaded by this argument.
Although snowstorms and bitter cold undoubtedly limit the
ability of third parties to gather signatures on certain winter
days, LPNH’s own experience during its 2012 petition drive
establishes that it is not impossible to collect petitions at
all during the winter. See Doc. No. 37-20 at 24 (LPNH
petitioning spreadsheet showing that LPNH collected over 1,000
signatures in December 2011). Moreover, even if adverse weather
sometimes hinders petition collection during the winter, LPNH
can use that time to advance its petition drive in other ways
that do not require prolonged outdoor exposure, such as
fundraising and volunteer recruitment. Finally, even if New 19 Hampshire winter did practically shorten the petitioning window
to five months, as LPNH maintains, that five-month period would
still fall within the benchmarks upheld by the Supreme Court and
the First Circuit. Winter in New Hampshire, therefore, neither
distinguishes the HB 1542 petition-collection window from
binding precedent nor imposes a severe burden on ballot access.
LPNH also argues that the shortened petition-collection
window bars it from collecting signatures at certain prominent
New Hampshire public events that take place during the fall
before an election year. Although this observation is true as
far as it goes, it does not establish any severe burden imposed
by the shortened petitioning period. County fairs and certain
city elections, which occur in the fall, may well provide
promising opportunities for signature collection, but numerous
public events that are equally promising still take place during
the new petitioning period. For instance, third parties can
collect signatures at local public gatherings within the new
petitioning period like town meetings, which occur in the
spring, and local farmers markets, which occur in the spring and
summer. In Presidential election years, the Presidential
primary, which takes place in January, offers third parties
20 another opportunity to ask registered voters for signatures.8
These examples demonstrate that ample opportunity remains for
third parties to collect signatures at public events within the
petitioning period set by HB 1542. Beyond this, New Hampshire
has no constitutional obligation to allow third parties to
collect signatures at every public event that occurs in this
State, however removed in time from the general election. The
exclusion of fall public events from the new petitioning window,
therefore, does not distinguish HB 1542 from Supreme Court and
First Circuit benchmarks or otherwise constitute a severe burden
on third-party ballot access.
2. Conflict Between Petitioning and Campaigning
LPNH next argues that HB 1542 imposes a severe burden on
its ability to access the ballot because it places the
petitioning period squarely within the campaign season preceding
8 LPNH itself recognized the 2012 Presidential primary as a lucrative opportunity to collect signatures. Ultimately, however, LPNH was unable to capitalize on that opportunity, largely because many of its prospective volunteers chose to volunteer for Ron Paul’s campaign instead. See July 13, 2015 Evid. Hr’g Tr., Doc. No. 52 at 2 (Tomasso testifying that LPNH was “competing [with the Ron Paul campaign] for a lot of the same mind share and people who shared our political beliefs.”), 3 (Tomasso testifying that LPNH could not muster volunteers to collect signatures at polling places on Presidential primary election day in January 2012 because “a lot of them were working for the Ron Paul campaign.”). 21 the general election. That placement, LPNH argues, imposes a
severe burden because it forces third parties to focus
exclusively on petitioning during a period that they would
otherwise devote to campaigning, placing them at an unfair
disadvantage compared to the major parties. But for several
reasons, this new burden, although not trivial, is also not
severe.
First, even assuming, as LPNH claims, that third parties
cannot begin campaigning until they complete the petitioning
process, the petitioning window that HB 1542 prescribes still
leaves a significant amount of time available for general
electioneering. Because the petitioning deadline falls in early
August, political organizations that qualify for ballot access
still have the entire period between the deadline and Election
Day in early November to focus solely on campaigning, a period
that includes all of September and October. As Rich Tomasso,
LPNH’s state chair, testified during his deposition, “the time
immediately prior to the election is the most important time for
campaigning.” Doc. No. 37-6 at 8 (Tomasso Dep. at 26:6-8). HB
1542 does nothing to restrict third parties that qualify for
ballot access from campaigning during this period.
22 Beyond this, however, I do not accept LPNH’s underlying
premise that campaigning cannot begin until the petitioning
requirement is fulfilled. For one thing, the record does not
support LPNH’s position. Instead, it suggests that petitioning,
although perhaps not fully equivalent to campaigning, still
offers third parties and their prospective candidates an
opportunity to interact with the public and promote their views.
In a March 2012 email to solicit volunteers to collect petitions
at town elections, for instance, Tomasso wrote, “If you want to
run for office as a Libertarian, [town election day] is a great
time to meet your voters and do some early campaigning.” Def.’s
Ex. V at LPNH-1052. An August 2000 LPNH newsletter comments
that the petitioning process, which allows “thousands of voters
. . . to meet Libertarian candidates and activists,” provides
the party “an effective outreach tool.” Doc. No. 37-14 at 2.
Moreover, the record also suggests that LPNH conducted at least
some campaign activities during its 2012 petition drive before
it had finished the petitioning process. LPNH itself concedes
that it “did . . . have some candidates engage in campaigning
prior to completing the petitioning drive” in 2012. Doc. No.
36-1 at 14. And John Babiarz, LPNH’s former state chair and
2012 gubernatorial candidate, testified during his deposition 23 that he “had to focus [himself] on campaigning” rather than
petitioning during that year’s drive. Doc. No. 37-7 at 25
(Babiarz Dep. at 93:22). The record, in short, does not
substantiate LPNH’s assertion that the petitioning requirement
forecloses campaigning until it is fulfilled.
LPNH offers an additional argument against the election-
year petitioning window beyond its own claimed inability to
campaign during that period. It maintains that the putative
conflict between the petitioning period and campaigning season
places third parties at an unfair disadvantage compared to the
major parties. In effect, LPNH argues that the January 1 start
date forces third parties to complete administrative busywork at
a time during the election year when the major parties can
direct their full attention to campaigning.
This argument overlooks the fact that the major parties
must meet their own ballot-access requirement during the
election year by holding primaries. New Hampshire holds its
primary election on the second Tuesday of September in every
election year, five weeks after the petition submission deadline
and two weeks after the deadline for local officials to certify
those petitions. N.H. Rev. Stat. Ann. §§ 653:8, 655:41, I.
During election years, therefore, major-party candidates enjoy 24 no free pass to focus solely on the general election while third
parties are trying to gather petitions. Instead, they must
first compete in and win their party primaries, a process that
does not end until well after the petitioning process concludes.
The burden of a primary may differ qualitatively from that of a
petitioning requirement, but it remains that major-party
candidates face their own preliminary obstacle to the general-
election ballot during the election year.9 As the Supreme Court
has explained, “there are obvious differences in kind between
the needs and potentials of a political party with historically
established broad support, on the one hand, and a new or small
political organization on the other.” Jenness, 403 U.S. at 441.
“Equality of opportunity exists [here], and equality of
opportunity – not equality of outcomes – is the linchpin of what
the Constitution requires . . . .” Werme v. Merrill, 84 F.3d
9 During oral argument, LPNH suggested that comparing the petitioning process to the primary system is like “conflating apples and oranges,” June 18, 2015 Arg. Tr., Doc. No. 51 at 4, because the Republican and Democratic Parties already know that their candidates will appear on the ballot even if they do not yet know who those candidates will be. But even if the major parties are guaranteed to have their candidates placed on the general election ballot, the primary still forces them to expend time, money, and effort during the election year on an endeavor other than the general election itself.
25 479, 485 (1st Cir. 1996).
For these reasons, the placement of the petitioning window
within the election year is both reasonable and
nondiscriminatory. I do not doubt that LPNH would rather spend
its time and resources during an election year on campaigning
instead of petitioning. But the same could be said of any
political party, including the major parties, which would likely
prefer to avoid the sometimes factious primary process and
instead select their candidates and begin campaigning for the
general election before September of the election year. The
challenge that political parties of all sizes face to manage
multiple tasks at once, even in an election year – to both walk
and chew gum, so to speak – is a simple and essential fact of
American political life, not cause for heightened constitutional
scrutiny. See Am. Party of Tex., 415 U.S. at 782-83. That HB
1542 requires third parties to collect nomination papers during
the election year, therefore, imposes no severe burden on third-
party ballot access in this State.
3. Compelled Idleness During the Off Year
Finally, LPNH argues that HB 1542 imposes a severe burden
on ballot access because it “forces [LPNH] to ‘sit on the
sidelines’ for the entire odd-numbered year before the general 26 election year.” Doc. No. 36-1 at 29. So far as it goes, it is
true that HB 1542 precludes LPNH from collecting nomination
papers during the off year. But it simply does not follow that
the law completely “bar[s LPNH] from engaging in petitioning
during the odd numbered year,” id. at 29-30, as LPNH contends.
Even with the January 1 start date in place, LPNH remains free
to plan its election-year petition drive and recruit volunteers
during the off year. More importantly, because paid petitioners
are central to any petition drive, LPNH also remains free to
raise funds for the drive during the off year that it can then
spend on paid petitioning during the election year. LPNH’s “sit
on the sidelines” argument, therefore, articulates a burden that
is minor at best and not severe in any event.
4. Collective Evaluation
As I have explained, none of these three grounds for LPNH’s
opposition to HB 1542 individually constitutes a severe burden
on ballot access. The critical question, however, is whether
the various burdens that HB 1542 imposes collectively cause the
law as a whole to rise to that threshold. See Storer, 415 U.S.
at 738-39.
Either characterizing or quantifying the aggregate burden
that a ballot-access restriction imposes is a somewhat arbitrary 27 task. Ultimately, however – and as LPNH acknowledges – all
petitioning requirements demand either a certain number of
volunteer hours or a certain amount of money to pay professional
petitioners to replace those volunteers. See Am. Party of Tex.,
415 U.S. at 787 (“Hard work and sacrifice by dedicated
volunteers are the lifeblood of any political organization.”);
Doc. No. 36-1 at 24 (“Without paid support, a petition drive
cannot get off the ground because the Libertarian Party
structure is not a large organization.”). Certain qualitative
characteristics of a ballot-access restriction might seem to
evade easy quantification, but they still translate into either
dollar amounts or the equivalent number of volunteer hours. The
winter months, for instance, might make it more difficult for
petitioners to collect signatures in public places during cold
spells, increasing either the number of volunteer hours or the
number of paid petitioners that will be required to gather
petitions during those periods. Likewise, placing the
petitioning window within an election year might require more
funds because some paid petitioners might charge more during an
election year than during an off year. For purposes of broadly
estimating the burden imposed by HB 1542, therefore, it is fair
to express that collective burden in rough dollar terms. 28 LPNH tacitly acknowledges this approach by stipulating that
a successful petitioning drive in 2016 will cost $50,000,
assuming that HB 1542 remains in force. See Doc. No. 37-6 at 26
(Tomasso Dep. at 97:14-16). As I have explained, I view that
stated cost as an aggregate evaluation of the various burdens
that flow from HB 1542. Although this stipulated burden is
certainly not trivial, I cannot conclude that it qualifies as
severe. In comparative terms, it is not dramatically more
onerous than the $40,000 cost of the 2012 petition drive. See
Doc. No. 36-1 at 25. Nor does it qualify as severe in its own
right. The Republican 2012 gubernatorial nominee in New
Hampshire spent over $1 million on that year’s primary election
alone, or around 20 times what LPNH expects its 2016 petitioning
drive to cost.10 For better or worse, in modern political terms,
$50,000 is a relatively small amount of money. And even if
raising that amount will prove infeasible for LPNH, the party
remains free to collect nomination papers for free by recruiting
and organizing sufficient volunteers.
10See “Statement of Receipts and Expenditures for Political Committees for Friends of Ovide 2012 Committee,” Sept. 19, 2012 (available at New Hampshire Secretary of State website, http://sos.nh.gov/20120919comm.aspx?id=26519).
29 For these reasons, I conclude that HB 1542 imposes only a
reasonable and nondiscriminatory, and not a severe, burden on
ballot access.
B. Sufficiency of the State Interest
Because HB 1542 does not impose a severe burden on ballot
access, strict scrutiny does not apply. See Burdick v. Takushi,
504 U.S. 428, 434, 439 (1992). The parties disagree about which
level of scrutiny should control in light of this conclusion.
Citing the New Hampshire Supreme Court’s decision in Guare v.
New Hampshire, --- A.3d ---, No. 2014-558, 2015 WL 2340003 (N.H.
Apr. 22, 2015), LPNH argues that even if strict scrutiny does
not apply, intermediate scrutiny is nonetheless appropriate.
The State argues otherwise, citing the First Circuit’s decision
in Barr v. Galvin, 626 F.3d 99 (1st Cir. 1999), to contend that
rational-basis review should control.
I disagree with both positions, although I acknowledge that
this disagreement may be little more than semantic. As the
First Circuit explained in Barr, the Supreme Court’s ballot-
access cases establish a “‘sliding scale’ approach for assessing
the constitutionality” of ballot-access restrictions. 626 F.3d
at 109. Under this approach, the strength of the interest that
the state must demonstrate to justify a restriction rises or 30 falls depending on how burdensome the restriction is. See
Burdick, 504 U.S. at 434 (citing Anderson v. Celebrezze, 460
U.S. 780, 789 (1983)). It is true that severe ballot-access
restrictions, which occupy the most onerous extreme on this
continuum, call for strict-scrutiny review requiring the
challenged restriction to “be narrowly tailored [to] advance a
compelling state interest.” Timmons v. Twin Cities Area New
Party, 520 U.S. 351, 358 (1997); see also Norman v. Reed, 502
U.S. 279, 288-89 (1992). But the Supreme Court has never
designated any specific lesser level of scrutiny – whether
rational basis, intermediate scrutiny, or any other standard of
review – to analyze restrictions that do not impose severe
burdens. Instead, in Burdick v. Taskushi, the Court applied
Anderson balancing, rather than a discrete level of scrutiny, to
a ballot-access restriction that it found to be not severe. See
504 U.S. at 434, 439-40 (holding that the “legitimate interests
asserted by the State are sufficient to outweigh the limited
burden” that the restriction under review imposed); see also
Timmons, 520 U.S. at 363-64 (applying Norman “sufficiently
weighty” standard to non-severe restriction). And in Crawford
v. Marion County Election Board, 553 U.S. 181 (2008), a majority
of the Court’s members appeared to disavow the application of 31 specific and discrete levels of scrutiny to non-severe
restrictions. See 553 U.S. at 191 (Stevens, J.) (“However
slight th[e] burden may appear . . . it must be justified by
relevant and legitimate state interests ‘sufficiently weighty to
justify the limitation.’”) (quoting Norman, 502 U.S. at 288-89),
210 (Souter, J., dissenting) (observing that Court has “avoided
preset levels of scrutiny in favor of a sliding-scale balancing
analysis”).
Thus, I decline to apply any specific and discrete level of
scrutiny to HB 1542 and instead evaluate the State’s interest
supporting the law under the Anderson balancing framework.11 To
do so, I must consider the “precise interests put forward by the
11I recognize that the First Circuit applied rational-basis review to the law at issue in Barr. 626 F.3d at 110. I read that decision, however, to apply rational basis-review because the burden imposed by the challenged law was so minor that it did not warrant review of any greater rigor. See id. The First Circuit also applied rational-basis review in Werme v. Merrill, a pre-Barr decision, but it made this reasoning more explicit. See 84 F.3d at 485 (“Given the character and magnitude (or, more aptly put, lack of magnitude) of the alleged injury to the plaintiffs’ First and Fourteenth Amendment rights, we conclude that the defendants need only show that the enactment of the regulation had a rational basis.”) As I have explained, HB 1542 creates a burden that, although not severe, is more than trivial. Thus, under Anderson analysis, it requires a more searching review than mere rational-basis scrutiny to verify that the State’s interest is “sufficiently weighty to justify the limitation,” Norman, 502 U.S. at 288-89.
32 State as justifications for the burden imposed by” HB 1542,
Anderson, 460 U.S. at 789, and determine whether those interests
are “sufficiently weighty to justify the limitation,” Norman,
502 U.S. at 289. I may only consider interests that the State
identifies; I am not free, in other words, to validate the
restriction based on hypothetical interests that the State does
not invoke. Cool Moose Party v. Rhode Island, 183 F.3d 80, 88
(1st Cir. 1999).
The State offers several justifications for HB 1542 to meet
its burden under Anderson balancing. Its strongest argument,
however, appeals to its interest in maintaining an orderly
ballot by requiring candidates to demonstrate a measure of
public support before gaining ballot access.12 The State
12The State also points to two other interests that, it argues, provide sufficient justification for HB 1542: first, avoiding confusion with the statutory provision for unaffiliated candidates to gain ballot access by collecting their own nomination papers, which had already been subject to a January 1 start date; and second, reducing the number of “false positives,” or nomination papers accepted toward the requirement that were actually invalid because their signers had either relocated or died before the early August deadline for petition submission. I need not address these other interests, however, because the State’s interest in requiring a demonstration of sufficient support independently justifies HB 1542. For that reason, Block v. Mollis, which involved a challenge against a Rhode Island ballot-access restriction similar to HB 1542, does not bear on this case, since Rhode Island sought to justify the challenged restriction there solely on the basis of the state’s 33 explains that HB 1542 “require[s] a political organization to
obtain the requisite number of nomination papers within a set
time frame, thereby showing that the organization currently has
the necessary level of popular support within New Hampshire” to
gain ballot access. Doc. No. 41-1 at 22-23. This purpose, the
State argues, comports with its broader interest in avoiding
ballot clutter and overcrowding by limiting ballot access only
to those organizations that demonstrate a basic level of support
within New Hampshire. Id. at 22-23.
The State’s asserted justification finds powerful and
extensive support in both Supreme Court and First Circuit
precedents, which establish that the State’s broad regulatory
interest in administering orderly elections includes a strong
interest in avoiding ballot clutter. See Anderson, 460 U.S. at
788; Libertarian Party of Me. v. Diamond, 992 F.2d 365, 371 (1st
Cir. 1993). “There is surely an important state interest in
requiring some preliminary showing of a significant modicum of
support before printing the name of a political organization’s
candidate on the ballot – the interest, if no other, in avoiding
confusion, deception, and even frustration of the democratic
claimed “false positive” interest. See 618 F. Supp. 2d at 151- 52 (D.R.I. 2009). 34 process at the general election.” Jenness v. Fortson, 403 U.S.
431, 442 (1971). “The means of testing the seriousness of a
given candidacy may be open to debate; the fundamental
importance of ballots of reasonable size limited to serious
candidates with some prospects of public support is not.” Lubin
v. Panish, 415 U.S. 709, 715 (1974); see also Am. Party of Tex.
v. White, 415 U.S. 767, 782 (1974) (describing state’s interest
in requiring political organizations to “demonstrate a
significant, measurable quantum of community support” as
“vital”); Libertarian Party of Me., 992 F.2d at 371 (observing
that support requirement “is meant to safeguard the integrity of
elections by avoiding overloaded ballots and frivolous
candidacies”).
The State’s strong and well-established interest in
preventing ballot clutter by requiring political organizations
to “make a preliminary showing of substantial support,”
Anderson, 460 U.S. at 788 n.9, provides sufficient justification
for HB 1542. The law ensures that third parties placing
candidates on the general-election ballot first obtain
expressions of support from a relatively small but measurable
number of New Hampshire voters within the election year itself.
In other words, it requires third parties to garner not only “a 35 preliminary showing of substantial support,” id., but a showing
of support that will remain reasonably current and relevant at
the time of the election itself.13 Measuring the scale and
currentness of community support through this process may not be
“a completely precise or satisfactory barometer of actual
community support for a political party, but the Constitution
has never required the States to do the impossible.” Am. Party
of Tex., 415 U.S. at 786-87. As I have explained, the burden
13At oral argument and in its reply brief, LPNH suggested that the State’s currentness argument renders HB 1542 facially discriminatory because New Hampshire accepts older election results as a sufficient showing of support from the major parties, which qualify for ballot access by receiving at least four percent of the vote for either Governor or U.S. Senator in the previous general election. See N.H. Rev. Stat. Ann. § 652:11. It is unconstitutional, LPNH contends, to demand same- year nomination papers from third parties to demonstrate the currentness of their support while also accepting the results of an election held two years earlier as a sufficient showing of support for the major parties. But the major parties, of course, must obtain at least four percent of votes cast at the previous general election to avoid the nomination papers requirement, while third parties need only collect nomination papers totaling three percent of that turnout. See N.H. Rev. Stat. Ann. §§ 652:11, 655:42, III. This one-percent difference is a legitimate legislative approximation of potential erosion of support during the year following an election. Alternatively, the legislature could also reasonably conclude that actually casting a vote for a candidate at an election demonstrates more enduring support than signing a nomination paper. In sum, this difference between major-party and third- party ballot-access qualification does not render HB 1542 facially discriminatory.
36 that HB 1542 imposes, although not negligible, is reasonable and
nondiscriminatory. At bottom, it demands nothing more than a
fair approximation of the threshold political support that the
State is entitled to require of political parties that seek
ballot access. Weighing the reasonableness of the restriction
created by HB 1542 against the gravity of the State’s asserted
interest underlying the law, I conclude that the State’s strong
interest in “insist[ing] that political parties appearing on the
general ballot demonstrate a significant, measurable quantum of
community support,” id. at 782, outweighs the burden that HB
1542 imposes on third parties.
LPNH concedes, as it must, that the State has at least an
abstract interest in avoiding ballot clutter. See Doc. No. 36-1
at 47. For two reasons, however, it argues that HB 1542 does
not legitimately advance that interest.14 First, LPNH objects
14LPNH also protests that the State raised its interest in requiring a demonstration of sufficient and current support too late in this litigation for me to credit it. I agree that the State primarily relied on other asserted interests during the early stages of this litigation, although I note that it at least alluded to the ballot clutter interest in its responses to LPNH’s interrogatories. See Doc. No. 37-3 at 62 (“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.”). Nevertheless, 37 that the preliminary-support justification for HB 1542 is a post
hoc rationalization rather than the legislature’s actual
motivation for the law. If LPNH were correct in claiming that
HB 1542 is subject to strict scrutiny, this argument might wield
some force. But Anderson balancing, not heightened scrutiny,
controls this analysis, and the Supreme Court’s cases applying
Anderson balancing have not barred states from invoking
interests that either find scant support in the legislative
history or otherwise look like post hoc justifications rather
than actual motivations. In Crawford, for instance, the
plaintiffs argued that the state’s asserted interests justifying
the challenged restriction were invalid because the restriction
“was actually motivated by partisan concerns.” 553 U.S. at 191.
The Court considered those asserted interests under Anderson
analysis nonetheless because they were “unquestionably relevant
to the State’s interest in protecting the integrity and
reliability of the electoral process.” Id.15; see also Tashijan
both the State and the RNC fully briefed the sufficient support interest in their summary judgment submissions, and LPNH had a full opportunity to respond to this argument in its reply brief and at oral argument.
15Justice Scalia’s concurrence in the judgment accepted the lead opinion’s articulation of these state interests. See Crawford, 553 U.S. at 209. 38 v. Republican Party of Conn., 479 U.S. 208, 217-25 (1986)
(considering multiple interests asserted by state without
inquiring into whether those interests were actual or post hoc).
Here, too, it is enough that HB 1542 furthers the State’s
undisputed interest in preventing ballot clutter.16
16LPNH claims in passing that HB 1542 represents an “intentional effort to discriminate against the Libertarian Party.” Doc. No 36-1 at 9 (capitalization modified). If, of course, the record supported this claim – if, for instance, direct evidence showed that members of either the General Court or either of the major parties intended HB 1542 to stifle LPNH or any other third party – then legislative motivation would be highly consequential. The record, however, contains no such evidence. To support its intentional discrimination claim, LPNH recounts how, before the 2012 LPNH petition drive began in summer 2011, Secretary Gardner initially believed that third-party nomination papers needed to be signed during the election year. See id. But after LPNH explained to him that the same-year restriction applied only to individual candidates and not to third parties under New Hampshire law at that time, he relented and told LPNH that the State would accept nomination papers signed in either 2011 or 2012. Id. at 10. After the 2012 election, however, in December 2013, Secretary Gardner’s office endorsed the passage of HB 1542, which extended the same-year requirement to third parties. Id. LPNH points to no other evidence supporting its intentional discrimination claim.
I can discern no basis on which this account could support a reasonable inference of intentional discrimination against LPNH, and LPNH’s brief provides no such explanation beyond merely recounting these facts. See id. at 9-10. More broadly, beyond its conclusory and undeveloped assertion at oral argument that the record as a whole suggests intentional discrimination against it, LPNH has offered no other sufficient basis for its intentional discrimination claim – nor could it, given the lack of any supporting evidence in the record. Thus, I treat LPNH’s intentional discrimination claim as a nullity for purposes of 39 LPNH also argues that HB 1542 does not advance the State’s
interest in preventing ballot clutter because “[t]he regime
before HB 1542” – namely, the existing three percent threshold
unaccompanied by any same-year requirement – “already served
this state interest.” Doc. No. 43 at 16. Logically, however,
this argument implies that states cannot modify their ballot-
access regulations until actual voter confusion or distracting
frivolous candidacies occur, a position that the Supreme Court
rejected in Munro v. Socialist Workers Party, 479 U.S. 189
(1986). “To require States to prove actual voter confusion,
ballot overcrowding, or the presence of frivolous candidacies as
a predicate to the imposition of reasonable ballot access
restrictions,” the Court held there, “would necessitate that a
State’s political system sustain some level of damage before the
legislature could take corrective action.” Id. at 195. For
that reason, the Court’s ballot-access doctrine permits state
legislatures “to respond to potential deficiencies in the
electoral process with foresight rather than reactively,
provided that the response is reasonable and does not
significantly impinge on constitutionally protected rights.”
summary judgment. 40 Id. at 195-96. Thus, the relevant question here is whether the
challenged restriction is itself reasonable and sufficiently
justified by a regulatory interest, not, as LPNH suggests,
whether the existing regulations preceding the restriction were
already effective. As I have explained, HB 1542 imposes only a
reasonable burden on ballot access that is outweighed by the
State’s interest in avoiding ballot clutter. Under Munro, that
conclusion ends the matter, and the State need not make an
additional factual showing of actual ballot overcrowding or
voter confusion predating HB 1542 for the law to survive. See
IV. CONCLUSION
This case requires me to decide only whether HB 1542
violates the First and Fourteenth Amendments to the U.S.
Constitution. For the reasons I have explained, I conclude that
it does not.
Reasonable minds can and do disagree about the wisdom of
this country’s present two-party political structure, and there
is little question that, for better or worse, HB 1542 promotes
that structure to at least some degree by making it marginally
more difficult for third parties to gain ballot access in New 41 Hampshire. But because HB 1542 does not breach any of the
constitutional ballot-access boundaries that the Supreme Court
has established, it is for the New Hampshire legislature to
decide whether the law serves the interests of this State’s
voters.
HB 1542 prescribes a reasonable and nondiscriminatory
ballot-access restriction that is justified by the State’s
interest in requiring political parties to demonstrate a
sufficient level of support within the State. It is therefore
not unconstitutional. Thus, I deny LPNH’s motion for summary
judgment (Doc. No. 36) and grant the Secretary’s motion for
summary judgment (Doc. No. 40). The clerk shall enter judgment
accordingly and close the case.
SO ORDERED.
/s/Paul Barbadoro _ Paul Barbadoro United States District Judge August 27, 2015
cc: Courtney Hart, Esq. William E. Christie, Esq. Gilles R. Bissonnette, Esq. Laura E. B. Lombardi, Esq. Stephen G. LaBonte, Esq. Brian D. Duffy, Esq. Gordon J. MacDonald, Esq. 42