Maine Green Party v. ME, Secy of State

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 98-1309



                        MAINE GREEN PARTY,



                      Plaintiff, Appellant,



                                v.



                    MAINE, SECRETARY OF STATE,



                       Defendant, Appellee.


APPEAL FROM THE UNITED STATES DISTRICT COURT



                    FOR THE DISTRICT OF MAINE



             [Hon. Gene Carter, U.S. District Judge]


Before



                     Torruella, Chief Judge,

                Campbell, Senior Circuit Judge,

                   and Stahl, Circuit Judge.


Gary Sinawski for appellant.

     Phyllis Gardiner, with whom Andrew Ketterer, Attorney General,

Thomas D. Warren, State Solicitor, and Peter J. Brann, Assistant

Attorney General, were on brief for appellee.


March 2, 1999


STAHL, Circuit Judge.  Following the 1996 presidential

election, Maine's Secretary of State informed plaintiff-appellant

Maine Green Party that it was disqualified from official party

status because its presidential nominee, Ralph Nader, had failed to

receive at least 5% of the Maine presidential vote.  See 21-A

M.R.S.A.  301(1)(C) (1992) (requiring, inter alia, previously-

qualified parties to receive at least 5% of the presidential vote

in presidential election years and at least 5% of the gubernatorial

vote in gubernatorial election years to retain official party

status).  Plaintiff subsequently filed a declaratory judgment

action claiming, insofar as is here relevant, that  301(1)(C)'s

presidential vote requirement violates plaintiff's First and

Fourteenth Amendment rights because it effectively prohibits the

formation of new political parties that lack national

organizations.  In due course, the parties cross-moved for summary

judgment.

     As developed in its summary judgment papers, plaintiff's

argument was a tripartite syllogism:  (1) "the backing of a

nationally known and reasonably capable national party is essential

for a presidential candidate of a state party if he or she is to

have credibility with the voters in that state," Plaintiff's

Objection to Defendant's Motion for Summary Judgment and Cross

Motion for Summary Judgment with Incorporated Memorandum of Law at

7; (2) Maine's presidential vote requirement has the practical

effect of "prohibit[ing] the formation of third parties from within

the State of Maine that have no national organization[s]," id. at

10, and (3) the presidential vote requirement thus forecloses the

development of new political parties in Maine, as new parties will

almost inevitably lack national organizations, see id.  In

presenting this argument, plaintiff also asserted that it had had

no intention of fielding a candidate for the 1996 presidential

election; it had only done so after learning that it faced

disqualification and in the hope that Mr. Nader would receive

enough of the vote to obviate the need for this litigation.

     The district court referred the matter to Magistrate

Judge Cohen for a report and recommendation.  Magistrate Judge

Cohen recommended that summary judgment be entered for the State

and against plaintiff.  He initially questioned the foundational

premise of plaintiff's argument, reasoning that "it is possible

that Maine voters who care enough about the official status of a

new political party would be willing to vote for that party's

presidential candidate even if that candidate cannot win because he

or she lacks a national organization or presence."  Maine Green

Party v. Secretary of State, Civil No. 96-261-B-C, Recommended

Decision on Cross-Motions for Summary Judgment at 12 (D. Me. filed

Dec. 24, 1997).  In any event, he concluded that the presidential

vote requirement was insufficiently burdensome to warrant strict

scrutiny, see id. at 12-14 (applying Supreme Court and First

Circuit case law), suggesting that "the restriction at issue here

in no way regulates the organization and development of political

parties," id. at 14-15.  In declining to apply strict scrutiny,

Magistrate Judge Cohen contrasted  301(1)(C) with statutes

prohibiting the governing bodies of political parties from

endorsing candidates in their parties' primaries, see Eu v. San

Francisco County Democratic Central Comm., 489 U.S. 214, 222-33

(1989) (striking down such a statute), and with statutes

prohibiting political parties from allowing independent voters to

participate in their primaries, see Tashjian v. Republican Party of

Conn., 479 U.S. 208, 213-25 (1986) (similar).  Applying the more

lenient rational basis review, Magistrate Judge Cohen concluded

that  301(1)(C) passed constitutional muster with room to spare. 

See Maine Green Party, Recommended Decision at 14-16. 

     Apparently after having secured new counsel, plaintiff

objected to the report and recommendation.  But its objection set

forth an additional argument not urged in the summary judgment

papers:  that it would be unconstitutional to apply  301(1)(C) to

a party, like itself, which chooses to organize solely on the state

and local level.  We pause here to emphasize this shift in

plaintiff's position.  Prior to filing its objection to the report

and recommendation, the thrust of plaintiff's argument, as we have

said, was that it would be unconstitutional to apply  301(1)(C)'s

presidential vote requirement to a new party, like itself, that

lacked the resources to support a national organization.  In

contrast, plaintiff's objection for the first time suggested that

plaintiff's lack of a national organization was instead an

outgrowth of the party's philosophical commitment to operate only

on the state and local level.  The district court, facing time

constraints related to the then-upcoming 1996 primary elections,

accepted the magistrate judge's recommended disposition without

commenting upon the new twist put on plaintiff's argument by

plaintiff's new counsel, or even indicating whether it had given

the argument plenary consideration.    

     On appeal, plaintiff has effectively elected to develop

and press only the argument that application to it of  301(1)(C)'s

presidential vote requirement unconstitutionally interferes with

one of its associational first principles:  to remain a solely

local party.  By way of elaborating this position, plaintiff

further asserts before us that it has "a constitutional right to

choose not to run candidates for president at all."  Appellant's

Brief at 13.  The State, though apparently perceiving plaintiff's

argumentative shift, has not presented us with a developed

responsive argument; it has merely sought to distinguish Eu and

Tashjian, and it has made little mention of plaintiff's asserted

right not to run presidential candidates.   

     The distinction between the position taken by plaintiff

at the summary judgment stage and the position taken by plaintiff

on appeal strikes us as potentially crucial.  If, on the one hand,

plaintiff was unable to field a viable presidential candidate

because it was new and therefore lacked the support and resources

to implement a national organization, we could, at the very least,

rest assured that  301(1)(C) was operating within contemplated

circumstances.  The statute plainly was intended to assure that

official parties be sufficiently supported.  See Jenness v.

Fortson, 403 U.S. 431, 442 (1971) ("[T]here 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."); see alsoLibertarian Party of Maine v. Diamond, 992 F.2d 365, 371-72 (1stCir. 1993) (state may properly require a political party to

demonstrate continued "substantial support" among the electorate as

a condition of official party status).  Use of the presidential

vote requirement to exclude from the ballot a party formed on a

more traditional model (i.e., one that intends, at least at some

point in time, to nominate candidates for all elective offices

voted on within a state) but insufficiently developed at the

present time to nominate a minimally viable presidential candidate

would seem consonant with the statute's purpose.  

     If, on the other hand, plaintiff's lack of a national

organization (and concomitant decision not to nominate presidential

candidates) stemmed from a philosophical commitment to devote

itself solely to issues with direct bearing on Maine or to nominate

only candidates who could be elected to office by the Maine

electorate, matters might be different.  Forcing such a party to

field a presidential candidate might well be regarded as a direct

infringement of the party's core protected activity   an

infringement that is, under relevant precedent, to be skeptically

scrutinized.  See Eu, 489 U.S. at 230 (treating as core protected

activity political party's "discretion in how to organize itself,

conduct its affairs, and select its leaders"); Tashjian, 479 U.S.

at 224 (Constitution protects a party's "determination . . . of the

structure which best allows it to pursue its political goals").  

          We come, then, to our fundamental problem:  the argument

plaintiff presses on appeal was not timely asserted in the district

court, see Santiago v. Canon U.S.A., Inc., 138 F.3d 1, 4 (1st Cir.

1998) ("The district court is under no obligation to discover or

articulate new legal theories for a party challenging a report and

recommendation issued by a magistrate judge.");  Paterson-Leitch

Co., Inc. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985,

990 (1st Cir. 1988) (similar); Borden v. Secretary of Health & Human

Servs., 836 F.2d 4, 6 (1st Cir. 1987) ("Appellant was entitled to

a de novo review by the district court of the [magistrate judge's]

recommendations to which he objected, however he was not entitled

to a de novo review of an argument never raised.") (citation

omitted), yet the argument made to the magistrate judge is not

here renewed, at least not in a developed fashion.   



     Under the circumstances, we think the prudent course is

to affirm the judgment of the district court without passing on the

merits of plaintiff's appellate argument.  Although the district

court's boilerplate affirmance of the magistrate judge's report and

recommendation does not explicitly indicate that it rejected

plaintiff's "new" argument on grounds of waiver (as it would have

been within its rights to do, see Santiago, 138 F.3d at 4;

Paterson-Leitch, 840 F.2d at 990-91; Borden, 836 F.2d at 6), we

think it doubtful that the court gave the argument plenary

consideration, given its silence on the matter and plaintiff's

utter lack of explanation for (indeed, acknowledgment of) not

having advanced the argument earlier.  Moreover, we have

considerable doubt as to whether the summary judgment record even

supports plaintiff's new position; despite a number of affidavits

which stated that plaintiff was formed to participate in state and

local political activities, plaintiff also filed an affidavit

making clear that, during the 1996-97 time frame, a number of

plaintiff's founding members were taking steps towards forming a

national Green party.  See Declaration of Nancy Allen at  8-9. 

We thus believe that a remand for purposes of clarification would

be an exercise in empty formalism.

     Moreover, a number of the minimalist principles

underlying our waiver rules support avoidance of a merits ruling in

this case.  See Cass R. Sunstein, The Supreme Court, 1995 Term  

Foreword:  Leaving Things Undecided, 110 Harv. L. Rev. 4, 6-8

(1996) (summarizing the jurisprudential underpinnings of the

presumption towards decisional minimalism) (hereafter "Sunstein"). 

Our resolution not only avoids an unnecessary constitutional

decision, see, e.g., Three Affiliated Tribes v. Wold Eng'g, P.C.,

467 U.S. 138, 157 (1984), but it leaves undecided the

constitutionality of an application of a state statute in

circumstances that may well be beyond the statute's contemplation

and where we are not even certain that the State would apply it. 

With respect to whether these circumstances are within the

statute's contemplation, we note that the statute appears to

proceed from the assumption that political parties will wish to

nominate presidential candidates; we have before us no evidence of

a legislative intent to keep off the ballot well-supported parties

that are philosophically opposed to participating in presidential

politics.  Cf. Sunstein, 110 Harv. L. Rev. at 7 (noting a

presumption against deciding and implementing a statute's

hypothetical purposes).  And with respect to whether the State

would even apply the statute to a solely local party, we note an

absence of evidence that plaintiff ever informed the State prior to

its objection to the report and recommendation that it was

committed to being a solely local party, or that its local

character implied a commitment to abstain from nominating

presidential candidates.  Cf. id. (courts should strive to avoid

rulings in areas not "ripe" for decision or where their decisions

may well be advisory in fact).  

     In addition, our resolution avoids a merits ruling where

there has been no real adverse argumentation of the point in

question.  Cf. Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520, 572 (1993) (Souter, J., concurring in part

and concurring in the judgment) ("Sound judicial decisionmaking

requires 'both a vigorous prosecution and a vigorous defense' of

the issues in dispute . . . and a constitutional rule announced suasponte is entitled to less deference than one addressed on full

briefing and argument.") (citation omitted).  And it does so where

the costs of an erroneous ruling (a strong possibility given the

lack of adverse argumentation and relevant record development)

could be very high for states and for developing political parties. 

See Sunstein, 110 Harv. L. Rev. at 18-19.   

     Before concluding, we respond to one other point made in

Judge Campbell's opinion concurring in the judgment.  Although we

already have explained our disagreement with Judge Campbell that

the argument made in the summary judgment papers and the argument

made on appeal are essentially the same, and/or that the argument

made on appeal was subsumed within the argument made at summary

judgment, see supra at 6-7, we think it important to emphasize that

this is a qualitatively different situation from one where a claim

made below   for example, a claim that a search was unreasonable

under the Fourth Amendment   is amplified by appellate counsel

with, for example, novel policy arguments never presented to the

district court.  The present situation involves a material shift in

a factual position taken by plaintiff as to why it had no national

organization in 1996; it is tantamount to a plaintiff arguing "I

was fired because my boss didn't like me" below and then arguing "I

was fired because my boss doesn't like elderly workers such as me"

on appeal.  We think it clear that our waiver rules ought to

preclude such a shift.

     Affirmed.  No costs.



                   (Separate opinion follows). 


CAMPBELL, Senior Circuit Judge (concurring in the

judgment).  I agree with my colleagues that the judgment below

should be affirmed.  I write separately because I disagree with my

colleagues' application of the waiver rule in the circumstances of

this case.

     My colleagues hold that appellant Maine Green Party has 

waived its First Amendment "associational" argument in its entirety

because of a shift in the nature of the argument from the time it

was first presented to the magistrate judge to the time it was

argued to the district court and, now, on appeal.  With respect, I

believe this holding is without support in the case law and that it 

represents an unworkably narrow application of the conventional

rule that issues not argued in the nisi prius tribunal may not

subsequently be raised in reviewing courts.     

     It seems to me that the argument now pressed on appeal by

the Green Party   that Maine's 5% presidential vote requirement

violated their First Amendment associational right to choose how

they wish to organize   was sufficiently presented in the first

instance to the magistrate judge to avoid any question of waiver. 

In its original cross-motion for summary judgment, filed with the

magistrate judge, the Green Party contended that Maine's 5%

presidential vote requirement "infringes upon the plaintiffs'

rights to organize as they see fit."  (Emphasis supplied.)  The

Party contended that it was organized in Maine around a "serious

candidate for Governor" who gained the support of 33,000 voters for

"ideas and positions concerning issues of importance on the state

level," and that its members "desire to achieve meaningful

participation in state and local politics."  In support of this

argument, the Green Party cited the controlling Supreme Court

precedent, to wit, Eu v. San Francisco County Democratic Central

Com., 489 U.S. 214 (1989) and Tashjian v. Republican Party of

Conn., 479 U.S. 208 (1986), and asserted that "[t]o disqualify the

Party because it has no national organization and no serious

candidate for the presidency thus violates the members' rights as

delineated in Eu and Tashjian."  

     On appeal, the Green Party and its members, citing, interalia, Eu and Tashjian, continue to state that they want to be

formed locally, and not on a national level, "either because they

are too new to have a national political organization or because

they choose to remain local."  I see no distinction sufficient to

justify application of the waiver rule between the First Amendment

associational argument put to the magistrate judge and the argument

now presented on appeal.      

     My colleagues claim a shift because the 5% presidential

vote criterion (necessitating a strong nationwide presence) was

initially claimed to be unconstitutionally burdensome only because

the Maine party was new, while now it is said to be too burdensome

because it interferes with the Green Party's philosophy favoring a

local, decentralized party.  It is not clear to me, however, that

the arguments were ever so neatly compartmentalized; and even if

the original associational argument focused less on philosophy and

more on the practical difficulties of tying party status to the 

showing of a viable presidential candidate, I do not believe the

difference in emphasis renders the present formulation a

significantly different argument.  Both versions expressly rest on

the freedom of association guaranteed by the First Amendment.  The

Green Party initially claimed, and has continued to claim, that the

Maine ballot access law infringes upon its members' right to

organize as they "see fit."  I think it is improper for us to

refuse to consider the Party's current variation simply because its

precursor, which invoked the same constitutional provision and

precedent, emphasized the unfairness of forcing a newly-formed

group to field a presidential candidate capable of attracting

significant Maine support while the later version stresses the

desire of the Green Party to concentrate on candidates for local

offices.  Compare Carribean Mushroom Co. v. Government Develop.

Bank, 102 F.3d 1307, 1309-10 (1st Cir. 1996) (variation of argument

amounting to a narrowing of position not a new argument).  

     My colleagues cite to no cases where arguments as closely

intertwined as these have been treated as distinct arguments for

waiver purposes.  My experience with constitutional argumentation

is that appellate courts are broadly tolerant of argumentative

shifts so long as the underlying constitutional provision remains

the same and no new facts need be found.  Future litigants will not 

dare to replace trial counsel with more sophisticated appellate

counsel if they have to fear that better-honed constitutional 

arguments, based on the same underlying theory, will be deemed

"new" and therefore waived.  This is not a case in which, having

sought relief before the magistrate judge under certain

constitutional or statutory provisions, appellant has switched to

different provisions.  Nor is this a case where an argument 

depends upon additional factual development in the lower court. 

Nor does this court need to read cases different from those cited

to the magistrate judge in order to address the present argument. 

Nor do I discern any major shift in underlying theory.         

     The waiver concept founders here for other reasons also. 

I do not think that my colleagues can rely upon Paterson-Leitch v.

Massachusetts Elec., 840 F.2d 985 (1st Cir. 1988), and the other

cited cases to establish that the Green Party is precluded from

raising its current version of the association argument.  In

Paterson-Leitch, for example, having failed to plead or argue

before the magistrate judge that it was entitled to sue as a third-

party beneficiary of a construction management contract, the

plaintiff attempted to assert third-party beneficiary status for

the first time before the district judge, in its objections to the

magistrate's recommended disposition.  The district judge expressly

refused to entertain the argument, finding that it had not been

presented to the magistrate.  We affirmed the district court's

refusal.  

     The circumstances here are altogether different.  Not

only does the argument here not raise an issue fundamentally

different from that previously argued to the magistrate judge, the

district judge never, for that or any reason, declined to hear the

present argument when made, as it was, by the Green Party.  Nor did

the State of Maine argue below or in this court that the Green

Party's argument before the district court should be disregarded

because not previously raised.  It is only this court itself which,

for the first time, believes that it has detected a sea-change 

such as to warrant our refusing to decide both the purported new

argument and the original argument put to the magistrate judge.  

     I simply do not see how we can assume that the district

judge refused or failed to consider the "new" argument.  For all

that appears, he fully considered it.  While the district court

would have been "within its rights" to refuse to consider a "new"

argument, it plainly had the power to do so.  The district court,

it is true, adopted the magistrate judge's report; but presumably

it did so because it believed the magistrate judge had adequately

addressed the associational argument.  This may or may not have

been so   that matter would be fair game for our appellate review

  but I don't see how we can read into the court's silence a

refusal to decide all the arguments put to it, including the ones

we now decide were waived.  In the absence of any determination by

the district court that the Green Party's argument was new and

impermissible, and in the further absence of any contention to this

effect by the State of Maine either here or below, I see no basis

for our invocation of a waiver ground. 

     In sum, I believe that my colleagues have misapplied the

waiver rule.  The arguments before us are similar to those we

regularly decide, requiring only research and analysis. I think

that we should address on the merits all the arguments raised. 

     I would add that if my colleagues are dissatisfied with

the State of Maine's failure to answer all aspects of the Green

Party's contentions on appeal, they could readily direct the State

of Maine to brief further any of the points not sufficiently

covered in Maine's brief.

     While writing separately, I do not dissent from the

court's affirmance of the judgment below.  As the Supreme Court

recently confirmed, the states have broad power to "enact

reasonable regulations of parties, elections, and ballots to reduce

election- and campaign-related disorder."  Timmons v. Twin Cities

Area New Party, 117 S. Ct. 1364, 1369 (1997).  See also Tashjian,

479 U.S. at 217 (Constitution grants states "broad power to

prescribe the 'Time, Places and Manner of holding Elections for

Senators and Representatives,' Art. I.  4, which power is matched

by state control over the election process for state offices"). 

For substantially the reasons set forth in Magistrate Judge Cohen's

well-reasoned report and recommendation, I believe that the Maine

statute falls within this broad grant of authority to the states. 

In my view, the State of Maine, like certain other states which

have taken a similar stance, is entitled to define a political

party for ballot purposes as an organization that has demonstrated

strength in the fielding of a presidential candidate as well as

local candidates.  I do not believe that the First Amendment takes

away from the states the authority to adopt such a definition

rooted, as it is, in our long national history in which political

parties typically fit that model.  While the 5% presidential vote

requirement, as Magistrate Judge Cohen noted, requires that new

parties like the Green party wage an "uphill battle," the Green

Party remains free "to endorse whom it likes, to ally itself with

others, to nominate candidates for office, and to spread its

message to all who will listen."  Timmons, 117 S. Ct. at 1371. 

Additionally, there are alternative means for its candidates to get

on the ballot.  In these circumstances, I discern no violation of

the Green Party's associational rights.               

     The Supreme Court has cautioned, "[n]o bright line

separates permissible election-related regulation from

unconstitutional infringements on First Amendment freedoms." 

Timmons, 117 S. Ct. at 1370.  In the present matter, it is far from

clear from existing Supreme Court precedent that the Maine law is

unconstitutional.  Granting the relief sought by the Green Party

calls for a major jurisprudential leap   a leap having major 

implications not only for Maine but for many other states.  In such

circumstances, I think that courts of appeals should indulge the

presumption of constitutionality to which state statutes and

constitutional provisions are entitled, leaving to the Supreme

Court, should it so desire, the creation of the innovative

constitutional jurisprudence needed to warrant such a radical

initiative.  I accordingly concur in affirming the judgment of the

district court, but on the merits rather than on the waiver ground

put forward by my colleagues.