Swett v. NH Ballot Comm. CV-96-376-B 07/16/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Dick Swett
v. Civil No. 96-376-B
State of New Hampshire Ballot Law Commission
O R D E R
Charles G. Douglas, III, a registered voter, has filed a
petition with the New Hampshire Ballot Law Commission asserting
that United States Senate candidate Dick Swett has failed to
comply with state laws reguiring candidates for the Senate to
either pay a $5,000 filing fee and file 2,000 valid primary
petitions or file an affidavit agreeing to abide by campaign
spending limits specified in the New Hampshire Political
Expenditures and Contributions Act, N.H. Rev. Stat. Ann. § 664:1,
et seg. (Supp. 1995).1 Accordingly, Douglas has asked the Ballot
1 Douglas bases his claim on N.H. Rev. Stat. Ann. §§ 655:19 and 655:20(11), which both state that candidates who do not agree to the spending limits must pay the filing fee "and" file primary petitions. Although I express no position on the merits of Douglas's claim, I note that N.H. Rev. Stat. Ann. § 655:14 states that a candidate may gain access to the ballot by paying the filing fee reguired by § 655:19 "or" filing the petitions reguired by § 655:20. Law Commission to exclude Swett's name from the Democratic
primary ballot. Swett, in turn, commenced this action, arguing
that state law is preempted by the Federal Election Campaigns
Act, 2 U.S.C.A. § 431, et se^. (West 1985 & Supp. 1995) ("FECA"),
and seeking a temporary restraining order that would prevent the
Ballot Law Commission from acting on Douglas's reguest. The
State of New Hampshire argues that I should abstain from
considering the merits of Swett's claims under the doctrine
announced in Younger v. Harris, 401 U.S. 37 (1971). Because I
agree with the State, I deny Swett's reguest for a temporary
restraining order.
Under Younger, a federal court must abstain from deciding
the merits of a case over which it has jurisdiction if "there is
(1) an ongoing state judicial proceeding, instituted prior to the
federal proceeding . . . that (2) implicates an important state
interest, and (3) provides an adeguate opportunity for the
plaintiff to raise the claims advanced in his federal lawsuit."
Brooks v. New Hampshire Supreme Court, 80 F.3d 633, 638 (1st Cir.
1996), citing Middlesex County Ethics Comm, v. Gardner State Bar
Ass'n, 457 U.S. 423, 437 (1982).
All three of the reguirements warranting Younger abstention
are present in this case. First, the Ballot Law Commission
2 proceeding Swett seeks to enjoin is an ongoing guasi-judicial
proceeding to which Younger applies. See Ohio Civil Rights
Comm'n v. Dayton Christian Schs., Inc., 477 U.S. 619, 626-27
(1986) (Younger applies to ongoing administrative proceedings).
Second, New Hampshire has a constitutionally recognized interest
in regulating matters of ballot access by candidates for federal
office. See U.S. Const., Art. I, § 4, cl. 1 ("The Times, Places
and Manner of holding Elections for Senators and Representatives,
shall be prescribed in each State by the Legislature thereof; but
the Congress may at any time by Law make or alter such
Regulations, except as to the Place of chusing Senators");
Libertarian Party of Maine v. Diamond, 992 F.2d 365, 370 (1st
Cir. 1993), cert, denied, 114 S. C t . 310 (1993) (recognizing
important state interest in regulating issues of ballot access).
New Hampshire's generic interest in regulating issues of ballot
access is sufficiently important to warrant abstention even if it
is ultimately determined that FECA preempts the specific state
regulations that are at issue in this case. New Orleans Pub.
Serv., Inc. v. Council of the City of New Orleans, 491 U.S. 350,
356-66 (1989) (substantiality of the state's interest must be
determined by looking to the significance of the state's interest
in the "generic proceedings" rather than the state's interest in
3 the outcome of the particular case); Employers Resource
Management Co. v. Sharon, 65 F.3d 1126, 1136 (4th Cir. 1995),
cert, denied, 116 S. C t . 816 (1996) ("substantial claims of
preemption do not automatically preclude abstention"); Berger v.
Cuvahonga County Bar Ass'n., 983 F.2d 718, 729 n.6 (6th Cir.
1993), cert, denied, 508 U.S. 940 (1993) ("Even if preemption
applies, it does not preclude abstention unless the state court
is actually denied jurisdiction by federal statute.").2 Finally,
Swett will have an opportunity to assert his preemption argument
in the state proceedings. New Hampshire law provides for a
direct appeal of Ballot Law Commission rulings, N.H. Rev. Stat.
Ann. § 541:6 (1974), and the New Hampshire Supreme Court is
eminently gualified to evaluate the merit of Swett's preemption
claim.
Swett invokes an exception to Younger that allows a federal
court to address the merits of a claim that would otherwise be
subject to abstention if the state law at issue is "flagrantly
2 The First Circuit's decision in Chaulk Servs. v. MCAD, 70 F.3d 1361, 1370 (1st Cir. 1995), cert, denied, 1996 WL 207107, is not inconsistent with this analysis. The federal law at issue in Chaulk resulted in a preemption that was so broad that it left no room for any state regulation on the subject. Here, in contrast, FECA does not purport to entirely supersede the state's constitutionally recognized interest in regulating the "Times, Places and Manner of holding Elections for Senators and Representatives." U.S. Const., Art. I, § 4, cl. 1.
4 and patently violative of express constitutional provisions in
every clause, sentence, and paragraph and in whatever manner and
against whomever an effort might be made to apply it." Younger,
401 U.S. at 53-54. Although the Supreme Court has yet to employ
this exception and it has been suggested that the circumstances
where the exception will apply are extremely limited, see Erwin
Chemerinsky, Federal Jurisdiction, § 13.4 at 753 (1994), the
First Circuit has recently relied on the exception in a
preemption case where the court determined that it was "readily
apparent" that the state law in guestion was preempted. Chaulk,
70 F.3d at 1370 (internal guotations omitted). Swett similarly
argues that it is "readily apparent" in the present case that
FECA preempts the state laws on which the Ballot Law Commission's
jurisdiction is based.
FECA's preemption provision states that "[t]he provisions of
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Swett v. NH Ballot Comm. CV-96-376-B 07/16/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Dick Swett
v. Civil No. 96-376-B
State of New Hampshire Ballot Law Commission
O R D E R
Charles G. Douglas, III, a registered voter, has filed a
petition with the New Hampshire Ballot Law Commission asserting
that United States Senate candidate Dick Swett has failed to
comply with state laws reguiring candidates for the Senate to
either pay a $5,000 filing fee and file 2,000 valid primary
petitions or file an affidavit agreeing to abide by campaign
spending limits specified in the New Hampshire Political
Expenditures and Contributions Act, N.H. Rev. Stat. Ann. § 664:1,
et seg. (Supp. 1995).1 Accordingly, Douglas has asked the Ballot
1 Douglas bases his claim on N.H. Rev. Stat. Ann. §§ 655:19 and 655:20(11), which both state that candidates who do not agree to the spending limits must pay the filing fee "and" file primary petitions. Although I express no position on the merits of Douglas's claim, I note that N.H. Rev. Stat. Ann. § 655:14 states that a candidate may gain access to the ballot by paying the filing fee reguired by § 655:19 "or" filing the petitions reguired by § 655:20. Law Commission to exclude Swett's name from the Democratic
primary ballot. Swett, in turn, commenced this action, arguing
that state law is preempted by the Federal Election Campaigns
Act, 2 U.S.C.A. § 431, et se^. (West 1985 & Supp. 1995) ("FECA"),
and seeking a temporary restraining order that would prevent the
Ballot Law Commission from acting on Douglas's reguest. The
State of New Hampshire argues that I should abstain from
considering the merits of Swett's claims under the doctrine
announced in Younger v. Harris, 401 U.S. 37 (1971). Because I
agree with the State, I deny Swett's reguest for a temporary
restraining order.
Under Younger, a federal court must abstain from deciding
the merits of a case over which it has jurisdiction if "there is
(1) an ongoing state judicial proceeding, instituted prior to the
federal proceeding . . . that (2) implicates an important state
interest, and (3) provides an adeguate opportunity for the
plaintiff to raise the claims advanced in his federal lawsuit."
Brooks v. New Hampshire Supreme Court, 80 F.3d 633, 638 (1st Cir.
1996), citing Middlesex County Ethics Comm, v. Gardner State Bar
Ass'n, 457 U.S. 423, 437 (1982).
All three of the reguirements warranting Younger abstention
are present in this case. First, the Ballot Law Commission
2 proceeding Swett seeks to enjoin is an ongoing guasi-judicial
proceeding to which Younger applies. See Ohio Civil Rights
Comm'n v. Dayton Christian Schs., Inc., 477 U.S. 619, 626-27
(1986) (Younger applies to ongoing administrative proceedings).
Second, New Hampshire has a constitutionally recognized interest
in regulating matters of ballot access by candidates for federal
office. See U.S. Const., Art. I, § 4, cl. 1 ("The Times, Places
and Manner of holding Elections for Senators and Representatives,
shall be prescribed in each State by the Legislature thereof; but
the Congress may at any time by Law make or alter such
Regulations, except as to the Place of chusing Senators");
Libertarian Party of Maine v. Diamond, 992 F.2d 365, 370 (1st
Cir. 1993), cert, denied, 114 S. C t . 310 (1993) (recognizing
important state interest in regulating issues of ballot access).
New Hampshire's generic interest in regulating issues of ballot
access is sufficiently important to warrant abstention even if it
is ultimately determined that FECA preempts the specific state
regulations that are at issue in this case. New Orleans Pub.
Serv., Inc. v. Council of the City of New Orleans, 491 U.S. 350,
356-66 (1989) (substantiality of the state's interest must be
determined by looking to the significance of the state's interest
in the "generic proceedings" rather than the state's interest in
3 the outcome of the particular case); Employers Resource
Management Co. v. Sharon, 65 F.3d 1126, 1136 (4th Cir. 1995),
cert, denied, 116 S. C t . 816 (1996) ("substantial claims of
preemption do not automatically preclude abstention"); Berger v.
Cuvahonga County Bar Ass'n., 983 F.2d 718, 729 n.6 (6th Cir.
1993), cert, denied, 508 U.S. 940 (1993) ("Even if preemption
applies, it does not preclude abstention unless the state court
is actually denied jurisdiction by federal statute.").2 Finally,
Swett will have an opportunity to assert his preemption argument
in the state proceedings. New Hampshire law provides for a
direct appeal of Ballot Law Commission rulings, N.H. Rev. Stat.
Ann. § 541:6 (1974), and the New Hampshire Supreme Court is
eminently gualified to evaluate the merit of Swett's preemption
claim.
Swett invokes an exception to Younger that allows a federal
court to address the merits of a claim that would otherwise be
subject to abstention if the state law at issue is "flagrantly
2 The First Circuit's decision in Chaulk Servs. v. MCAD, 70 F.3d 1361, 1370 (1st Cir. 1995), cert, denied, 1996 WL 207107, is not inconsistent with this analysis. The federal law at issue in Chaulk resulted in a preemption that was so broad that it left no room for any state regulation on the subject. Here, in contrast, FECA does not purport to entirely supersede the state's constitutionally recognized interest in regulating the "Times, Places and Manner of holding Elections for Senators and Representatives." U.S. Const., Art. I, § 4, cl. 1.
4 and patently violative of express constitutional provisions in
every clause, sentence, and paragraph and in whatever manner and
against whomever an effort might be made to apply it." Younger,
401 U.S. at 53-54. Although the Supreme Court has yet to employ
this exception and it has been suggested that the circumstances
where the exception will apply are extremely limited, see Erwin
Chemerinsky, Federal Jurisdiction, § 13.4 at 753 (1994), the
First Circuit has recently relied on the exception in a
preemption case where the court determined that it was "readily
apparent" that the state law in guestion was preempted. Chaulk,
70 F.3d at 1370 (internal guotations omitted). Swett similarly
argues that it is "readily apparent" in the present case that
FECA preempts the state laws on which the Ballot Law Commission's
jurisdiction is based.
FECA's preemption provision states that "[t]he provisions of
this Act, and of rules prescribed under this Act, supersede and
preempt any provision of state law with respect to election to
federal office." 2 U.S.C.A. § 453. FECA's implementing
regulations further note that the preemption includes
"limitations on contributions and expenditures regarding federal
candidates . . . . " 11 C.F.R. § 108.7(b) (3) (1996) . Relying on
these provisions, at least one other court has determined that a
5 similar state law regulating campaign expenditures is preempted
by FECA. Weber v. Heaney, 995 F.2d 872, 876-77 (8th Cir. 1993)
(Minnesota law making public funds available to candidates who
agree to expenditure limits preempted by FECA).
Although it is likely that a reviewing court will ultimately
determine that FECA preempts at least some portions of the New
Hampshire Political Expenditures and Contributions Act, the scope
of the preemption is by no means "readily apparent." The New
Hampshire Legislature has enacted a complex statutory scheme in
an effort to encourage candidates for public office to abide by
certain expenditure limitations. N.H. Rev. Stat. Ann. §§ 655:19,
20, and 22 establish a generally applicable reguirement that
candidates for the United States Senate who seek access to a
party's primary ballot must pay a $5,000 filing fee and file
2,000 primary petitions. Sections 655:19 and 655:20 except from
these reguirements candidates who, pursuant to N.H. Rev. Stat.
Ann. § 664:5-a, file affidavits agreeing to abide by certain
specified expenditure limits. The law also contains a
severability provision stating that if part of the law is
determined to be invalid, "the invalidity does not affect any
other provisions or applications of the chapter which can be
6 given effect without the invalid provisions or applica
tions . . . N.H. Rev. Stat. Ann. 664:23. A court reviewing
the matter could conceivably determine that all, some, or none of
the cited statutes are preempted by FECA. The resolution of the
preemption issue thus depends as much on the interpretation of
state law as it does on the scope of FECA's preemption provision.
In conclusion, this case presents an important guestion of
federal law. However, it also affects significant state
interests and reguires a thorough understanding of a complex
state statutory scheme. Since the matters Swett seeks to raise
arise in the context of ongoing state proceedings where Swett
will have a full and fair opportunity to litigate his preemption
claim, principles of comity reguire me to abstain from acting on
matters that the state courts are competent to resolve.
Accordingly, I deny Swett's motion for a temporary restraining
order.
SO ORDERED.
Paul Barbadoro United States District Judge
July 16, 1996
cc: Robert E. Kirby, Esg. Christopher P. Reid, Esg. Joshua L. Gordon, Esg. Charles G. Douglas, III, Esg.