UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
No. 95-1982
PAULA WERME, ET AL.,
Plaintiffs, Appellants,
v.
STEPHEN MERRILL, GOVERNOR OF NEW HAMPSHIRE, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Selya and Cummings,* Circuit Judges,
and Coffin, Senior Circuit Judge.
Barnes, Bender & Boehm, Martin Bender, and Paula Werme, pro
se, on brief for appellants. Jeffrey R. Howard, Attorney General, and Christopher P.
Reid, Assistant Attorney General, on brief for appellees.
May 23, 1996
*Of the Seventh Circuit, sitting by designation.
SELYA, Circuit Judge. We must determine in the course SELYA, Circuit Judge.
of this appeal whether New Hampshire overstepped constitutional
bounds by denying a recognized third party the right, enjoyed by
the state's two most popular political parties, to have election
inspectors and ballot clerks present at the polls on Election
Day. We conclude, as did the district court, that the state's
statutory scheme passes constitutional muster.
I. BACKGROUND I. BACKGROUND
The material facts are not in genuine dispute. In New
Hampshire, as elsewhere, the Democratic and Republican parties
dominate the political scene. Nevertheless, third parties can
make their mark. In the 1990 gubernatorial election one such
group, the Libertarian Party, garnered over 3% of the votes cast
statewide. This level of achievement earned it the right to hold
party primaries and to have its anointed candidates appear under
the party label on the official ballot. See N.H. Rev. Stat. Ann.
652:11 & 655:14 (1986). The Libertarian Party retained that
status by virtue of the number of votes its candidates garnered
in subsequent elections.
Despite party recognition and ballot status, the
Libertarian Party claims that it has been hampered by a series of
seemingly unconnected mishaps.1 Goaded by these incidents,
1To cite a few of the more bruited examples, the party claims that one town neglected to forward the count of Libertarian votes cast in the 1990 gubernatorial election to the Secretary of State; that, in another town, election officials, contrary to then-existing state law, see N.H. Rev. Stat. Ann.
659:14 (1986), since amended, see id. 659:14(I) (1994 Supp.),
refused to permit a registered Democrat to change her party
Paula Werme, a registered Libertarian, requested that the
selectmen in Mont Vernon appoint her to represent her party as a
ballot clerk at the March 1994 municipal election. The selectmen
denied her request. In rapid succession Werme then brought her
campaign to the Secretary of State and, failing to obtain
redress, sought a judicial anodyne.
Invoking 42 U.S.C. 1983, Werme sued the Governor and
the Secretary of State in New Hampshire's federal district court.
She alleged that the statutes governing appointment of election
inspectors and ballot clerks abridged her constitutional rights
to free association, due process, and equal protection; she
prayed that the court enjoin their enforcement; and she sought an
order commanding the appointment of Libertarians to the indicated
positions on the same basis as members of the Democratic and
Republican parties. The Libertarian Party intervened as an
additional plaintiff. The district court, after mulling cross-
motions for summary judgment, concluded that the defendants'
interest in the efficient management of election activities
justified the small restriction on the plaintiffs' rights that
the challenged statutes entailed, and upheld New Hampshire's
statutory scheme. This appeal followed.
II. STANDARD OF APPELLATE REVIEW II. STANDARD OF APPELLATE REVIEW
The summary judgment standard is both prosaic and
registration and affiliate with the Libertarian Party; and that on occasion voters discovered that unauthorized changes had been made in their listed party affiliations. No complaints were filed with the Secretary of State in connection with any of these incidents.
familiar, see, e.g., McCarthy v. Northwest Airlines, Inc., 56
F.3d 313, 315 (1st Cir. 1995) (collecting cases), and we see no
need to rehearse it here. We simply restate two basic verities.
First, the district court may enter summary judgment only if the
record reveals no genuine issue of material fact and the movant
demonstrates an entitlement to judgment as a matter of law. See
Fed. R. Civ. P. 56(c). Second, the court of appeals reviews the
grant of summary judgment de novo, applying the same legal
principles that held sway in the nisi prius court. See Roche v.
John Hancock Mutual Life Ins. Co., F.3d , (1st Cir.
1996) [No. 95-1804, slip op. at 8].
III. THE STATUTORY SCHEME III. THE STATUTORY SCHEME
New Hampshire's electoral machinery is pretty standard
stuff. A town moderator supervises Election Day activities.2
See N.H. Rev. Stat. Ann. 659:9. The moderator commands a cadre
of other election officials, including inspectors appointed by
the two political parties that received "the largest number of
votes [cast] for governor in the state at the last previous
general election. . . ." Id. 658:2. Each such political party
may appoint two inspectors per polling place, and one additional
inspector for every 1,500 qualified voters in excess of 2,000
qualified voters registered at that polling place. See id. If a
political party fails to appoint inspectors, the town's selectmen
2While procedures are slightly different in cities than in towns, the differences are irrelevant to the disposition of this appeal. Consequently, we refer throughout to the election procedures in towns, omitting particularized references to counterpart procedures that apply in urban settings.
fill the lacuna by naming inspectors from the ranks of that
party. See id. In turn, the moderator designates two election
inspectors, one from each of the two parties, to serve as ballot
clerks. See id. 658:25.
Ballot clerks exercise no discretion. Their purely
ministerial duties include distributing ballots at the polls and
keeping an official checklist containing the names of persons who
in fact vote. See id. 658:25 & 659:13. In principle, a voter
presents herself to the ballot clerk; if the voter's name appears
on an official list of registered voters, the ballot clerk
provides her with a ballot.3 Ballot clerks are not empowered to
register voters, and do not have authority to modify the official
voting list. While voters may declare or change their party
affiliation on Election Day under certain circumstances, see N.H.
Stat. Ann. 654:7-a & 654:7-b (Supp. 1994), election
supervisors or town clerks (who are themselves elected officials)
handle such matters. See N.H. Stat. Ann. 654:8 (1986). Every
recognized political party, regardless of size or previous
electoral success, may appoint a "challenger of voters" at any
polling place who may stand within the guardrail to "see and hear
each voter as he offers to vote." Id. 666:4.
3In primary elections, a ballot clerk must give a voter who has declared her party affiliation the ballot of that party. See
N.H. Rev. Stat. Ann. 659:14(I) (1994 Supp.). Exceptions are made only when a declared voter wishes to support a party that did not have official existence when the voter declared her party loyalty (and then only in the primary election immediately following the party's official recognition) or when the voter is undeclared and the party's rules allow such a voter to participate in its primary. See id.
After the polls close, the town moderator oversees the
counting of votes. See id. 659:60 & 659:61. Although the
palsgrave is held in public, see id. 659:63, only persons
holding official positions may take part in tallying ballots.
See id. 659:60. Election inspectors sometimes participate in
this process. Once the votes have been tallied, the moderator
announces the final results, see id. 659:70, and a formal
election return is prepared by the town clerk and forwarded to
the Secretary of State. See id. 659:74 & 659:75. Members of
the public may inspect the return. Candidates may call for
recounts, see id. 660:1-6 & 665:6(II), and the New Hampshire
Ballot Law Commission has jurisdiction to "hear and determine all
disputes involving alleged violations of New Hampshire election
laws of a non-criminal nature for which no specific statutory
appeal procedure has already been provided." Id. 665:7.
Moreover, election officials are subject to criminal penalties
for ballot tampering, falsifying returns, or the like. See,
e.g., id. 666:1-3.
IV. ANALYSIS IV. ANALYSIS
We subdivide our analysis into four segments.
A A
It is apodictic that the right to vote is a right that
helps to preserve all other rights. As Chief Justice Warren put
it: "The right to vote freely for the candidate of one's choice
is of the essence of a democratic society, and any restrictions
on that right strike at the heart of representative government."
Reynolds v. Sims, 377 U.S. 533, 555 (1964); see also Wesberry v.
Sanders, 376 U.S. 1, 17 (1964) ("Other rights, even the most
basic, are illusory if the right to vote is undermined.").
Nonetheless, the right to vote is not absolute. See Burdick v.
Takushi, 112 S. Ct. 2059, 2063 (1992). "[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). To that end, each state retains the
authority to regulate state and local elections and to prescribe
the duties and qualifications of persons who work at the polls,
and the manner in which they will be selected. See Sugarman v.
Dougall, 413 U.S. 634, 647 (1973); see also U.S. Const. Art. I,
4, cl. 1 (directing that states shall prescribe "[t]he Times,
Places and Manner of holding Elections for Senators and
Representatives").
To be sure, this authority to regulate elections is not
unfettered. At a minimum, states cannot wield their regulatory
power in ways that contravene the First and Fourteenth Amendment
rights of their citizens. See Tashjian v. Republican Party of
Conn., 479 U.S. 208, 217 (1986). As courts review states'
regulatory efforts and strive to distinguish between permissible
regulation and impermissible abridgment of voters' rights, the
level of scrutiny looms large. The plaintiffs insist that a law
imposing any burden (however modest) upon the right to vote is
always subject to strict scrutiny. We do not agree.
The Supreme Court has eschewed a hard-and-fast rule,
and instead has adopted a flexible framework for testing the
validity of election regulations. See Burdick, 112 S. Ct. at
2063; Anderson v. Celebrezze, 460 U.S. 780, 789 (1983); Storer,
415 U.S. at 730.
Under the prescribed framework, the level of scrutiny to be
applied corresponds roughly to the degree to which a challenged
regulation encumbers First and Fourteenth Amendment rights.
Consequently, a court weighing a challenge to a state election
law must start by assessing "the character and magnitude of the
asserted injury" to the plaintiff's constitutionally protected
rights and then "evaluate the precise interests put forward by
the State as justifications for the burden imposed by its rule."
Anderson, 460 U.S. at 789; accord Libertarian Party of Me. v.
Diamond, 992 F.2d 365, 370 (1st Cir. 1993) (explaining that the
court must attempt to achieve a sort of "constitutional
equilibrium"). In this process the court must take into account,
among other things, "the extent to which those interests make it
necessary to burden the plaintiff's rights." Id. The Burdick
Court crystallized the applicable standard of inquiry:
Under this standard, the rigorousness of [the] inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subject to severe restrictions, the regulation must be narrowly drawn to advance a state interest of compelling importance. But when a state election law provision imposes only reasonable, nondiscriminatory restrictions upon the First and Fourteenth Amendment
rights of voters, the State's important regulatory interests are generally sufficient to justify the restrictions.
Burdick, 112 S. Ct. at 2063-64 (citations and internal quotation
marks omitted).
B B
Against this backdrop, we proceed to consider the
specifics of the plaintiffs' challenge. In performing this
tamisage, we are cognizant that their claim is not that the state
misapplied New Hampshire law, but, rather, that the method of
staffing the polls dictated by that law is itself
constitutionally infirm. Thus, we regard the plaintiffs'
challenge as a facial attack on the statutory scheme (and,
indeed, they have conceded this point).
The plaintiffs' facial challenge is susceptible to
further refinement. They do not contend that the statutory
scheme directly prevents members of less successful political
parties, like the Libertarians, from ballot access either as
candidates or as voters. Instead, their claim is on a more
sophisticated level; they say that restricting the right to
appoint election inspectors and ballot clerks to the two most
popular parties deprives members of recognized third parties of
their right to free political association, and invidiously
discriminates against them on the basis of their political
affiliation. Stripped of its rhetorical trappings, this argument
amounts to nothing less than a declaration that Libertarians have
a constitutional right to be represented at the polls by election
inspectors and ballot clerks of their own party to ensure that
Libertarian votes are counted. In the plaintiffs' view,
Democrats and Republicans are not to be trusted in this regard
because they are unconcerned with the protection of Libertarian
interests and, if left alone, they will likely overlook
Libertarian ballots through lassitude, misfeasance, incompetence,
and the like.
In addressing this claim we must first set to rest a
straw man. There is simply no abstract constitutional right to
be appointed to serve as an election inspector or ballot clerk.
See, e.g., Rhode Island Minority Caucus, Inc., v. Baronian, 590
F.3d 372, 376 (1st Cir. 1979). Although the right to vote
certainly includes the right to have one's vote counted, see
United States v. Mosley, 238 U.S. 383, 386 (1915), nothing on the
face of the New Hampshire statutes deprives Libertarian Party
members of that right.
We turn next to an assessment of the extent to which
the challenged statutes burden the First and Fourteenth Amendment
rights of Libertarians.4 We find the burden to be slight.
In the first place, New Hampshire's regulation is
nondiscriminatory, that is, it does not differentiate among
4In conducting our evaluation, we do not distinguish between the burdens placed on the rights of the Libertarian Party and those placed on the rights of voters who wish to cast their ballots for that party's candidates. As a general matter, political parties purport to represent the interests of their supporters, and "the rights of voters and the rights of candidates do not lend themselves to neat separation." Burdick,
112 S. Ct. at 2065-66 (quoting Bullock v. Carter, 405 U.S. 132,
143 (1972)).
Republicans, Democrats, and Libertarians. Instead, the
regulation conditions the right to appoint election inspectors
and ballot clerks on a certain degree of success at the polls.
Distinguishing between recognized political parties based on past
electoral accomplishment is not per se invidiously
discriminatory. See, e.g., American Party of Texas v. White, 415
U.S. 767, 781 (1974) (holding that it is not invidious
discrimination for a state to grant minor parties official
recognition, but deny them the right to hold primaries even
though the main political parties are so entitled). So here:
the Libertarian Party has exactly the same opportunity to qualify
as a source of election inspectors and ballot clerks under New
Hampshire law as does any other party. Equality of opportunity
exists, and equality of opportunity not equality of outcomes
is the linchpin of what the Constitution requires in this type of
situation. As the Court explained:
The fact is that 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 . . . . Sometimes the grossest discrimination can lie in treating things that are different as though they were exactly alike.
Jenness v. Fortson, 403 U.S. 431, 441-42 (1971).
In the second place, the New Hampshire law has no
direct impact on ballot access, on the right to vote, or on the
right to have one's vote tallied. It is generally thought that
indirect effects are less burdensome than direct restraints, cf.
Dole v. South Dakota, 483 U.S. 203, 210 (1987) (discussing, in
connection with Congress' spending powers, "the indirect
achievement of objectives which Congress is not empowered to
achieve directly"), and that generalization holds true here.
In the third place, even these indirect effects are not
discernible here. The record evidence offers no reason to
believe that minority parties are at special or undue risk
because they have no right to appoint election inspectors and
ballot clerks. The law affords a panoply of other safeguards for
minority parties (e.g., appointing a challenger of voters, see
N.H. Rev. Stat. Ann. 666:4), and ultimate control over voting
places rests with elected officials. To cinch matters, there is
no showing of systematic discrimination against minority parties
in the casting and tallying of votes, and mere suspicion or
paranoia is too flimsy a foundation on which to rest a claim of
incipient fraud or mistake.5
In fine, the "burden" to which the plaintiffs allude
that Libertarian ballots will not be counted unless Libertarian
election inspectors and ballot clerks are on the prowl is
purely conjectural. To hold otherwise would require us to
conclude, without a shred of competent evidence, that election
officials in New Hampshire are unscrupulous individuals who will
breach the public trust in order to serve the interests of a
5The plaintiffs conceded below that none of the mishaps to which they alluded, see supra note 1, were part of a concerted
plan to deprive Libertarians of the right to vote. There is, moreover, no showing that similar gaffes have not afflicted Republican and/or Democratic voters from time to time.
political party, and, moreover, that Democrats and Republicans
will put aside their historic enmity so that, together, they may
repress third parties. We refuse to indulge so cynical a view of
the electoral process.
C C
Having analyzed the nature of the burdens imposed, we
now proceed to ascertain the level of scrutiny that we must
apply. See Burdick, 112 S. Ct. at 2064; Anderson, 460 U.S. at
789. We recognize, of course, that every provision of an
election code, even those that govern the voting process as
opposed to those that govern ballot access or eligibility of
candidates, "inevitably affects at least to some degree the
individual's right to vote and his right to associate with others
for political ends." Anderson, 460 U.S. at 788. But different
provisions of an election code may burden rights unequally, and
we believe that the impediment which New Hampshire law imposes in
respect to the selection of election inspectors and ballot clerks
is relatively minor. 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. See, e.g., Coalition for
Sensible and Humane Solutions v. Wamser, 771 F.2d 395, 399 (8th
Cir. 1985); Baer v. Meyer, 728 F.2d 471, 476 (10th Cir. 1984)
(per curiam); Piricin v. Board of Elections, 368 F. Supp. 64, 71
(N.D. Ohio) (three-judge court), aff'd mem., 414 U.S. 990
(1973).6
Our decision in Rhode Island Minority Caucus, 590 F.2d
372, is not to the contrary. There the plaintiffs alleged that
the Board of Canvassers of the City of Providence
unconstitutionally conditioned appointment as a voter registrar
upon membership in or affiliation with one of three political
organizations. See id. at 376. The district court denied the
plaintiffs' motion for a preliminary injunction mainly on the
ground that the plaintiffs had no probability of success on the
merits. See id. at 373-74. We affirmed on a different ground
that there was no showing of irreparable harm, see id. at 374
and added:
[The state] may not abridge fundamental First Amendment rights of speech and association without establishing that such an infringement is necessary to achieve a vital state interest . . . . So viewed, but without prejudging the issue, it appears that plaintiffs raise a substantial first amendment question.
Id. at 376-77. The panel made clear, however, that it was for
the district court to determine "the extent to which plaintiffs'
6We note that one district court apparently disagrees. In Iowa Socialist Party v. Slockett, 604 F. Supp. 1391 (D. Iowa
1985), a handful of minor third parties contended that appointing mobile deputy registrars solely from persons nominated by the county chairmen of the two major political parties violated their constitutional rights. See id. at 1392. As we do here, the
district court concluded that the burden imposed by the regulation was "relatively minor." Id. at 1397. The court
nonetheless proceeded to apply strict scrutiny and invalidated the law. See id. at 1396-98. We find this aspect of the court's
reasoning unpersuasive.
associational rights have been abridged, the burden, if any, the
Board must bear in justifying that abridgment, and whether in
fact the Board can meet that burden." Id. at 377. Fairly read,
Rhode Island Minority Caucus is not inconsistent with our holding
today.
D D
Using rationality review we conclude that the state has
justified the regulation. The defendants rely principally on New
Hampshire's interest in limiting the number of election officials
to manageable proportions in order to enhance administrative
efficiency and thereby safeguard against mistakes and fraud. Too
many cooks, the defendants say, will spoil the broth. The
assertion makes good sense.
The state has a valid interest in preserving the
integrity and reliability of the electoral process. See, e.g.,
American Party, 415 U.S. at 782 n.14; Coalition for Sensible and
Humane Solutions, 771 F.2d at 399. It is certainly reasonable to
assume that, at some point, "more" is not "better." Common sense
suggests that if election inspectors and ballot clerks become too
numerous, they will merely get in each other's way and thus
frustrate the moderator's ability to afford close supervision.7
7A fair parallel can be drawn to ballot access cases in which the Court has acknowledged that the "important state interest . . . in avoiding confusion, deception, and even frustration of the democratic process" can be served by limiting ballot access based on "some preliminary showing of a significant modicum of support." Jenness, 403 U.S. at 442. We believe that
this reasoning extends to the state's strivings to promote efficiency and orderliness at the polls through limitations on the number of persons who are permitted to work inside the rail.
Cf. Rudyard Kipling, Rewards & Fairies 73 (1910) (suggesting that
one should keep no more cats than will catch mice). Within wide
margins the place at which to draw the line in other words, the
ideal size of the complement is for the state to determine.
See, e.g., Anderson, 460 U.S. at 788 n.9 (observing that states
have broad discretion to set minimum requirements restricting the
number of candidates appearing on the ballot).
The plaintiffs' riposte is to suggest that New
Hampshire must demonstrate that adding Libertarians as election
inspectors and ballot clerks would actually cause confusion, or,
put another way, that this increment would be the straw that
broke the back of the dromedary of administrative efficacy. That
suggestion vastly exaggerates the state's burden. See Munro v.
Socialist Workers Party, 479 U.S. 189, 195-96 (1986) (rejecting a
similar claim on the basis that "[s]uch a requirement would
necessitate that a State's political system sustain some level of
damage before the legislature could take corrective action").
States are free to head off potential problems in the electoral
system before they materialize, as long as the solutions that the
state devises are reasonable and do not significantly intrude on
constitutionally protected rights. See id. New Hampshire's
solution which involves restricting the number of persons
behind the rail at polling places, and puts the responsibility
for appointing those persons in the hands of the two political
parties that have proven most successful in the recent past at
earning the electorate's trust is a reasonable response to an
authentic problem.
We hold that New Hampshire's method of selecting
election inspectors and ballot clerks is a rational means of
advancing the state's interest in dispelling confusion, warding
off fraud, and ensuring administrative efficiency at the polls.
See Baer, 728 F.2d at 476 (applying rational basis review and
upholding regulation that did not uniformly allow all political
parties to appoint poll observers); Piricin, 368 F. Supp. at 71
(applying rational basis review and upholding regulation
permitting membership of boards of elections to be drawn solely
from parties garnering the two highest vote totals); see also
Bishop v. Lomenzo, 350 F. Supp. 576, 588-89 (E.D.N.Y. 1972)
(three-judge court) (suggesting that regulation requiring
volunteer deputy registrars to be enrolled members of the
Republican or Democratic parties merited only rational basis
review, but concluding that law survived strict scrutiny on basis
that regulation reduced risk of "fraud or irregularity that might
exist if registration by [only] one party or by an independent
were permitted"). While other methods of selecting these
officials, or a somewhat different numerical formula, might also
serve, the state is free to choose from among the universe of
constitutionally acceptable alternatives.
IV. CONCLUSION IV. CONCLUSION
We need go no further.8 Since New Hampshire's grant
8The plaintiffs' Equal Protection argument is unworthy of separate discussion. This argument does not rest on a challenge to New Hampshire's requirements for achieving official recognition as a political party, but, rather, on the thesis that once a party attains official status under state law, the state may not draw distinctions between it and other recognized
of a monopoly over the appointment of election inspectors and
ballot clerks to the two most popular political parties is
justified by legitimate state interests and imposes only a modest
burden on the plaintiffs' First and Fourteenth Amendment rights,
it is constitutional. Nothing succeeds like success, and the
Libertarian Party has the same opportunity as its better-known
competitors to attract voters to its standard, finish in one of
the top two spots in a gubernatorial election, and thereafter
play a more active role in the mechanics of the electoral
process. But under New Hampshire law that success is to be won
at the polls rather than in a federal court.
Affirmed. Affirmed.
political parties. The thesis is untenable. See American Party,
415 U.S. at 781.