United States Court of Appeals
For the First Circuit
No. 09-2426
BOB BARR ET AL.,
Plaintiffs, Appellees,
v.
WILLIAM F. GALVIN, IN HIS OFFICIAL CAPACITY AS SECRETARY
OF THE COMMONWEALTH OF MASSACHUSETTS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Boudin, Ripple,* and Selya, Circuit Judges.
Amy Spector, Assistant Attorney General, with whom Martha
Coakley, Attorney General, and Timothy Casey and Julie Goldman,
Assistant Attorneys General, were on brief, for appellant.
Matthew C. Baltay, with whom Jennifer S. Behr, Amrish V.
Wadhera, Foley Hoag LLP, and John Reinstein, American Civil
Liberties Union of Massachusetts, were on brief, for appellees.
November 16, 2010
*
Of the Seventh Circuit, sitting by designation.
SELYA, Circuit Judge. In this appeal, the Secretary of
State, on behalf of the Commonwealth of Massachusetts, challenges
the district court's determination that Bob Barr and Wayne A. Root,
the Libertarian Party's candidates for president and vice-president
in the 2008 general election, were entitled to have their names
placed on the statewide ballot even though they had not submitted
nomination papers as required by state law. While the particular
election that gave rise to this controversy is over, the Secretary
also challenges the district court's related determinations that
(i) the Equal Protection Clause of the United States Constitution,
U.S. Const. amend. XIV, § 1, affords a right of substitution in the
circumstances of this case and (ii) Mass. Gen. Laws ch. 53, § 14,
which governs the substitution of certain classes of candidates on
the ballot, is unconstitutionally vague as applied to the
substitution of non-party candidates for President and Vice-
President of the United States.1 Barr, Root, and the other
appellees defend the district court's resolution of these issues
and, in doing so, argue that the result reached below was compelled
by principles of constitutional law, statutory construction, and
estoppel.
1
Throughout this opinion, we use the term "non-party
candidates" as a shorthand for candidates who are not affiliated
with a political party that is recognized as such under
Massachusetts law. See Mass. Gen. Laws ch. 50, § 1.
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After careful consideration, we find that a live dispute
remains. With respect to that dispute, we conclude that the Equal
Protection Clause does not require the Commonwealth to afford a
substitution mechanism applicable to non-party candidates. We
further conclude that the relevant statute, while not
unconstitutionally vague, is in need of interpretive clarification.
Pursuant to principles of Pullman abstention, that interpretation
should be effected by the Massachusetts courts. In light of this
determination, the appellees' claims concerning the Secretary's
prior pronouncements (including their estoppel claim) are either
moot or likely to be rendered moot by the state courts'
interpretation of the statutory scheme. Accordingly, we reverse in
part, vacate in part, and remand for further proceedings consistent
with this opinion.
I. BACKGROUND
We start by rehearsing the relevant factual and
procedural background.
Massachusetts recognizes as a "political party" any
political organization that either (i) had a candidate for
statewide office who garnered at least three percent of the vote in
the most recent biennial election or (ii) has enrolled no less than
one percent of the total electorate (as measured by registered
voters). Mass. Gen. Laws ch. 50, § 1. At the time of the November
2008 general election, the Libertarian Party of Massachusetts (LPM)
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did not satisfy either furculum of this test and, thus, the
Commonwealth did not recognize it as a political party. Rather,
the Commonwealth, in accordance with state law, see id., permitted
the use of the Libertarian label as a "political designation." The
Libertarian National Committee was not then and is not now
recognized as a political party or political designation in
Massachusetts.
Massachusetts law delineates procedures governing ballot
access for presidential and vice-presidential candidates affiliated
with recognized political parties. These procedures differ
significantly from those that apply to other candidates. With
respect to the presidential and vice-presidential candidates of a
recognized political party, the party's state committee may choose
its candidates and submit a form to the Secretary by the second
Tuesday in September next preceding the election. That form
identifies the candidates and sets out the names of the
presidential electors selected by the committee. Id. ch. 53, § 8.
This submission, in and of itself, qualifies the candidates for
listing on the ballot. See id.
Other presidential and vice-presidential candidates must
travel a different road: they must file nomination papers signed by
at least 10,000 registered voters. Id. §§ 6-10. The papers must
include the names of the presidential and vice-presidential
candidates, and may also — but need not — identify a "political
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designation" with which the candidates wish to be aligned. Id.
§ 8. In all events, the nomination papers must contain the names
of a slate of presidential electors, whose signatures on the papers
signify their support for the denominated candidates. Id. The
fact that non-party presidential and vice-presidential candidates
may receive an endorsement from a national political entity does
not confer any special ballot access rights.
As a matter of procedure, signed non-party nomination
papers for presidential and vice-presidential candidates are to be
submitted to local canvassing officials. Those officials then
certify the signatures, confirming that they belong to registered
voters. Id. § 7. In 2008, the deadline for submitting such
nomination papers to local canvassing boards was July 29. See id.
In turn, the deadline for transmitting them to the Secretary was
August 26. See id. § 10.2
In July of 2007, George Phillies, acting in his capacity
as the chair of the LPM, sent an e-mail inquiry to the Secretary.
In it, Phillies inquired as to whether, if the presidential and
vice-presidential candidates identified on nomination papers
circulated in Massachusetts were not selected at the national
Libertarian nominating convention the following May, the names of
2
Those who wish to obtain a global picture of how these dates
intersect may consult the so-called "Election Schedule" for the
2008 general election, published by the Secretary and available at
http://www.sec.state.ma.us/ele/elepdf/schedule_08.pdf.
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the actual nominees could be substituted on the ballot. In October
of 2007, an aide to the Secretary responded that the Secretary's
office could "prepare a form that allows members of the party to
request the substitution of the candidate."
In early 2008, Phillies began to circulate nomination
papers identifying himself as a presidential candidate and Chris
Bennett as a vice-presidential candidate. These papers named the
requisite twelve electors. The word "Libertarian" appeared in the
space available for signifying a political designation.
The Libertarian National Committee held its convention in
late May of 2008. Phillies and Bennett competed unsuccessfully for
the convention's endorsement as the Libertarian nominees for
president and vice-president, respectively. The convention
endorsed Barr and Root for those offices.
Phillies and Bennett had gathered about 7,000 signatures
from Massachusetts voters on nomination papers in support of their
anticipated candidacies. On May 29, 2008, Phillies e-mailed the
Secretary's office, inquiring as to whether he and Bennett, should
they qualify for the ballot, could be replaced by Barr and Root.
The Secretary responded that such "substitution" was not
permissible, but that Barr and Root still had nearly two months
during which to secure the necessary signatures on their own
behalf. The Secretary likewise notified the Libertarian National
Committee that the requested substitution was not authorized, but
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that the usual statutory process of circulating and filing
nomination papers was available as a means of getting Barr's and
Root's names on the statewide ballot.
Despite the Secretary's declared position, Phillies
continued to circulate nomination papers for a Phillies/Bennett
ticket. He submitted these papers, which contained well over
10,000 valid signatures, in a timely manner. In contrast, Barr and
Root did not submit any nomination papers, did not provide any
evidence that they had secured the necessary signatures, and did
not identify any presidential electors. Although Phillies and
Bennett had met the requirements and were entitled to appear on the
statewide ballot, nothing in Massachusetts law prevented two sets
of candidates from appearing simultaneously with the same political
designation.
On August 6, 2008, Barr, Root, the LPM, and the
Libertarian National Committee (collectively, the appellees) filed
suit in the United States District Court for the District of
Massachusetts, challenging the Secretary's refusal to include Barr
and Root on the statewide ballot. They sought a mandatory
injunction compelling the Secretary to substitute Barr and Root for
Phillies and Bennett and a declaration that the Secretary's refusal
to allow the substitution infringed upon their constitutional
rights to, among other things, free speech, freedom of association,
and equal protection of the law.
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On September 22, 2008, the district court granted the
motion for a preliminary injunction. Barr v. Galvin (Barr I), 584
F. Supp. 2d 316, 322 (D. Mass. 2008). It concluded that the
appellees would suffer irreparable harm were it to withhold relief.
Id. at 321. Even though the initial complaint acknowledged that
Massachusetts had no statutory mechanism specific to the kind of
substitution that had been requested, the court concluded that
section 14, which limns the process for filling vacancies for
"state, city or town office" when candidates die, withdraw, or are
declared ineligible following nomination, was "[t]he most relevant
statute." Id. at 320. That provision, the court said, would
"likely fail constitutional scrutiny" as applied to these facts.
Id. at 321. Acting on these conclusions, the court ordered the
Secretary to place the names of Barr and Root on the November 2008
ballot, in lieu of Phillies and Bennett, as candidates for
president and vice-president. Id. at 318, 322.
The court did not enter a final judgment at that time,
and the case remained pending throughout the 2008 election cycle.
Barr and Root received less than one percent of the vote. That
showing fell short of the three percent threshold needed to qualify
the LPM for recognition as a political party in future elections.
See Mass. Gen. Laws ch. 50, § 1. Nevertheless, a Libertarian
candidate for United States Senator from Massachusetts received
over three percent of the total votes for that office. Thus,
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beginning in November of 2008, the LPM became a recognized
political party in Massachusetts, with all the accouterments
(including ballot access) that such recognition entails.
In the spring of 2009, the parties cross-moved for
summary judgment. The district court denied the Secretary's motion
and granted the cross-motion. Barr v. Galvin (Barr II), 659 F.
Supp. 2d 225, 230 (D. Mass. 2009). In rendering this judgment, the
court accepted without explicit discussion the parties' agreement
that their dispute was still live. Id. at 227.
On the merits, the district court held that a right to
substitute was guaranteed by the Equal Protection Clause "to ensure
that the names of the actual candidates appear on the ballot." Id.
at 230. Additionally, the court speculated that section 14 might
provide a mechanism for substitution but declared that section
unconstitutionally vague because it was unclear as to whether the
reference to "state . . . office" encompassed the presidency, the
vice-presidency, and/or presidential electors. Id. at 229-30.
This timely appeal followed.
II. ANALYSIS
We deal first with a threshold concern — mootness — and
then turn to the substance of the parties' dispute.
A. Mootness.
The Constitution "confines the jurisdiction of the
federal courts to actual cases and controversies." ConnectU LLC v.
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Zuckerberg, 522 F.3d 82, 88 (1st Cir. 2008) (citing U.S. Const.
art. III, § 2, cl. 1). This means, of course, that federal courts
lack constitutional authority to decide moot questions. North
Carolina v. Rice, 404 U.S. 244, 245-46 (1971) (per curiam); United
States v. Alaska S.S. Co., 253 U.S. 113, 116 (1920). A case is not
shielded from this proscription simply because a live controversy
existed when it was brought. Roe v. Wade, 410 U.S. 113, 125
(1973). The rule is that "when an intervening event strips the
parties of any legally cognizable interest in the outcome," a case,
once live, is rendered moot (and, thus, non-justiciable).
ConnectU, 522 F.3d at 88.
Litigants cannot confer jurisdiction over a moot case by
acquiescence or consent. See Overseas Mil. Sales Corp. v. Giralt-
Armada, 503 F.3d 12, 16 (1st Cir. 2007). If an appellate court
finds that the issues presented have become moot, it must dismiss
the appeal. Church of Scientology v. United States, 506 U.S. 9, 12
(1992); Cruz v. Farquharson, 252 F.3d 530, 533 (1st Cir. 2001);
R.I. Ass'n of Realtors v. Whitehouse, 199 F.3d 26, 34 (1st Cir.
1999). Thus, even though all the parties share the view that their
dispute survived the 2008 general election, we are duty bound to
inquire into mootness before proceeding further. See Overseas Mil.
Sales, 503 F.3d at 16; see also City of Erie v. Pap's A. M., 529
U.S. 277, 287 (2000).
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Although the 2008 election is now a fait accompli, the
mootness inquiry is more nuanced than it might appear at first
blush. The Secretary, with the support of the appellees, seeks to
avoid the mootness bar through a claim that the issues in this case
are "capable of repetition, yet evading review." S. Pac. Terminal
Co. v. ICC, 219 U.S. 498, 515 (1911). This is a well-established
exception to general principles of mootness, but it is a narrow
one. Cruz, 252 F.3d at 534. And although the exception has been
applied frequently in election-related cases, see, e.g., Storer v.
Brown, 415 U.S. 724, 737 n.8 (1974); Moore v. Ogilvie, 394 U.S.
814, 816 (1969), not every election case fits within its four
corners.
The Supreme Court has described the scope of the
exception, explaining that it applies where: "(1) the challenged
action is in its duration too short to be fully litigated prior to
cessation or expiration; and (2) there is a reasonable expectation
that the same complaining party will be subject to the same action
again." FEC v. Wis. Right To Life, Inc., 551 U.S. 449, 462 (2007)
(quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)). With respect to
the second prong of this analysis, a party arguing against mootness
must show either "a 'reasonable expectation' or a 'demonstrated
probability' that 'the same controversy will recur involving the
same complaining party.'" Id. at 463 (quoting Murphy v. Hunt, 455
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U.S. 478, 482 (1982) (per curiam)); accord CMM Cable Rep., Inc. v.
Ocean Coast Props., Inc., 48 F.3d 618, 622 (1st Cir. 1995).
The second prong usually demands that it be the same
party who is likely to face a similar conflict in the future. To
be sure, the case law admits of some imprecision on this point.
The main reason for this imprecision is that the "same complaining
party" requirement, though satisfied, is not always explicitly
stated. See Cruz, 252 F.3d at 534 n.4 (making this observation).
The Supreme Court sometimes has addressed the same complaining
party requirement without specifically flagging its significance to
the mootness inquiry, see, e.g., Int'l Org. of Masters, Mates &
Pilots v. Brown, 498 U.S. 466, 473 (1991) (noting complaining party
"has run for office before and may well do so again"), and in some
instances, this requirement has been disregarded or diluted on the
ground that the case was brought as a class action, see, e.g., Dunn
v. Blumstein, 405 U.S. 330, 331, 333 n.2 (1972); see also Sosna v.
Iowa, 419 U.S. 393, 399 (1975) (explaining that certification of
case as class action "significantly affects the mootness
determination"); Pallazola v. Rucker, 797 F.2d 1116, 1129 (1st Cir.
1986) (noting that "[i]n the absence of a class action," the
exception applies only where the same complaining party is likely
to face the same situation again).
Despite this imprecision, the language of the Court's
recent election-related cases indicates that the "capable of
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repetition, yet evading review" exception depends in part upon a
"same complaining party" showing. See, e.g., Davis v. FEC, 128 S.
Ct. 2759, 2769-70 (2008); Wis. Right to Life, 551 U.S. at 462; see
also Norman v. Reed, 502 U.S. 279, 287-88 (1992). We therefore
abide by the "same complaining party" requirement here.
The facts of this case plainly satisfy the "evading
review" prong of the exception. Disputes concerning ballot access
procedures are often time-sensitive, and the temporal parameters
are sometimes too short to allow the issues to be fully litigated
within a single election cycle. See, e.g., Ill. State Bd. of
Elections v. Socialist Workers Party, 440 U.S. 173, 187 (1979);
Moore, 394 U.S. at 816. This case comes within that taxonomy.
The "capable of repetition" prong presents a more
imposing barrier, but we believe that barrier has been surmounted.
The LPM, though currently a recognized political party under
Massachusetts law, had no candidate for Governor or United States
Senator on the November 2010 statewide ballot in Massachusetts and,
thus, may very well lose its status as a recognized political
party. While there are other means of maintaining or obtaining
recognized party status, see Mass. Gen. Laws ch. 50, § 1, the LPM
has never been able to secure party recognition through the use of
such alternative means. Given this history, we see no likelihood
that the party will prove able to do so in the near future. The
LPM, then, has a reasonable expectation of being in a position to
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complain about the lack of a substitution mechanism in future
Massachusetts elections. At any rate, we think that the parties —
all of whom implore us to find that the case is not moot — should
be given the benefit of the doubt.
In sum, we find that the appellees have shown a
sufficient probability that the core events at issue in this case
may recur and may again involve the LPM and/or the Libertarian
National Committee. Because we find that most aspects of this case
satisfy both prongs of the "capable of repetition, yet evading
review" exception, we conclude that a live dispute remains with
respect to the constitutional questions at issue in this case.
B. The Merits.
We review an appeal from the entry of summary judgment de
novo. Gastronomical Workers Union Local 610 & Metro. Hotel Assoc.
Pension Fund v. Dorado Beach Hotel Corp., 617 F.3d 54, 60 (1st Cir.
2010); Osediacz v. City of Cranston, 414 F.3d 136, 139 (1st Cir.
2005). In so doing, we assay the facts and all reasonable
inferences therefrom in the light most favorable to the nonmoving
party. Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 4
(1st Cir. 2010). "We will affirm only if the record reveals 'no
genuine issue as to any material fact' and 'the movant is entitled
to judgment as a matter of law.'" Vineberg v. Bissonnette, 548
F.3d 50, 55 (1st Cir. 2008) (quoting Fed. R. Civ. P. 56(c)). With
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this standard of review in mind, we turn to the merits of the
disputed claims.
1. Vagueness. The appellees argue that "[t]he vagueness
of the substitution statutory framework allows the Secretary to
exert unconstitutional, unfettered discretion to allow or prohibit
substitution during any given election." Because this broad
interpretive discretion has allowed the Secretary to take
inconsistent positions regarding the availability of substitution,
their thesis runs, non-party candidates and unrecognized political
organizations are left without adequate guidance. This plaint
about excessive discretion boils down to an assertion that, with
respect to substitution, the statutory scheme is void for
vagueness. The district court so held. Barr II, 659 F. Supp. 2d
at 229-30.
Section 14 admittedly is unclear as to whether it applies
to the kind of substitution requested by the appellees. The
statutory text contains two types of imprecision. First, it refers
to candidates seeking "state, city or town office," but provides no
further elaboration as to the specific offices that are
encompassed within that rubric. This, in turn, leaves open to
question whether candidates for presidential electors (who are, in
one sense, candidates for a state office) and, by reference,
presidential and vice-presidential candidates, come within its
sweep. Second, section 14 explains that vacancies "may be filled
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by the same political party or persons who made the original
nomination." In the period leading up to the 2008 election, the
LPM did not qualify for recognition as a political party under
Massachusetts law. Still, the reference to "persons who made the
original nomination" arguably could apply to the LPM or,
alternatively, to the individuals who signed the nomination papers
qualifying Phillies and Bennett for inclusion on the ballot. The
text is opaque on this point.
Viewed against this backdrop, the appellees' complaint
that the procedures governing substitution of candidates for
president and vice-president are unclear strikes a responsive
chord. We are not convinced, however, that the lack of definition
in the statutory text necessarily invalidates the statute on
vagueness grounds. See IMS Health Inc. v. Ayotte, 550 F.3d 42, 61
(1st Cir. 2008) ("[S]tatutes do not need to be precise to the point
of pedantry, and the fact that a statute requires some
interpretation does not perforce render it unconstitutionally
vague."); Ridley v. MBTA, 390 F.3d 65, 93 (1st Cir. 2004)
(similar). Whatever its semantic shortcomings, section 14 seems
susceptible to clarification by judicial interpretation.
This does not mean, however, that a federal court should
undertake the task of parsing the statutory text to determine its
applicability to the substitution of non-party presidential and
vice-presidential candidates. Especially given the lack of urgency
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— the next presidential election is almost two full years away —
we think that the needed interpretation is a task for which the
state courts, as the ultimate arbiters of state-law questions, are
better suited. See Acadia Ins. Co. v. McNeil, 116 F.3d 599, 604
(1st Cir. 1997) (explaining that state supreme court is "final
arbiter of the meaning of a statute of that state").
Although we recognize that "[a]bstention from the
exercise of federal jurisdiction is the exception, not the rule,"
Colo. River Water Conserv. Dist. v. United States, 424 U.S. 800,
813 (1976), we are also mindful of the Supreme Court's sage counsel
that "[a]mong the cases that call most insistently for abstention
are those in which the federal constitutional challenge turns on a
state statute the meaning of which is unclear under state law,"
Harris Cnty. Comm'rs Court v. Moore, 420 U.S. 77, 84 (1975); accord
Baggett v. Bullitt, 377 U.S. 360, 377-78 (1964). We believe that
Pullman abstention is appropriate in this case.
Pullman abstention was conceived by the Supreme Court in
a case bearing the Pullman name. See R.R. Comm'n of Tex. v.
Pullman Co., 312 U.S. 496, 499-502 (1941). Pullman abstention "is
warranted where (1) substantial uncertainty exists over the meaning
of the state law in question, and (2) settling the question of
state law will or may well obviate the need to resolve a
significant federal constitutional question." Batterman v. Leahy,
544 F.3d 370, 373 (1st Cir. 2008); see also Babbitt v. United Farm
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Workers Nat. Union, 442 U.S. 289, 307-08 (1979) (noting that
abstention may be appropriate in cases where "it is evident that
the [state] statute is reasonably susceptible of constructions that
might undercut or modify appellees' vagueness attack . . . [and]
that an authoritative construction of the . . . provision may
significantly alter the constitutional questions requiring
resolution"); Zwickler v. Koota, 389 U.S. 241, 251 (1967)
(emphasizing that Pullman abstention is appropriate when a state
statute, never interpreted by a state court, is "fairly subject to
an interpretation which will avoid or modify the federal
constitutional question").
In the case at hand, an "uncertain issue of state law
[turns] upon a choice between one or several alternative meanings
of [the] state statute." Babbitt, 442 U.S. at 308 (quoting
Baggett, 377 U.S. at 378). The Massachusetts courts should
therefore be afforded the opportunity to address, in the first
instance, the question of the statute's application to non-party
presidential and vice-presidential candidates. See, e.g., Harris
Cnty., 420 U.S. at 84.
The district court premised its conclusion that section
14 is void for vagueness on the fact that it "leaves the
determination of whether that statute is applicable to presidential
and vice-presidential nominees positively ambiguous," Barr II, 659
F. Supp. 2d at 229, and went on to state that where the meaning of
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a statute is unclear, that statute may be found unconstitutionally
vague. Id. That statement goes too far. The mere fact that a
statute requires interpretation does not necessarily render it void
for vagueness. Once the state courts clarify section 14's
relevance (if any) to substitution of presidential and vice-
presidential candidates, such a clarification, however it comes
out, would end the "void for vagueness" argument. Thus, both of
the preconditions for Pullman abstention are satisfied in this
case.3
2. Equal Protection. Beyond their claim regarding the
uncertainty of the Massachusetts statutory scheme, the basic
thrust of the appellees' case is that substitution of non-party
candidates for president and vice-president is required as a
matter of equal protection. Indeed, they succeeded in persuading
the district court that they were entitled to this substitution
even if no provision of Massachusetts law explicitly authorized
it. Id. at 230. In the appellees' words, "the Secretary
discriminates arbitrarily" between recognized political parties
3
Though the existence of a pending state court action is
sometimes considered as a factor in favor of abstention, the lack
of such pending proceedings does not necessarily prevent abstention
by a federal court. Duncan v. Poythress, 657 F.2d 691, 697 (1st
Cir. 1981). As noted above, the next presidential election is
nearly two years distant, and thus we find that any delay in
obtaining relief pending state court adjudication would impose no
onerous burden upon the parties. See Bonas v. Town of N.
Smithfield, 265 F.3d 69, 76 n.5 (1st Cir. 2001).
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and non-parties by refusing to allow substitution of non-party
candidates for president and vice-president.
We freely acknowledge that the right to vote is central
to the operation of a democratic society. Consequently, "any
restrictions on that right strike at the heart of representative
government." Werme v. Merrill, 84 F.3d 479, 483 (1st Cir. 1996)
(quoting Reynolds v. Sims, 377 U.S. 533, 555 (1964)). Some
substantial regulation of elections is necessary, however, to
ensure that they are fair, honest, and orderly. See, e.g., id.
(citing Storer, 415 U.S. at 730).
To be sure, the fact that states have considerable
discretion in establishing the procedures that govern ballot
access does not mean that every restriction on ballot access is
permissible under the Constitution. Ballot access restrictions
that fall unequally on similarly situated candidates or parties
may threaten the right to equal protection of the laws guaranteed
by the Fourteenth Amendment. Libertarian Party of Me. v. Diamond,
992 F.2d 365, 370 (1st Cir. 1993).
A mere demonstration that a state provision distinguishes
among groups (such as candidates affiliated with a recognized
political party and those not so aligned) is insufficient by
itself to establish an equal protection violation. Rather, a
claim of unconstitutionality must be grounded in a showing of
substantial discrimination. "Statutes create many classifications
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which do not deny equal protection; it is only 'invidious
discrimination' which offends the Constitution." Am. Party of
Tex. v. White, 415 U.S. 767, 781 (1974) (quoting Ferguson v.
Skrupa, 372 U.S. 726, 732 (1963)); see also Clements v. Fashing,
457 U.S. 957, 967 (1982) ("Classification is the essence of all
legislation, and only those classifications which are invidious,
arbitrary, or irrational offend the Equal Protection Clause of the
Constitution." (citing Williamson v. Lee Optical Co., 348 U.S.
483, 489 (1955))).
In recognition of the competing interests at stake where
ballot access regulations are concerned, the Supreme Court has
developed a flexible "sliding scale" approach for assessing the
constitutionality of such restrictions. Timmons v. Twin Cities
Area New Party, 520 U.S. 351, 358 (1997); Burdick v. Takushi, 504
U.S. 428, 432-34 (1992). Under this approach, when the burden
imposed by a ballot access regulation is heavy, the provision must
be narrowly tailored to promote a compelling state interest.
Timmons, 520 U.S. at 358. Reasonable, nondiscriminatory
restrictions, however, need be justified only by legitimate
regulatory interests. Id. A court evaluating a challenge to a
state ballot access regulation must, therefore, conduct its
inquiry by weighing "the character and magnitude of the asserted
injury" to the complaining party's constitutional rights and
"evaluat[ing] the precise interests put forward by the State as
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justifications for the burden imposed." Werme, 84 F.3d at 483
(quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)); see
also Libertarian Party of Me., 992 F.2d at 370.
The Massachusetts ballot access provisions at issue here
are nondiscriminatory. They do not specifically differentiate
among Democrats, Republicans, Libertarians, Mugwumps, or
candidates affiliated with any other political organization. In
other words, all political organizations are subject to the same
criteria for determining whether they qualify for recognition as
political parties and, thus, for the array of rights indigenous to
recognized political parties under Massachusetts law. See Mass
Gen. Laws ch. 50, § 1. These criteria are, essentially, twofold.
One avenue to recognition depends on a demonstration of
a proven ability to attract votes. Under the statutory scheme,
the LPM has essentially the same opportunity as any other party to
field attractive candidates, promote their candidates, and
convince voters to get on board. Distinguishing among political
organizations on the basis of success in past elections "is not
per se invidiously discriminatory." Werme, 84 F.3d at 484 (citing
Am. Party of Tex., 415 U.S. at 781). The LPM had the same chance
as any other political organization to qualify as a recognized
political party in this way and, in fact, did so in the 2008
election.
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The second avenue for qualification as a recognized
political party under Massachusetts law is through enrollment of
at least one percent of the voters registered in Massachusetts.
Where, as here, the necessary number of enrolled voters required
to achieve party recognition is reasonable,4 that methodology
constitutes an appropriate screen. Cf. Jenness v. Fortson, 403
U.S. 431, 442 (1971) (approving provision requiring prospective
candidate to obtain signatures from five percent of eligible
voters).
We add that the Massachusetts voter enrollment provision
is essentially an alternate means by which the state can ascertain
whether a political organization has demonstrated sufficient
support to warrant official recognition as a party. See, e.g.,
Libertarian Party of Me., 992 F.2d at 372. Nothing prevented
registered Massachusetts voters from aligning themselves with the
LPM, and, thus, the LPM had a full and fair chance to avail itself
of this avenue for becoming a recognized political party.
To sum up, equality of opportunity exists here. And as
we said in Werme, 84 F.3d at 485, "equality of opportunity — not
equality of outcomes — is the linchpin of what the Constitution
requires in this type of situation."
4
The appellees do not challenge the reasonableness of the
number of enrolled voters required under Massachusetts law.
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It is also important to note that the time available to
Barr and Root when they were directed by the Secretary (and, for
that matter, by state law) to procure the signatures necessary to
comply with section 6 was not so short as to impose an
unreasonable burden. Barr and Root had approximately 60 days
after the national convention and before the filing deadline
during which to secure the 10,000 required signatures, and the
Supreme Court has approved analogous time frames for collecting
signatures as not unduly burdensome. See, e.g., Am. Party of
Tex., 415 U.S. at 786 (finding that period of 55 days was not "an
unduly short time for circulating . . . petitions" and noting that
time frame would have required that signatures be collected at a
rate of no more than 400 per day to satisfy the statutory
requirement prior to the deadline).
The modest nature of the burden is confirmed by the fact
that, during the same time period, Phillies and Bennett were able
to secure approximately 8,000 signatures on their own nomination
papers, ultimately submitting many more than the 10,000 signatures
needed to qualify for the ballot. While a state "may not act to
maintain the 'status quo' by making it virtually impossible for
any but the two major parties to achieve ballot positions for
their candidates," Clements, 457 U.S. at 965, the regime
challenged here clearly had no such effect.
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Having evaluated the nature of the ballot access
restrictions at issue here and the extent of the burdens imposed,
we have no doubt as to the appropriate level of scrutiny to be
applied. We conclude that there need be only a rational basis
undergirding the regulation in order for it to pass constitutional
muster. See, e.g., Timmons, 520 U.S. at 358-59.
That threshold is satisfied. In defense of his refusal
to grant substitution to non-party presidential and vice-
presidential candidates, the Secretary points to the state's
interests in using "substantial support" requirements as a means
of protecting "the integrity of elections by avoiding overloaded
ballots and frivolous candidacies, which diminish victory margins,
contribute to the cost of conducting elections, confuse and
frustrate voters, . . . and may ultimately discourage voter
participation in the electoral process." Libertarian Party of
Me., 992 F.2d at 371. This, in itself, justifies the regulations
at issue here. It is settled beyond hope of contradiction that
states have a legitimate interest in ensuring that a candidate
makes a preliminary showing of a substantial measure of support as
a prerequisite to appearing on the ballot. See, e.g., Munro v.
Socialist Workers Party, 479 U.S. 189, 193 (1986); Anderson, 460
U.S. at 788-89; Am. Party of Tex., 415 U.S. at 782; Jenness, 403
U.S. at 442. Logically, this interest is advanced by the
Secretary's refusal to grant to non-party candidates the right to
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substitution in circumvention of the state's signature
requirements. Granting such substitution would effectuate an end-
run around the signature requirement — a requirement that allows
the state to ascertain whether a given candidate has enough
support to warrant inclusion on the ballot.
In light of the state's legitimate interest in ensuring
that the candidates who appear on the statewide ballot have
demonstrable support among the voting public, the modest burden
imposed upon non-party candidates by requiring them to secure
signatures, rather than piggy-backing upon signatures collected for
other candidates, is not so onerous as to present an equal
protection problem vis-à-vis candidates affiliated with recognized
political parties. Cf. Jenness, 403 U.S. at 440-41 ("We cannot see
how [the state] has violated the Equal Protection Clause of the
Fourteenth Amendment by making available these two alternative
paths [to appearing on the ballot], neither of which can be assumed
to be inherently more burdensome than the other."). The appellees'
equal protection challenge therefore fails.
3. Other Claims. The distance we have travelled to this
point does not end our odyssey. The parties joust over a final set
of claims, which implicate alleged inconsistencies in the
Secretary's position regarding the availability of substitution.
We need not linger long over any of these claims.
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First, the appellees argue that the Secretary should be
estopped from declaring that substitution of non-party presidential
and vice-presidential candidates is not the policy of his office.
To ground this argument, they rely on a communication received from
the Secretary's office in 2007, which informed them that the
Secretary could provide a form through which substitution could be
requested.
It is far from clear that the Secretary has adopted
inconsistent positions. After all, a statement that a party would
be permitted to request substitution in certain circumstances falls
short of an assurance that substitution would be allowed if
requested. Here, however, we need not decide whether or not the
Secretary heretofore has taken inconsistent positions.
In the course of this litigation, the Secretary has made
his current position crystal clear: substitution is not available
in the circumstances presented by the appellees. That position, as
we have pointed out, depends on the interpretation of state law.
There is no election on the horizon, and the appellees have ample
time to litigate the validity of the Secretary's position in the
state courts. In light of these circumstances and the Secretary's
plainly articulated position, the appellees cannot reasonably
continue to rely on any earlier inconsistency.
In any event, a definitive state-court interpretation of
the meaning of the statutory scheme will provide non-party
-27-
candidates with concrete guidance on the availability vel non of
substitution. There is plenty of time in which to obtain such an
interpretation: the run-up to the next presidential election has
barely begun. Accordingly, because there is no reasonable
likelihood of recurrence, the estoppel claim is moot. Cf. Spencer,
523 U.S. at 18 (finding claim moot because petitioner had not
"demonstrated a reasonable likelihood that he will once again be
paroled and have that parole revoked"); Oakville Dev. Corp. v.
FDIC, 986 F.2d 611, 615 (1st Cir. 1993) (finding claim moot because
it is "highly unlikely that appellant will again secure a mortgage
with a federally insured bank that then fails, prompting FDIC
involvement and ensuing foreclosure").
Second, and relatedly, the appellees complain that the
ambiguities in the statutory scheme have allowed the Secretary to
grant a right of substitution to non-party candidates in prior
elections, yet deny such a right to the appellees in 2008. The
appellees suggest that this erratic behavior creates an equal
protection problem vis-à-vis other "unrecognized" political parties
and/or non-party candidates.
The premise on which this suggestion rests is
unconvincing. We have examined the examples proffered by the
-28-
appellees and believe that none of the affected parties and/or
candidates appears to be situated similarly to the appellees.5
Regardless, any historical variations in treatment will
be rendered irrelevant once the Massachusetts courts have clarified
the way in which state law operates. Such clarification will help
to define the bounds of the Secretary's discretion to permit or
deny substitution, limiting his capacity to adopt arguably
haphazard policies across multiple election cycles. Because state-
court construction of the statutory scheme is likely to eliminate
the kinds of variations on which this equal protection claim is
premised, we think it prudent to forgo evaluation of it pending
resolution of the anticipated state-court action. See Bath Mem'l
Hosp. v. Me. Health Care Fin. Comm'n, 853 F.2d 1007, 1016 (1st Cir.
1988) (finding that Pullman abstention may be appropriate in
respect to claim that state commission's lack of decision-making
standards created equal protection problem, where state court might
read state law as importing standards, in which case claim would be
significantly altered or mooted); cf. El Dia, Inc. v. Hernández
Colón, 963 F.2d 488, 494 (1st Cir. 1992) ("[D]eclaratory judgments
concerning the constitutionality of government conduct will almost
5
These prior instances involved the substitution of a vice-
presidential candidate only (with the written consent of the slate
of electors) and the substitution of candidates who could not
otherwise have gotten on the ballot because their party's
nominating convention did not take place until after the deadline
had passed for submitting nominating papers.
-29-
always be inappropriate when the constitutional issues are
freighted with uncertainty and the underlying grievance can be
remedied for the time being without gratuitous exploration of
uncharted constitutional terrain.").
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we reverse the decision of the district court on the equal
protection claim, vacate its decision and judgment in all other
respects, and remand to the district court with instructions to
abstain on the "void for vagueness" claim and dismiss what remains
of the action without prejudice. All parties shall bear their own
costs.
Reversed in part; vacated in part; and remanded.
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