United States Court of Appeals
For the First Circuit
No. 10-1360
LIBERTARIAN PARTY OF NEW HAMPSHIRE ET AL.,
Plaintiffs, Appellants,
v.
WILLIAM M. GARDNER, in his official capacity as
Secretary of State of New Hampshire,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. James R. Muirhead, U.S. Magistrate Judge]
Before
Lynch, Chief Judge,
Selya and Howard, Circuit Judges.
Gary Sinawski on brief for appellants.
Nancy J. Smith, Senior Assistant Attorney General, and
Michael A. Delaney, Attorney General, on brief for appellee.
February 24, 2011
LYNCH, Chief Judge. This appeal raises constitutional
election law issues regarding the listing of political affiliations
next to the names of candidates on a state general election ballot.
On New Hampshire's 2008 ballot, in a column headed "Other
Candidates," in the row for the offices of President and Vice
President, two pairs of candidates were identified as
"Libertarian." One pair was Bob Barr and Wayne Root, who had
received the Libertarian Party's nomination at its May 2008
National Convention, and the other pair was George Phillies and
Christopher Bennett, who had failed to secure the nomination at
this convention.
There were also columns on the ballot headed "Republican
Candidates" and "Democratic Candidates," and under these headings
were listed only the names of the nominees of those parties. At no
point did the term "nominee" appear on the ballot, but the ballot
may be read as indicating that the names listed under "Republican
Candidates" and "Democratic Candidates" were those respective
parties' nominees.
On September 11, 2008, the Libertarian Party of New
Hampshire and associated individuals (hereinafter, "the Libertarian
Party")1 brought suit in federal court arguing that the ballot's
1
Although New Hampshire election law defines the term
"party" narrowly as "any political organization which at the
preceding state general election received at least 4 percent of the
total number of votes cast for any one of the following: the office
of governor or the offices of United States senators," N.H. Rev.
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identification of "Libertarian" candidates who were not the party's
nominees violated their First Amendment rights by causing voter
confusion, vote dilution, and interference with their associational
rights, and also their Fourteenth Amendment rights of equal
protection.2
Before the election, the Libertarian Party sought
declaratory and injunctive relief requiring that the Secretary of
State of New Hampshire, William M. Gardner, remove from the ballot
the names of the Libertarian non-nominees, Phillies and Bennett,
even though they had received the requisite number of petition
signatures to qualify for ballot placement. The Libertarian Party
argued that it had the right to "substitute" candidates, but what
it sought was in effect the removal of the non-nominees from the
ballot. The district court scheduled an evidentiary hearing on the
preliminary injunction request, but the day before the hearing the
Libertarian Party informed the court that it was no longer seeking
Stat. § 652:11, we will refer to the plaintiff as it has described
itself, "Libertarian Party." No meaning under state law is to be
attached to this name; during the 2008 election, the Libertarian
Party was not a recognized political party under state law.
2
As in Werme v. Merrill, 84 F.3d 479 (1st Cir. 1996), we
will not categorically "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," because 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.'" Id. at 484 n.4 (quoting Burdick
v. Takushi, 504 U.S. 428, 438 (1992)).
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a preliminary injunction and the court granted its motion to
dispense with the hearing.
After the election, in a cross-motion for summary
judgment, the Libertarian Party switched gears, stating that its
request for relief could also be met by striking the affiliation
"Libertarian" from the names of the two Libertarian non-nominees.
It explained that it only sought to vindicate the Libertarian
Party's right "to control the use of the 'Libertarian' designation
by candidates for public office in situations where the party
nominates or otherwise endorses candidates," and "to substitute
candidacies in appropriate situations."
After finding that the case had not become moot by virtue
of the passing of the election, the district court granted summary
judgment for the Secretary.
We affirm. The Libertarian Party has failed to identify
an unconstitutional burden on its First Amendment rights, having
put forward no evidence of actual voter confusion, vote dilution,
or other harm to its associational interests. As to the
Libertarian Party's Fourteenth Amendment claims, the various
distinctions that New Hampshire draws between candidates who appear
on the ballot as nominees of recognized political parties and
organizations, and those who appear on the ballot in their
individual capacities, are plainly constitutional.
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I.
New Hampshire's general election ballot on November 4,
2008 contained five columns. A copy of that ballot submitted to
the district court by the Secretary is attached to this opinion as
an Appendix. The first column was headed "Offices" and listed
vertically the contested offices in the election: President and
Vice President of the United States, Governor, United States
Senator, and Representative in Congress. The remaining four
columns were headed, in order from left to right, "Republican
Candidates," "Other Candidates," "Democratic Candidates," and
"Write-In Candidates." Listed vertically in these columns were the
names of the candidates. In the row corresponding to the offices
of President and Vice-President, the Republican and Democratic
columns each contained one pair of candidates: John McCain and
Sarah Palin, and Barack Obama and Joe Biden, respectively. The
Other Candidates column, located between the Republican and
Democratic columns, contained the names of three pairs of
candidates listed in this order: (1) Ralph Nader and Matt Gonzales,
(2) George Phillies and Christopher Bennett, and (3) Bob Barr and
Wayne A. Root. The ballot identified Nader and Gonzales as
"Independent," and identified each of the remaining two pairs of
candidates as "Libertarian." No names were listed in the Write In
Candidates column.
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We first describe how candidates qualify to appear on the
ballot under New Hampshire law, and then discuss how the listing of
their names and party affiliations on the ballot and other
pertinent features of elections are regulated by the state.
New Hampshire provides potential candidates with three
avenues to placement on the general election ballot. The New
Hampshire Supreme Court has described this scheme. See Libertarian
Party of N.H. v. New Hampshire, 910 A.2d 1276, 1278-79 (N.H. 2006).
First, a candidate may be placed on the ballot as the
nominee chosen in the primary of a state recognized "party." A
"party" is defined as a "political organization which at the
preceding state general election received at least 4 percent of the
total number of votes cast for any one of the following: the office
of governor or the offices of United States senators." N.H. Rev.
Stat. § 652:11.
Second, a candidate may be placed on the ballot as the
nominee of a state recognized "political organization." A
political organization may gain state recognition and "have its
name placed on the ballot for the state general election by
submitting the requisite number of nomination papers." Id.
§ 655:40-a. It must submit "the names of registered voters
equaling 3 percent of the total votes cast in the previous state
general election." Id. § 655:42(III).
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Third, as an alternative to nomination by party or
political organization, "a candidate may have his or her name
placed on the ballot for the state general election by submitting
the requisite number of nomination papers." Id. § 655:40. In the
case of candidates for President, this avenue requires the
signatures of 3,000 registered voters--1,500 from each
congressional district in the state. Id. § 655:42(I). These
nomination papers must state "the political organization or
principles the candidate represents." Id. § 655:40. Both Phillies
and Bennett as well as Barr and Root followed this third avenue,
gathering the requisite number of signatures and listing
"Libertarian" as the political organization or principles that they
represented.
Inherent in New Hampshire's statutory scheme for ballot
qualification is another set of pertinent distinctions, these going
to the appearance of the ballot and the listing of "party columns"
and "additional columns." See id. § 656:5(I). There are two ways
in which a column on the ballot may be obtained. Any party
recognized under state law (that is, one that received at least 4%
of the prior vote for the pertinent offices) is able to obtain a
column and choose the candidates who appear in it; these candidates
"shall be arranged upon the state general election ballot in
successive party columns," and in general, "[e]ach separate column
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shall contain the names of the candidates of one party." Id.3 Any
political organization that is recognized under state law (that is,
one that obtained nomination signatures equaling at least 3 percent
of the total votes cast in the prior state general election) has
the same entitlement to a column, according to the affidavit of the
Deputy Secretary of State David M. Scanlan. See also id.
§§ 655:40-b, 656:5(I).4 In the 2008 election, only the Republican
and Democratic parties qualified for party columns. The
Libertarian Party did not qualify for a party column or a political
organization column; if it had done so, its nominees could have
been listed under its party name.
3
However, "if only a part of a full list of candidates is
nominated by a political party, 2 or more such lists may be
arranged whenever practicable in the same column." N.H. Rev. Stat.
§ 656:5(I).
4
Although a political organization's entitlement to a
column is not clearly stated in the law, Scanlan's affidavit is
consistent with the statutory provision referring to "[t]he names
of the candidates to be listed on the state general election ballot
under the political organization nominated pursuant to RSA
655:40-a," N.H. Stat. § 655:40-b (emphasis added), as well as the
provision stating that "the secretary of state shall determine the
vertical location of any additional columns that may appear on the
ballot," id. § 656:5(I). That the New Hampshire statutory scheme
does not use the term "party column" to refer only to recognized
parties is also indicated by a provision requiring that the "names
of all candidates nominated in accordance with the election laws,"
not just those nominated by parties, "shall be arranged upon the
state general election ballot in successive party columns." Id.
(emphasis added).
-8-
Significantly, the Secretary is authorized by state law
to list the party affiliations of candidates on the ballot, but
that authorization is limited:
Every state general election ballot shall
contain the name of each candidate who has
been nominated in accordance with the election
laws, except as hereinafter provided, and
shall contain no other name except party
appellations.
Id. § 656:4 (emphasis added).5 The Secretary must comply with this
limit on his ability to place information other than "party
appellations" on the ballot.6 The Libertarian Party has not
specifically challenged, either on its face or as applied, the
limitation in this provision, but rather says its challenge is to
the overall scheme that produced the result here.
A third feature of New Hampshire's election law that is
worth highlighting has to do with the limits it places on a
potential candidate's ability to appear on the ballot by filing
individual nomination papers. This avenue of placement on the
ballot is not available to an individual who "filed as a candidate
5
At no time did the Libertarian Party propose that the
Secretary add the term "nominee" after the term "Libertarian" to
the appropriate set of candidates when the different sets of
candidates were listed in the Other Candidates column. Because the
issue was never raised, we consider it no further.
6
For a candidate who is not nominated by a party or
political organization, the Secretary apparently interprets this
provision as requiring or permitting the placement on the ballot of
"the political organization or principles the candidate
represents," which the candidate is required to list on his or her
nomination papers. N.H. Rev. Stat. § 655:40.
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in the state primary election." Id. § 655:43(IV). With this
disqualification provision, New Hampshire protects recognized party
nominees from challenge by primary losers. In the case before us,
this provision did not protect Barr and Root from challenge by
Phillies and Bennett because the Libertarian Party is not
recognized by the state and did not participate in the state
primary election. We note that the provision also does not protect
a recognized party from challenge by a candidate who is affiliated
with the party but was not a candidate in the party's primary. And
again, the Libertarian Party has not challenged this specific
provision of New Hampshire's law.
A final pertinent distinction in New Hampshire's election
law has to do with its provisions for the substitution of
candidates. A recognized party may, in the event of a vacancy for
any office on its party ticket following its primary, designate a
new candidate to fill this vacancy. Id. § 655:37. In addition, if
a party's nominated candidate dies, or makes an oath of
disqualification based on age, domicile, or incapacitating physical
disability acquired subsequent to the primary, a new candidate may
be substituted by the appropriate party committee. Id.
§§ 655:38, 39.7
7
It appears that all of these substitution provisions
apply only to candidates nominated by recognized parties.
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II.
We review de novo the question of whether this case
became moot when the election finished, "accepting as true the
material factual allegations contained in the complaint and drawing
all reasonable inferences therefrom in the plaintiff's favor."
Ramírez v. Sánchez Ramos, 438 F.3d 92, 96-97 (1st Cir. 2006). This
is a close question. Cf. Barr v. Galvin, 626 F.3d 99, 104-06 (1st
Cir. 2010).
If a case is moot, even if it becomes moot on appeal, we
cannot hear it because "Article III of the Constitution restricts
federal courts to the resolution of actual cases and
controversies." Chico Serv. Station, Inc. v. Sol P.R. Ltd., No.
10-1200, 2011 WL 228048, at *12 (1st Cir. Jan. 26, 2011) (quoting
Overseas Military Sales Corp. v. Giralt-Armada, 503 F.3d 12, 16
(1st Cir. 2007)) (internal quotation marks omitted). "[W]hen the
issues presented are no longer live or when the parties lack a
legally cognizable interest in the outcome . . . a case or
controversy ceases to exist, and dismissal of the action is
compulsory." Id. (quoting Cruz v. Farquharson, 252 F.3d 530, 533
(1st Cir. 2001)) (internal quotation mark omitted).
The question here is whether this case falls within the
narrow exception to general principles of mootness for cases that
raise issues that are "capable of repetition, yet evading review."
Cruz, 252 F.3d at 534 (quoting S. Pac. Terminal Co. v. ICC, 219
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U.S. 498, 515 (1911)) (internal quotation marks omitted). Election
cases often fall within this category, Storer v. Brown, 415 U.S.
724, 737 n.8 (1974); N.H. Right to Life Political Action Comm. v.
Gardner, 99 F.3d 8, 18 (1st Cir. 1996), but "not every election
case fits within its four corners," Barr, 626 F.3d at 105.
The Supreme Court has placed on the party asserting that
a case is not moot the burden of showing "(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
or a demonstrated probability 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)) (internal quotation marks omitted); see also Barr,
626 F.3d at 105.
As to the first prong of this test, it is highly likely
that the merits of the constitutional challenge presented by this
case could not have been fully resolved between the time it became
ripe and the election. Cf. Barr, 626 F.3d at 106. Here, Phillies
and Bennett qualified to be listed on the ballot on July 30, 2008,
and Barr and Root qualified on September 3, 2008, which was the
deadline. The Libertarian Party filed suit on September 11, 2008.
The travel of this case, including appeal, could not have been
totally concluded before the election (let alone before the date on
which the general election ballot was printed). Indeed, had the
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Libertarian Party attempted to put on evidence of voter confusion
affecting the election, it would have relied in part on post-
election analysis. Moreover, as the deadline for qualification by
nomination papers is the Wednesday one week before the state office
primary election, N.H. Rev. Stat. § 655:43(I), which is the second
Tuesday in September, id. § 653:8, the situation complained of
could again emerge only two months before the November elections as
it did here.
The more difficult question is whether there is a
reasonable expectation that what happened here will in fact happen
again. This precise situation--the listing of two pairs of names
in the Other Candidates column with the same party affiliation--has
apparently never come up before in New Hampshire. There is little
reason to doubt that there will be a candidate supported by the
Libertarian Party in future elections in New Hampshire. The
Libertarian Party has had sufficient support in New Hampshire to
have its candidates listed on the ballot for at least two decades,
so much so that in the 1992 and 1994 elections, the Libertarian
Party received enough votes to qualify, under section 652:11, as a
"party" in the 1994 and 1996 general elections.
The same issues presented here will only recur, however,
if the Libertarian Party does not achieve party or political
organization status and resorts, as it did here, to the individual
petition process of section 655:40 to get its nominees on the
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ballot. Although the Libertarian Party qualified as a "party" for
the 1994 and 1996 general elections, it lost this status when it
received insufficient votes in the 1996 election. In 2000, it
received enough signatures to qualify, under section 655:40-a, as
a political organization in the 2000 general election, but it has
not met this requirement since. It is reasonable to expect that
the Libertarian Party will again face a situation in which it does
not qualify as a recognized party or political organization, but
its nominee succeeds in receiving enough nomination petition
signatures to be listed individually on the ballot. Cf. Barr, 626
F.3d at 106. There is, however, more to the equation.
The "problem" complained of only occurs if a qualifying
Libertarian individual decides to put his or her name on the ballot
despite the Libertarian Party naming another individual as the
party nominee. While apparently that had not happened before 2008,
it has now happened. That alone may encourage individual
Libertarians--or others--who do not end up being nominees to
qualify by submitting nomination papers in the future. The state's
constitution enshrines the concept that every individual has a
right to run for office. See N.H. Const. pt. 1, art. 11 ("Every
inhabitant of the state, having the proper qualifications, has an
equal right to be elected into office."). Here, Phillies and
Bennett knew that they had not won the nomination of the May 2008
Libertarian National Convention when they qualified for placement
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on the New Hampshire ballot at the end of July 2008. Some evidence
from the Libertarian Party about why it expects its nominees to be
challenged by other Libertarian candidates in the future would have
been helpful, but none was offered. While the question is close,
we conclude that the case is not moot.
III.
Our review of the dismissal of the case is de novo, both
because we are reviewing entry of summary judgment and because, in
the end, the case presents only issues of law. Chiang v. Verizon
New England Inc., 595 F.3d 26, 34 (1st Cir. 2010).
We review all of the First and Fourteenth Amendment
claims under the sliding scale approach announced by the Supreme
Court in Anderson v. Celebrezze, 460 U.S. 780, 789-90 (1983), and
Burdick v. Takushi, 504 U.S. 428, 434 (1992). See Barr, 626 F.3d
at 109 (discussing the sliding scale approach); Werme v. Merrill,
84 F.3d 479, 483 (1st Cir. 1996) (same). This method of analysis
for election regulations requires an assessment of the burdens, if
any, placed on a plaintiff's constitutionally protected rights,
followed by an evaluation of the precise interests put forward by
the state as justifications for the burdens. Werme, 84 F.3d at
483. If a regulation places "severe restrictions" on a plaintiff's
First and Fourteenth Amendment rights, "the regulation must be
narrowly drawn to advance a state interest of compelling
importance." Id. at 484 (quoting Burdick, 504 U.S. at 434). By
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contrast, "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." Id. (quoting Burdick, 504 U.S. at 434).
Unlike many election cases, this case is not about denial
of access to the ballot or a party's inability to vote for its
nominee.8 See, e.g., Barr, 626 F.3d 99; McClure v. Galvin, 386
F.3d 36 (1st Cir. 2004); Torres-Torres v. Puerto Rico, 353 F.3d 79
(1st Cir. 2003). Rather, this is a case about a state's regulation
of what is said on a ballot about the party affiliation of a
candidate. See, e.g., Dart v. Brown, 717 F.2d 1491 (5th Cir. 1983)
(finding constitutional a state's decision to provide party
affiliation on ballot for candidates of parties recognized by the
state but not for candidates of unrecognized parties). We consider
the asserted First and Fourteenth Amendment "rights" in turn.
A. First Amendment Claims
1. Right of Exclusive Access
The Libertarian Party argued to the district court that
it had a right of "exclusive access to the ballot" which was denied
by the state. It sought relief that would have removed the names
8
Nor has the Libertarian Party alleged that New Hampshire
interfered with its constitutionally protected interest in how it
structures its nominating process under Tashjian v. Republican
Party of Conn., 479 U.S. 208 (1986).
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of the non-nominee qualifying Libertarian candidates, Phillies and
Bennett.
The Libertarian Party cites no case holding that a
political organization or party not recognized as such by a state
has the right to remove from a ballot the names of candidates who
otherwise meet state ballot law qualifications and who identify
themselves with that organization's philosophy.9
The Libertarian Party's cause is not advanced by its
attempt to characterize its request to remove the names of Phillies
and Bennett as a mere request for "substitution." New Hampshire
law provides recognized parties with the right to substitute
candidates in limited circumstances. See N.H. Rev. Stat.
§§ 655:37-39. But the Libertarian Party makes no argument that
these statutory rights are required by the First Amendment. And in
any event, none of the conditions under which parties can
substitute candidates under New Hampshire law provided the basis
for the Libertarian Party's claimed right of substitution. The
Libertarian Party was not seeking substitution to fill a vacancy
caused by the withdrawal, disqualification, or death of its
nominee.
Furthermore, even if the Libertarian Party had
demonstrated a burden to its constitutionally protected rights, the
9
There is no question but that Phillies and Bennett are in
fact Libertarians and have been active participants in the efforts
of the Libertarian Party.
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state's policy of limiting substitution rights to party candidates
is based on its "undoubted right to require candidates to make a
preliminary showing of substantial support in order to qualify for
a place on the ballot." Anderson, 460 U.S. at 789 n.9.
"Logically, this interest is advanced by the Secretary's refusal to
grant to non-party candidates the right to substitution . . . .
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." Barr, 626 F.3d at 111.
The Libertarian Party's claimed right to deny ballot
access to Libertarian candidates it does not endorse, via removal
or "substitution" of Phillies and Bennett, fails.
2. Right to Exclusive Use of Name
The Libertarian Party's next claim is that it has a right
to exclusive use of its name and that the state was at least
obligated to remove the affiliation "Libertarian" from the names of
Phillies and Bennett. It contends that the state's failure to do
so interfered with its members' rights of association and political
speech, and that the use of the Libertarian name by Phillies and
Bennett diluted the party's voting strength.
States may grant recognized political parties and
organizations the right to control the use of their names. See,
e.g., Norman v. Reed, 502 U.S. 279, 290 (1992) ("To prevent
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misrepresentation and electoral confusion, [a state] may, of
course, prohibit candidates running for office in one subdivision
from adopting the name of a party established in another if they
are not in any way affiliated with the party."); Mass. Gen. Laws
ch. 53 § 8 ("If a candidate is nominated otherwise than by a
political party the name of a political party shall not be used in
his political designation . . . ."). But the Libertarian Party
cites no case holding that a political organization or party not
recognized as such by the state has this right under the First
Amendment.
What the Libertarian Party appears to be arguing is that
it had a free speech right to use the ballot to advertise who its
nominees were. But the Supreme Court in Timmons v. Twin Cities
Area New Party, 520 U.S. 351 (1997), expressly rejected the
argument that a party "has a right to use the ballot itself to send
a particularized message, to its candidate and to the voters, about
the nature of its support for the candidate." Id. at 363.
In Timmons, the Court upheld a state "fusion" ban that
prohibited a candidate from appearing on the ballot as the
candidate of more than one party. Id. at 369. The plaintiff, a
party that wanted to place on the ballot a candidate who was
already representing another party, claimed that the ban burdened
the party's right "to communicate its choice of nominees on the
ballot on terms equal to those offered other parties, and the right
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of the party's supporters and other voters to receive that
information." Id. at 362. The Court rejected this argument,
explaining that "[b]allots serve primarily to elect candidates, not
as forums for political expression." Id. at 363; see also Dart,
717 F.2d at 1499 ("Although the words 'Libertarian Party' did not
appear under [its candidate's] name, the Libertarian Party was not
denied access to the ballot. . . . It was a candidate, not a party,
ballot. . . . As [the party's candidate] was granted access to the
ballot, so was the Libertarian Party.").
Timmons built on earlier holdings to similar effect. In
Burdick, for example, the Court had explained that "[a]ttributing
to elections a more generalized expressive function would undermine
the ability of States to operate elections fairly and efficiently."
Burdick, 504 U.S. at 438. And the Court has since returned to the
theme, stating not only that the "First Amendment does not give
political parties a right to have their nominees designated as such
on the ballot," but also that "[p]arties do not gain such a right
simply because the State affords candidates the opportunity to
indicate their party preference on the ballot." Wash. State Grange
v. Wash. State Republican Party, 552 U.S. 442, 453 n.7. (2008).
Even if we assume arguendo that the Libertarian Party has
some interest in preventing voter confusion of its nominated
candidates with other candidates who also espouse Libertarian
ideals, the question of whether it may enlist state officials to
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prevent such confusion is one we need not reach on the facts before
us. Here, the Libertarian Party has made no claim that Phillies
and Bennett were not in fact Libertarians or that the ballot was
otherwise inaccurate. And it has provided no evidence that the
ballot misled voters in any way.10 On its face, the ballot did not
itself indicate that Phillies and Bennett were the nominees of the
Libertarian Party. It identified them, as well as Barr and Root,
merely as Libertarian. "There is simply no basis to presume that
a well-informed electorate will interpret a candidate's
party-preference designation to mean that the candidate is the
party's chosen nominee or representative or that the party
associates with or approves of the candidate." Id. at 454.
As to the state interests at stake, New Hampshire has a
strong interest in identifying candidates in the Other Candidates
column with the political organization or principles that they
represent. The inclusion of this information helps prevent
uninformed voting by giving voters pertinent information about the
politics of all candidates on the ballot, not just those listed in
the columns of parties. "There can be no question about the
legitimacy of the State's interest in fostering informed and
10
There is no requirement that a state show the existence
of voter confusion before it imposes reasonable restrictions on
ballot access. Munro v. Socialist Workers Party, 479 U.S. 189,
194-95 (1986).
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educated expressions of the popular will in a general election."
Anderson, 460 U.S. at 796.
Further, under the New Hampshire Constitution, "[e]very
inhabitant of the state . . . has an equal right to be elected into
office." N.H. Const. pt. 1, art. 11. The state's ballot format
serves this goal, providing candidates running as individuals with
the same opportunities as nominees of recognized parties or
political organizations to be identified by their chosen ideology
to voters in an effective way.
We reject the Libertarian Party's claim that it had a
constitutional right to remove the Libertarian label from the names
of Phillies and Bennett.
B. Fourteenth Amendment Claims
We see no viable claim of differential treatment under
the Equal Protection Clause and repeat what the Supreme Court said
40 years ago:
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); see also Werme, 84
F.3d at 485.
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It is well established that a state may base its
recognition of a party, and the benefits of recognition, on the
party's past electoral strength or demonstrated support. See Barr,
626 F.3d at 109-10; Werme, 84 F.3d at 484-85. New Hampshire has
done so in several ways.
New Hampshire prohibits candidates who participated in
the state primary election from qualifying for ballot placement
through the submission of independent nomination papers, but it
does not place similar prohibitions on candidates who have sought
the nomination of unrecognized parties. See N.H. Rev. Stat.
§ 655:43(IV).
The Supreme Court has made it clear that states have a
legitimate interest in preventing "party raiding and 'sore loser'
candidacies by spurned primary contenders." Clingman v. Beaver,
544 U.S. 581, 596 (2005); see also Burdick, 504 U.S. at 439 ("The
prohibition on write-in voting is a legitimate means of averting
divisive sore-loser candidacies."). A state may also insist "that
intraparty competition be settled before the general election."
Am. Party of Tex. v. White, 415 U.S. 767, 781 (1974); see also
Storer, 415 U.S. at 733-36.
It is entirely rational for a state to conclude, as New
Hampshire has done, that it has a stronger interest in preventing
"sore-loser" challenges to recognized parties than to unrecognized
parties. In the case before us, the Libertarian Party National
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Convention at which Phillies and Bennett lost was not a state
primary, and the winners of that vote, Barr and Root, did not
appear on the New Hampshire ballot by virtue of having won.
Rather, both sets of Libertarian candidates appeared on the ballot
in the same way--by submitting the requisite number of signatures.
Unlike the winners of party primaries who are protected by the
"sore loser" provision, neither set of Libertarian candidates had
demonstrated greater support than the other in the state.
New Hampshire also creates distinctions on the basis of
demonstrated support by allowing recognized parties and political
organizations to obtain a column for their candidates on the
ballot, while providing no such opportunity for candidates who
appear on the ballot in their individual capacities. The
Libertarian Party does not directly challenge this aspect of New
Hampshire's election law, and in any event, this differentiation is
plainly constitutional. See, e.g., McLain v. Meier, 637 F.2d 1159,
1168 (8th Cir. 1980) (listing similar cases).
Finally, although New Hampshire allows recognized
parties--but not unrecognized parties--to substitute candidates
under certain circumstances, those circumstances simply are not
involved in this as applied challenge, so the Libertarian Party has
no viable claim of disparate treatment.11 And even if the
11
The Libertarian Party also alleged that New Hampshire
allows a recognized party to prevent candidates in the Other
Candidates column from using its name, but this is not the case;
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Libertarian Party had shown a modest burden on its Fourteenth
Amendment rights, New Hampshire has legitimate interests that
justify its decision not to provide a substitution mechanism for
non-party candidates. See Barr, 626 F.3d at 102.
The Libertarian Party's Fourteenth Amendment claims fail.
IV.
The Libertarian Party has put no material fact in
dispute, and there was no error in the use of summary judgment
procedure. Nor was there error in the conclusion that its
constitutional rights were not violated. Judgment for the
Secretary is affirmed.
candidates who appear in the Other Candidates column may in fact
list Republican or Democratic as their affiliation, so there is no
disparate treatment here either.
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Appendix
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