(concurring in the judgment).
I agree with my colleagues that the judgment below should be affirmed. I *6write separately because I disagree with my colleagues’ application of the waiver rule in the circumstances of this case.
My colleagues hold that appellant Maine Green Party has waived its First Amendment “associational” argument in its entirety because of a shift in the nature of the argument from the time it was first presented to the magistrate judge to the time it was argued to the district court and, now, on appeal. With respect, I believe this holding is without support in the case law and that it represents an unwork-ably narrow application of the conventional rule that issues not argued in the nisi prius tribunal may not subsequently be raised in reviewing courts.
It seems to me that the argument now pressed on appeal by the Green Party— that Maine’s 5% presidential vote requirement violated their First Amendment associational right to choose how they wish to organize — was sufficiently presented in the first instance to the magistrate judge to avoid any question of waiver. In its original cross-motion for summary judgment, filed with the magistrate judge, the Green Party contended that Maine’s 5% presidential vote requirement “infringes upon the plaintiffs’ rights to organize as they see fit.” (Emphasis supplied.) The Party contended that it was organized in Maine around a “serious candidate for Governor” who gained the support of 33,-000 voters for “ideas and positions concerning issues of importance on the state level,” and that its members “desire to achieve meaningful participation in state and local politics.” In support of this argument, the Green Party cited the controlling Supreme Court precedent, to wit, Eu v. San Francisco County Democratic Central Com., 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989) and Tashjian v. Republican Party of Conn., 479 U.S. 208, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986), and asserted that “[t]o disqualify the Party because it has no national organization and no serious candidate for the presidency thus violates the members’ rights as delineated in Eu and Tashjian.”
On appeal, the Green Party and its members, citing, inter alia, Eu and Tash-jian, continue to state that they want to be formed locally, and not on a national level, “either because they are too new to have a national political organization or because they choose to remain local.” I see no distinction sufficient to justify application of the waiver rule between the First Amendment associational argument put to the magistrate judge and the argument now presented on appeal.
My colleagues claim a shift because the 5% presidential vote criterion (necessitating a strong nationwide presence) was initially claimed to be unconstitutionally burdensome only because the Maine party was new, while now it is said to be too burdensome because it interferes with the Green Party’s philosophy favoring a local, decentralized party. It is not clear to me, however, that the arguments were ever so neatly compartmentalized; and even if the original associational argument focused less on philosophy and more on the practical difficulties of tying party status to the showing of a viable presidential candidate, I do not believe the difference in emphasis renders the present formulation a significantly different argument. Both versions expressly rest on the freedom of association guaranteed by the First Amendment. The Green Party initially claimed, and has continued to claim, that the Maine ballot access law infringes upon its members’ right to organize as they “see fit.” I think it is improper for us to refuse to consider the Party’s current variation simply because its precursor, which invoked the same constitutional provision and precedent, emphasized the unfairness of forcing a newly-formed group to field a presidential candidate capable of attracting significant Maine support while the later version stresses the desire of the Green Party to concentrate on candidates for local offices. Compare Caribbean Mushroom Co. v. Government Development Bank, 102 F.3d *71307, 1309-10 (1st Cir.1996) (variation of argument amounting to a narrowing of position not a new argument).
My colleagues cite to no cases where arguments as closely intertwined as these have been treated as distinct arguments for waiver purposes. My experience with constitutional argumentation is that appellate courts are broadly tolerant of argumentative shifts so long as the underlying constitutional provision remains the same and no new facts need be found. Future litigants will not dare to replace trial counsel with more sophisticated appellate counsel if they have to fear that better-honed constitutional arguments, based on the same underlying theory, will be deemed “new” and therefore waived.1 This is not a case in which, having sought relief before the magistrate judge under certain constitutional or statutory provisions, appellant has switched to different provisions. Nor is this a case where an argument depends upon additional factual development in the lower court. Nor does this court need to read cases different from those cited to the magistrate judge in order to address the present argument.2 Nor do I discern any major shift in underlying theory.
The waiver concept founders here for other reasons also. I do not think that my colleagues can rely upon Paterson-Leitch Co. v. Massachusetts Mun. Wholesale Elec. Co., 840 F.2d 985 (1st Cir.1988), and the other cited cases to establish that the Green Party is precluded from raising its current version of the association argument. In Paterson-Leitch, for example, having failed to plead or argue before the magistrate judge that it was entitled to sue as a third-party beneficiary of a construction management contract, the plaintiff attempted to assert third-party beneficiary status for the first time before the district judge, in its objections to the magistrate’s recommended disposition. The district judge expressly refused to entertain the argument, finding that it had not been presented to the magistrate. We affirmed the district court’s refusal.
The circumstances here are altogether different. Not only does the argument here not raise an issue fundamentally different from that previously argued to the magistrate judge, the district judge never, for that or any reason, declined to hear the present argument when made, as it was, by the Green Party. Nor did the State of Maine argue below or in this court that the Green Party’s argument before the district court should be disregarded because not previously raised. It is only this court itself which, for the first time, believes that it has detected a sea-change such as to warrant our refusing to decide both the purported new argument and the original argument put to the magistrate judge.
I simply do not see how we can assume that the district judge refused or failed to consider the “new” argument. For all that appears, he fully considered it. While the district court would have been “within its rights” to refuse to consider a “new” argu*8ment, it plainly had the power to do so. The district court, it is true, adopted the magistrate judge’s report; but presumably it did so because it believed the magistrate judge had adequately addressed the associational argument. This may or may not have been so — that matter would be fair game for our appellate review — but I don’t see how we can read into the court’s silence a refusal to decide all the arguments put to it, including the ones we now decide were waived. In the absence of any determination by the district court that the Green Party’s argument was new and impermissible, and in the further absence of any contention to this effect by the State of Maine either here or below, I see no basis for our invocation of a waiver ground.
In sum, I believe that my colleagues have misapplied the waiver rule. The arguments before us are similar to those we regularly decide, requiring only research and analysis. I think that we should address on the merits all the arguments raised.3
I would add that if my colleagues are dissatisfied with the State of Maine’s failure to answer all aspects of the Green Party’s contentions on appeal, they could readily direct the State of Maine to brief further any of the points not sufficiently covered in Maine’s brief.
While writing separately, I do not dissent from the court’s affirmance of the judgment below. As the Supreme Court recently confirmed, the states have broad power to “enact reasonable regulations of parties, elections, and ballots to reduce election and campaign-related disorder.” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 356, 117 S.Ct. 1364, 1369, 137 L.Ed.2d 589 (1997). See also Tashjian, 479 U.S. at 217, 107 S.Ct. 544 (Constitution grants states “broad power to prescribe the ‘Time, Places and Manner of holding Elections for Senators and Representatives,’ Art. I. § 4, which power is matched by state control over the election process for state offices”). For substantially the reasons set forth in Magistrate Judge Cohen’s well-reasoned report and recommendation, I believe that the Maine statute falls within this broad grant of authority to the states. In my view, the State of Maine, like certain other states which have taken a similar stance, is entitled to define a political party for ballot purposes as an organization that has demonstrated strength in the fielding of a presidential candidate as well as local candidates. I do not believe that the First Amendment takes away from the states the authority to adopt such a definition rooted, as it is, in our long national history in which political parties typically fit that model. While the 5% presidential vote requirement, as Magistrate Judge Cohen noted, requires that new parties like the Green party wage an “uphill battle,” the Green Party remains free “to endorse whom it likes, to ally itself with others, to nominate candidates for office, and to spread its message to all who will listen.” Timmons, 117 S.Ct. at 1371, 520 U.S. 351. Additionally, there are alternative means for its candidates to get on the ballot. In these circumstances, I discern no violation of the Green Party’s associational rights.
The Supreme Court has cautioned, “[n]o bright line separates permissible election-related regulation from unconstitutional infringements on First Amendment freedoms.” Timmons, 117 S.Ct. at 1370, 520 U.S. 351. In the present matter, it is far from clear from existing Supreme Court precedent that the Maine law is unconstitutional. Granting the relief sought by the *9Green Party calls for a major jurisprudential leap — a leap having major implications not only for Maine but for many other states. In such circumstances, I think that courts of appeals should indulge the presumption of constitutionality to which state statutes and constitutional provisions are entitled, leaving to the Supreme Court, should it so desire, the creation of the innovative constitutional jurisprudence needed to warrant such a radical initiative. I accordingly concur in affirming the judgment of the district court, but on the merits rather than on the waiver ground put forward by my colleagues.
. Unlike my colleagues, I do not perceive a "material shift in a factual position taken by plaintiff.” See supra (emphasis in original). Rather, the Green Party has refined somewhat the theory under which it claims Maine’s 5% presidential vote requirement violates the rights of its members to freely associate, as protected by the First Amendment. The situation is altogether different from the hypothetical posited by the majority, supra, in which a plaintiff shifts from arguing she was fired for a proper reason ("my boss didn’t like me”) to arguing she was fired for a wholly improper and illegal reason ("because my boss doesn’t like elderly workers such as me”). Here, there has been no such radical shift in the Green Party's argument; it has consistently argued that its members' right to organize as they "see fit” has been violated.
. Even supposing the Party is asserting a "new” argument rather than merely refining its original argument before the magistrate judge, we would not be obliged to reject deciding it. See Nat'l Ass’n of Social Workers v. Harwood, 69 F.3d 622, 627 (1st Cir.1995) (deciding "new” issue where issue was of constitutional magnitude, was purely legal in nature, and lent itself to satisfactory resolution on the existing record without further development of the facts).
. A further aspect of my colleagues’ opinion which I question is their failure to decide the part of the associational argument that they concede was put before and decided by the magistrate judge. Perhaps they believe that was abandoned and replaced by the "new,” waived argument, leaving the entire appeal in limbo. It seems unusual that, merely by making a somewhat more sophisticated argument in the district court and here, the Green Party could have waived not only the new argument but the one the magistrate judge actually decided.