dissenting:
The parties disagree in this case about the applicable standard of review, with the State relying on McDonald v. Board of Election Commissioners, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969), to argue that rational basis scrutiny applies to all claims involving absentee balloting and the plaintiffs asking us to apply sliding scale scrutiny based on Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). Because I conclude that the law at issue here should be upheld under either test, I do not find it necessary to decide this issue and will assume without deciding that the potentially stricter Burdick balancing test governs our review of the plaintiffs’ claims. Under this standard, we weigh the character and magnitude of the alleged injury to the plaintiffs’ First and Fourteenth Amendment rights against the interests the State asserts to justify the burden imposed by its rule, keeping in mind that in our constitutional scheme, “States retain the power to regulate their own elections,” and that to do so, they must elaborate rules that “inevitably affect[ ] — at least to some degree — the individual’s right to vote and his right to associate with others for political ends.” Id. at 433 (quoting Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S.Ct. 1564, 75 L.Ed.2d *113547 (1983)) (internal quotation marks omitted).
The plaintiffs allege that the State of New York has burdened their First Amendment associational rights by omitting to make absentee ballots available for party committeemen elections in Albany County. Since the State does not provide absentee ballots, voters who wish to vote in party committeemen elections must appear in person at the polls on Election Day. The record contains no information about the magnitude of the burden on these individual plaintiffs or the burden on voters generally, except for an affidavit by the Albany County Republican Committee chairman stating that “the Republican Party wants every possible Republican to participate in the election” and that “[t]he Republican Party desires that its members be allowed to vote by absentee ballot in such elections.” (Kermani Decl. ¶¶ 16-17, in J.A. at 41.) The complaint contains similar allegations and also alleges that two individual plaintiffs “want[ed] to vote by absentee ballot for the Republican primary” and in fact “applied for the absentee ballot mainly because of their interest in voting for committeeman.” (Comphlffl 23-24, in J.A. at 15.)
Plaintiffs neither alleged in the complaint nor came forward with evidence to show that the lack of absentee ballots for party committeemen elections in Albany County made voting impossible or even difficult for any voter. Given this procedural posture, we can assume only that two voters wanted to vote absentee for some reason and were not permitted to do so. The evidence suggests that contested committeemen elections are extremely rare. For all one can discern from the sparse record, these plaintiffs might be the only voters anywhere in Albany County who have ever attempted to vote absentee in a committee election; we simply do not have any information indicating the frequency with which absentee voting is sought. Moreover, nothing in the record indicates that it is difficult for voters generally to appear in person at the polls, nor that these particular plaintiffs would have suffered any burden more severe than a minor scheduling inconvenience had they simply remained within their precinct on election day and voted in person. On this record, if the plaintiffs have established any burden at all to their associational rights, it is no more than a peppercorn.1 And the Supreme Court has noted that if the burden is small and nondiscriminatory — as even the majority seems to concede — “the State’s important regulatory interests are generally sufficient to justify the restrictions.” Burdick, 504 U.S. at 434, 112 S.Ct. 2059 (quoting Anderson, 460 U.S. at 788, 103 S.Ct. 1564) (internal quotation marks omitted).
In assessing the State’s countervailing regulatory interest, the majority focuses on the State’s argument that allowing absentee voting might make it impossible for the political party promptly to fill vacancies that arise in the general election ticket shortly before the primary. The majority *114thinks such vacancies are unlikely. But the majority’s view that this problem will rarely occur does not mean the State’s interest in addressing it is entitled only to “infinitesimal weight,” cf. maj. op. at 112 — particularly where the majority’s conclusions about the likelihood of unfilled vacancies are largely inferential and have been reached without record evidence indicating how frequently vacancies in fact occur. It is not inconceivable that in some election years, interest in the party elections will be unusually high, resulting in many contested committee races and a need promptly to fill vacancies.
The majority argues that the State has no legitimate interest in having committeemen fill the vacancies because “the ACRC is willing to incur [the risk that committeemen cannot fill vacancies] in order to allow absentee balloting.” Maj. op. at 110 (citing Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989)). But the Supreme Court has held that States have a legitimate interest in ensuring that each party’s candidates are selected democratically. See Cal. Democratic Party v. Jones, 530 U.S. 567, 572, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000) (“[A] State may require parties to use the primary format for selecting their nominees, in order to assure that intraparty competition is resolved in a democratic fashion.”); Am. Party of Tex. v. White, 415 U.S. 767, 781, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974). And if the committeemen races are not all resolved promptly, either some election districts will be unrepresented when new candidates are chosen or the outgoing party chairman will make appointments. Either approach would be less democratic and participatory than having freshly elected committeemen from every election district take part in choosing candidates to fill vacant spots. The fact that party leaders are willing to let the party chairman fill vacancies in no way diminishes the State’s interest in ensuring that party candidates are chosen by elected representatives of the voters.
Moreover, the vacancies problem is not the only governmental interest implicated by absentee voting here. The State’s brief, fairly read, articulates a broader interest in finality and expeditiously convening the new party committees. The committee election involved in this case was held on September 12, 2006. I take judicial notice of the fact that the general election in 2006 was held just eight weeks later. During this short interval, the committees must hold organizational meetings and prepare the party for the general election, which might include work on the party platform, endorsements, or voter outreach. See N.Y. Elec. Law § 2-112. See generally N.Y. Elec. Law §§ 2-100 to - 126. Absentee voting in these elections likely would delay certification of newly elected committeemen in contested races for at least a week during this important pre-election period. See N.Y. Elec. Law § 8-412 (requiring that absentee votes received in the seven days following the election be cast and counted). Without absentee voting, certification can take place much sooner. The State interest in ensuring that parties are operated by committeemen recently approved by the party’s voters during this period is surely sufficient to outweigh whatever small burden the plaintiffs have made out.
Although the majority insists that its holding is “necessarily narrow” and does not require that absentee ballots be made available in all elections, maj. op. at 112, I have some doubts. The record on “burden” in this case consisted of nothing more than the plaintiffs’ allegation that they wanted absentee ballots; it is hard to imagine any future case that will have a less compelling record on burden. The *115majority’s analysis at least suggests that the federal Constitution requires absentee ballots if the State’s only reasons for denying them are finality and establishing a more participatory and democratic method of filling vacancies in the party slate. This approach ignores both the State’s interest in making legitimate policy judgments about the benefits and potential drawbacks of absentee voting in particular contexts, and the lack of judicial competence sensitively to balance the competing interests. It exceeds the appropriate scope of our review under Burdick and under McDonald.
I respectfully dissent.
. The majority argues that the two voters demonstrated a burden by showing that the Board of Elections approved their request for absentee ballots, thus evidencing that they “were burdened by at least one of the circumstances that would normally entitle a voter in New York State to vote by absentee ballot.” Maj. op. at 109 n. 10. Under New York law, however, a voter can qualify to vote absentee simply by going on vacation on election day in another county. N.Y. Elec. Law § 8-400(l)(b). A voter could thus spend the entire day a leisurely five-minute walk from his assigned voting location and still qualify for an absentee ballot, if it so happened that the voter was across the county border. Given plaintiffs’ failure to introduce any evidence explaining why they needed an absentee ballot, we can infer no burden more severe than this.