FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW
HAMPSHIRE [Hon. Paul J. Barbadoro, U.S. District Judge]
William E. Christie, with whom Shaheen & Gordon, P.A.,
Gilles R. Bissonnette, and American Civil Liberties Union of
New Hampshire were on brief, for appellant.
E. B. Lombardi, Senior Assistant Attorney General, New
Hampshire Department of Justice, with whom Stephen G.
LaBonte, and Joseph A. Foster, New Hampshire Attorney
General, were on brief, for appellee.
W. Freel and Locke Lord LLP on brief for Libertarian
Association of Massachusetts, Green-Rainbow Party, United
Independent Party, Maine Green Independent Party, and
Moderate Party of Rhode Island, amici curiae in support of
I. Afran, Mark R. Brown, and Oliver B. Hall on brief for the
Center for Competitive Democracy, amicus curiae in support of
J. MacDonald, Holly J. Barcroft, and Nixon Peabody LLP on
brief for the Republican National Committee, amicus curiae in
support of appellee.
Lynch, Thompson, and Kayatta, Circuit Judges.
KAYATTA, Circuit Judge
most states, the State of New Hampshire has long required
that political parties seeking to have their nominees listed
on statewide election ballots first demonstrate a sufficient
modicum of support among registered voters. New Hampshire law
deems that a party has made such a demonstration if, in the
most recent prior statewide election, one of its candidates
received at least four percent of the statewide vote for
Governor or United States Senator. N.H. Rev. Stat. Ann.
§ 652:11. Otherwise a party need submit nomination
papers signed by a number of registered voters at least equal
to three percent of the total votes cast in the most recent
state general election. Id. § 655:42 (III).
lawsuit, the Libertarian Party of New Hampshire
("LPNH") focuses on the time period during which
New Hampshire law allows parties to gather nomination
signatures and submit nomination papers. Prior to 2014, this
period ran roughly twenty-one months from the prior November
election to early August of the pertinent election
year. In 2014, New Hampshire reduced this time
period to a bit more than seven months (hereinafter
"seven months") by delaying the start date to
January 1 of the pertinent election year. See 2014
N.H. Laws § 29:1 ("HB 1542") (codified at N.H.
Rev. Stat. Ann. § 655:40-a) (effective July 22, 2014).
In the wake of this shortening of the time period within
which it could gather nomination signatures, LPNH promptly
filed this lawsuit claiming that the new restriction violated
its rights under the First and Fourteenth Amendments to the
United States Constitution. LPNH now appeals the district
court's summary judgment decision to the contrary. For
the following reasons, we affirm.
qualified for the ballot in New Hampshire as a
"political party" under state law in 1992, 1994,
and 1996, based on the electoral performance of its
gubernatorial candidates in prior elections. In 2000, LPNH
managed to gather enough qualifying signatures to secure a
place on the statewide ballot for all of its nominees. But no
LPNH statewide candidate secured as much as four percent of
the vote, and LPNH offers no evidence that any of its local
candidates fared better. In 2002, 2004, 2006, 2008, and 2010,
LPNH did not gain party access to the statewide ballot. LPNH
offers no evidence suggesting that New Hampshire law posed
any unreasonable impediment to qualifying during those years.
Apparently, some of LPNH's candidates, including its
presidential candidate in 2004, also sought access through
the individual nomination process, whereby an individual who
gathers just 3, 000 signatures is listed on the statewide
2012, LPNH itself again reached the New Hampshire general
ballot via the nomination papers route. The record of that
successful effort reveals that the gathering of signatures on
nomination petitions is largely a paid, professional
undertaking. LPNH tells us (and defendants do not dispute)
that "LPNH, like other minor political parties seeking
ballot access or advocacy groups seeking to certify a ballot
question, rel[ies] on outside professional petitioners to
collect signatures." LPNH retained one local paid
"petitioner" to gather signatures at a fee of $1
per signature. LPNH also apparently paid a national outfit $2
per signature to gather roughly 13, 100 signatures during
August and September of 2011 plus roughly 1, 700 signatures
on a single day in July 2012. It appears that unpaid volunteers
also gathered roughly 3, 000 to 4, 000 additional signatures.
LPNH ultimately spent approximately $40, 000 to gather 19,
000 signatures in 2012, overshooting the mark (of roughly 14,
000 qualifying signatures) because not all signatures
submitted were likely to be certified.
nominating signatures in 2012 turned out to be easier than
getting votes. LPNH's gubernatorial nominee received 2.8%
of the vote, its presidential nominee received 1.2%, and, in
a state with hundreds of state legislative races, LPNH
recruited only ten other candidates, just one of whom reached
ten percent of the vote. LPNH apparently made no effort to
get on the statewide ballot in 2014.
with the shortened signature-gathering window in 2016, LPNH
decided to "put all party-petitioning efforts--including
fundraising for those efforts--on hold until this litigation
ends, as the outcome of this litigation would dictate whether
[LPNH] would even go through the party-petitioning process
during the 2016 general election." LPNH estimates that
compliance with the new law would increase the cost of
gathering sufficient signatures, because paid petitioners
generally charge more during an election year. The current
chairperson of LPNH testified that an election year
paid-petition drive "would probably be a $50, 000
effort, " that is to say, about $10, 000 more than LPNH
spent in 2012.
alleges that the shortened window for gathering signatures
"facially" violates the Fourteenth Amendment's
guarantee of equal protection and the freedom of association
secured by the First Amendment. After discovery, the parties
agreed that the case could be decided on cross motions for
summary judgment. After holding a hearing to gather more
evidence on LPNH's prior efforts to secure ballot access,
the district court agreed that there were no genuine disputes
of material fact. Neither party challenges this conclusion on
appeal. Rather, they limit their arguments to contesting
whether the district court made an error of law in concluding
that the undisputed facts did not establish a violation of
LPNH's asserted constitutional rights because HB 1542
"imposes only a reasonable burden on ballot access that
is outweighed by the State's interest in avoiding ballot
clutter." Libertarian Party of N.H. v. Gardner
("Gardner"), 126 F.Supp.3d 194, 210
(D.N.H. 2015). The parties agree that our review of this
conclusion should be de novo.
we were to decide that signatures gathered prior to January
1, 2016, must be counted by the state, LPNH offers no
evidence that it gathered any such signatures or, for that
matter, that it gathered any material number of signatures
this election cycle at all. And the 2016 election itself is
now history. We must therefore ask whether this case is moot.
See Barr v. Galvin, 626 F.3d 99, 104 (1st Cir.
conclude that it is not. Statewide elections will regularly
occur after this year. LPNH has a demonstrated (albeit
episodic) record of seeking statewide ballot access in New
Hampshire and elsewhere. In view of that record, we give the
"benefit of the doubt" to LPNH's continuing
practical interest in the resolution of its legal claim.
Id. at 106. Moreover, a new suit to allow signature
gathering in the pre-election years of 2017 and 2019 would
need to start pretty much now anyhow to avoid the same type
of arguable mootness. We thus conclude that there exists a
sufficient probability that LPNH's challenge to New
Hampshire's existing ballot-access regime is likely to
reoccur, and is not now unripe. Jurisdiction therefore lies.
See FEC v. Wis. Right To Life, Inc., 551 U.S. 449,
462 (2007) (noting that federal courts may hear otherwise
moot controversies that are uniquely capable of repetition
yet will ...