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Libertarian Party of New Hampshire v. Gardner

United States Court of Appeals, First Circuit

December 2, 2016

LIBERTARIAN PARTY OF NEW HAMPSHIRE, Plaintiff, Appellant,
v.
WILLIAM M. GARDNER, New Hampshire Secretary of State, in his official capacity, Defendant, Appellee.

         APPEAL 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.

          Laura 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.

          Mark 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 appellant.

          Bruce I. Afran, Mark R. Brown, and Oliver B. Hall on brief for the Center for Competitive Democracy, amicus curiae in support of appellant.

          Gordon J. MacDonald, Holly J. Barcroft, and Nixon Peabody LLP on brief for the Republican National Committee, amicus curiae in support of appellee.

          Before Lynch, Thompson, and Kayatta, Circuit Judges.

          KAYATTA, Circuit Judge

         Like 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).

         In this 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.[1] 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.

         I. Background

         LPNH 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 ballot.

          In 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.[2] 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.

         Getting 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.

         Confronted 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.

         LPNH 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.

         II. Analysis

         A. Mootness?

         Even if 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. 2010).

         We 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 ...


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