Werme v. Merrill CV-94-414-JD 08/07/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE Paula Werme, et al.

v. Civil No. 94-414-JD

Stephen E. Merrill, Governor, et al.

O R D E R

The plaintiffs, Paula Werme and the Libertarian Party of New

Hampshire, bring this civil action against Stephen Merrill, in

his official capacity as Governor of New Hampshire, and William

Gardner, in his official capacity as Secretary of State of New

Hampshire. The plaintiffs seek (1) to enjoin enforcement of N.H.

Rev. Stat. Ann. ("RSA") §§ 658:2 and 658:25, and (2) a court

order reguiring the appointment of gualified Libertarians to the

positions of election inspector and ballot clerk on the same

basis as other recognized parties. The plaintiffs bring their

claims under

, alleging that RSA §§ 658:2 and

658:25 are unconstitutional because they violate their First and

Fourteenth Amendment rights to free association, due process, and

egual protection. The court's jurisdiction is grounded on the

existence of a federal guestion as provided by

and

(a) (3) .

Currently before the court are the plaintiffs' motion for

summary judgment (document no. 18) and the defendants' motion for

summary judgment (document no. 17). Background

The following facts are alleged by the plaintiffs or are not

in dispute. On or about December 30, 1993, Werme, a registered

Libertarian, asked the selectmen's office in Mont Vernon, New

Hampshire, where she then resided, to appoint her to a ballot

clerk position for the March 1994 town election. After her

reguest was denied, Werme contacted the Secretary of State's

Office and reguested that the town of Mont Vernon be instructed

to put a Libertarian ballot clerk at the polls for the election.

The Secretary of State's Office advised her that the Libertarian

Party was not entitled to have ballot clerks under RSA § 658:2.

RSA § 658:2 provides for the appointment of election inspectors

by the "town and ward political committees[s]" of the two

political parties "which cast the largest number of votes for

governor in the state at the last previous general election." If

no town or ward political committee exists, or if a political

committee fails to make an appointment, "the appointments shall

be made by the selectmen of the town or ward in egual numbers

from said 2 political parties."

RSA § 658:25 provides, "Two of the inspectors, one from each

of the 2 political parties, shall be designated by the moderator

at the opening of the polls to act as ballot clerks." Werme

could not be designated a ballot clerk under RSA § 658:25 because

2 she was not appointed an inspector of elections, and she was not

appointed an inspector of elections because she was not a member

of either one of the two political parties which cast the largest

number of votes for governor in the last previous general

election.

Ballot clerks hand out ballots and check off the names of

voters. RSA §§ 658:25, 659:13. Election inspectors assist the

moderator in conducting the election, with duties including, but

not limited to, relieving the ballot clerks, assisting the

illiterate and disabled in voting, and assisting the moderator in

counting votes. RSA §§ 658:25, 659:20.

Libertarians acguired official party status following the

November 1990 general election in which they received more than

the reguired three percent of the votes cast for governor. RSA §

652:11. The Libertarian Party has maintained official party

status by polling above three percent of the votes cast for

governor in the 1992 general election. Party status grants a

political organization a position on the general election ballot

and permits it to conduct primary elections. Organizations

without party status may only place their candidates on the

ballot by filing petitions with the reguisite number of

signatures of registered voters. RSA § 655:42.

3 The counting of votes is public. RSA § 659:63. Only

election officials are allowed inside the guardrail when the

votes are counted. RSA § 659:21. Any candidate may demand a

recount by the Secretary of State pursuant to RSA § 660:1-6, and

may appeal the decision of the Secretary of State to the Ballot

Law Commission. RSA § 665:6(11). Additionally, the Ballot Law

Commission, pursuant to RSA § 665:7, has jurisdiction to "hear

and determine all disputes involving alleged violations of New

Hampshire election laws of a non-criminal nature for which no

specific statutory appeal procedure has already been provided."

An appeal of the decision of the Ballot Law Commission can be

made to the New Hampshire Supreme Court. RSA § 665:14. RSA §

666:2-3 provides criminal penalties for violations of election

laws. Each political party is also entitled to appoint a

"challenger of voters" at any polling place who may stand within

the guardrail to "see and hear each voter as he offers to vote."

RSA § 666:4.

The duties of election inspectors and ballot clerks do not

include voter registration. The supervisors of the checklist are

responsible for the checklists, the listing of voter

registrations, and the registration of the voters at the polls.

The town clerks are responsible for voter registration and

acceptance of party changes on days other than the dates of

4 elections. Supervisors and town clerks are elected. City clerks

are elected by the city council. Neither the Governor nor the

Secretary of State play a role in the nomination of ballot clerks

and election inspectors or any role in the registration of

voters.1

In the 1990 general election, John Stevens, the town clerk

of Conway, failed to report any Libertarian votes for governor,

although there were votes cast for the Libertarian candidate for

governor. Affidavit of John Stevens. In the 1992 presidential

primary a registered Democrat was denied a Libertarian ballot in

Ward I in Nashua and was not allowed to change her party

registration from Democrat to Libertarian. Affidavit of Kathleen

McBride. In the town of Hudson, two voters discovered that their

registrations had been switched from Libertarian without their

consent. Affidavit of Amy Bollenbach. In addition, the

plaintiffs have submitted statistical evidence showing changes in

the registration status of a number of other voters, although no

evidence has been provided which establishes that such changes

were improper or without consent. There have been no complaints

to the Secretary of State's Office regarding any improper

changes.

1The defendants, however, have not asserted a lack of personal involvement with sufficient specificity to be entitled to judgment as a matter of law on that issue.

5 Discussion

I. Summary Judgment Standard

Summary judgment is appropriate when the "pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to material fact and that the moving party is

entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).

"The burden is on the moving party to establish the lack of a

genuine, material factual issue, and the court must view the

record in the light most favorable to the nonmovant, according

the nonmovant all beneficial inferences discernable from the

evidence." Snow v. Harnischfeger Corp.,

(1st

Cir. 1993) (citations omitted), cert. denied, 115 S. C t . 56

(1994). Once the moving party has met its burden, the nonmoving

party "must set forth specific facts showing that there is a

genuine issue for trial," Anderson v. Liberty Lobby, Inc.,

(1986) (citing Fed. R. Civ. P. 56 (e)), or suffer

the "swing of the summary judgment scythe." Jardines Bacata,

Ltd. v. Diaz-Marquez,

(1st Cir. 1989). "In

this context, 'genuine' means that the evidence about the fact is

such that a reasonable jury could resolve the point in favor of

the nonmoving party; 'material' means that the fact is one 'that

6 might affect the outcome of the suit under the governing law.'"

United States v. One Parcel of Real Property,

(1st Cir. 1992) (guoting Anderson,

) (citations

omitted).

A. Defendants' Motion for Summary Judgment

The plaintiffs assert that the restriction on eligibility to

serve as an election inspector or ballot clerk to those who are

members of the two political parties receiving the most votes in

the last previous election for governor violates their rights to

freedom of association, due process, and egual protection under

the First and Fourteenth Amendments to the United States

Constitution.2 Complaint at 5. In support, the plaintiffs argue

that because they have achieved and maintained "party" status,

the state statutes limiting the appointment of ballot clerks and

election inspectors to the two parties casting the largest number

of votes for governor in the last previous election are

discriminatory and, therefore, cannot fall into the class of

"reasonable, nondiscriminatory" election laws which are usually

2Although the plaintiffs have presented evidence of voting and registration irregularities, they have only asserted that these irregularities are evidence of harm caused by RSA §§ 658:2 and 658:25. Therefore, this is solely a facial challenge to the statutes. See Defendants' Motion for Summary Judgment at 1; Plaintiffs' Motion for Summary Judgment and Incorporated Brief at 12; Complaint at 5.

7 upheld. See Burdick v. Takushi,

(1992). The

defendants respond that the statutes are not discriminatory and,

as such, need only be rationally related to a legitimate state

interest.

The right to cast one's vote effectively and the right to

associate for the advancement of political beliefs "rank among

our most precious freedoms." Williams v. Rhodes,

(1968). However, Article 1, Section 4 of the United States

Constitution authorizes the states to prescribe the "Times,

Places and Manner of Holding Elections for Senators and

Representatives." The Supreme Court has noted that "as a

practical matter, there must be a substantial regulation of

elections if they are to be fair and honest and if some sort of

order, rather than chaos, is to accompany the democratic

processes." Storer v. Brown,

(1974).

In Anderson v. Celebrezze, the Supreme Court established the

standard to be applied by a court considering a challenge to a

state election law must follow:

It must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiffs rights.

(1983); cf. McIntyre v. Ohio Elections Comm'n,

(1995) (Celebrezze test applies to

restrictions on mechanics of electoral process, but not to

regulations of "pure speech"). When the plaintiff's rights are

subjected to "severe" restrictions, the regulation must be

"narrowly drawn to advance a state interest of compelling

importance." Burdick,

(guoting Norman v. Reed,

(1992)). But when the election law subjects

the plaintiff's rights to "reasonable, nondiscriminatory"

restrictions, "the State's important regulatory interests are

generally sufficient to justify" the provision. Burdick,

(guoting Celebrezze,

); see also

American Party of Texas v. White,

(1974) (only

invidious discrimination offends the federal constitution).

The plaintiffs contend that RSA §§ 658:2 and 658:25 have a

"real and appreciable impact on the exercise of the franchise,"

and should therefore be "closely scrutinized". Bullock v.

Carter,

(1972) . However, despite the fact that

appointment as an election inspector or ballot clerk is a means

of participating in the electoral process, the statutory

restrictions on such appointments do not interfere with the

plaintiffs' ability to express their political views. See

Coalition for Sensible and Humane Solutions v. Wamser,

(8th Cir. 1985) (refusal to appoint qualified members of

minority and low-income association as voter registrars is a

reasonable, non-discriminatory restriction); Pirincin v. Board of

Elections,

(N.D. Ohio 1973), aff'd mem.,

(1973) (procedure for selecting county boards of

elections from parties with the two highest votes "need not

receive close judicial scrutiny"); Baer v. Meyer,

(10th Cir. 1984) (having poll watchers from every party is

not a vital interest for constitutional access to the voting

process). Additionally, New Hampshire's election laws contain

numerous provdiscrimisions to ensure the proper counting of votes

and registration of voters. See RSA §§ 659:21; 659:63; 660:1-6;

665:6; 665:7; 665:14; 666:2-4. Where adequate state corrective

procedures exist, federal courts are not equipped or empowered to

supervise election irregularities, "including even claims of

official misconduct." Griffin v. Burns,

(1st

Cir. 1978). The injury which the plaintiffs claim to have

suffered is not of such a character and magnitude as to require

close scrutiny.

Having determined that close scrutiny is not required, the

court next considers whether the interests of the state are

rationally related to the restrictions. The defendants assert

that the provisions for selecting election inspectors and ballot

10 clerks serve the important state interest of preventing the

possibility of fraud. Memorandum of Law in Support of

Defendants' Motion for Summary Judgment at 7. They argue, "By

limiting the inspectors to the two parties with the largest

number of votes . . . the Legislature prevented a situation in

which inspectors would be working in large groups which might

prove cumbersome and inefficient." Id. at 8. Additionally, the

defendants claim that because Libertarian voters make up such a

small percentage of the voters in most precincts, granting the

plaintiffs the relief they desire could lead to a

disproportionately high representation of Libertarian party

members as election inspectors. Id. at 10. The plaintiffs

respond that the election inspectors of the Republican and

Democratic parties have no stake in protecting the rights of

Libertarians. Reply to Defendants' Motion for Summary Judgment

at 3. Additionally, Werme claims that she was permitted to be

one of twenty election inspectors in the March 1995 Plymouth

local elections.3 The plaintiffs assert, "Despite the high

number of election inspectors, and despite the participation of

[Werme], there were no complaints that large groups of election

3Ihe Plymouth moderator chose to disregard state law and allow Werme the opportunity to be an election inspector in the interest of "fairness." Plaintiffs' Motion for Summary Judgment and Incorporated Brief at 6.

11 inspectors caused any inefficiency in the counting of the

ballots." Plaintiffs' Motion for Summary Judgment and

Incorporated Brief at 6.

The court rules that the contested statutory scheme is

constitutional. The Supreme Court has held in the context of

ballot access cases that it is permissible for a state to

distinguish between political parties on the basis of prior

elections. Bullock,

; Jenness v. Fortson,

(1971). Moreover, courts have upheld similar

statutory schemes in other states. See, e.g., Vintson v. Anton,

(11th Cir. 1986) (Alabama's use of bipartisan

election boards whose members are chosen from two parties

receiving most votes in the last election is an effective means

to prevent fraud and ensure honest elections); Wamser,

(St. Louis election judge gualifications not discrimina­

tory where based on membership in the two major political parties

rather than affiliation with the Democratic or Republican parties

specifically); MacGuire v. Houston,

(Colo.

1986) (Colorado's appointment of election judges from the two

parties receiving most votes in last election resulted in a

system of monitoring and gave an appearance of propriety to

voters). As discussed supra, the restriction on the plaintiffs'

right of association is not "severe." Likewise, the restrictions

12 are rationally related to the legitimate concerns and interests

of the state because the restrictions are a check against the

possibility of fraud and prevent a situation in which inspectors

would be working in more cumbersome and inefficient groups.

Therefore, RSA §§ 658:2 and 658:25 do not unconstitutionally

restrict the plaintiffs' fundamental rights.4

In addition, the plaintiffs assert that the restrictions on

appointment as an election inspector and ballot clerk violate the

New Hampshire Constitution, Part 1, Articles 2, 4, and 11.

Because the court dismisses the plaintiffs' federal claims, it

must balance judicial economy, convenience, fairness to the

litigants, and comity in deciding whether to exercise

supplemental jurisdiction over the remaining state law claims.

Newman v. Burgin,

(1st Cir. 1991). "[W]hen a

district court dismisses all federal claims before trial, it

normally will dismiss pendent state actions as well."

. In this instance, judicial economy is best served by

4Werme also claimed that she was individually denied egual protection of the laws, as guaranteed by the First and Fourteenth Amendments, by the defendants "when they infringed on her rights of free association by denying her the right to be an election inspector for the political party of her choice when she was otherwise gualified by statute." Complaint at 5. Since the defendants assert, and the plaintiffs do not dispute, that this is a facial challenge to the statute, and that there is no claim that the statute is being improperly applied, Werme's individual egual protection claim is waived.

13 dismissal of the state claims because the New Hampshire state

court is in a better position to adjudicate New Hampshire

constitutional issues. The court therefore declines to exercise

supplemental jurisdiction over the plaintiffs' state law claims.

B. Plaintiffs' Motion for Summary Judgment

In view of the foregoing, the plaintiffs' motion for summary

judgment is denied.

Conclusion

For the reasons set forth above, the defendants' motion for

summary judgment (document no. 17) is granted. The plaintiffs'

motion for summary judgment (document no. 18) is denied. The

clerk is ordered to close this case.

SO ORDERED.

Joseph A. DiClerico, Jr. Chief Judge August 7, 1995

cc: Paula Werme, pro se Christopher P. Reid, Esguire Martin J. Bender, Esguire

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