Swett v. NH Ballot Comm. CV-96-376-B 07/16/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Dick Swett

v. Civil No. 96-376-B

State of New Hampshire Ballot Law Commission

O R D E R

Charles G. Douglas, III, a registered voter, has filed a

petition with the New Hampshire Ballot Law Commission asserting

that United States Senate candidate Dick Swett has failed to

comply with state laws reguiring candidates for the Senate to

either pay a $5,000 filing fee and file 2,000 valid primary

petitions or file an affidavit agreeing to abide by campaign

spending limits specified in the New Hampshire Political

Expenditures and Contributions Act,

,

et seg. (Supp. 1995).1 Accordingly, Douglas has asked the Ballot

1 Douglas bases his claim on

and 655:20(11), which both state that candidates who do not agree to the spending limits must pay the filing fee "and" file primary petitions. Although I express no position on the merits of Douglas's claim, I note that

states that a candidate may gain access to the ballot by paying the filing fee reguired by § 655:19 "or" filing the petitions reguired by § 655:20. Law Commission to exclude Swett's name from the Democratic

primary ballot. Swett, in turn, commenced this action, arguing

that state law is preempted by the Federal Election Campaigns

Act,

, et se^. (West 1985 & Supp. 1995) ("FECA"),

and seeking a temporary restraining order that would prevent the

Ballot Law Commission from acting on Douglas's reguest. The

State of New Hampshire argues that I should abstain from

considering the merits of Swett's claims under the doctrine

announced in Younger v. Harris,

(1971). Because I

agree with the State, I deny Swett's reguest for a temporary

restraining order.

Under Younger, a federal court must abstain from deciding

the merits of a case over which it has jurisdiction if "there is

(1) an ongoing state judicial proceeding, instituted prior to the

federal proceeding . . . that (2) implicates an important state

interest, and (3) provides an adeguate opportunity for the

plaintiff to raise the claims advanced in his federal lawsuit."

Brooks v. New Hampshire Supreme Court,

(1st Cir.

1996), citing Middlesex County Ethics Comm, v. Gardner State Bar

Ass'n,

(1982).

All three of the reguirements warranting Younger abstention

are present in this case. First, the Ballot Law Commission

2 proceeding Swett seeks to enjoin is an ongoing guasi-judicial

proceeding to which Younger applies. See Ohio Civil Rights

Comm'n v. Dayton Christian Schs., Inc.,

(1986) (Younger applies to ongoing administrative proceedings).

Second, New Hampshire has a constitutionally recognized interest

in regulating matters of ballot access by candidates for federal

office. See U.S. Const., Art. I, § 4, cl. 1 ("The Times, Places

and Manner of holding Elections for Senators and Representatives,

shall be prescribed in each State by the Legislature thereof; but

the Congress may at any time by Law make or alter such

Regulations, except as to the Place of chusing Senators");

Libertarian Party of Maine v. Diamond,

(1st

Cir. 1993), cert, denied, 114 S. C t . 310 (1993) (recognizing

important state interest in regulating issues of ballot access).

New Hampshire's generic interest in regulating issues of ballot

access is sufficiently important to warrant abstention even if it

is ultimately determined that FECA preempts the specific state

regulations that are at issue in this case. New Orleans Pub.

Serv., Inc. v. Council of the City of New Orleans,

(1989) (substantiality of the state's interest must be

determined by looking to the significance of the state's interest

in the "generic proceedings" rather than the state's interest in

3 the outcome of the particular case); Employers Resource

Management Co. v. Sharon,

, 1136 (4th Cir. 1995),

cert, denied, 116 S. C t . 816 (1996) ("substantial claims of

preemption do not automatically preclude abstention"); Berger v.

Cuvahonga County Bar Ass'n.,

, 729 n.6 (6th Cir.

1993), cert, denied,

(1993) ("Even if preemption

applies, it does not preclude abstention unless the state court

is actually denied jurisdiction by federal statute.").2 Finally,

Swett will have an opportunity to assert his preemption argument

in the state proceedings. New Hampshire law provides for a

direct appeal of Ballot Law Commission rulings,

(1974), and the New Hampshire Supreme Court is

eminently gualified to evaluate the merit of Swett's preemption

claim.

Swett invokes an exception to Younger that allows a federal

court to address the merits of a claim that would otherwise be

subject to abstention if the state law at issue is "flagrantly

2 The First Circuit's decision in Chaulk Servs. v. MCAD,

(1st Cir. 1995), cert, denied,

, is not inconsistent with this analysis. The federal law at issue in Chaulk resulted in a preemption that was so broad that it left no room for any state regulation on the subject. Here, in contrast, FECA does not purport to entirely supersede the state's constitutionally recognized interest in regulating the "Times, Places and Manner of holding Elections for Senators and Representatives." U.S. Const., Art. I, § 4, cl. 1.

4 and patently violative of express constitutional provisions in

every clause, sentence, and paragraph and in whatever manner and

against whomever an effort might be made to apply it." Younger,

. Although the Supreme Court has yet to employ

this exception and it has been suggested that the circumstances

where the exception will apply are extremely limited, see Erwin

Chemerinsky, Federal Jurisdiction, § 13.4 at 753 (1994), the

First Circuit has recently relied on the exception in a

preemption case where the court determined that it was "readily

apparent" that the state law in guestion was preempted. Chaulk,

(internal guotations omitted). Swett similarly

argues that it is "readily apparent" in the present case that

FECA preempts the state laws on which the Ballot Law Commission's

jurisdiction is based.

FECA's preemption provision states that "[t]he provisions of

this Act, and of rules prescribed under this Act, supersede and

preempt any provision of state law with respect to election to

federal office."

. FECA's implementing

regulations further note that the preemption includes

"limitations on contributions and expenditures regarding federal

candidates . . . . "

(b) (3) (1996) . Relying on

these provisions, at least one other court has determined that a

5 similar state law regulating campaign expenditures is preempted

by FECA. Weber v. Heaney,

(8th Cir. 1993)

(Minnesota law making public funds available to candidates who

agree to expenditure limits preempted by FECA).

Although it is likely that a reviewing court will ultimately

determine that FECA preempts at least some portions of the New

Hampshire Political Expenditures and Contributions Act, the scope

of the preemption is by no means "readily apparent." The New

Hampshire Legislature has enacted a complex statutory scheme in

an effort to encourage candidates for public office to abide by

certain expenditure limitations.

,

20, and 22 establish a generally applicable reguirement that

candidates for the United States Senate who seek access to a

party's primary ballot must pay a $5,000 filing fee and file

2,000 primary petitions. Sections 655:19 and 655:20 except from

these reguirements candidates who, pursuant to

-a, file affidavits agreeing to abide by certain

specified expenditure limits. The law also contains a

severability provision stating that if part of the law is

determined to be invalid, "the invalidity does not affect any

other provisions or applications of the chapter which can be

6 given effect without the invalid provisions or applica­

tions . . . N.H. Rev. Stat. Ann. 664:23. A court reviewing

the matter could conceivably determine that all, some, or none of

the cited statutes are preempted by FECA. The resolution of the

preemption issue thus depends as much on the interpretation of

state law as it does on the scope of FECA's preemption provision.

In conclusion, this case presents an important guestion of

federal law. However, it also affects significant state

interests and reguires a thorough understanding of a complex

state statutory scheme. Since the matters Swett seeks to raise

arise in the context of ongoing state proceedings where Swett

will have a full and fair opportunity to litigate his preemption

claim, principles of comity reguire me to abstain from acting on

matters that the state courts are competent to resolve.

Accordingly, I deny Swett's motion for a temporary restraining

order.

SO ORDERED.

Paul Barbadoro United States District Judge

July 16, 1996

cc: Robert E. Kirby, Esg. Christopher P. Reid, Esg. Joshua L. Gordon, Esg. Charles G. Douglas, III, Esg.

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