Gilmore v . NH Secretary of State CV-94-477-M 02/24/97 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Gary Gilmore, Calvin Warburton, Stephanie Micklon, and Robert Cushing, Plaintiffs,

v. Civil N o . 94-477-M

New Hampshire Secretary of State, Defendant.

MEMORANDUM DECISION

Plaintiffs are voters and candidates for elective office in

New Hampshire. They challenge the constitutionality of that

section of New Hampshire’s election laws that prescribes the

format for the state’s general election ballot. The statutory

provision at issue provides that:

The name of each candidate shall be grouped according to the party which nominates the candidate, and the names of the candidates of the party which received the largest number of votes at the last preceding state general election shall be listed first.

N.H. Rev. Stat. Ann. (“RSA”) § 656:5,II (1996).

Plaintiffs assert that by requiring the names of the candidates of the party which received the largest number of votes in the preceding general election to be listed first on the ballot, the state has awarded an unfair “positional advantage” to those first-listed candidates, at least with respect to

candidates for election to the New Hampshire General Court

(Legislature). Plaintiffs claim that a candidate whose name

appears first on a ballot will receive a substantial number of

votes from citizens who are uninformed and uninterested in the

issues and candidates; those voters who habitually vote for

persons whose names appear at the top of a list of candidates

just because their names are at the top. Belief in the existence

of that phenomenon is not uncommon, particularly among those

experienced in electoral processes. It is generally referred to

as the “windfall vote” o r , less kindly, the “donkey vote,”

insofar as people casting such votes “uncritically check off

whom[ever] is at the top of the ballot, especially if that

candidate is also an incumbent.” Clough v . Guzzi,

(D. M a . 1976).

Plaintiffs assert that because New Hampshire generally votes Republican, Republican candidates are routinely benefitted in the

electoral process by the statutorily mandated higher ballot

positioning, to the detriment of Democratic and Libertarian Party

candidates. Plaintiffs argue that there is no rational basis

upon which the State might justify its ballot structuring

requirement which, they say, can only be explained as an attempt

2 to insure Republican dominance in New Hampshire electoral

politics.

The court earlier denied preliminary injunctive relief

(document n o . 7 ) on grounds that, inter alia, plaintiffs were not

likely to succeed in establishing the existence of a ballot

“positional advantage” in New Hampshire’s general elections. The

court also noted that the existence of a federal constitutional

right to a “fair share” of the so-called “windfall vote” arising

from ballot position alone was, at best, questionable. The

parties have since tried the case on the merits to the court,

which considered new evidence and, by stipulation of the parties,

evidence which was previously presented upon application for the

preliminary injunction. Fed. R. Civ. P. 6 5 .

Discussion

Plaintiffs assert that New Hampshire’s ballot structuring law violates their rights under the First and Fourteenth

Amendments to the United States Constitution because it

effectively:

1) imposes unreasonable restrictions and burdens on minority party candidates;

2) dilutes the effective weight of votes cast for minority party candidates; and

3 3) gives an unfair advantage to majority party candidates by insuring that “irrational” votes (those based solely on the candidate’s ballot position) go to the majority party.

Plaintiffs seek permanent injunctive relief prohibiting the New

Hampshire Secretary of State from formatting general election

ballots in accordance with the statute’s requirements, and

compelling the Secretary to format ballots in a manner that

fairly rotates ballot position.

Plaintiffs’ case fails to pass muster for two independent reasons. First, they have produced insufficient evidence to persuade the court by a preponderance that either a demonstrable or reasonably quantifiable advantage arises solely from a party’s or candidate’s position on the New Hampshire general election ballot. Second, plaintiffs do not have a federal constitutional right to a general election ballot structured in a manner which, as nearly as possible, evenly distributes the so-called “irrational” votes — votes supposedly cast for candidates

4 positioned higher on the ballot simply and solely because their

names appear higher on the ballot.

A. Positional Effect

Whether the position of a candidate’s name on a ballot has a

measurable or quantifiable effect on voter behavior in a

particular voting district is a factual matter, Sangmeister v .

Woodward,

6 0 , 465 (7th Cir. 1977); McLain v . Meier,

(8th Cir. 1980), which is not susceptible to

judicial notice. New Alliance Party v . N.Y. State Bd. of

Elections,

8 2 , 288 (S.D.N.Y. 1994). Plaintiffs

have failed to meet their burden of proof in that they have not

established the fact of positional advantage relative to New

Hampshire’s general election ballot. Their case rested

substantially on Professor Carolyn Mebert’s expert opinion that

there was a positional advantage to the majority party in New

Hampshire’s general elections. But Professor Mebert was not persuasive, particularly given her candid acknowledgment of her

own inexperience in applying statistical methodology to political

science problems, her concessions that her first two studies were

substantially flawed, and her own apparent lack of confidence in

the reliability of her final study. The court does not accept

her study or conclusions as either reliable or valid.

5 Defendant, on the other hand, offered the expert opinion of

Dr. Robert Darcy, whom the court found persuasive. D r . Darcy

testified that while some positional advantage might exist in

primary elections, and that such an effect could occur in some

non-partisan and certain other types of “exotic” elections, no

reliable statistical/political science study has yet demonstrated, to a reliable degree of certitude, the existence of a positional advantage in a partisan general election. Moreover, Dr. Darcy pointed to a number of factors that would tend to minimize or eliminate so-called irrational voting and, thus, any positional advantage in New Hampshire’s general elections, i.e. the New Hampshire ballot is formatted according to a traditional and familiar organizing principle — party affiliation; the ballot is structured logically and clearly by office and candidates’ names; and the ballot includes recognized symbols of party affiliation to aid voter recognition of both candidates and the parties with whose positions they generally align themselves.

On balance, considering all the evidence presented, the

court finds that plaintiffs failed to establish by a

preponderance of the evidence that a demonstrable or reliably

quantifiable positional advantage results from implementation of

RSA 656:5,II’s ballot formatting requirement.

6 B. Constitutional Issues

Voting is assuredly a fundamental and precious right that

“rank[s] among our most precious freedoms.” Williams v . Rhodes,

3 , 30 (1968). “No right is more precious in a free

country than that of having a voice in the election of those who

make the laws under which, as good citizens, we must live.”

Burdick v . Takushi,

2 8 , 441 (1992) (quoting Wesberry v .

Sanders,

, 17 (1964)); See also Reynolds v . Sims,

(1964). But, even the right to vote is not

absolute; some regulation is necessary to give meaningful effect

to that right:

“[A]s 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 process.” Storer v . Brown,

2 4 , 730 (1974). To that end, each state retains the authority to regulate state and local elections . . . . See Sugarman v . Dougall,

(1973); see also U.S. Const. Art. I , § 4 , c l . 1 (directing that states shall prescribe “[t]he Times, Places and Manner of holding Elections for Senators and Representatives”).

Werme et a l . v . Merrill, Governor, et a l . ,

(1st

Cir. 1996).

In this case, were the court to assume that plaintiffs had

established that adherence to New Hampshire’s ballot formatting

7 law does result in a positional advantage, it would then become

necessary to assess “‘the character and magnitude of the asserted

injury, to the plaintiffs’ constitutionally protected rights and

then ‘evaluate the precise interests put forward by the State as

justifications for the burden imposed by its rule.’” Werme,

(citations omitted). This is so because, under the

analytical framework prescribed by the Supreme Court, the level

of scrutiny applied to determine the constitutionality of the

challenged election law “corresponds roughly to the degree to

which [the law] encumbers First and Fourteenth Amendment rights.”

Under this standard, the rigorousness of [the] inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subject to severe restrictions, the regulation must be narrowly drawn to advance a state interest of compelling importance. But when a state election law provision imposes only reasonable nondiscriminatory restrictions upon the First and Fourteenth Amendment rights of voters, the State’s important regulatory interests are generally sufficient to justify the restrictions.

at 483-84 (quoting Burdick v . Takushi,

2 8 , 534

(1992)) (citations and internal quotation marks omitted).

In a closely analogous case, New Alliance Party v . N.Y.

State Bd. of Elections, supra, Judge Ward of the Southern

8 District of New York considered a similar constitutional

challenge to New York’s ballot format. New York law bases a

candidate’s ballot position on his or her parties’ electoral

performance in the previous gubernatorial election. The court

held that, even accepting plaintiff’s contention of position

bias:

All that plaintiff really alleges is that its opportunity to capture the windfall vote has been impeded. While access to the ballot may, at times, be afforded constitutional protection, access to a preferred position on the ballot so that one has an equal chance of attracting the windfall vote is not a constitutional concern. Indeed, it should not b e . The constitution does not protect a plaintiff from the inadequacies or the irrationality of the voting public; it only affords protection from state deprivation of a constitutional right. “Voters have no constitutional right to a wholly rational election, based solely on a reasoned consideration of the issues and the candidates’ positions, and free from other ‘irrational’ considerations as a candidate’s ethnic affiliation, sex, or home town.”

New Alliance Party,

(quoting Clough v . Guzzi,

(1976)).

As a factual matter, the court has found that plaintiffs

have failed to demonstrate by a preponderance of evidence any

positional advantage in the New Hampshire general elections.

Nevertheless, even accepting plaintiffs’ contention of positional

bias, this court agrees with Judge Ward that “access to a

9 preferred position on the ballot so that one has an equal chance

of attracting the windfall vote is not a constitutional concern.”

Id.; see also Strong v . Suffolk County Bd. of Elections,

(E.D.N.Y. 1994) ("With respect to the

substantive law governing this case, the defendants are correct

in contending that there is no constitutional right under the

equal protection clause to a favorable ballot position.").

Taking the matter even another step further, however, and assuming both positional advantage and some impact on a protected constitutional right, plaintiffs still cannot prevail. Even if some burden upon plaintiffs’ Fifth and Fourteenth Amendment rights is assumed to result from New Hampshire’s ballot formatting rules, the degree and nature of that burden is both slight and easily justified by the state’s interest in “organizing a comprehensible and manageable ballot

. . . [—] one where the parties, officers and candidates are presented in a logical and orderly arrangement.” New Alliance

Party,

. See also Bd. of Election

Commissioners v . Libertarian Party,

2 , 25 (7th Cir.

1979) ("Different treatment of minority parties that does not

exclude them from the ballot, prevent them from attaining major

party status if they achieve widespread support, or prevent any

10 voter from voting for the candidate of his choice, and that is

reasonably determined to be necessary to further an important

state interest does not result in a denial of equal

protection.").

At most, New Hampshire’s ballot format subjects plaintiffs’

rights, as they construe those rights, to reasonable and

nondiscriminatory restrictions. “A statute that positions

parties in all races based on performance in the prior . . .

election assists voters by constructing a symmetrical pattern on

the ballot.” New Alliance Party,

. First,

the formatting law is nondiscriminatory in that every political

party in New Hampshire has the same opportunity to attain a

“preferential” ballot position -- all they need do is garner the

most votes in the preceding general election. Second, the ballot

format does not deny ballot access, does not adversely affect

anyone’s right to cast a vote, and does not affect the counting of votes that are cast.

Given the slight and indirect burden imposed -- at most a

deprivation of a fair share of a very limited “irrational vote”

(or a concomitant “dilution” of supposed “rational votes” cast

for those candidates below the first position) — and the

11 substantial justifications for bringing some clear, nondiscriminatory, rational, and logical order to the ballot and

the electoral process, the level of constitutional scrutiny

properly applied to New Hampshire’s formatting law is “rational

basis” — i.e., has the defendant Secretary shown that the

formatting law is grounded in reason? He has.

This is a case in which the “State’s important regulatory

interests are . . . sufficient to justify” the formatting

provision. Burdick, 504 U.S. at 434. Under New Hampshire law,

plaintiffs (or, the parties they support) enjoy an equal

opportunity to attain what they perceive to be a preferential

spot on the general election ballot, but, “that success is to be

won at the polls rather than in a federal court.” Werme,

.

Conclusion Judgment shall be entered on the merits in favor of

defendant.

12 SO ORDERED.

Steven J. McAuliffe United States District Judge

February 2 4 , 1997

cc: Michael B . King, Esq. Christopher P. Reid, Esq.

13