UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Libertarian Party of New Hampshire

v. Civil No. 14-cv-00322-PB Opinion No.

William M. Gardner, Secretary of State of the State of New Hampshire, in his official capacity

MEMORANDUM AND ORDER

Third parties in New Hampshire can have their candidates

placed on a statewide general election ballot by obtaining the

requisite number of nomination papers from registered voters in

this State. In July 2014, the General Court amended this

procedure to require that all nomination papers be signed in the

same year as the general election. In this action, the

Libertarian Party of New Hampshire seeks to invalidate the same-

year restriction as a violation of the First and Fourteenth

Amendments. The New Hampshire Secretary of State has moved to

dismiss the Libertarian Party’s complaint for failure to state a

claim. For the reasons that follow, I deny the Secretary’s

motion. I. BACKGROUND

A political organization can have its nominees placed on

the New Hampshire general election ballot in either of two ways.

First, the organization can attain state-recognized “party”

status by receiving at least four percent of the vote for either

Governor or U.S. Senator in the most recent general election.

. Historically, however, that

method has proven useful only to the two main political parties.

Third parties generally resort instead to the second method, in

which an organization can gather and submit the “requisite

number of nomination papers” in the manner prescribed by

sections 655:40-a and 655:42, III of the New Hampshire Revised

Statutes.

-a, 655:42, III. Under

this method, the organization must submit nomination papers

signed by “registered voters equaling 3 percent of the total

votes cast at the previous state general election.”

, III. Nomination petitions must be

submitted to municipal officials of the town or ward where the

petition signer is registered to vote no later than the

Wednesday five weeks before the primary election.

. Local officials must then verify that

petition signers are registered to vote and certify their

2 results no later than two weeks before the primary.1

Because the New Hampshire primary falls on the second Tuesday of

September, this requirement effectively imposes an early-August

deadline for an organization to obtain and submit its nomination

papers for verification. See

.

In July 2014, the New Hampshire General Court amended §

655:40-a to require that “[n]omination papers shall be signed

and dated in the year of the election.”

-a. In other words, nomination papers that are signed

before January 1 of an election year no longer count toward the

required number of signatures that a political organization must

obtain before it can run a slate of candidates in that year’s

election. See

A political organization that seeks to place

its candidates on the statewide ballot under the second option,

therefore, must now collect the requisite number of signatures

within a time window of roughly seven months, beginning on

January 1 and ending in early August. See

1 New Hampshire holds a “state primary election” on even numbered years to nominate candidates for federal, state, and local office. See

. It also holds a “Presidential Primary Election every four years to select delegates to the national party conventions.” See

. All references to the “primary” in this Memorandum and Order refer to the state primary elections.

3 It is this same-year requirement for nomination papers that

the Libertarian Party challenges in this action. The Party

describes itself as “the most active and well known third party”

in New Hampshire. Doc. No. 1 at 7. Although not as prominent

as the two main political parties in this State, the Party “has

run candidates in New Hampshire for more than four decades” and

“was particularly active during the 2000 and 2012 general

elections.” Id. at 7-8. In those years, the Party explains, it

placed its nominees on the ballot by submitting the requisite

number of nomination petitions. The requirements in those

years, however, did not include the same-year restriction, which

the General Court did not enact until 2014. Had the same-year

restriction existed in 2000 and 2012, the Party maintains, it

“would likely not have been able to obtain the necessary

nomination papers to get on the ballot.” Id. at 9.

In this action, the Libertarian Party contends that the

same-year restriction imposed by the 2014 amendment to § 655:40-

a is unconstitutional because it “places substantial burdens” on

the Party’s ability to field candidates and compete in future

elections. See id. at 1-2. The Party claims that two separate

burdens flow from the restriction. First, it alleges, the same-

year requirement unreasonably “compresse[s]” the time available

for it to collect the signatures required under the nomination 4 papers process. See id. at 2. To meet the threshold for

placing its candidates on the statewide ballot in 2016, the

Party expects to need almost 15,000 nomination papers.2 Under

the same-year requirement, however, the Party must wait until

January 1 to begin collecting those signatures. See id. at 10.

Beyond obtaining the signatures themselves, the Party points to

other administrative tasks required by the State that it must

complete before the August deadline, such as sorting nomination

papers by municipality and dropping the papers off at the

appropriate office within each municipality. See id. at 9-10;

, I. Being allowed only seven

months to collect and administer that large number of

signatures, the Party claims, jeopardizes its ability to

participate in the election. See Doc. No. 1 at 9-10.

Even if it manages to obtain enough nomination papers

within that seven-month window, the Libertarian Party further

claims, the same-year requirement will also prevent it from

2 The complaint provides 13,600 as a hypothetical figure, approximately three percent of total voters in the 2010 New Hampshire off-year election. See Doc. No. 1 at 10 n. 3. In fact, 495,453 people voted in the November 2014 New Hampshire off-year election, three percent of which will require 14,864 nomination papers for the 2016 general election. See “Ballots Cast and Names on Checklist – 2014 General Election,” New Hampshire Secretary of State Website (available at http://sos.nh.gov/Elections/Election_Information/2014_Elections/ General_Election/Ballots_Cast_and_Names_on_Checklist_- _2014_General_Election.aspx). 5 “effectively participat[ing] in and contribut[ing] to the

statewide election during both the odd-numbered year prior to

the general election, as well as the year of the general

election itself.” Id. at 2. The Party contends that the months

leading to a general election are critical for “recruiting,

fundraising, and electioneering.” See id. at 2-3. Without the

same-year requirement, the Party claims, it would be able to

obtain the requisite signatures during the off-year before a

general election and focus on these important tasks during the

“crucial time period preceding” the general election. See id.

at 2. The Party claims, however, that the same-year requirement

will force it to focus on gathering nomination papers during

that important time instead of fundraising and electioneering,

impairing its ability to compete in the general election. See

id. at 2-3.

II. STANDARD OF REVIEW

To survive a motion to dismiss for failure to state a

claim, a plaintiff must make factual allegations sufficient to

“state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal,

(2009) (quoting Bell Atl.

Corp. v. Twombly,

(2007)). A claim is

facially plausible if it pleads “factual content that allows the 6 court to draw the reasonable inference that the defendant is

liable for the misconduct alleged. In deciding a motion to

dismiss, I employ a two-step approach. See Ocasio–Hernández v.

Fortuño–Burset,

(1st Cir. 2011). First, I screen

the complaint for statements that “merely offer legal

conclusions couched as fact or threadbare recitals of the

elements of a cause of action.”

(citations, internal

quotation marks, and alterations omitted). A claim consisting

of little more than “allegations that merely parrot the elements

of the cause of action” may be dismissed.

Second, I credit

as true all non-conclusory factual allegations and the

reasonable inferences drawn from those allegations, and then

determine if the claim is plausible.

The plausibility

requirement “simply calls for enough fact to raise a reasonable

expectation that discovery will reveal evidence” of illegal

conduct. Twombly,

. The “make-or-break

standard” is that those allegations and inferences, taken as

true, “must state a plausible, not a merely conceivable, case

for relief.” Sepúlveda–Villarini v. Dep’t of Educ.,

(1st Cir. 2010); see Twombly,

(“Factual

allegations must be enough to raise a right to relief above the

speculative level . . . .”).

7 III. ANALYSIS

Ballot access restrictions implicate two separate, but

related, constitutional rights under the First and Fourteenth

Amendments: first, “the right of individuals to associate for

the advancement of political beliefs,” and second, “the right of

qualified voters, regardless of their political persuasion, to

cast their votes effectively.” Williams v. Rhodes,

(1968). These rights extend to the formation of political

parties. Norman v. Reed,

(1992). “[V]oters

can assert their preferences only through candidates or parties

or both . . . The right to vote is heavily burdened if that vote

may be cast only for major-party candidates at a time when other

parties or other candidates are clamoring for a place on the

ballot.” Anderson v. Celebrezze,

(1983)

(internal quotations and citations omitted).

At the same time, states have a strong interest in

conducting orderly elections. “[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,

(1974). Therefore, although every ballot access

regulation “inevitably affects” the rights of voting and

association, “the state’s important regulatory interests [in 8 conducting orderly elections] are generally sufficient to

justify reasonable, nondiscriminatory restrictions.” Anderson,

.

To balance these competing interests, “the Supreme Court

has developed a flexible sliding scale approach for assessing

the constitutionality of [ballot access] restrictions. Under

this approach, when the burden imposed by a ballot access

regulation is heavy, the provision must be narrowly tailored to

promote a compelling state interest. Reasonable,

nondiscriminatory restrictions, however, need be justified only

by legitimate regulatory interests.” Barr v. Galvin,

(1st Cir. 2010) (citing Timmons v. Twin Cities Area New

Party,

(1997)) (internal citations and

quotations omitted). The outcome of this analysis depends

heavily on the challenged restriction’s factual context. “In

passing judgment, [a court] must not only determine the

legitimacy and strength of [the state’s] interests; it also must

consider the extent to which those interests make it necessary

to burden the plaintiff’s rights. Only after weighing all these

factors is the reviewing court in a position to decide whether

the challenged provision is unconstitutional.” Anderson,

.

9 The Libertarian Party is entitled to proceed with its case

under the fact-dependent framework that the Supreme Court has

formulated for ballot access claims. With no factual record

before me, I cannot predict whether the Party will be able to

prove its claim that the law it challenges imposes a heavy

burden on its ability to participate in the election process.

Nor can I predict whether the State will succeed in articulating

and justifying its interests in the restriction if it is called

on to do so. Which standard of review will ultimately apply,

and whether either party will ultimately meet its burden under

the appropriate standard, are “sufficiently open question[s]

that [I] cannot conclude, on the pleadings, that no set of facts

exists under which [the Party] might prevail.” Cruz v. Melecio,

(1st Cir. 2000). As the First Circuit has made

clear, where a ballot-access complaint alleges facts that could

trigger heightened scrutiny, “[t]he fact-specific nature of the

relevant inquiry obviates a resolution . . . on the basis of the

complaint alone.”

(internal citation omitted). That result

controls here.

The State offers a number of arguments in favor of

dismissal, but none are persuasive. First, the State observes,

probably correctly, that the amended § 655:40-a is

nondiscriminatory. See Doc. No. 9-1 at 6. To avoid heightened 10 scrutiny, however, a challenged ballot access restriction must

be both nondiscriminatory and reasonable. Anderson,

; Barr,

. Even a facially nondiscriminatory

restriction can still encounter heightened scrutiny if shown to

be unreasonable or unduly burdensome. See Cruz,

(ballot access claim could trigger heightened scrutiny even

where challenged restriction was nondiscriminatory). Even if §

655:40-a were found facially nondiscriminatory, therefore, the

State would not be entitled to dismissal at this stage on that

basis alone.

Next, and reaching the central question in this motion, the

State attempts to show that the Libertarian Party’s claim cannot

trigger heightened scrutiny because the same-year restriction is

reasonable as a matter of law. See Doc. No. 9-1 at 6-7. In

making this argument, however, the State addresses only the

Party’s objection to the “compressed” schedule introduced by the

amended § 655:40-a and not to the conflict between that schedule

and the prime electioneering period preceding a general

election. See id. But in any event, I am not equipped to grant

dismissal even of the Party’s “compressed” timeframe argument at

this stage. To be sure, some of the cases that the State cites,

in which various courts have upheld signature submission periods

of similar lengths, may eventually counsel in favor of the 11 restriction’s validity. The Supreme Court has emphasized,

however, that analysis of ballot access restrictions is

factually driven and case-specific, not bound by “any litmus-

paper test that will separate valid from invalid restrictions.”

Anderson,

(internal quotation omitted). Thus,

whether the nomination papers process under the amended §

655:40-a is reasonable depends not only on the number of

signatures the State requires and the amount of time the State

allows to collect them, but also on a multitude of other factors

that are not yet visible on this record. See id. Under the

“fact-specific nature of the relevant inquiry,” therefore, I am

not prepared to conclude as a matter of law either that the

Party’s claim is entitled only to rational basis review or that

dismissal would be appropriate at this point. See Cruz,

.

The State’s remaining arguments attempt to bolster its

justification for the amended § 655:40-a. As I have explained,

however, I cannot evaluate the strength of the State’s

justification at this stage solely on the face of the complaint.

See Cruz,

.

IV. CONCLUSION

For these reasons, I deny the State’s motion to dismiss the 12 Party’s complaint (Doc. No. 9).

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

December 30, 2014

cc: Courtney Hart, Esq. William E. Christie, Esq. Gilles R. Bissonnette, Esq. Laura E. B. Lombardi, Esq. Stephen G. LaBonte, Esq.

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