Libertarian Party of New Hampshire v. NH Secretary of State

Filing 17

ORDER denying 9 Motion to Dismiss for Failure to State a Claim. So Ordered by Judge Paul J. Barbadoro.(jna)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Libertarian Party of New Hampshire
v.

Civil No. 14-cv-00322-PB
Opinion No. 2014 DNH 266

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 sameyear 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.
motion.

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

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.
N.H. Rev. Stat. Ann. § 652:11.

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.

N.H. Rev. Stat. Ann. §§ 655:40-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.”
Stat. Ann. § 655:42, III.

N.H. Rev.

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.
Stat. Ann. § 655:41.

N.H. Rev.

Local officials must then verify that

petition signers are registered to vote and certify their

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results no later than two weeks before the primary.1

Id.

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 N.H. Rev. Stat. Ann. § 653:8.

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.”
655:40-a.

N.H. Rev. Stat. Ann. §

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 id.

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.

1

See id.

New Hampshire holds a “state primary election” on even numbered
years to nominate candidates for federal, state, and local
office. See N.H. Rev. Stat. Ann. § 652:5. It also holds a
“Presidential Primary Election every four years to select
delegates to the national party conventions.” See N.H. Rev.
Stat. Ann. § 652:6. 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 § 655:40a 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
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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.
N.H. Rev. Stat. Ann. § 655:41, I.

See id. at 9-10;

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).
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“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.
at 2.

See id.

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, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim is

facially plausible if it pleads “factual content that allows the
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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, 640 F.3d 1, 12 (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.”

Id. (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.

Id.

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.

Id.

The plausibility

requirement “simply calls for enough fact to raise a reasonable
expectation that discovery will reveal evidence” of illegal
conduct.

Twombly, 550 U.S. at 556.

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., 628 F.3d

25, 29 (1st Cir. 2010); see Twombly, 550 U.S. at 555 (“Factual
allegations must be enough to raise a right to relief above the
speculative level . . . .”).

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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.”
30 (1968).
parties.

Williams v. Rhodes, 393 U.S. 23,

These rights extend to the formation of political
Norman v. Reed, 502 U.S. 279, 288 (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, 460 U.S. 780, 787 (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.”
724, 730 (1974).

Storer v. Brown, 415 U.S.

Therefore, although every ballot access

regulation “inevitably affects” the rights of voting and
association, “the state’s important regulatory interests [in
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conducting orderly elections] are generally sufficient to
justify reasonable, nondiscriminatory restrictions.”

Anderson,

460 U.S. at 788.
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, 626 F.3d

99, 109 (1st Cir. 2010) (citing Timmons v. Twin Cities Area New
Party, 520 U.S. 351, 358 (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.”
U.S. at 789.

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Anderson, 460

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.”
204 F.3d 14, 22 (1st Cir. 2000).

Cruz v. Melecio,

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.”

Id. (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.
10

To avoid heightened

scrutiny, however, a challenged ballot access restriction must
be both nondiscriminatory and reasonable.
788; Barr, 626 F.3d at 109.

Anderson, 460 U.S. at

Even a facially nondiscriminatory

restriction can still encounter heightened scrutiny if shown to
be unreasonable or unduly burdensome.

See Cruz, 204 F.3d at 22

(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
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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 litmuspaper test that will separate valid from invalid restrictions.”
Anderson, 460 U.S. at 789 (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, 204

F.3d at 22.
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, 204 F.3d at 22.

IV.

CONCLUSION

For these reasons, I deny the State’s motion to dismiss the
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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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