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Libertarian Party of New Hampshire v. Gardner

United States District Court, D. New Hampshire

August 27, 2015

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

          For Libertarian Party of New Hampshire, Plaintiff: Courtney Hart, LEAD ATTORNEY, PRO HAC VICE, Shaheen & Gordon, PA (Maine), Saco, ME; William E. Christie, Shaheen & Gordon (Concord), Concord, NH; Gilles R. Bissonnette, American Civil Liberties Union of New Hampshire, Concord, NH.

         For N.H. Secretary of State, in his official capacity, other, William M. Gardner, Defendant: Laura E. B. Lombardi, N.H. Attorney General's Office (Civil), Civil Bureau, Concord, NH; Stephen G. LaBonte, N.H. Attorney General's Office, Concord, NH.

         For Republican National Committee, Intervenor: Brian D. Duffy, Gordon J. MacDonald, LEAD ATTORNEYS, Nixon Peabody LLP, Manchester, NH.

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         Paul Barbadoro, United States District Judge.

         Political organizations can gain access to the New Hampshire general-election ballot either by receiving at least four percent of the total votes cast for Governor or U.S. Senator in the preceding election or by submitting nomination papers signed by enough of the State's registered voters to equal at least three percent of the total votes cast in the prior election. In 2014, the New Hampshire state legislature amended the State's ballot-access laws to require nomination papers to be signed during the same year as the general election. In this action, the Libertarian Party of New Hampshire (" LPNH" ) contends that the new same-year requirement is an impermissible ballot-access restriction that violates the First and Fourteenth Amendments to the United States Constitution.

         I. BACKGROUND[1]

         A. The Same-Year Nomination Papers Requirement

         Candidates for political office in New Hampshire typically gain access to the general-election ballot by winning their party's primary election.[2] Only political organizations that qualify as " political parties" under New Hampshire law, however, hold primaries. To qualify as a " political party," a political organization must receive at least four percent of the total votes cast for Governor or U.S. Senator in the preceding election. N.H. Rev. Stat. Ann. § 652:11. Rather than participate in the primary process, other political organizations that seek to place their candidates on the general-election ballot - which I will call " third parties" for the sake of convenience - must submit enough nomination papers signed by New Hampshire registered

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voters to equal three percent of the total votes cast in the prior general election. See N.H. Rev. Stat. Ann. § § 655:40-a, 655:42, III. A registered voter may sign only one valid nomination paper during each election cycle. N.H. Rev. Stat. Ann. § 655:40-a.

         To qualify for the general-election ballot, third parties must submit the requisite number of nomination papers to local election officials in the towns or wards where each signer is registered to vote no later than the Wednesday five weeks before the primary. N.H. Rev. Stat. Ann. § 655:41, I. Local officials must then certify the validity of all nomination papers no later than two weeks before the primary. Id. Because the New Hampshire primary falls on the second Tuesday in September, this requirement effectively establishes an early August deadline for the submission of nomination papers. See N.H. Rev. Stat. Ann. § § 653:8, 655:41, I.

         In July 2014, the New Hampshire legislature passed House Bill 1542 (" HB 1542" ), which amended Section 655:40-a to provide that " [n]omination papers shall be signed and dated in the year of the election." N.H. Rev. Stat. Ann. § 655:40-a (emphasis added). Because nomination papers must be filed by August, the new law requires third parties that seek to access the general-election ballot to collect the requisite number of nomination papers within a window of roughly seven months, extending from January 1 until early August of the election year itself. See N.H. Rev. Stat. Ann. § § 653:8, 655:40-a.

         The record contains few details that explain why the legislature passed HB 1542. When the House Election Law Committee referred the bill to the full House, it explained:

This bill was requested by the Secretary of State. It requires that nominating petitions for a political organization seeking placement on the ballot for the state general election shall be signed and dated in the year of the election, beginning January 1 of the political cycle. This will reduce the number of invalid signatures, due to death or relocation, which might arise if signatures are submitted earlier.

Doc. No. 37-3 at 13.

         Representative Melanie Levesque, one of the bill's sponsors, observed before the bill's passage:

When a third party attempts to collect nominating papers, they normally would start right after the general election. This would lead to signatures that could be two years old, and very difficult to verify. Collecting these papers in the same year of the election facilitates verification, although limiting the time in which to collect signatures.

Id. at 20 (minutes summarizing testimony).

         After this litigation began, LPNH submitted interrogatories to the State that requested, among other things, a " descri[ption of] all state interests that [the State] claim[s] HB 1542 advances." Id. at 62. In response, the State said:

In order to obtain ballot status a political organization should be able to show some reasonable level of support to justify the increased and significant cost of printing ballots and the additional complexity added to the ballot design impacting the voters [sic] ability to read and understand the ballot. The time frame for collecting signatures in the current statute makes it less likely that the supervisors of the checklist will be asked to review petitions where the signatory has either passed away, moved, or has otherwise been disqualified.


         B. LPNH

         The Libertarian Party is a prominent third party in the United States. Describing

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its philosophy as " live and let live," it favors a limited government that respects " the right of each person . . . to engage in any activity that is peaceful and honest." Doc. No. 36-1 at 6-7. LPNH constitutes the national Libertarian Party's institutional presence in New Hampshire. It claims that it " has a demonstrated history of engaging in political activity in New Hampshire and is, by far, the most active and well known third party in the state." Id. at 7.

         LPNH, however, has struggled recently to garner widespread support in New Hampshire. Richard Tomasso, the current state chairman of LPNH, estimates that only about 150 New Hampshire residents are registered members of the national Libertarian Party, and fewer than that are registered members of LPNH itself. See Doc. No. 37-6 at 4 (Tomasso Dep. at 9:7 -- 11:6). Only about twelve people attended LPNH's last party convention in March 2015. Id. (Tomasso Dep. at 11:22 -- 12:1). LPNH identifies no current member of the New Hampshire legislature as one of its members. Id. (Tomasso Dep. at 18:21 -- 19:7).

         LPNH last qualified for ballot access in New Hampshire as a formal political party in 1996, when the threshold required to avoid the nomination papers requirement stood at three rather than four percent of votes cast in the previous general election. Since then, it has qualified for ballot access under the nomination papers process twice, in 2000 and again in 2012.

         Based on voter turnout in the 2010 general election, qualifying for ballot access in 2012 by nomination papers required third parties to collect 13,843 valid signatures.[3] But because some signers inevitably prove to be ineligible, rendering the nomination papers that they sign invalid, any organization that runs a petition[4] drive must collect a larger number of unverified, or " raw," signatures to ensure that it will obtain enough valid signatures. For this reason, LPNH sought to collect approximately 19,000 total signatures during the 2012 drive, which assumed a seventy-five percent petition validity rate.

         LPNH began its 2012 petition drive in late July 2011 after the Libertarian National Committee (the " LNC" ), the governing board of the national Libertarian Party, agreed to give $28,000 to LPNH to support its drive. LPNH spent those funds on paid professional petitioners because, it explains, " paid support -- including professional petitioners -- is a necessity in conducting a successful petition drive of this magnitude." [5] Doc. No. 37-8 at 6. LPNH gathered 13,787 raw signatures between August 1 and September 23 of 2011, the vast majority of which were collected by the paid petitioners, who charged anywhere from $1 to $2 per signature during that period. In other words, LPNH gathered nearly seventy percent of the raw signatures it sought to collect within a 77-day

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period, largely relying on funds it received from the LNC.

         After September 23, 2011, the initial $28,000 infusion from the LNC ran out. LPNH lacked its own funds to hire paid petitioners on any significant scale, so it aimed instead to finish the petition drive by relying on volunteers supplemented by any paid petitioners that it could afford with its limited resources. But this strategy met with limited success. Although the intervening months between September 2011 and the August 2012 deadline offered at least two promising opportunities for petition collection -- the Presidential primary in January 2012, and town elections in March 2012 -- LPNH struggled to recruit even a handful of volunteers to collect petitions on either occasion. See Doc. No. 37-6 at 30 (Tomasso Dep. at 115:12-13) (explaining that LPNH " manage[d] to get a couple people out for" the January Presidential primary); Def.'s Ex. Z (March 2012 email from Tomasso reporting that LPNH " had very poor turnout for help on town election day" ).

         Between roughly September 2011 and late July 2012, LPNH collected only about 5,000 additional raw nomination papers. As the early August deadline loomed, the LNC decided to allocate an additional $4,000 to LPNH to hire paid petitioners and finish the drive. This final effort succeeded, and LPNH submitted its last nomination papers for verification just before the August 2012 deadline.

         All told, LPNH spent roughly $40,000 of its own and the LNC's funds on the 2012 petition drive, although LPNH contends that this figure does not reflect certain out-of-pocket expenses. Most of these funds were spent on professional petitioners, who charged anywhere from $1 to $3 per signature for their services at various times during the drive. Although some of the paid petitioners charged more per petition as the deadline approached and the demand for their services rose, at least one paid petitioner continued to charge only $1 per signature as late as April 2012. See Doc. No. 37-6 at 21 (Tomasso Dep. at 78:15 - 79:7).

         Based on voter turnout in the 2014 midterm elections, LPNH will need to submit approximately 14,800 valid nomination papers to qualify for the 2016 general-election ballot. Assuming a validity rate of seventy-five percent, therefore, it will likely need approximately 20,000 total unverified nomination papers to meet the requirement. LPNH estimates that funding a paid petition drive for the 2016 election will cost roughly $50,000. Doc. No. 36-1 at 31. This figure is higher than the $40,000 cost of the 2012 drive, LPNH asserts, because the January 1 start date will limit petition collection to the election year itself, when paid petitioners charge more for their services.

         C. Procedural ...

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