United States District Court, D. New Hampshire
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.
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,
Republican National Committee, Intervenor: Brian D. Duffy,
Gordon J. MacDonald, LEAD ATTORNEYS, Nixon Peabody LLP,
Barbadoro, United States District Judge.
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.
The Same-Year Nomination Papers Requirement
for political office in New Hampshire typically gain access
to the general-election ballot by winning their party's
primary election. 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
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.
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.
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.
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
Doc. No. 37-3 at 13.
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).
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.
Libertarian Party is a prominent third party in the United
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.
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).
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.
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. But because
some signers inevitably prove to be ineligible, rendering the
nomination papers that they sign invalid, any organization
that runs a petition 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.
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."  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
period, largely relying on funds it received from the LNC.
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" ).
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.
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).
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