Akins v. Sec'y of State
| Decision Date | 17 August 2006 |
| Docket Number | No. 2005–794.,2005–794. |
| Citation | 904 A.2d 702,154 N.H. 67 |
| Court | New Hampshire Supreme Court |
| Parties | Ralph L. AKINS and another v. SECRETARY OF STATE. |
Twomey Law Office, of Epsom (Paul Twomey on the brief and orally), for the petitioners.
Kelly A. Ayotte, attorney general (Wynn E. Arnold, senior assistant attorney general, on the brief and orally), for the respondent.
The petitioners, who are the New Hampshire Democratic party and individuals who ran as Democratic, Republican, or Libertarian candidates in the 2004 New Hampshire general election, appeal an order of the Superior Court (McGuire, J.) denying their petition for declaratory judgment that the organization of parties and candidates on New Hampshire general election ballots is unconstitutional. We reverse and remand.
The record supports the following facts. The petitioners alleged that they were disadvantaged in the 2004 New Hampshire general election by the provisions of RSA 656:5 and requested that the trial court mandate a method of randomly selecting both party order and candidate order on the ballot. At that time, RSA 656:5 provided for an "office block" format ballot, in which all of the candidates for an office were grouped within a box. RSA 656:5, II required that the candidates of the party that had received the highest total votes for all offices combined in the preceding election would be listed first within each office box. RSA 656:5, II further organized the ballot by providing that the candidates would be arranged alphabetically by surname within each party. The language of RSA 656:5 in effect in 2004 read as follows:
In 2004, the legislature amended RSA 656:5. The current version establishes a "party column" format ballot, which groups candidates by party, listing all of one party's candidates for all offices in one column. RSA 656:5 (Supp.2005). The current statute requires that the first column on the ballot represent the party that received the most total votes in the preceding general election. Id. Thus, the current statute shares the former statute's requirement that the first candidate listed for any given office on the ballot is the candidate from the party that received the most total votes in the preceding general election. Id. The current statute no longer requires that candidates be listed in alphabetical order; however, the Secretary of State testified at trial in this case that the 2006 ballots will also list by alphabetical order within each column the candidates from the same party running for the same office. Id. The current statute reads, in pertinent part, as follows:
Party Columns. The names of all candidates nominated in accordance with the election laws shall be arranged upon the state general election ballot in successive party columns. Each separate column shall contain the names of the candidates of one party; except that, if only a part of a full list of candidates is nominated by a political party, 2 or more such lists may be arranged whenever practicable in the same column. The first column shall contain the names of the candidates of the party which received the largest number of votes at the last preceding state general election. Id.
At trial, the petitioners argued that the candidates of the party positioned first on the ballot have an advantage over candidates from other parties. The petitioners also argued that candidates appearing at the top of an alphabetical list have an advantage over candidates appearing at the bottom of an alphabetical list. The petitioners presented expert testimony that, when choices are presented visually, such as on a survey or ballot, the tendency of respondents who have no meaningful information, or have conflicting information, about their choices is to select the choice listed first. This is known as the "primacy effect." The expert testified that, in elections, voters' education levels and knowledge about the candidates affects the primacy effect, with the more educated and knowledgeable voters being less influenced by the primacy effect, and vice versa. In addition, difficulty of choice also affects the primacy effect, with voters tending to select choices listed first when presented with ballots containing many candidates, parties, or issues. The expert also testified regarding the primacy effect in New Hampshire elections, concluding that some New Hampshire voters, like voters in other states, will be influenced to choose the first candidate or party listed for an office because of the candidate's or party's position on the ballot. The State presented expert testimony that contradicted the petitioners' expert testimony.
Secretary of State William Gardner testified at trial that the last time any party other than the Republican Party was listed first on a New Hampshire general election ballot was 1966, after the Democratic party gained the majority of votes in the 1964 general election. Secretary Gardner also testified regarding prior testimony that he gave before the senate public affairs committee regarding the primacy effect. Gardner affirmed at trial that he had told the committee that studies showed that the primacy effect can confer as much as a six to ten percent advantage upon candidates whose names appear on lists as long as twelve candidates.
The trial court found that the petitioners' expert was more credible than the State's. Based upon testimony from the petitioners' expert and the Secretary of State, the trial court found that the primacy effect influences elections both nationwide and in New Hampshire, stating that " primacy effects influence, to some small degree, the outcome of New Hampshire elections." The State does not appeal this finding.
After making its factual findings, the trial court addressed the petitioners' constitutional arguments. The trial court first addressed the petitioners' argument that the party order established by RSA 656:5 and the candidate order practiced by the Secretary of State violate the voting rights established in Part I, Article 11 of the New Hampshire Constitution, which provides, in pertinent part: "Every inhabitant of the state, having the proper qualifications, has an equal right to be elected into office." N.H. CONST. pt. I, art. 11. The trial court applied a rational basis level of scrutiny and found that the organization of the ballot was a permissible regulation of voting. The trial court next addressed the petitioners' argument that RSA 656:5 violates the New Hampshire Constitution's equal protection guarantees under Part I, Articles 1, 2, 10, 12, and 14. The trial court also applied a rational basis test to the equal protection argument, concluding that distinguishing between political parties on the basis of success in prior elections and the organization of candidates based upon alphabetization served the legitimate governmental interest of ordering a ballot.
The petitioners appeal, arguing that rational basis was an incorrect level of scrutiny to apply. Strict scrutiny should apply in this case, the petitioners argue, because the equal right to be elected is a fundamental right. The arrangement of parties and candidates established by RSA 656:5 and practiced by the Secretary of State impinges upon this fundamental right because the arrangement unequally grants the benefits of the primacy effect to the majority party and candidates whose surnames begin with the first letters of the alphabet.
The State responds that the trial court properly used rational basis review because the positioning of parties on a ballot according to their vote counts in the prior election does not implicate a suspect class or a fundamental right and falls within the State's right to reasonably regulate elections. RSA 656:5 rationally establishes a logical and easily understood ballot, which, the State argues, is sufficient to survive rational basis review.
It is the role of this court to interpret the State Constitution and to resolve disputes arising under it. Petition of Below, 151 N.H. 135, 139, 855 A.2d 459 (2004). Whether or not a statute is constitutional is a question of law, which we review de novo. Gonya v. Comm'r, N.H. Ins. Dep't., 153 N.H. 521, ––––, 899 A.2d 278, 280 (2006). "In reviewing a statute, we presume it to be constitutional and we will not declare it invalid except upon inescapable grounds." Id. Because the petitioners argue only under the State Constitution, we base our decision upon it alone, citing federal cases for guidance only. Id.
The State does not appeal the trial court's finding, which is supported by the evidence adduced at trial, that the primacy effect confers an advantage in elections. Accordingly, we accept this finding. We note that other appellate courts have accepted findings that the first position on a ballot confers an advantage. Tsongas v. Secretary of the Commonwealth, 362 Mass. 708, 291 N.E.2d 149, 151–52 (1972) ; Gould v. Grubb, 14 Cal.3d 661, 122 Cal.Rptr. 377, 536 P.2d 1337, 1341 (1975) (en banc).
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