Barr v. Galvin

• Decision Date: 16 November 2010
• Docket Number: No. 09-2426,09-2426
• Parties: Bob BARR et al., Plaintiffs, Appellees, v. William F. GALVIN, in his Official Capacity as Secretary of the Commonwealth of Massachusetts, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

626 F.3d 99

Bob BARR et al., Plaintiffs, Appellees,

v.William F. GALVIN, in his Official Capacity as Secretary of the Commonwealth of Massachusetts, Defendant, Appellant.

No. 09-2426.

United States Court of Appeals, First Circuit.

Heard Sept. 15, 2010.

Decided Nov. 16, 2010.

Amy Spector, Assistant Attorney General, with whom Martha Coakley, Attorney General, and Timothy Casey and Julie Goldman, Assistant Attorneys General, were on brief, for appellant.

Matthew C. Baltay, with whom Jennifer S. Behr, Amrish V. Wadhera, Foley Hoag LLP, and John Reinstein, American Civil Liberties Union of Massachusetts, were on brief, for appellees.

Before BOUDIN, RIPPLE,^* and SELYA, Circuit Judges.

SELYA, Circuit Judge.

In this appeal, the Secretary of State, on behalf of the Commonwealth of Massachusetts, challenges the district court's determination that Bob Barr and Wayne A. Root, the Libertarian Party's candidates for president and vice-president in the 2008 general election, were entitled to have their names placed on the statewide ballot even though they had not submitted nomination papers as required by state law. While the particular election that gave rise to this controversy is over, the Secretary also challenges the district court's related determinations that (i) the Equal Protection Clause of the United States Constitution, U.S. Const. amend. XIV, § 1, affords a right of substitution in the circumstances of this case and (ii) Mass. Gen. Laws ch. 53, § 14, which governs the substitution of certain classes of candidates on the ballot, is unconstitutionally vague as applied to the substitution of non-party candidates for President and Vice-President of the United States. ¹ Barr, Root, and the other appellees defend the district court's resolution of these issues and, in doing so, argue that the result reached below was compelled by principles of constitutional law, statutory construction, and estoppel.

After careful consideration, we find that a live dispute remains. With respect to that dispute, we conclude that the Equal Protection Clause does not require the Commonwealth to afford a substitution mechanism applicable to non-party candidates. We further conclude that the relevant statute, while not unconstitutionally vague, is in need of interpretive clarification. Pursuant to principles of Pullmanabstention, that interpretation should be effected by the Massachusetts courts. In light of this determination, the appellees' claims concerning the Secretary's prior pronouncements (including their estoppel claim) are either moot or likely to be rendered moot by the state courts' interpretation of the statutory scheme. Accordingly, we reverse in part, vacate in part, and remand for further proceedings consistent with this opinion.

I. BACKGROUND

We start by rehearsing the relevant factual and procedural background.

Massachusetts recognizes as a "political party" any political organization that either (i) had a candidate for statewide office who garnered at least three percent of the vote in the most recent biennial election or (ii) has enrolled no less than one percent of the total electorate (as measured by registered voters). Mass. Gen. Laws ch. 50, § 1. At the time of the November 2008 general election, the Libertarian Party of Massachusetts (LPM) did not satisfy either furculum of this test and, thus, the Commonwealth did not recognize it as a political party. Rather, the Commonwealth, in accordance with state law, see id., permitted the use of the Libertarian label as a "political designation." The Libertarian National Committee was not then and is not now recognized as a political party or political designation in Massachusetts.

Massachusetts law delineates procedures governing ballot access for presidential and vice-presidential candidates affiliated with recognized political parties. These procedures differ significantly from those that apply to other candidates. With respect to the presidential and vice-presidential candidates of a recognized political party, the party's state committee may choose its candidates and submit a form to the Secretary by the second Tuesday in September next preceding the election. That form identifies the candidates and sets out the names of the presidential electors selected by the committee. Id. ch. 53, § 8. This submission, in and of itself, qualifies the candidates for listing on the ballot. See id.

Other presidential and vice-presidential candidates must travel a different road: they must file nomination papers signed by at least 10,000 registered voters. Id. §§ 6-10. The papers must include the names of the presidential and vice-presidential candidates, and may also—but need not—identify a "political designation" with which the candidates wish to be aligned. Id. § 8. In all events, the nomination papers must contain the names of a slate of presidential electors, whose signatures on the papers signify their support for the denominated candidates. Id. The fact that non-party presidential and vice-presidential candidates may receive an endorsement from a national political entity does not confer any special ballot access rights.

As a matter of procedure, signed non-party nomination papers for presidential and vice-presidential candidates are to be submitted to local canvassing officials. Those officials then certify the signatures, confirming that they belong to registered voters. Id. § 7. In 2008, the deadline for submitting such nomination papers to local canvassing boards was July 29. See id. In turn, the deadline for transmitting them to the Secretary was August 26. See id. § 10.²

In July of 2007, George Phillies, acting in his capacity as the chair of the LPM, sent an e-mail inquiry to the Secretary. In it, Phillies inquired as to whether, if the presidential and vice-presidential candidates identified on nomination papers circulated in Massachusetts were not selected at the national Libertarian nominating convention the following May, the names of the actual nominees could be substituted on the ballot. In October of 2007, an aide to the Secretary responded that the Secretary's office could "prepare a form that allows members of the party to request the substitution of the candidate."

In early 2008, Phillies began to circulate nomination papers identifying himself as a presidential candidate and Chris Bennett as a vice-presidential candidate. These papers named the requisite twelve electors. The word "Libertarian" appeared in the space available for signifying a political designation.

The Libertarian National Committee held its convention in late May of 2008. Phillies and Bennett competed unsuccessfully for the convention's endorsement as the Libertarian nominees for president and vice-president, respectively. The convention endorsed Barr and Root for those offices.

Phillies and Bennett had gathered about 7,000 signatures from Massachusetts voters on nomination papers in support of their anticipated candidacies. On May 29, 2008, Phillies e-mailed the Secretary's office, inquiring as to whether he and Bennett, should they qualify for the ballot, could be replaced by Barr and Root. The Secretary responded that such "substitution" was not permissible, but that Barr and Root still had nearly two months during which to secure the necessary signatures on their own behalf. The Secretary likewise notified the Libertarian National Committee that the requested substitution was not authorized, but that the usual statutory process of circulating and filing nomination papers was available as a means of getting Barr's and Root's names on the statewide ballot.

Despite the Secretary's declared position, Phillies continued to circulate nomination papers for a Phillies/Bennett ticket. He submitted these papers, which contained well over 10,000 valid signatures, in a timely manner. In contrast, Barr and Root did not submit any nomination papers, did not provide any evidence that they had secured the necessary signatures, and did not identify any presidential electors. Although Phillies and Bennett had met the requirements and were entitled to appear on the statewide ballot, nothing in Massachusetts law prevented two sets of candidates from appearing simultaneously with the same political designation.

On August 6, 2008, Barr, Root, the LPM, and the Libertarian National Committee (collectively, the appellees) filed suit in the United States District Court for the District of Massachusetts, challenging the Secretary's refusal to include Barr and Root on the statewide ballot. They sought a mandatory injunction compelling the Secretary to substitute Barr and Root for Phillies and Bennett and a declaration that the Secretary's refusal to allow the substitution infringed upon their constitutional rights to, among other things, free speech, freedom of association, and equal protection of the law.

On September 22, 2008, the district court granted the motion for a preliminary injunction. Barr v. Galvin (Barr I), 584 F.Supp.2d 316, 322 (D.Mass.2008). It concluded that the appellees would suffer irreparable harm were it to withhold relief. Id. at 321. Even though the initial complaint acknowledged that Massachusetts had no statutory mechanism specific to thekind of substitution that had been requested, the court concluded that section 14, which limns the process for filling vacancies for "state, city or town office" when candidates die, withdraw, or are declared ineligible following nomination, was "[t]he most relevant statute." Id. at 320. That provision, the court said, would "likely fail constitutional scrutiny" as applied to these facts. Id. at 321. Acting on these conclusions, the court ordered the Secretary to place the names of Barr and Root on the November 2008 ballot, in lieu of Phillies and Bennett, as candidates for president and vice-president. Id. at 318, 322.

The court did not enter a final judgment at that time, and the case remained pending throughout the 2008 election cycle. Barr and Root...