Libertarian Party of N.H. v. Gardner

• Decision Date: 18 February 2010
• Docket Number: Civil No. 08–cv–367–JM.
• Citation: 759 F.Supp.2d 215
• Parties: LIBERTARIAN PARTY OF NEW HAMPSHIRE, et al.v.William M. GARDNER, in his official capacity as Secretary of State of New Hampshire.
• Court: U.S. District Court — District of New Hampshire

759 F.Supp.2d 215

LIBERTARIAN PARTY OF NEW HAMPSHIRE, et al.

v.William M. GARDNER, in his official capacity as Secretary of State of New Hampshire.

Civil No. 08–cv–367–JM.

United States District Court, D. New Hampshire.

Feb. 18, 2010.

Evan Feit Nappen, Nappen Law Office, Concord, NH, Gary Sinawski, Brooklyn, NY, for Plaintiff.Nancy J. Smith, Office of Attorney General, Concord, NH, for Defendant.

ORDER

JAMES R. MUIRHEAD, United States Magistrate Judge.

Plaintiffs, the Libertarian Party of New Hampshire (“LPNH”) its chairman Brendan Kelly, Libertarian Party supporter Hardy Macia, and Libertarian candidates for the 2008 presidential election “Bob” Barr and his running mate, Wayne A. Root, brought this 42 U.S.C. § 1983 action contending New Hampshire's statutory scheme for placing names of candidates on the general election ballot violates their First and Fourteenth Amendment rights. They initially sought both injunctive and declaratory relief but now seek only a declaration that the challenged statutes are unconstitutional restrictions on their rights to freedom of association, of speech in the form of voting, and to due process and equal protection. Before the court are cross motions for summary judgment. For the reasons set forth below, defendant's motion (document no. 12) is granted and plaintiffs' motion (document no. 19) is denied.

Background

New Hampshire's ballot for the 2008 general election was divided into a grid of five columns, with the far left column labeled “Offices” and listing the public offices to be filled, and then the next four columns designating the candidates competing to fill the respective positions. See Def.'s Mot. for Summ. J. (“Def.'s Mot.”), Ex. B (November 4, 2008 General Election ballot for Nashua, New Hampshire, Ward 1). The columns were labeled, in order from left to right across the ballot, first “Republican Candidates,” then “Other Candidates,” next “Democratic Candidates,” and lastly “Write–In Candidates.” See id. Pursuant to New Hampshire law, the ballot was arranged so that the names of candidates nominated for the various offices were in successive party columns, so that each party's candidates were presented in a separate column. See New Hampshire Rev. Stat. Ann. (“RSA”) 656:5 (2008).

To secure a distinct “party column” on the ballot, a political organization must either satisfy the definition of a “party” under New Hampshire law by having received at least four percent of the votes at the preceding state general election for governor or United States senator, see RSA 652:11 (2008), or it must petition to be placed on the ballot by submitting a sufficient number of signatures in support of its nomination to the ballot. See RSA 655:40–a (2008) (allowing a political organization ballot access if nominating papers are signed by 3% of registered voters from the previous general election).¹ In 2008, the Libertarian Party was not entitled to its own column on the ballot because it failed to satisfy either the statutory definition for a party or the statutory process for nomination to the ballot. See RSA 652:11 & 655:40–a; see also Def.'s Mot., Ex. A, ¶¶ 4–6. As a result, in the 2008 presidential election, candidates representing the Libertarian Party appeared on the New Hampshire ballot in the “Other Candidates” column.

In the “Other Candidates” column, several names appeared. Running for the offices of President and Vice President of the United States in that column were three sets of candidates: (1) Ralph Nader and his running mate, Matt Gonzalez, ran as Independent candidates; (2) George Phillies and his running mate, Christopher Bennett, ran as Libertarian candidates; and (3) plaintiffs Barr and his running mate Root also ran as Libertarian candidates. These candidates appeared on the New Hampshire ballot pursuant to the statutory provisions for a candidate “who intends to have his name placed on the ballot for the state general election by means other than nomination by party primary.” RSA 655:14–a (2008).² Since the LPNH was not a recognized party under New Hampshire law in 2008, its candidates had to access the ballot by means other than nomination by party. See Def.'s Mot., Ex. A, ¶¶ 5 & 6, and Ex. C, ¶ 3. In fact, both Phillies and Barr got onto the ballot by filing the requisite number of signatures from New Hampshire supporters. See RSA 655:40 & 655:42, I (requiring 3,000 registered voters sign nomination papers to nominate a candidate for president); see also Def.'s Mot., Ex. C, ¶¶ 4 & 5.

Yet Barr also was nominated as the Libertarian candidate for president at the Libertarian Party convention on May 22–26, 2008. See Pl.'s Mot. for Summ. J. (“Pl.s Mot.”), Ex. 2 (Aff. of Bill Redpath), ¶ 3. Because the Libertarian Party nominated Barr and Root as its presidential and vice presidential candidates at its convention, plaintiffs believed Barr and Root alone should have appeared on the New Hampshire 2008 general election ballot as the Libertarian Party candidates for president and vice president. Plaintiffs asked defendant New Hampshire Secretary of State William Gardner to remove Phillies and Bennett from the ballot, but he refused to do so. Plaintiffs brought this action claiming they have a constitutional right to have Barr and Root be the sole nominees on the ballot and to have had the names of Phillies and Bennett, who were defeated at the Libertarian Party convention, removed from the New Hampshire general election ballot.

Discussion

1. Mootness

Defendant argues this action should be dismissed as moot, because plaintiffs no longer seek a preliminary injunction and there is no evidentiary basis to conclude that Phillies and Barr will be competing in future presidential elections, obviating the need for a permanent injunction to remove from the ballot Phillies/Bennett as Libertarian candidates. Plaintiffs' challenge is to New Hampshire's statutory scheme for enabling candidates for the presidency and vice presidency to get on the general election ballot and to designate their party affiliation, even if the political organization does not support those candidates. Plaintiffs' challenge to that process, regardless of who the individual candidates may be, is “capable of repetition yet evading review” and is not, therefore, moot. See Storer v. Brown, 415 U.S. 724, 737 n. 8, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974); Ramirez v. Ramos, 438 F.3d 92, 100 (1st Cir.2006) (citing authority to explain this exception to the mootness doctrine).

2. Summary Judgment Standard of Review

The parties agree that there are no genuine issues of material fact, rendering the matter appropriate for summary disposition. See Fed.R.Civ.P. 56(c) (allowing for summary judgment when the record is undisputed); see also Quinn v. City of Boston, 325 F.3d 18, 28 (1st Cir.2003). Summary judgment provides the means to “pierce the boilerplate of the pleadings” and “dispos[e] of cases in which no trialworthy issue exists.” Id. The party moving for summary judgment bears the initial responsibility of demonstrating the absence of a genuine issue of material fact, Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986), with the court construing the evidence and all inferences reasonably drawn therefrom in the light most favorable to the nonmovant. See Navarro v. Pfizer Corp., 261 F.3d 90, 94 (1st Cir.2001). Once the moving party has met its burden, the burden shifts to the nonmovant to “produce evidence on which a reasonable finder of fact, under the appropriate proof burden, could base a verdict for it; if that party cannot produce such evidence, the motion must be granted.” Ayala–Gerena v. Bristol Myers–Squibb Co., 95 F.3d 86, 94 (1st Cir.1996) (citations omitted). Neither conclusory allegations, improbable inferences, nor unsupported speculation are sufficient to defeat summary judgment. See Carroll v. Xerox Corp., 294 F.3d 231, 236–37 (1st Cir.2002); see also Price v. Canadian Airlines, 429 F.Supp.2d 459, 461 (D.N.H.2006). On cross motions for summary judgment, the standard of review is applied to each motion separately. See Am. Home Assur. Co. v. AGM Marine Contrs., 467 F.3d 810, 812 (1st Cir.2006); see also Mandel v. Boston Phoenix, Inc., 456 F.3d 198, 205 (1st Cir.2006) (“The presence of cross-motions for summary judgment neither dilutes nor distorts this standard of review.”).

3. Test for Constitutionality

Plaintiffs contend New Hampshire's statutory scheme for placing candidates' names and party affiliations on the general election ballot is unconstitutional. Although several statutes regulate the election process in New Hampshire, plaintiffs have not clearly identified which statutes unconstitutionally preclude them from effectively exercising their claimed “right to substitute” Barr and Root for Phillies and Bennett. Plaintiffs challenge generally the provisions that enable statutorily recognized parties to control which names appear on the ballot, arguing they should be allowed to control which Libertarian candidates appear on the ballot just like those political organizations which have secured a party column on the ballot do. ³ Though plaintiffs challenge the provisions that give a “party” different treatment on the ballot than the Libertarian Party received, they concede that the statutory definition of “party” is constitutional and that they were not a statutorily recognized party in 2008. See Pl.'s Reply to Def.'s Mot. (document no. 24) (“Pl.'s Reply”) at 2.⁴

Despite this concession, plaintiffs argue the Libertarian Party has a “right to substitute candidacies in appropriate situations and to control use of the ‘Libertarian’ designation by candidates for public office in situations where the party nominates or otherwise endorses candidates.” Id. Plaintiffs assert that defendant's refusal to let them modify the ballot as they wanted impeded their right to vote effectively and “to associate for the advancement of political ideas” for no legitimate...