Werme v. Merrill, 95-1982

• Decision Date: 23 May 1996
• Docket Number: No. 95-1982,95-1982
• Citation: 84 F.3d 479
• Parties: Paula WERME, et al., Plaintiffs, Appellants, v. Stephen MERRILL, Governor of New Hampshire, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 479

84 F.3d 479

64 USLW 2756

Paula WERME, et al., Plaintiffs, Appellants, v. Stephen MERRILL, Governor of New Hampshire, et al.,

Defendants, Appellees.

No. 95-1982.

United States Court of Appeals, First Circuit.

Submitted May 6, 1996.

Decided May 23, 1996.

Barnes, Bender & Boehm, Martin Bender, Concord, NH, and Paula Werme, pro se, on brief for appellants.

Jeffrey R. Howard, Attorney General, and Christopher P. Reid, Assistant Attorney General, on brief for appellees.

Before SELYA and CUMMINGS, ^* Circuit Judges, and COFFIN, Senior Circuit Judge.

SELYA, Circuit Judge.

We must determine in the course of this appeal whether New Hampshire overstepped constitutional bounds by denying a recognized third party the right, enjoyed by the state's two most popular political parties, to have election inspectors and ballot clerks present at the polls on Election Day. We conclude, as did the district court, that the state's statutory scheme passes constitutional muster.

I. BACKGROUND

The material facts are not in genuine dispute. In New Hampshire, as elsewhere, the Democratic and Republican parties dominate the political scene. Nevertheless, third parties can make their mark. In the 1990 gubernatorial election one such group, the Libertarian Party, garnered over 3% of the votes cast statewide. This level of achievement earned it the right to hold party primaries and to have its anointed candidates appear under the party label on the official ballot. See N.H.Rev.Stat. Ann. §§ 652:11 & 655:14 (1986). The Libertarian Party retained that status by virtue of the number of votes its candidates garnered in subsequent elections.

Despite party recognition and ballot status, the Libertarian Party claims that it has been hampered by a series of seemingly unconnected mishaps. ¹ Goaded by these incidents, Paula Werme, a registered Libertarian, requested that the selectmen in Mount Vernon appoint her to represent her party as a ballot clerk at the March 1994 municipal election. The selectmen denied her request. In rapid succession Werme then brought her campaign to the Secretary of State and, failing to obtain redress, sought a judicial anodyne.

Invoking 42 U.S.C. § 1983, Werme sued the Governor and the Secretary of State in New Hampshire's federal district court. She alleged that the statutes governing appointment of election inspectors and ballot clerks abridged her constitutional rights to free association, due process, and equal protection; she prayed that the court enjoin their enforcement; and she sought an order commanding the appointment of Libertarians to the indicated positions on the same basis as members of the Democratic and Republican parties. The Libertarian Party intervened as an additional plaintiff. The district court, after mulling cross-motions for summary judgment, concluded that the defendants' interest in the efficient management of election activities justified the small restriction on the plaintiffs' rights that the challenged statutes entailed, and upheld New Hampshire's statutory scheme. This appeal followed.

II. STANDARD OF APPELLATE REVIEW

The summary judgment standard is both prosaic and familiar, see, e.g., McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir.1995) (collecting cases), and we see no need to rehearse it here. We simply restate two basic verities. First, the district court may enter summary judgment only if the record reveals no genuine issue of material fact and the movant demonstrates an entitlement to judgment as a matter of law. See Fed.R.Civ.P. 56(c). Second, the court of appeals reviews the grant of summary judgment de novo, applying the same legal principles that held sway in the nisi prius court. See Roche v. John Hancock Mutual Life Ins. Co., 81 F.3d 249, 253 (1st Cir.1996).

III. THE STATUTORY SCHEME

New Hampshire's electoral machinery is pretty standard stuff. A town moderator supervises Election Day activities. ² See N.H.Rev.Stat. Ann. § 659:9. The moderator commands a cadre of other election officials, including inspectors appointed by the two political parties that received "the largest number of votes [cast] for governor in the state at the last previous general election...." Id. § 658:2. Each such political party may appoint two inspectors per polling place, and one additional inspector for every 1,500 qualified voters in excess of 2,000 qualified voters registered at that polling place. See id. If a political party fails to appoint inspectors, the town's selectmen fill the lacuna by naming inspectors from the ranks of that party. See id. In turn, the moderator designates two election inspectors, one from each of the two parties, to serve as ballot clerks. See id. § 658:25.

Ballot clerks exercise no discretion. Their purely ministerial duties include distributing ballots at the polls and keeping an official checklist containing the names of persons who in fact vote. See id. §§ 658:25 & 659:13. In principle, a voter presents herself to the ballot clerk; if the voter's name appears on an official list of registered voters, the ballot clerk provides her with a ballot. ³ Ballot clerks are not empowered to register voters, and do not have authority to modify the official voting list. While voters may declare or change their party affiliation on Election Day under certain circumstances, see N.H. Stat. Ann. §§ 654:7-a & 654:7-b (Supp.1994), election supervisors or town clerks (who are themselves elected officials) handle such matters. See N.H. Stat. Ann. § 654:8 (1986). Every recognized political party, regardless of size or previous electoral success, may appoint a "challenger of voters" at any polling place who may stand within the guardrail to "see and hear each voter as he offers to vote." Id. § 666:4.

After the polls close, the town moderator oversees the counting of votes. See id. §§ 659:60 & 659:61. Although the palsgrave is held in public, see id. § 659:63, only persons holding official positions may take part in tallying ballots. See id. § 659:60. Election inspectors sometimes participate in this process. Once the votes have been tallied, the moderator announces the final results, see id. § 659:70, and a formal election return is prepared by the town clerk and forwarded to the Secretary of State. See id. §§ 659:74 & 659:75. Members of the public may inspect the return. Candidates may call for recounts, see id. §§ 660:1-6 & 665:6(II), and the New Hampshire Ballot Law Commission has jurisdiction to "hear and determine all disputes involving alleged violations of New Hampshire election laws of a non-criminal nature for which no specific statutory appeal procedure has already been provided." Id. § 665:7. Moreover, election officials are subject to criminal penalties for ballot tampering, falsifying returns, or the like. See, e.g., id. § 666:1-3.

IV. ANALYSIS

We subdivide our analysis into four segments.

A

It is apodictic that the right to vote is a right that helps to preserve all other rights. As Chief Justice Warren put it: "The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government." Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 1378, 12 L.Ed.2d 506 (1964); see also Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 535, 11 L.Ed.2d 481 (1964) ("Other rights, even the most basic, are illusory if the right to vote is undermined."). Nonetheless, the right to vote is not absolute. See Burdick v. Takushi, 504 U.S. 428, 432-34, 112 S.Ct. 2059, 2063, 119 L.Ed.2d 245 (1992). "[A]s a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process." Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714 (1974). To that end, each state retains the authority to regulate state and local elections and to prescribe the duties and qualifications of persons who work at the polls, and the manner in which they will be selected. See Sugarman v. Dougall, 413 U.S. 634, 647, 93 S.Ct. 2842, 2850, 37 L.Ed.2d 853 (1973); see also U.S. Const. Art. I, § 4, cl. 1 (directing that states shall prescribe "[t]he Times, Places and Manner of holding Elections for Senators and Representatives").

To be sure, this authority to regulate elections is not unfettered. At a minimum, states cannot wield their regulatory power in ways that contravene the First and Fourteenth Amendment rights of their citizens. See Tashjian v. Republican Party of Conn., 479 U.S. 208, 217, 107 S.Ct. 544, 550, 93 L.Ed.2d 514 (1986). As courts review states' regulatory efforts and strive to distinguish between permissible regulation and impermissible abridgment of voters' rights, the level of scrutiny looms large. The plaintiffs insist that a law imposing any burden (however modest) upon the right to vote is always subject to strict scrutiny. We do not agree.

The Supreme Court has eschewed a hard-and-fast rule, and instead has adopted a flexible framework for testing the validity of election regulations. See Burdick, 504 U.S. at 432-34, 112 S.Ct. at 2063; Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 1570, 75 L.Ed.2d 547 (1983); Storer, 415 U.S. at 730, 94 S.Ct. at 1279. Under the prescribed framework, the level of scrutiny to be applied corresponds roughly to the degree to which a challenged regulation encumbers First and Fourteenth Amendment rights. Consequently, a court weighing a challenge to a state election law must start by assessing "the character and magnitude of the asserted injury" to the plaintiff's constitutionally protected rights and then "evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule." Anderson, 460 U.S. at 789, 103 S.Ct. at 1570; accord Libertarian Party of Me. v. Diamond, 992 F.2d 365, 370 (1st Cir.1993) (explaining that the court must...