Young v. Gardner
| Decision Date | 08 September 1980 |
| Docket Number | Civ. No. 80-365-D. |
| Citation | 497 F. Supp. 396 |
| Parties | Susan E. YOUNG; Gerald D. McGonigle v. William M. GARDNER, in his official capacity as Secretary of State of the State of New Hampshire; Charlene E. Arcidiacono, Donald M. Redden, Gail K. Webster, in their official capacities as Supervisors of the Checklist of the Town of Londonderry, New Hampshire; Edward J. Thane, Frances Rivard, John C. Farwell, in their official capacities as Supervisors of the Checklist of the Town of Milford, New Hampshire. |
| Court | U.S. District Court — District of New Hampshire |
Susan Young and Gerald D. McGonigle, pro se.
Jeffrey R. Cohen, Asst. Atty. Gen., Concord, N. H., for Gardner.
Richard F. Therrien, Manchester, N. H., for Arcidiacono, Redden and Webster.
Patrick J. Enright, Milford, N. H., for Thane, Rivard and Farwell.
Plaintiffs Susan E. Young and Gerald D. McGonigle herein seek injunctive and declaratory relief, 28 U.S.C. §§ 2201, 2202, from what they perceive to be violations of their constitutional and civil rights, 42 U.S.C. § 1983, by reason of the application as to them of certain portions of the election laws of the State of New Hampshire.1 Named as defendants were William Gardner, Secretary of State of New Hampshire, and the individuals who are currently serving as Supervisors of the Checklists in the Towns of Milford and Londonderry, New Hampshire.2 Defendant Gardner moved to dismiss for failure to state a claim upon which relief can be granted, Rule 12(b)(6), Federal Rules of Civil Procedure, and, as requested by the plaintiffs, an expedited hearing was held on the merits at which evidence was taken, legal memos were presented, and oral arguments were heard. Upon review, the Court having heard evidence, Rule 12(b)(6), supra, treats the motion as one for summary judgment, Rule 56, Fed.R.Civ.P., and concludes that summary judgment should be entered in behalf of said defendant.
Plaintiff Young is a registered voter in the Town of Milford, who resides within a 15-minute walk of the Milford Town Hall wherein are housed the offices of various Town officials, including Supervisors of the Checklist. On February 26, 1980, she was an Independent voter but on that date elected to vote in the Republican Presidential primary. Upon completion of voting, she went to authorities at the polls and requested the right to be immediately registered again as an Independent voter. She was advised that this would not be possible but that she should check the newspaper and public notices as to the dates upon which the Supervisors of the Checklist would next meet to allow her to so change her registration. She chose not to do so, but on or about June 10, 1980, having decided that she wished to vote in the September primary for candidates other than those of the Republican party, she went to the Milford Town Hall, where she was advised that the period for changing her registration back to that of Independent had expired as of June 3, 1980.
Plaintiff McGonigle, a registered voter in Londonderry, similarly was an Independent who chose to vote in the Democratic Presidential primary on February 26, 1980. In his testimony, he was candid to admit that he did not recall whether as of the date of such voting or shortly thereafter he made known to the Town officials his desire to register once more as an Independent. He now seeks to vote in the Republican primary on September 9, 1980, but again failed to appear before the Supervisors of the Checklist prior to the deadline of June 3, 1980. McGonigle did not read the local newspaper, nor did he seek to go to the Town Hall or other public places where notices as to the meetings of the Supervisors of the Checklist had been posted. In each instance, the Supervisors of the Checklists of the respective Towns had met at least twice between February 26 and June 3, 1980, for the purpose of allowing voters to change their registration, and advance notices of their meetings had been published in local newspapers and posted in writing in public areas such as the Town Hall.3
The thrust of the plaintiffs' argument is that New Hampshire has no "compelling state interest", Dunn v. Blumstein, 405 U.S. 330, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972); Newburger v. Peterson, 344 F.Supp. 559 (D.N.H.1972) (three-judge court), which requires that change of registration be held on certain dates between primary elections and that their constitutional rights are unduly burdened by what they consider to be an unwarranted imposition of a requirement that they bestir themselves sufficiently to ascertain when and to appear where the meetings of the Supervisors of the Checklists are held. Although unclear, it appears that plaintiffs believe that they should be allowed to change registration immediately upon exiting the polling booth, or in the alternative, furnished with some sort of postcard or other document allowing them to freely mail in their change of registrations. In advancing their argument that they have been deprived of their constitutional rights, the plaintiffs rely heavily upon Kusper v. Pontikes, 414 U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973).
The 1977 Session of the New Hampshire Legislature appointed an Oversight Committee to completely recodify the state election laws, mandating that the recodification be prepared for legislative action by the 1979 Legislative Session. (See 1-A RSA, 1979 Supp., p. 42.) This mandate was complied with, and upon due consideration the 1979 Legislature enacted, inter alia, RSA 654, entitled "Voters And Checklists". RSA 654:15, Party Registration, provides in pertinent part:
Whenever names are added to the checklist, the supervisors shall register the party membership of the voter if he desires such membership registered; but, if such voter has already been registered in any town or ward in this state as a member of any party, he shall not be registered as a member of a different party closer in time to the primary than the day immediately prior to the first day for the filing of a declaration of candidacy....
A companion statute, RSA 655:14, requires that declarations of candidacy be filed not more than 96 days nor less than 75 days prior to the primary. Accordingly, persons who wish to change registration in accordance with RSA 654:15 must do so 97 days before the actual next primary election. Additionally, checklist supervisors are required by statute to be in session for the correction of the checklists on at least two separate days, and at such other times as they deem necessary, but such sessions shall not be "closer in time to the primary than the day immediately prior to the first day for the filing of a declaration of candidacy", RSA 654:32.
From examination of the foregoing statutory scheme, it is clear that an Independent voter in the position of the plaintiffs who has chosen to vote in the primary of a registered party may register again as an Independent before the next succeeding primary election, but must do so by appearing before the Supervisors of the Checklist at least 97 days before such next scheduled primary. If a voter wishes to wait until the actual primary to change registration, he or she may do so, but may not then cast a vote at such primary.
New Hampshire's primary balloting regulation results in a nominating procedure widely regarded as a "closed" primary, the form of which prevails in the great majority of states. See Smith v. Penta, 81 N.J. 65, 405 A.2d 350 at 352, appeal dismissed for want of substantial federal question, 444 U.S. 986, 100 S.Ct. 515, 62 L.Ed.2d 416 (1979). Under such system the statutes generally include some kind of affiliation requirement designed to exclude certain types of voters, which requirements might be designed to prevent from voting in party primaries:
(1) Voters generally affiliated with another party but wishing to cross over to a rival party's primary to support a weak candidate who is likely to lose in the general election to the nominee of the voters' preferred party (raiders); (2) voters generally affiliating with another party but wishing to cross over to support their preferred primary candidate in case the nominee of the voters' own party loses the general election (second choice supporters); (3) voters generally affiliating with another party but wishing to cross over to support a candidate preferred over any potential nominee of the voters' own party (cross overs); (4) voters generally not affiliating with any party but wishing to support a particular party candidate (independents).
Smith v. Penta, supra, 405 A.2d at 352, citing Developments in the Law-Elections, 88 Harv.L.Rev. 1111 at 1164 (1975).
Plaintiffs in the instant case urge that they are not interested in "raiding" and are sincerely Independents, as they are believers in the modern-day political approach wherein it is more important to address the issues...
To continue reading
Request your trial
-
Santana v. Registrars of Voters of Worcester
...aff'd sub nom. Williams v. Velez, 580 F.2d 1046 (2d Cir. 1978); Ury v. Santee, 303 F.Supp. 119 (N.D.Ill.1969). Cf. Young v. Gardner, 497 F.Supp. 396 (D.N.H.1980). The plaintiffs are entitled to an opportunity to prove the allegations which support their 3. Actual controversy. In order for a......