2005-606, LIBERTARIAN PARTY NEW HAMPSHIRE & a. v. THE STATE OF NEW HAMPSHIRE

The plaintiffs, Libertarian Party New Hampshire,

general, orally), for the State. attorney general, on the brief, and Wynn E. Arnold, senior assistant attorney Kelly A. Ayotte, senior assistant

the plaintiffs. to press. Errors may be reported by E-mail at the following address: Twomey Law Office on the brief and orally), for

editorial errors in order that corrections may be made before the opinion goes Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Readers are requested to notify the Reporter, Supreme Court of New

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as by nomination papers a political organization.”

p. 2 percent of the total votes cast at the previous state general election to nominate turn, provides: “It shall require the names of registered voters equaling 3 655:42, III.” RSA 655:40-a (Supp. 2005). RSA 655:42, III (Supp. 2005), in

papers, in the form prescribed by the secretary of state, pursuant to RSA

for the state general election by submitting the requisite number of nomination minor party: “A political organization may have its name placed on the ballot The third avenue is nomination by organization, or, in other words, by a

or county officer. senator; and 150 to nominate a candidate for state representative representative; 750 to nominate a candidate for councilor or state

nominate by nomination papers a candidate for United States

II. It shall require the names of 1,500 registered voters to

president, United States senator, or governor. nominate by nomination papers a candidate for president, vice-

from each United States congressional district in the state, to

I. It shall require the names of 3,000 registered voters, 1,500

provides in pertinent part:

papers.” RSA 655:40 (Supp. 2005). RSA 655:42 (Supp. 2005), in turn,

state general election by submitting the requisite number of nomination primary, a candidate may have his or her name placed on the ballot for the nomination by nomination papers: “As an alternative to nomination by party

The second avenue to placement on the general election ballot is

five for state representative, RSA 655:19-c, III. primary petitions ranges from 200 for governor and United States Senator to Senator to $2 for state representative, RSA 655:19-c, I(a) – (f); the number of

assessments range from $100 for the offices of governor and United States

specified number of primary petitions. RSA 655:19-c, I, III (Supp. 2005). The addition to other requirements, filing either an administrative assessment or a candidates for party nomination secure a place on the primary ballot by, in

election, except as otherwise provided. RSA 655:35 (1996). Prospective

election conducted according to the same procedures used for the general A major party’s candidate for elective office is chosen in a primary

meeting this definition.

meeting this definition and “minor party” for any political organization not will adopt the plaintiffs’ terms of “major party” for any political organization of governor or the offices of United States Senators.” For ease of reference, we

percent of the total number of votes cast for any one of the following: the office organization which at the preceding state general election received at least 4 p. 3 Berry v. Watchtower Bible & Tract Soc.

law. inquiry that tests the facts in the complaint against the applicable facts in the plaintiff[s’] favor. We then engage in a threshold

true, and we construe all reasonable inferences drawn from those

cases for guidance. See under the State Constitution only, we confine our analysis to it and cite federal guaranteed under the State Constitution. Because the plaintiffs make claims

recovery. We assume all facts pleaded in the plaintiff[s’] writ are writ are reasonably susceptible of a construction that would permit is to ascertain whether the allegations pleaded in the plaintiff[s’]

plaintiffs maintain that the statutes violate their right to equal protection

In reviewing the trial court’s grant of a motion to dismiss, our task

refer to all of the preceding rights as “associational rights.” Finally, the Speech) . . . [and] Article 4 (Rights of Conscience).” For ease of analysis, we will Association guaranteed jointly and individually by Part One Article 22 (Free

We apply the following standard of review:

statutory provisions, and the plaintiffs appealed. office.” They also argue that the ballot access provisions “violate the rights of

The State moved to dismiss the petition. The trial court upheld the the state, having the proper qualifications, has an equal right to be elected into shall have an equal right to vote in any election” and that “[e]very inhabitant of people on the [general election] ballot. to be free, and every inhabitant of the state of 18 years of age and upwards hurdles before they are allowed to bring their ideas before the

11 of the New Hampshire Constitution, which provides that “[a]ll elections are so called minor parties which have to clear extra burdensome

702, 706 (2006).

political organizations, so called major parties, which have The laws of the State of New Hampshire create two classes of

and citations omitted).

speech and association. Specifically, the plaintiffs’ amended petition alleged: constitutional rights to equal protection, equal right to be elected, and free independent candidates to the general election ballot, in violation of their state

statutory scheme limits the access of minor parties, their candidates and The plaintiffs commenced this action in superior court, arguing that this p. 4 We recently addressed this issue in Akins

Id

Id state interests.” Thus, they argue for a heightened standard of strict scrutiny. limitations imposed are the least restrictive measures available to preserve . . . only be limited upon a showing of compelling state interest where the

those interests make it necessary to burden the plaintiff[s’] rights.”

plaintiff[s’] rights, then the State’s important regulatory interests are generally fundamental right.

the right of freedom of speech and association are fundamental rights that can

imposed by its rule, taking into consideration the extent to which interests put forward by the State as justifications for the burden election law imposes only reasonable, nondiscriminatory restrictions upon the right to be elected into office under Part I, Article 11 is a rights that the plaintiff[s] seek[] to vindicate against the precise elected, we conclude that every New Hampshire inhabitant’s equal Part I, Article 11 expressly so provides for the equal right to be The plaintiffs contend that “[t]he equal right to vote and hold office and

this balancing test stems from Anderson v. Celebrezze ballot access rights than federal constitutional standards.”

regulation must withstand strict scrutiny to be constitutional. When the “weigh[s] the character and magnitude of the asserted injury to the election law at issue subjects the plaintiff[s’] rights to severe restrictions, the and is sometimes referred to as the Anderson rights have in our democratic system of government, and because test. Under this test, “when the

(1992)) (ellipsis omitted). We note, for ease of reference to federal cases, that cases “employed a reasonableness standard . . . [that] is no more protective of mean that any impingement upon that right triggers strict scrutiny.” Id. at ___, 904 A.2d at 707 (quoting Burdick v. Takushi, 504 U.S. 428, 434

A.2d at 707. This test United States Supreme Court under the Federal Constitution. Id fundamental right to vote, and because of the importance that both. at ___, 904 904 A.2d at 706. Rather, we adopted the balancing test employed by the

Because the equal right to be elected operates so closely with the

reasonableness test. Specifically, it ruled that “[c]onsidering New Hampshire’s The plaintiffs argue that the trial court erred in applying a p. 5 Id

requires in this type of situation.

outcomes – is the linchpin of what the [Federal] Constitution opportunity exists, and equality of opportunity – not equality of New Hampshire law as does any other party. Equality of

5% of the vote in the last election is not invalid on its face.” American Party of that a nominating scheme “[d]emanding signatures equal in number to 3% or and election rights are not severe. The United States Supreme Court has noted We also conclude that the statutory restrictions imposed upon voting

qualify as a source of election inspectors and ballot clerks under

associational rights.

. . . [T]he Libertarian Party has exactly the same opportunity to

papers a political organization, do not impose a severe burden upon

our state constitutional analysis. conclude that the challenged statutes are nondiscriminatory for purposes of opportunity to qualify for a place on the general election ballot. Thus, we electoral accomplishment is not per se invidiously discriminatory. Distinguishing between recognized political parties based on past and ballot clerks on a certain degree of success at the polls.

total votes cast at the last state general election to nominate by nomination to 3,000 for nomination of an independent candidate to three percent of the trouble concluding that the signature requirements at issue, ranging from 150 difference in population between Texas and New Hampshire, we have little approaches the frivolous,” id. at 789. Accordingly, and even in view of the signature requirement with a “500-signature limit . . . [as] unduly burdensome and that the statutes challenged here provide the plaintiffs an equal requiring 22,000 signatures, id. at 778, and observed that challenging a Texas v. White [T]he regulation conditions the right to appoint election inspectors, 415 U.S. 767, 789 (1974). It also upheld a nomination process

plaintiffs’ associational rights. See

Hampshire Constitution also requires equal opportunity, not equal outcomes, . at 484-85. We agree with this reasoning and conclude that the New

reason: of ballot clerks and election inspectors were nondiscriminatory for the following

impose severe restrictions or only reasonable, nondiscriminatory ones upon the Accordingly, we must first determine whether the challenged statutes

sufficient to justify the restrictions.” Akins

Appeals noted that certain New Hampshire statutes governing the appointment Merrill, 84 F.3d 479, 484 (1st Cir. 1996). In Werme, the First Circuit Court of differentiate among Republicans, Democrats, and Libertarians.” Werme v. initially that the statutes are nondiscriminatory in that they “[do] not

(quotations and citation omitted).

p. 6 purpose and scope of the State-created classification and the individual rights election. and even frustration of the democratic process at the general

ballot – the interest, if no other, in avoiding confusion, deception,

scrutiny and rational basis standards, see

to justify the restrictions.” Akins considering an equal protection challenge under our State Constitution, we We next address the plaintiffs’ equal protection challenge. “In printing the name of a political organization’s candidate on the is a “fundamental activity,” strict scrutiny should be applied. preliminary showing of a significant modicum of support before II fundamental right,” id There is surely an important state interest in requiring some. at 637. The plaintiffs again argue that because voting applicable to “[c]lassifications based upon suspect classes or affecting a

equal protection analysis usually employs the strict scrutiny, intermediate

in mind that “the State’s important regulatory interests are generally sufficient the State as justifications for the burden[s] imposed by [the statutes],” bearing discriminatory or severe, we next consider “the precise interests put forward by

unconstitutionally burden the plaintiffs’ associational interests. the statutes challenged here. We conclude that the statutes do not federal constitutional balancing test: under our state constitutional analysis, to justify the restrictions imposed by , 403 U.S. at 442. We likewise consider the State’s interests sufficient, scheme upheld in Jenness v. Fortson does not severely burden associational rights. In comparison, the electoral percent of the votes cast for the offices of governor or United States Senator –

Having determined that none of the challenged restrictions is

Supreme Court has deemed these interests important for purposes of its confusion and in running efficient and equitable elections.” The United States omitted). The State asserts that it has an “interest in avoiding undue voter

We also conclude that the threshold required for party status – four

and primary election obligations.” achieve the status of “‘political party’ with its attendant ballot position rights organization to garner twenty percent support at a prior election in order to

p. 7 petition process by paying $100, a significant discount compared

The putative major party candidate can of course by-pass the

plaintiffs continue the comparison:

submitting half the signatures coming from each congressional district.” The

parties, who also don’t have to meet the totally arbitrary requirement of petition signatures required to get on the ballot for candidates of the major nomination paper requirements of RSA 655:42 are “fifteen times the number of

Akins

state and federal elections.” Akins Viewed alternatively, it involves purported disadvantages faced by minor bestowed upon the majority party in all state elections in New Hampshire.” The plaintiffs contend that this case “involves a question of advantages

and citizens’ rights. Accordingly, we hold that the balancing test adopted in found in Part I, Article11 and to which we have applied the Akins conclude that such an equal protection analysis must also balance the State’s to an equal protection analysis as it is to an associational rights analysis, we unclear whether the Anderson

Constitution grants states the right to regulate the time, place, and manner of

is applicable to the equal protection challenge here.

claims here are not just related to, but based upon, the associational rights

904 A.2d at 706. Because the State’s right to regulate elections is as relevant of Appeals, for instance, noted that “this Court, as well as others, has been elections with citizens’ [constitutional] rights to vote and be elected.” Id. at ___, Federal courts have struggled with the same question. The Third Circuit Court Akins we held, “we must balance the legislature’s [constitutional] right to regulate analysis, we should employ the same test to an equal protection analysis. , 154 N.H. at ___, 904 A.2d at 706 . Thus,

associational rights found in the First Amendment.” Id rights at issue were fundamental, “Article I, Section 4, Clause 1 of the Federal Akins was based upon our recognition that although the voting and election Rogers, 460 F.3d at 460-61. Moreover, our adoption of the balancing test in

enumerated guarantee of equality in . . . voting.” Thus, the equal protection because “Part I, Article 11 [of] the State Constitution contains an explicitly the plaintiffs themselves assert that voting is a “fundamental activity” precisely is the appropriate test to apply to this equal protection challenge. First, For similar reasons, we conclude that the balancing test we adopted in fundamental right at issue to a balancing test under our associational interest The question arises, however, whether having subjected the admittedly . at 460-61. analyzing such equal protection claims due to their relationship to the Rogers court concluded that “the Anderson test is the proper method for Amendment case.” Rogers v. Corbett, 460 F.3d 455, 460 (3d Cir. 2006). The brought under the Equal Protection Clause, given that Anderson is a First

p. 8 In addition, we agree with the United States Supreme Court that differing

place on the party’s primary

imposed upon major party candidates. be considered severe when viewed as additional burdens as compared to those

alternative ballot access methods. In American Party of Texas The United States Supreme Court has noted the difficulty of comparing juxtaposing the requirements a major party candidate must meet to secure a for appearing on the primary ballot, but must also win the party’s primary.

statutes impose upon the plaintiffs are not severe. Thus, they cannot logically

the statutes at issue do impose a more onerous burden upon the plaintiffs than Assuming, however, for purposes of an equal protection analysis, that

that cannot be uncritically accepted.” Jenness The plaintiffs’ argument, however, compares apples and oranges by election ballot, a major party candidate must not only satisfy the requirements (Citation omitted.) citation omitted). We previously concluded that, taken alone, the burdens the Jenness nondiscriminatory. Akins, 154 N.H. at ___, 904 A.2d at 707 (quotations and the additional burdens upon the plaintiffs are severe, or reasonable and more onerous in fact.” American Party of Texas test requires us to determine whether primaries and precinct conventions – and it is problematical at best which is

omitted).

than it is to win the votes of a majority in a party primary. That is a premise The plaintiffs’ argument also ignores that in order to get on the general for a candidate to gather the signatures of 5% of the total eligible electorate “necessarily bottomed upon the premise that it is inherently more burdensome , the Court noted that the equal protection claim at issue was 20; state representative – 150, rather than 5. difficulty, in turn, poses a problem for an equal protection claim. Thus, in candidates; executive councilor or senator – 750, rather than 50 or , 415 U.S. at 784 n.16. This 1500 signatures, rather than the 100 needed by major party

observed that “Texas has provided alternative routes to the ballot – statewide

for one against the other grossly confuses the issue.” not a general election, and to endeavor to measure ballot access requirements nom. Rogers v. Corbett, 460 F.3d 455 (3d Cir. 2006), “[a] primary election is by the court in Rogers v. Cortes, 426 F. Supp. 2d 232, 242 (M.D. Pa.), aff’d sub Seekers of other offices face similar steep hurdles: Congress – candidate must meet to secure a place on the general election ballot. As stated signatures for candidates of the minor parties in the 2004 election. ballot with the requirements an independent the trial court purported to engage in the Anderson p. 9 petition without benefit of an evidentiary hearing. They argue that although

The plaintiffs also contend that the trial court erred in dismissing their

proper application of the Anderson purportedly sought to be protected against.” The plaintiffs appear to argue that

Jenness

restrictions placed upon ballot access in New Hampshire and the harms providing different routes to the printed ballot. make it necessary to burden the plaintiff[s’] rights.” Akins particularly “taking into consideration the extent to which [the State’s] interests We also conclude that the additional burdens are reasonable,

candidate on the ballot,” Jenness challenge must fail. evidence. We disagree. significant . . . support before printing the name of a political organization’s test requires that the trial court hear

conclude, under the Akins reasonable, nondiscriminatory restrictions upon the plaintiff[s’] rights,” we absolutely no evidence before it [to establish] there was any link between the invidious discrimination in recognizing these differences and balancing test, “it had

at 707 (quotations omitted). Accordingly, the plaintiffs’ equal protection has an important “interest in requiring some preliminary showing of . . . are . . . sufficient to justify the restrictions.” Akins, 154 N.H. at ___, 904 A.2d

781. Having determined that the challenged statutes “impose[] only political organization on the other. [A State is not] guilty of significantly less burdensome ways.” American Party of Texas, 415 U.S. at established broad support, on the one hand, and a new or small pursuit of vital state objectives that cannot be served equally well in the needs and potentials of a political party with historically position in some other manner.”). requirements to be “constitutionally valid measures, reasonably taken in latter, without being invidiously treated, may be required to establish their signatures. The United States Supreme Court has held similar ballot access the electorate at the last election, whereas the smaller parties need not, the reasonable means of demonstrating such support is through petition

904 A.2d at 707 (quotation omitted). We previously acknowledged that a State

The fact is that there are obvious differences in kind between

782-83 (“So long as the larger parties must demonstrate major support among , 403 U.S. at 441-42; see also American Party of Texas, 415 U.S. at unconstitutional. See

p. 10 because such a purpose is not a recognized basis for declaring a statute Any evidence of an alleged nefarious legislative purpose would be irrelevant These allegations, however, do not necessitate an evidentiary hearing.

Id

to the Republican party.”

protected rights.”

for the sole purpose of eliminating the Libertarian Party as a viable challenger status from three to four. The plaintiffs alleged that this change “was enacted 652:11, which changed the percentage of prior support required for major party reasonable and does not significantly impinge on constitutionally foresight rather than reactively, provided that the response is to respond to potential deficiencies in the electoral process with

State’s motion to dismiss.

(Quotation omitted.) In particular, they challenge the 1997 amendment of RSA

did not err by not conducting an evidentiary hearing before it granted the

specifically designed solely to preserve the power of the majority party.” parties were unnecessary to meet a genuine state interest[] and in fact were they “specifically alleged that the barriers put before the candidates of smaller system sustain some level of damage before the legislature could Such a requirement would necessitate that a State’s political of the “evidence” marshaled by a State to prove the predicate. in raising it from its previous level of three percent. Accordingly, the trial court itself constitutional, the statute will stand regardless of the legislature’s motive “inquire into the motives of the legislature”). If the four percent threshold is cf. Lisbon School District v. District, 96 N.H. 290, 295 (1950) (court does not constitutional statute on the basis of an alleged illicit legislative motive.” Id.; constitutional law that this Court will not strike down an otherwise the United States Supreme Court has stated: “It is a familiar principle of

The plaintiffs nevertheless argue that a hearing was required because

would invariably lead to endless court battles over the sufficiency

were not entitled to an evidentiary hearing. . at 195-96. We agree with this reasoning and conclude that the plaintiffs predicate to the imposition of reasonable ballot access restrictions overcrowding, or the presence of frivolous candidacies as a To require States to prove actual voter confusion, ballot

In Munro v. Socialist Workers Party

restrictions on ballot access.” It explained: or the presence of frivolous candidacies prior to the imposition of reasonable particularized showing of the existence of voter confusion, ballot overcrowding, Supreme Court observed that it has “never required a State to make a

p. 11 claims, but found their allegations “troubling,” id agreed that it would not be proper to rule upon the respondents’ newly-raised LPO’s or some other party’s primary, then more probing scrutiny of discriminatory restriction on voters’ ability to participate in the appropriate case, that such regulations imposed a weighty or

Justice O’Connor, concurring in part and concurring in the judgment,

associate through primary elections. . . . [I]f it were shown, in an

examine the cumulative [I]f they had been properly raised, the Court would want to

include other election laws in addition to §1-104. Id electoral regulations upon the rights of voters and parties to

. . . the cumulative effect . . . on the[ir] rights.” They also argue that Clingman concurring in part and concurring in the judgment), and stated: interests, the trial court was required to engage in fact finding to “determine primary impose[d] [was] minor and justified by legitimate state interests.” Id. at 607 (O’Connor, J., they alleged a “[p]ervasive statutory scheme” that burdened their associational primary. Clingman only its own members and registered independents to vote in that party’s 598. declined to consider the expanded claim as it had not been raised below. Id. at We disagree both with the plaintiffs’ interpretation of Clingman. at 597. The Court recent election case, Clingman v. Beaver for the first time on appeal, the respondents had broadened their challenge to presented in this case.” Independent status.” Id. at 588 (Thomas, J.). The Court noted, however, that members of other parties from switching their registration to the LPO or to at 587. A plurality of the Court reasoned that “[n]othing in §1-104 prevents

upheld the statute, concluding that “any burden Oklahoma’s semiclosed effect of an overall system of election laws.” The plaintiffs claim that because, 544 U.S. at 584. The United States Supreme Court

challenged an Oklahoma statute (§1-104) that allowed a political party to invite conclusion. In Clingman, the Libertarian Party of Oklahoma (LPO) and others

cases in its analysis, it overlooked the United States Supreme Court’s most Finally, the plaintiffs argue that although the trial court looked to federal “calls into question the relevancy of a reasonableness standard to the issues

[the] ruling was limited to situations where there was no claim of a cumulative same reasonableness standard adopted by the [trial court] in this case[,] . . . contend that although the Court in Clingman upheld a statute “utilizing the

p. 12 considering such a motion “need not accept statements in the complaint which

scrutiny. Nor are they sufficient to survive a motion to dismiss, as a court These conclusory allegations are not sufficient to trigger heightened

diminish and threaten democracy in New Hampshire.

disputes. Taken individually and collectively, these actions

dominant party control of the body deciding close election members of the Ballot [Law] Commission so as to guarantee seats safe; and removal of independent judicially appointed

disenfranchised; mid-decade gerrymandering to make majority

member districts where voters of minority parties are effectively 12 virtually guaranteeing the first spot on all ballots; huge multito tilt the playing field to their advantage. Others include laws

DALIANIS, DUGGAN, GALWAY and HICKS, JJ., concurred.

For all of the foregoing reasons, we affirm the trial court’s decision.

democratic and unfair practices promulgated by the largest party

competition.” Id. nevertheless have the combined effect of severely restricting participation and panoply of regulations, each apparently defensible when considered alone, may

rights by effectively preventing them from changing their party affiliations in (quotation omitted). and voter registration laws, taken together, severely burden their associational, 136 N.H. 215, 216 (1992)

This restriction of ballot access is only one of a series of anti-

worked together to their detriment: practices claimed to have disadvantaged them, with no indication of how they

Justice O’Connor’s opinion advances the unremarkable proposition that “[a]

Specifically, “[r]espondents contend[ed] that several of the State’s ballot access

In Clingman

us, the plaintiffs’ amended complaint merely listed a series of provisions and advance of a primary election.” Id. at 597 (emphasis added). In the case before right to an evidentiary hearing and a stricter standard of review. We disagree. The plaintiffs seize upon Justice O’Connor’s opinion as supporting their

various election-related statutes worked together to burden their rights.

judgment).

. (O’Connor, J., concurring in part and concurring in the

judgment). . at 607-08 (O’Connor, J., concurring in part and concurring in the