2005-794, RALPH L. AKINS & a. v. SECRETARY OF STATE

No. 2005-794 Merrimack

of randomly selecting both party order and candidate order on the ballot. At provisions of RSA 656:5 and requested that the trial court mandate a method were disadvantaged in the 2004 New Hampshire general election by the

THE SUPREME COURT OF NEW HAMPSHIRE The record supports the following facts. The petitioners alleged that they

Superior Court (McGuire

, of Epsom (Paul Twomey

candidates in the 2004 New Hampshire general election, appeal an order of the Kelly A. Ayotte

page is: http://www.courts.state.nh.us/supreme. a.m. on the morning of their release. The direct address of the court's home election ballots is unconstitutional. We reverse and remand. reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 that the organization of parties and candidates on New Hampshire general

party and individuals who ran as Democratic, Republican, or Libertarian GALWAY, J. The petitioners, who are the New Hampshire Democratic

attorney general, on the brief and orally), for the respondent.

the petitioners. 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 election. Id

p. 2 represent the party that received the most total votes in the preceding general

(Supp. 2005). The current statute requires that the first column on the ballot

listing all of one party’s candidates for all offices in one column. RSA 656:5 establishes a “party column” format ballot, which groups candidates by party, In 2004, the legislature amended RSA 656:5. The current version

RSA 656:5 (Supp. 2004) (amended 2004).

shall be printed near the candidate’s name.

grouping. The name of the party which nominates the candidate

alphabetically according to their surnames within each party with the given name first, and the candidates shall be listed shall be listed first. The names of the candidates shall be printed

largest number of votes at the last preceding state general election

and the names of the candidates of the party which received the

grouped according to the party which nominates the candidate, lines within a separate box. The name of each candidate shall be II. All candidates for the same office shall be placed on separate

office shall not be split into more than one column. column shall contain the names of the candidates of one party; provisions of RSA 656:7. The names of candidates for any one election laws shall be arranged by office in accordance with the

general election ballot in successive party columns. Each separate I. The names of all candidates nominated in accordance with the Listing Candidates on Ballot.

The language of RSA 656:5 in effect in 2004 read as follows:

election. Id

accordance with the election laws shall be arranged upon the state Party Columns. The names of all candidates nominated in

statute reads, in pertinent part, as follows: candidates from the same party running for the same office. Id. The current candidates would be arranged alphabetically by surname within each party. that the 2006 ballots will also list by alphabetical order within each column the alphabetical order; however, the Secretary of State testified at trial in this case

. The current statute no longer requires that candidates be listed in

from the party that received the most total votes in the preceding general that the first candidate listed for any given office on the ballot is the candidate

. Thus, the current statute shares the former statute’s requirement

office box. RSA 656:5, II further organized the ballot by providing that the offices combined in the preceding election would be listed first within each that the candidates of the party that had received the highest total votes for all

the candidates for an office were grouped within a box. RSA 656:5, II required that time, RSA 656:5 provided for an “office block” format ballot, in which all of petitioners’ constitutional arguments. The trial court first addressed the

p. 3 After making its factual findings, the trial court addressed the

The State does not appeal this finding. influence, to some small degree, the outcome of New Hampshire elections.”

elections both nationwide and in New Hampshire, stating that “primacy effects

Secretary of State, the trial court found that the primacy effect influences the State’s. Based upon testimony from the petitioners’ expert and the The trial court found that the petitioners’ expert was more credible than

long as twelve candidates. six to ten percent advantage upon candidates whose names appear on lists as committee that studies showed that the primacy effect can confer as much as a

regarding the primacy effect. Gardner affirmed at trial that he had told the

prior testimony that he gave before the senate public affairs committee

of votes in the 1964 general election. Secretary Gardner also testified regarding general election ballot was 1966, after the Democratic party gained the majority party other than the Republican Party was listed first on a New Hampshire

Secretary of State William Gardner testified at trial that the last time any

testimony that contradicted the petitioners’ expert testimony. candidate’s or party’s position on the ballot. The State presented expert

to choose the first candidate or party listed for an office because of the

that some New Hampshire voters, like voters in other states, will be influenced testified regarding the primacy effect in New Hampshire elections, concluding with ballots containing many candidates, parties, or issues. The expert also

primacy effect, with voters tending to select choices listed first when presented

primacy effect, and vice versa. In addition, difficulty of choice also affects the

with the more educated and knowledgeable voters being less influenced by the education levels and knowledge about the candidates affects the primacy effect, known as the “primacy effect.” The expert testified that, in elections, voters’ 3

information, about their choices is to select the choice listed first. This is

respondents who have no meaningful information, or have conflicting choices are presented visually, such as on a survey or ballot, the tendency of alphabetical list. The petitioners presented expert testimony that, when

number of votes at the last preceding state general election. Id names of the candidates of the party which received the largest practicable in the same column. The first column shall contain the

list have an advantage over candidates appearing at the bottom of an

by a political party, 2 or more such lists may be arranged whenever except that, if only a part of a full list of candidates is nominated

petitioners also argued that candidates appearing at the top of an alphabetical first on the ballot have an advantage over candidates from other parties. The At trial, the petitioners argued that the candidates of the party positioned

p. 4 It is the role of this court to interpret the State Constitution and to

State argues, is sufficient to survive rational basis review. 656:5 rationally establishes a logical and easily understood ballot, which, the right and falls within the State’s right to reasonably regulate elections. RSA

counts in the prior election does not implicate a suspect class or a fundamental

review because the positioning of parties on a ballot according to their vote The State responds that the trial court properly used rational basis

alphabet.

party and candidates whose surnames begin with the first letters of the arrangement unequally grants the benefits of the primacy effect to the majority by the Secretary of State impinges upon this fundamental right because the

arrangement of parties and candidates established by RSA 656:5 and practiced

argue, because the equal right to be elected is a fundamental right. The

of scrutiny to apply. Strict scrutiny should apply in this case, the petitioners The petitioners appeal, arguing that rational basis was an incorrect level

interest of ordering a ballot.

of candidates based upon alphabetization served the legitimate governmental political parties on the basis of success in prior elections and the organization to the equal protection argument, concluding that distinguishing between

courts have accepted findings that the first position on a ballot confers an Articles 1, 2, 10, 12, and 14. The trial court also applied a rational basis test

elections. Accordingly, we accept this finding. We note that other appellate the evidence adduced at trial, that the primacy effect confers an advantage in New Hampshire Constitution’s equal protection guarantees under Part I, The State does not appeal the trial court’s finding, which is supported by court next addressed the petitioners’ argument that RSA 656:5 violates the the organization of the ballot was a permissible regulation of voting. The trial

will not declare it invalid except upon inescapable grounds.” Id

it alone, citing federal cases for guidance only. Id. art. 11. The trial court applied a rational basis level of scrutiny and found that petitioners argue only under the State Constitution, we base our decision upon

280 (2006). “In reviewing a statute, we presume it to be constitutional and we de novo. Gonya v. Comm’r, N.H. Ins. Dep’t., 153 N.H. ___, ___, 899 A.2d 278, Whether or not a statute is constitutional is a question of law, which we review

qualifications, has an equal right to be elected into office.” N.H. CONST. pt. I, provides, in pertinent part: “Every inhabitant of the state, having the proper established in Part I, Article 11 of the New Hampshire Constitution, which

candidate order practiced by the Secretary of State violate the voting rights petitioners’ argument that the party order established by RSA 656:5 and the state and federal elections. Burdick v. Takushi

p. 5 Constitution grants states the right to regulate the time, place, and manner of strict scrutiny, however. Article I, Section 4, Clause 1 of the Federal fundamental does not mean that any impingement upon that right triggers

Simply because the equal right to be elected under Part I, Article 11 is

that elections are operated equitably and efficiently.

state interest . . . would tie the hands of States seeking to assure

into office under Part I, Article 11 is a fundamental right. we conclude that every New Hampshire inhabitant’s equal right to be elected because Part I, Article 11 expressly so provides for the equal right to be elected,

that the regulation be narrowly tailored to advance a compelling [T]o subject every voting regulation to strict scrutiny and to require

between similar rights in the following manner:

importance that both rights have in our democratic system of government, and

and be elected. The United States Supreme Court has struck a balance balance the legislature’s right to regulate elections with citizens’ rights to vote operates so closely with the fundamental right to vote, and because of the also Kibbe v. Town of Milton, 142 N.H. 288, 293-94 (1997). Thus, we must voters supporting all other candidates”). Because the equal right to be elected, 504 U.S. 428, 433 (1992); see position[] to a particular class of candidates inevitably discriminates against

are entitled to review under strict judicial scrutiny. Claremont School Dist. v. candidates and the right to vote. Anderson v. Celebrezze when governmental action impinges upon a fundamental right, such matters elected is a fundamental right. The petitioners are correct that, generally,

the equal right to be elected are “closely connected.” Opinion of the Justices

P.2d at 1338-39 (concluding, “any procedure which allocates [an] advantageous some theoretical, correlative effect on voters” (quotation omitted)); Gould, 536 themselves to neat separation; laws that affect candidates always have at least (1983) (stating, “the rights of voters and the rights of candidates do not lend

Other courts have recognized the close connection between the rights of CONST. pt. I, art. 11; see Article 11 of the New Hampshire Constitution because the equal right to be also Wilkes v. Jackson, 101 N.H. 420, 422 (1958). have been linked in our constitution in Part I, Article 11 since 1784. See N.H. 83 N.H. 589, 592-93 (1927) (overruled on other grounds). Both of these rights

to be elected. We have previously stated, however, that the right to vote and (2001), we have never expressly determined the classification of the equal right advantage. Tsongas v. Secretary of the Commonwealth fundamental, see McGraw v. Exeter Region Coop. Sch. Dist., 145 N.H. 709, 713 Governor, 142 N.H. 462, 472 (1997). Although the right to vote is

incorrect level of scrutiny to apply to their claim that RSA 656:5 violates Part I, We first address the petitioners’ argument that rational basis was an

52 (Mass. 1972); Gould v. Grubb, 536 P.2d 1337, 1341 (Cal. 1975) (en banc).

p. 6 elected. The ordering of parties on a ballot based upon votes in the prior

places a severe restriction on the constitutionally enumerated equal right to be of the primacy effect’s benefits to some groups of candidates and not to others potential to change the result of an election. Thus, the persistent assignment

decided by narrow margins, and even a small degree of influence carries the

the outcome of elections is small, it is well known that elections are often elected. Although the trial court found that the primacy effect’s influence on begin with letters near the beginning of the alphabet the equal right to be

mandate or by practice, similarly deprives candidates whose surnames do not

elected. The ordering of candidates in alphabetical order, either by statutory to enjoy the advantages of the primacy effect, and, thus, an equal right to be election, RSA 656:5 denies candidates of minority parties an equal opportunity

grants the primacy effect to the party that received the most votes in the prior

affect one candidate’s victory over another. By establishing a system that

confirms that the impact of the primacy effect may be sufficiently strong to influences, even to a small degree, the outcome of New Hampshire elections potency of the primacy effect. The trial court’s finding that the primacy effect

percent in races where there are numerous candidates demonstrates the

testimony that the primacy effect can confer an advantage as great as six to ten “reasonable, nondiscriminatory restrictions.” The Secretary of State’s severe restrictions or whether the statute and the alphabetization impose only

Burdick

alphabetizing candidates subject the petitioners’ equal right to be elected to

interests make it necessary to burden the plaintiff’s rights. by its rule, taking into consideration the extent to which those put forward by the State as justifications for the burden imposed

to consider whether RSA 656:5 and the Secretary of State’s practice of Applying the above framework to the instant case, the task before us is

. . . that the plaintiff seeks to vindicate against the precise interests

Hampshire Constitution as well as the legislature’s right to regulate elections.

the character and magnitude of the asserted injury to the rights A court considering a challenge to a state election law must weigh constitutional. Id

considers the rights of voters and candidates under Part I, Article 11 of the New restrictions.” Id. (quotations omitted). We conclude that this analysis properly important regulatory interests are generally sufficient to justify the nondiscriminatory restrictions” upon the plaintiff’s rights, then “the State’s

. at 434. When the election law imposes only “reasonable,

“severe” restrictions, the regulation must withstand strict scrutiny to be . . . . framework, when the election law at issue subjects the plaintiff’s rights to , 504 U.S. at 433-34 (quotations omitted). Under this analytical that provided for unequal or biased distribution of the primacy effect. See p. 7 that other states have found unconstitutional statutes and election procedures guaranteed equal right to be elected is one not shared by most states, we note

New Hampshire Constitution. Although New Hampshire’s constitutionally

scrutiny, and that both are thus unconstitutional under Part I, Article 11 of the achieve a manageable ballot, we hold that neither restriction survives strict the Secretary of State’s practice of alphabetizing candidates is necessary to

receiving the most votes in the prior election enjoy first place on the ballot nor

Because neither the provision of RSA 656:5 requiring that the party

place.”

equal number of times at the top, at the bottom, and in each intermediate

the accomplishment of its legitimate purpose.” Follansbee v. Plymouth Dist. the ballot “so that each name shall appear thereon as nearly as may be an

rotating the names of the candidates for a particular office, e.g.

“be justified by a compelling governmental interest and must be necessary to primary elections, candidates running for the same office shall be alternated on To comply with strict judicial scrutiny, the governmental restriction must minimizes the primacy effect. RSA 656:24 (Supp. 2005) dictates that, in create a manageable ballot using a different method of organization that

priority ballot listing to incumbents and advantageous ballot position based Gould created manageable ballots using other methods of organization, such as, 536 P.2d at 1345-47 (concluding that a city charter provision providing alphabetization are necessary to create a manageable ballot. Other states have arranging the ballot as required by RSA 656:5 and the practice of

constitutional. in creating a manageable ballot, see Supp. 2006). Additionally, the legislature has already shown that it is able to alphabetical order by surname. Although the State has a compelling interest

integrity of the election process), the State has failed to demonstrate that

practice of alphabetizing candidates must comply with strict scrutiny to be Elec. Code § 13112 (Deering Supp. 2006); 10 Ill. Comp. Stat. 5/7-60 (West Accordingly, the relevant provision of RSA 656:5 and the Secretary of State’s that candidates of the same party running for multi-seat offices are arranged in randomly selecting the order of candidates for a particular office. E.g. Cal. surnames do not begin with letters located near the beginning of the alphabet. § 15.15.030(6) (Supp. 2005); Ohio Rev. Code Ann. § 3505.03 (West 2005), or

(1989) (declaring that states have a compelling interest in preserving the Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 231

the most votes in the previous election receives first place on the ballot and so candidates running in minority parties and against candidates whose a logical and easily understood ballot by arranging it so that the party receiving nondiscriminatory restrictions,” because these restrictions discriminate against Ct., 151 N.H. 365, 367 (2004). The State argues that its interest is to promote p. 8 8

Reversed and remanded

petitioners’ equal protection argument. Due to our holding under Part I, Article 11, we need not address the

protection clauses of the Federal and California Constitutions); Kautenburger BRODERICK, C.J., and DALIANIS, DUGGAN, and HICKS, JJ., concurred. upon alphabetization of candidates failed strict scrutiny and violated the equal

election ballots that would be tallied by voting machines). Arizona statute that provided for alphabetical listing of candidates on primary v. Jackson, 333 P.2d 293, 295 (Ariz. 195 p. 8 8) (declaring unconstitutional an