USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT

_________________________

No. 95-1982

PAULA WERME, ET AL.,

Plaintiffs, Appellants,

v.

STEPHEN MERRILL, GOVERNOR OF NEW HAMPSHIRE, ET AL.,

Defendants, Appellees.

_________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

___________________

_________________________

Before

Selya and Cummings,* Circuit Judges,

______________

and Coffin, Senior Circuit Judge.

____________________

_________________________

Barnes, Bender & Boehm, Martin Bender, 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.

____

_________________________

May 23, 1996

_________________________

__________
*Of the Seventh Circuit, sitting by designation.

SELYA, Circuit Judge.

SELYA, Circuit Judge.
_____________

We must determine in the

course

of this

bounds

appeal whether New Hampshire

by denying a recognized third party the right, enjoyed by

the state's two

inspectors

Day.

overstepped constitutional

most popular political parties, to have election

and ballot clerks

We conclude, as

present at

the polls

did the district court,

on Election

that the state's

statutory scheme passes constitutional muster.

I.
I.

BACKGROUND
BACKGROUND

The

material facts are not in genuine dispute.

Hampshire, as elsewhere,

dominate the

political scene.

make their mark.

group,

the Democratic

In

and Republican

Nevertheless, third

the 1990 gubernatorial

In New

parties

parties can

election one

such

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.

652:11 & 655:14

(1986).

status by virtue of

See N.H. Rev. Stat. Ann.

___

The Libertarian Party

the number of votes its

retained that

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,

____________________

1To
claims

cite
that

a few
one

of the

town

neglected

Libertarian votes cast in the

Secretary of

more

State; that,

refused

to

permit a

to

forward

the

the party
count

of

1990 gubernatorial election to the

in another town,

contrary to then-existing state

659:14 (1986), since

bruited examples,

law, see N.H. Rev. Stat.

___

amended, see id.

___ ___
registered

election officials,

659:14(I)

Democrat to

Ann.

(1994 Supp.),

change

her party

Paula

Werme,

registered

selectmen in Mont Vernon

Libertarian,

requested

campaign

to

the

the

appoint her to represent her party as a

ballot clerk at the March 1994 municipal election.

denied her request.

that

The selectmen

In rapid succession Werme then

Secretary

of

State

and, failing

brought her

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

inspectors and ballot

to

free

appointment of election

clerks abridged her constitutional

association, due

process,

and

rights

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

Republican

same basis

parties.

additional plaintiff.

motions

for

interest

in

Libertarian

the

challenged

of the

Party

The district court,

summary judgment,

justified the

the

The

as members

efficient

concluded

management

small restriction

Democratic and

intervened as

after mulling cross-

that

the defendants'

of election

on the plaintiffs'

statutes entailed,

and

an

upheld New

activities

rights that

Hampshire's

statutory scheme.

II.
II.

This appeal followed.

STANDARD OF APPELLATE REVIEW

STANDARD OF APPELLATE REVIEW

The

summary

judgment

standard is

both

prosaic

and

____________________

registration and

affiliate with the Libertarian

on occasion voters discovered

made

in their

listed

Party; and that

that unauthorized changes had been

party affiliations.

No

complaints were

filed with the Secretary of State in connection with any of these

incidents.

familiar,

F.3d

see, e.g.,
___ ____

McCarthy v.
________

313, 315 (1st Cir. 1995) (collecting

need to rehearse it here.

First,

Northwest Airlines, Inc., 56

_________________________

We simply

cases), and we see no

restate two basic verities.

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

Fed. R. Civ. P. 56(c).

grant

of

Second, the court of

summary judgment

de

principles that held sway in the

novo,

1996) [No. 95-1804, slip op. at 8].

III.
III.

THE STATUTORY SCHEME

THE STATUTORY SCHEME

See
___

appeals reviews the

applying

the same

nisi prius court.

John Hancock Mutual Life Ins. Co., ___

__________________________________

law.

legal

See Roche v.
___ _____

F.3d ___, ___

(1st Cir.

New

stuff.

Hampshire's electoral machinery is pretty standard

town moderator

supervises Election

See N.H. Rev. Stat. Ann.

___

of other

the

votes

659:9.

election officials,

two political parties

[cast]

general election. . . ."

including inspectors

in the

Id.
___

may appoint two inspectors per

inspector for

The moderator commands a cadre

that received "the

for governor

Day activities.2

state

658:2.

appointed by

largest number of

at the

last previous

Each such political party

polling place, and one additional

every 1,500 qualified

voters in

excess of

qualified voters registered at that polling place.

See id.
___ ___

2,000

If a

political party fails to appoint inspectors, the town's selectmen

____________________

2While procedures

are slightly different in

cities than in

towns, the differences are irrelevant to

appeal.

Consequently,

procedures

in

towns,

we

the disposition of this

refer throughout

omitting

to

particularized

the

election

references

to

counterpart procedures that apply in urban settings.

fill

the

party.

lacuna by

See id.
___ ___

naming inspectors

In turn,

from

See id.
___ ___

658:25.

of that

the moderator designates two election

inspectors, one from each of the two parties,

clerks.

the ranks

to serve as ballot

Ballot

clerks exercise

no

discretion.

ministerial duties include distributing

Their purely

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

provides her with a ballot.3

Ballot

voters, the

ballot

clerk

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,

electoral success, may

regardless

of

size

appoint a "challenger

or

previous

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.

____________________

3In

primary elections, a ballot clerk must give a voter who

has declared her party affiliation the ballot of that party.

N.H.

Rev. Stat. Ann.

made only when a

659:14(I) (1994 Supp.).

declared voter wishes to

See
___

Exceptions are

support a party

that

did not have official existence when the voter declared her party
loyalty

(and

then

only

in the

primary

election

immediately

following the party's official recognition) or when the

undeclared

and

the

party's

participate in its primary.

rules

See id.
___ ___

allow

such

voter is
voter

to

counting

palsgrave

holding

See id.
___ ___

this

After the polls close,

the town moderator oversees the

of votes.

659:60 & 659:61.

is

election

held in

public, see
___

official positions

659:60.

process.

announces

See id.
___ ___

the

id.
___

may take

659:63,

part in

Although the

only persons

tallying ballots.

Election inspectors sometimes participate

Once the

votes have been

final results,

return is prepared by

see id.
___ ___

in

tallied, the moderator

659:70, and

the town clerk

a formal

and forwarded to

the Secretary of State.

the

public

See id.
___ ___

may inspect

recounts, see id.

___ ___

659:74 & 659:75.

the return.

Candidates may

660:1-6 & 665:6(II), and the

Members of

call for

New Hampshire

Ballot Law Commission has jurisdiction to "hear and determine all

disputes involving alleged

laws

of a non-criminal

appeal

procedure

has

Moreover, election

for

IV.
IV.

nature for

Hampshire election

which no

already been

officials are

ballot tampering,

e.g., id.
____ ___

violations of New

specific statutory

provided."

subject to

falsifying returns,

Id.
___

665:7.

criminal penalties

or

the like.

666:1-3.

ANALYSIS
ANALYSIS

We subdivide our analysis into four segments.

See,
___

A
A

It is apodictic that the right to

helps to preserve all other rights.

it:

"The right to vote

is of the essence

on

vote is a right that

As Chief Justice Warren

put

freely for the candidate of one's choice

of a democratic society, and

any restrictions

that right strike at the heart of representative government."

Reynolds v. Sims, 377 U.S. 533, 555 (1964); see also Wesberry
________
____
___ ____ ________

Sanders,
_______

376 U.S.

basic, are

illusory

1, 17

if

(1964) ("Other

the

Nonetheless, the right to

right to

to

be fair

vote

undermined.").

See Burdick v.
___ _______

substantial regulation of elections if

and honest and

if some

724, 730 (1974).

sort of

To that end, each

and the manner

Storer v. Brown,
______
_____

state retains the

of persons who work at

in which they will be selected.

they are

order, rather than

authority to regulate state and local elections and to

the duties and qualifications

the most

"[A]s a practical matter,

chaos, is to accompany the democratic process."

415 U.S.

is

vote is not absolute.

Takushi, 112 S. Ct. 2059, 2063 (1992).

_______

there must be a

rights, even

v.

prescribe

the polls,

See Sugarman v.
___ ________

Dougall, 413 U.S. 634, 647 (1973); see also U.S. Const. Art. I,
_______
___ ____

4,

cl. 1 (directing

Places

and

Manner

that states

shall prescribe

"[t]he Times,

of

Elections

Senators

holding

for

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

rights

of their citizens.

Conn.,
_____

479 U.S.

208,

See Tashjian v.
___ ________

217 (1986).

regulatory efforts and strive

regulation and

imposing

large.

Republican Party of
___________________

As courts

review

states'

to distinguish between permissible

impermissible abridgment

level of scrutiny looms

Amendment

of voters'

rights, the

The plaintiffs insist that a law

any burden (however modest)

upon the right

to vote is

___

always subject to strict scrutiny.

We do not agree.

The Supreme

and

instead has

adopted a

validity of election

2063;

Court has

eschewed a

hard-and-fast rule,

flexible framework

regulations.

Anderson v. Celebrezze, 460

________
__________

for testing

See Burdick, 112

___ _______

S. Ct.

the

at

U.S. 780, 789 (1983); Storer,

______

415 U.S. at 730.

Under

the prescribed

framework,

applied corresponds roughly to

regulation

encumbers

Consequently, a

the

and

Fourteenth

be

a challenged

Amendment

challenge to a

the plaintiff's

then "evaluate the

rights.

state election

of the

constitutionally protected

precise interests put

forward by

State as justifications for the burden imposed by its rule."

Anderson, 460 U.S.

________

at 789;

Diamond, 992 F.2d 365,

_______

court

scrutiny to

assessing "the character and magnitude

injury" to

rights and

of

the degree to which

court weighing a

law must start by

asserted

First

the level

must

equilibrium").

attempt

accord Libertarian Party of Me.

______ _________________________

370 (1st Cir. 1993) (explaining

to

achieve

sort

of

v.

that the

"constitutional

In this process the court must take into account,

among

other things, "the extent to which those interests make it

necessary

to burden the plaintiff's

rights."

Id.
___

The Burdick
_______

Court crystallized the applicable standard of inquiry:

Under

this

standard,

the

[the]

inquiry into the

rigorousness

of

propriety of a state

election law depends upon the extent to which

a

challenged

regulation

Fourteenth Amendment

burdens First

rights.

Thus,

as

and
we

have recognized when those rights are subject

to severe restrictions,

the regulation

must

be narrowly drawn to advance a state interest

of

compelling importance.

election
reasonable,
upon

the

law

But when a state

provision

nondiscriminatory
First

and

imposes

restrictions

Fourteenth

only

Amendment

rights

of

voters,

the

State's

important

regulatory interests are generally sufficient

to justify the restrictions.

Burdick, 112 S. Ct. at 2063-64 (citations and

_______

internal quotation

marks omitted).

B
B

Against this

specifics

of

backdrop,

the plaintiffs'

we

proceed

challenge.

to

consider

In performing

the

this

tamisage, we are cognizant that their claim is not that the state

misapplied New

staffing

the

Hampshire law,

polls

but, rather,

dictated

by

that

that the

law

method of

is

itself

constitutionally

challenge as

infirm.

facial

Thus,

attack

we

on the

regard

the

statutory

plaintiffs'

scheme

(and,

indeed, they have conceded this point).

The

further

plaintiffs'

refinement.

scheme

like the

candidates

or as

sophisticated

popular parties

right

discriminates

challenge

do not

voters.

statutory

less successful

political

from ballot

inspectors and

that

free

against

political

them

on

access either

claim

restricting

ballot clerks

deprives members of recognized

to

susceptible to

that the

Instead, their

they say

is

contend

members of

Libertarians,

level;

appoint election

their

They

directly prevents

parties,

facial

association,

the basis

of

is on

a more

the right

to the

as

to

two most

third parties of

and

their

invidiously

political

affiliation.

Stripped of its rhetorical trappings, this argument

amounts to nothing less than a declaration that Libertarians have

a constitutional right to be represented at the polls by election

inspectors

Libertarian

Democrats

and ballot clerks of

votes

are

counted.

and Republicans are not

their own party

In

the

to ensure that

plaintiffs'

to be trusted

view,

in this regard

because they

interests

are unconcerned with the

and,

if

left

alone,

they

protection of Libertarian

will

likely

overlook

Libertarian ballots through lassitude, misfeasance, incompetence,

and the like.

In

straw man.

addressing this claim we

There

must first set

is simply no abstract constitutional

be appointed to serve

as an election inspector or

See, e.g., Rhode Island Minority Caucus, Inc.,

___ ____ ___________________________________

F.3d 372,

376

(1st Cir.

certainly

includes the

1979).

right to

Although

have one's

to rest a

right to

ballot clerk.

v. Baronian, 590
________

the

vote

right to

vote

counted, see
___

United States v. Mosley, 238 U.S. 383, 386 (1915), nothing on the
_____________
______

face

of the

New Hampshire

members of that right.

statutes deprives

Libertarian Party

We

turn next to an

assessment of the

extent to which

the challenged statutes burden the First and Fourteenth Amendment

rights of Libertarians.4

In the

first

nondiscriminatory,

We find the burden to be slight.

place,

that is,

New

it

Hampshire's

does

not

regulation

differentiate

is

among

____________________

4In conducting our evaluation, we do not distinguish between

the burdens placed
those

placed on

ballots

for

political

that

on the

rights of the

the rights

of voters

and

who

party's candidates.

parties purport

supporters,

Libertarian Party

"the

to represent

rights

of

voters

As

wish to
a

the

candidates do not lend themselves to neat separation."

112 S. Ct. at

2065-66 (quoting Bullock v. Carter,

_______
______

143 (1972)).

10

cast their

general matter,

the interests
and

and

of their
rights

of

Burdick,
_______

405 U.S. 132,

Republicans,

Democrats,

and

Libertarians.

Instead,

to appoint

election inspectors

regulation conditions

the right

and

a certain degree of

ballot clerks on

the

success at the polls.

Distinguishing between recognized political parties based on past

electoral

accomplishment

is

not

per

se

invidiously

discriminatory.

See, e.g., American Party of Texas v. White, 415

___ ____ _______________________
_____

U.S.

(1974)

767,

781

discrimination

for

(holding

state

that

to grant

it

minor

is

not

parties

invidious

official

recognition,

but deny

though the main

them

the right

political parties

to

hold primaries

are so entitled).

So

even

here:

the Libertarian Party has exactly the same opportunity to qualify

as

a source of election

Hampshire law as does

exists,

inspectors and ballot

any other party.

and equality of opportunity

clerks under New

Equality

of opportunity

not equality of outcomes

is the linchpin of what the Constitution requires in this type of

situation.

As the Court explained:

The

fact

is

differences

in

potentials

of

historically
the one

treating

are

kind between
a

hand, and

grossest

there

the

political

established

organization on
the

that

obvious
needs and

party

broad support,

a new or

on

small political

the other . . . .
discrimination

with

can

Sometimes
lie

in

things that are different as though

they were exactly alike.

Jenness v. Fortson, 403 U.S. 431, 441-42 (1971).

_______
_______

In the

direct impact on

second

place, the

New

Hampshire law

ballot access, on the right to

right to have one's vote

indirect effects are less

tallied.

has

no

vote, or on the

It is generally thought

that

burdensome than direct restraints, cf.

___

11

Dole
____

v. South Dakota, 483

____________

U.S. 203, 210

(1987) (discussing, in

connection

with

Congress'

achievement

of objectives

spending

which

powers,

Congress is

"the

indirect

not empowered

to

achieve directly"), and that generalization holds true here.

In the third place, even these indirect effects are not

discernible

believe

here.

that

because they

The record

minority

have no

ballot clerks.

minority parties

parties are

at

right to appoint

offers

special

no

reason to

or undue

election inspectors

risk

and

The law affords a panoply of other safeguards for

(e.g., appointing

N.H. Rev. Stat. Ann.

places

evidence

a challenger of

voters, see
___

666:4), and ultimate control

over voting

rests with elected officials.

To cinch matters, there is

no

showing of systematic discrimination against minority parties

in

the

casting and

tallying of

votes,

and mere

suspicion or

paranoia is too

flimsy a foundation on which to

rest a claim of

incipient fraud or mistake.5

In

fine, the "burden" to which the plaintiffs allude

that Libertarian

election

purely

ballots will not be

inspectors

conjectural.

conclude, without

and ballot

To

hold

a shred

public trust

clerks are

otherwise

on

the prowl

would require

of competent evidence,

officials in New Hampshire

breach the

counted unless Libertarian

is

us

to

that election

are unscrupulous individuals who will

in order to

serve the

interests of

____________________

5The plaintiffs conceded

which

they alluded, see

___

plan to deprive
moreover,

no

below that none of

supra note 1, were

_____

Libertarians of the
showing that

similar

the mishaps to

part of a concerted

right to vote.
gaffes

have not

Republican and/or Democratic voters from time to time.

12

There

is,

afflicted

political party,

will

and, moreover,

that Democrats

and Republicans

put aside their historic enmity so that, together, they may

repress third parties.

We refuse to indulge so cynical a view of

the electoral process.

C
C

Having analyzed

now

proceed

to ascertain

the nature of the

the level

of

burdens imposed, we

scrutiny that

we must

apply.

See Burdick, 112 S.

___ _______

789.

We

recognize, of

election

code,

opposed

to those

even those

Ct. at 2064; Anderson,

________

course,

that

that govern

that

every

govern the

ballot access

candidates, "inevitably affects

460 U.S. at

provision of

voting

an

process as

or eligibility

at least to some degree

of

the

individual's right to vote and his right to associate with others

for political ends."

Anderson,
________

provisions of an election

460 U.S. at 788.

But

different

code may burden rights unequally,

and

we believe that the impediment which New Hampshire law imposes in

respect to the selection of election inspectors and ballot clerks

is relatively minor.

Given the character and magnitude (or, more

aptly

magnitude) of

put, lack

plaintiffs'

of

First and

the

alleged injury

Fourteenth Amendment rights,

to

the

we conclude

that

the defendants

regulation had

need only

rational

Sensible and Humane Solutions

_____________________________

Cir. 1985); Baer

____

v. Meyer,
_____

show that

basis.

See,
___

the enactment

e.g.,
____

Coalition for
______________

v. Wamser, 771 F.2d 395,

______

728 F.2d 471,

399 (8th

476 (10th Cir.

(per curiam); Piricin v. Board of Elections, 368

_______
__________________

13

of the

1984)

F. Supp. 64, 71

(N.D.

Ohio)

(three-judge

court),

aff'd
_____

mem.,
____

414

U.S.

990

(1973).6

Our decision in Rhode Island Minority Caucus, 590 F.2d

_____________________________

372, is not to

the

Board

the contrary.

of

There the

Canvassers

of

unconstitutionally conditioned

upon membership in

organizations.

plaintiffs'

motion for

merits.

See id. at 373-74.

___ ___

that there was

with one

of

Providence

voter registrar

of three

The district court

a preliminary

ground that the plaintiffs

City

appointment as a

or affiliation

See id. at 376.

___ ___

the

plaintiffs alleged that

political

denied the

injunction mainly

on the

had no probability of success

on the

We affirmed on a different ground

no showing of irreparable harm, see

id. at 374

___

___

and added:

[The state] may not

First

Amendment

abridge fundamental

rights

of

speech

and

association without establishing that such an

infringement is necessary to achieve

a vital

state interest . . . .
So

viewed,

issue, it

but without

appears

prejudging the

that plaintiffs

raise

substantial first amendment question.

Id. at
___

376-77.

the district

The panel

made clear, however, that

it was for

court to determine "the extent to which plaintiffs'

____________________

6We note that

one district court apparently disagrees.

Iowa Socialist Party

_____________________

v. Slockett,
________

604 F.

Supp. 1391

In

(D. Iowa

1985), a handful of minor third parties contended that appointing

mobile

deputy registrars

solely from

persons nominated

by the

county chairmen of the two major political parties violated their

constitutional rights.

See
___

id. at
___

1392.

As

we do

here, the

district
regulation

court
was

concluded

the

"relatively minor."

nonetheless proceeded
the law.

that

to apply

See id. at 1396-98.

___ ___

burden
Id.
___

at

imposed
1397.

strict scrutiny

by

the

The court

and invalidated

We find this aspect of the court's

reasoning unpersuasive.

14

associational rights have been abridged, the burden, if any,

Board must

bear in

justifying that

fact the Board can meet that burden."

abridgment, and

Id. at 377.
___

the

whether in

Fairly read,

Rhode Island Minority Caucus is not inconsistent with our holding

____________________________

today.

D
D

Using rationality review we conclude that the state has

justified the regulation.

The defendants rely principally on New

Hampshire's interest in limiting the number of election officials

to

manageable

proportions in

order

to

enhance administrative

efficiency and thereby safeguard against mistakes and fraud.

Too

many

The

cooks, the

defendants

say, will

spoil

the broth.

assertion makes good sense.

The

state

has

integrity and reliability of

valid interest

in

preserving

the electoral process.

See,
___

the

e.g.,
____

American Party, 415 U.S. at 782 n.14; Coalition for Sensible and
_______________
__________________________

Humane Solutions, 771 F.2d at 399.

________________

It is certainly reasonable to

assume that, at some point, "more" is not "better."

Common sense

suggests that if election inspectors and ballot clerks become too

numerous,

they

will merely

get in

frustrate the moderator's ability

each

other's way

to afford close

and thus

supervision.7

____________________

7A
which

fair parallel
the

interest

Court
.

frustration of

can be

has
in

drawn to

ballot access

acknowledged that
avoiding

confusion,

the

cases in

"important

deception,

state

and even

the democratic process" can be served by limiting

ballot access based on "some preliminary showing of a significant

modicum of support."
this

reasoning

efficiency and

Jenness, 403 U.S. at 442.

_______

extends

to

orderliness at

the state's

We believe that

strivings

the polls through

to

promote

limitations on

the number of persons who are permitted to work inside the rail.

15

Cf. Rudyard Kipling, Rewards & Fairies 73 (1910) (suggesting that

___
_________________

one should

keep no more cats than will catch mice).

margins the place at which to draw the line

ideal size

of the complement

See, e.g., Anderson, 460

___ ____ ________

is for

Within wide

in other words, the

the state to

U.S. at 788 n.9 (observing

determine.

that states

have broad discretion to set minimum requirements restricting the

number of candidates appearing on the ballot).

The

plaintiffs'

riposte

is

to

suggest

that

New

Hampshire must

demonstrate that adding Libertarians

as election

inspectors and ballot clerks

would actually cause confusion, or,

________

put

increment would

another way,

that this

be the

straw that

broke the back of the dromedary of administrative efficacy.

suggestion

vastly exaggerates the state's

burden.

That

See Munro v.
___ _____

Socialist Workers Party, 479 U.S. 189, 195-96 (1986) (rejecting a

_______________________

similar

claim on

the

basis that

"[s]uch

a requirement

would

necessitate that a State's political system sustain some level of

damage

before

the legislature

States are free to

could take

corrective action").

head off potential problems in

the electoral

system before they materialize, as long as the solutions that the

state devises are reasonable and

constitutionally

do not significantly intrude on

protected rights.

See id.

New

Hampshire's

___ ___

solution

behind

for

which involves

the rail at

restricting

polling places, and

appointing those persons in

parties

that have proven most

the

number of

puts the responsibility

the hands of

the two political

successful in the

earning the electorate's trust

recent past at

is a reasonable response

16

persons

to an

authentic problem.

We

election

hold

that

inspectors and

advancing

Hampshire's

ballot

the state's interest

off fraud,

F.2d at

upholding regulation

rational

permitting membership

from parties

court)

of

a rational

selecting

means of

in dispelling confusion, warding

that did not uniformly

at the polls.

basis review

basis

review

and

upholding

of boards of elections to

350

two highest

F. Supp.

(suggesting

576,

that

and

allow all political

observers); Piricin, 368 F. Supp.

_______

garnering the

v. Lomenzo,
_______

(three-judge

clerks is

476 (applying rational

parties to appoint poll

(applying

method

and ensuring administrative efficiency

See Baer, 728

___ ____

Bishop
______

New

at 71

regulation

be drawn solely

vote totals);

see also
___ ____

588-89 (E.D.N.Y.

regulation

1972)

requiring

volunteer

Republican

deputy

registrars

or Democratic

to

be

parties

enrolled

merited

members

only rational

of

the

basis

review, but concluding that law survived strict scrutiny on basis

that regulation reduced risk of "fraud or irregularity that might

exist

were

if registration by [only]

permitted").

While

officials, or a somewhat

serve, the

state is

one party or

other

methods

of

by an independent

selecting

these

different numerical formula, might also

free to choose

from among the

universe of

constitutionally acceptable alternatives.

IV.
IV.

CONCLUSION
CONCLUSION

We need

go no further.8

Since New

Hampshire's grant

____________________

8The plaintiffs'
separate

discussion.

Equal Protection

argument is

unworthy of

This argument does not rest on a challenge

to

New

Hampshire's

requirements

for

achieving

official

recognition as a political party, but, rather, on the thesis that

once a party attains
may

not

draw

official status under state law,

distinctions

between

it

and

other

the state

recognized

17

of

a monopoly

ballot

clerks

over the appointment

to the

two

most

of election

inspectors and

popular political

parties

is

justified by legitimate state interests and imposes only a modest

burden on the plaintiffs'

it

is constitutional.

Libertarian Party

First and Fourteenth Amendment rights,

Nothing succeeds

has the

like success,

same opportunity as

and the

its better-known

competitors to attract voters

the top

two spots

play

more

process.

to its standard, finish in

in a gubernatorial

active role

in

the

election, and

mechanics

But under New Hampshire law

thereafter

electoral

that success is to be won

at the polls rather than in a federal court.

Affirmed.
Affirmed.
________

of the

one of

____________________

political parties.

The thesis is untenable.

415 U.S. at 781.

18

See American Party,

___ ______________