Of the Seventh Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 09-2426

BOB BARR ET AL.,

Plaintiffs, Appellees,

v.

WILLIAM F. GALVIN, IN HIS OFFICIAL CAPACITY AS SECRETARY

OF THE COMMONWEALTH OF MASSACHUSETTS,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Boudin, Ripple, and Selya, Circuit Judges. *

Amy Spector, Assistant Attorney General, with whom Martha

Coakley, Attorney General, and Timothy Casey and Julie Goldman,

Assistant Attorneys General, were on brief, for appellant.

Matthew C. Baltay, with whom Jennifer S. Behr, Amrish V.

Wadhera, Foley Hoag LLP, and John Reinstein, American Civil

Liberties Union of Massachusetts, were on brief, for appellees. 

November 16, 2010
 Throughout this opinion, we use the term "non-party 1

candidates" as a shorthand for candidates who are not affiliated

with a political party that is recognized as such under

Massachusetts law. See Mass. Gen. Laws ch. 50, § 1.

-2-

SELYA, Circuit Judge. In this appeal, the Secretary of

State, on behalf of the Commonwealth of Massachusetts, challenges

the district court's determination that Bob Barr and Wayne A. Root,

the Libertarian Party's candidates for president and vice-president

in the 2008 general election, were entitled to have their names

placed on the statewide ballot even though they had not submitted

nomination papers as required by state law. While the particular

election that gave rise to this controversy is over, the Secretary

also challenges the district court's related determinations that

(i) the Equal Protection Clause of the United States Constitution,

U.S. Const. amend. XIV, § 1, affords a right of substitution in the

circumstances of this case and (ii) Mass. Gen. Laws ch. 53, § 14,

which governs the substitution of certain classes of candidates on

the ballot, is unconstitutionally vague as applied to the

substitution of non-party candidates for President and VicePresident of the United States. Barr, Root, and the other 1

appellees defend the district court's resolution of these issues

and, in doing so, argue that the result reached below was compelled

by principles of constitutional law, statutory construction, and

estoppel.
-3-

After careful consideration, we find that a live dispute

remains. With respect to that dispute, we conclude that the Equal

Protection Clause does not require the Commonwealth to afford a

substitution mechanism applicable to non-party candidates. We

further conclude that the relevant statute, while not

unconstitutionally vague, is in need of interpretive clarification.

Pursuant to principles of Pullman abstention, that interpretation

should be effected by the Massachusetts courts. In light of this

determination, the appellees' claims concerning the Secretary's

prior pronouncements (including their estoppel claim) are either

moot or likely to be rendered moot by the state courts'

interpretation of the statutory scheme. Accordingly, we reverse in

part, vacate in part, and remand for further proceedings consistent

with this opinion.

I. BACKGROUND

We start by rehearsing the relevant factual and

procedural background.

Massachusetts recognizes as a "political party" any

political organization that either (i) had a candidate for

statewide office who garnered at least three percent of the vote in

the most recent biennial election or (ii) has enrolled no less than

one percent of the total electorate (as measured by registered

voters). Mass. Gen. Laws ch. 50, § 1. At the time of the November

2008 general election, the Libertarian Party of Massachusetts (LPM)
-4-

did not satisfy either furculum of this test and, thus, the

Commonwealth did not recognize it as a political party. Rather,

the Commonwealth, in accordance with state law, see id., permitted

the use of the Libertarian label as a "political designation." The

Libertarian National Committee was not then and is not now

recognized as a political party or political designation in

Massachusetts.

Massachusetts law delineates procedures governing ballot

access for presidential and vice-presidential candidates affiliated

with recognized political parties. These procedures differ

significantly from those that apply to other candidates. With

respect to the presidential and vice-presidential candidates of a

recognized political party, the party's state committee may choose

its candidates and submit a form to the Secretary by the second

Tuesday in September next preceding the election. That form

identifies the candidates and sets out the names of the

presidential electors selected by the committee. Id. ch. 53, § 8.

This submission, in and of itself, qualifies the candidates for

listing on the ballot. See id.

Other presidential and vice-presidential candidates must

travel a different road: they must file nomination papers signed by

at least 10,000 registered voters. Id. §§ 6-10. The papers must

include the names of the presidential and vice-presidential

candidates, and may also — but need not — identify a "political
 Those who wish to obtain a global picture of how these dates 2

intersect may consult the so-called "Election Schedule" for the

2008 general election, published by the Secretary and available at

http://www.sec.state.ma.us/ele/elepdf/schedule_08.pdf.

-5-

designation" with which the candidates wish to be aligned. Id.

§ 8. In all events, the nomination papers must contain the names

of a slate of presidential electors, whose signatures on the papers

signify their support for the denominated candidates. Id. The

fact that non-party presidential and vice-presidential candidates

may receive an endorsement from a national political entity does

not confer any special ballot access rights. 

As a matter of procedure, signed non-party nomination

papers for presidential and vice-presidential candidates are to be

submitted to local canvassing officials. Those officials then

certify the signatures, confirming that they belong to registered

voters. Id. § 7. In 2008, the deadline for submitting such

nomination papers to local canvassing boards was July 29. See id.

In turn, the deadline for transmitting them to the Secretary was

August 26. See id. § 10.2

In July of 2007, George Phillies, acting in his capacity

as the chair of the LPM, sent an e-mail inquiry to the Secretary.

In it, Phillies inquired as to whether, if the presidential and

vice-presidential candidates identified on nomination papers

circulated in Massachusetts were not selected at the national

Libertarian nominating convention the following May, the names of
-6-

the actual nominees could be substituted on the ballot. In October

of 2007, an aide to the Secretary responded that the Secretary's

office could "prepare a form that allows members of the party to

request the substitution of the candidate."

In early 2008, Phillies began to circulate nomination

papers identifying himself as a presidential candidate and Chris

Bennett as a vice-presidential candidate. These papers named the

requisite twelve electors. The word "Libertarian" appeared in the

space available for signifying a political designation.

The Libertarian National Committee held its convention in

late May of 2008. Phillies and Bennett competed unsuccessfully for

the convention's endorsement as the Libertarian nominees for

president and vice-president, respectively. The convention

endorsed Barr and Root for those offices.

Phillies and Bennett had gathered about 7,000 signatures

from Massachusetts voters on nomination papers in support of their

anticipated candidacies. On May 29, 2008, Phillies e-mailed the

Secretary's office, inquiring as to whether he and Bennett, should

they qualify for the ballot, could be replaced by Barr and Root.

The Secretary responded that such "substitution" was not

permissible, but that Barr and Root still had nearly two months

during which to secure the necessary signatures on their own

behalf. The Secretary likewise notified the Libertarian National

Committee that the requested substitution was not authorized, but
-7-

that the usual statutory process of circulating and filing

nomination papers was available as a means of getting Barr's and

Root's names on the statewide ballot. 

Despite the Secretary's declared position, Phillies

continued to circulate nomination papers for a Phillies/Bennett

ticket. He submitted these papers, which contained well over

10,000 valid signatures, in a timely manner. In contrast, Barr and

Root did not submit any nomination papers, did not provide any

evidence that they had secured the necessary signatures, and did

not identify any presidential electors. Although Phillies and

Bennett had met the requirements and were entitled to appear on the

statewide ballot, nothing in Massachusetts law prevented two sets

of candidates from appearing simultaneously with the same political

designation.

On August 6, 2008, Barr, Root, the LPM, and the

Libertarian National Committee (collectively, the appellees) filed

suit in the United States District Court for the District of

Massachusetts, challenging the Secretary's refusal to include Barr

and Root on the statewide ballot. They sought a mandatory

injunction compelling the Secretary to substitute Barr and Root for

Phillies and Bennett and a declaration that the Secretary's refusal

to allow the substitution infringed upon their constitutional

rights to, among other things, free speech, freedom of association,

and equal protection of the law. 
-8-

On September 22, 2008, the district court granted the

motion for a preliminary injunction. Barr v. Galvin (Barr I), 584

F. Supp. 2d 316, 322 (D. Mass. 2008). It concluded that the

appellees would suffer irreparable harm were it to withhold relief.

Id. at 321. Even though the initial complaint acknowledged that

Massachusetts had no statutory mechanism specific to the kind of

substitution that had been requested, the court concluded that

section 14, which limns the process for filling vacancies for

"state, city or town office" when candidates die, withdraw, or are

declared ineligible following nomination, was "[t]he most relevant

statute." Id. at 320. That provision, the court said, would

"likely fail constitutional scrutiny" as applied to these facts.

Id. at 321. Acting on these conclusions, the court ordered the

Secretary to place the names of Barr and Root on the November 2008

ballot, in lieu of Phillies and Bennett, as candidates for

president and vice-president. Id. at 318, 322. 

The court did not enter a final judgment at that time,

and the case remained pending throughout the 2008 election cycle.

Barr and Root received less than one percent of the vote. That

showing fell short of the three percent threshold needed to qualify

the LPM for recognition as a political party in future elections.

See Mass. Gen. Laws ch. 50, § 1. Nevertheless, a Libertarian

candidate for United States Senator from Massachusetts received

over three percent of the total votes for that office. Thus,
-9-

beginning in November of 2008, the LPM became a recognized

political party in Massachusetts, with all the accouterments

(including ballot access) that such recognition entails.

In the spring of 2009, the parties cross-moved for

summary judgment. The district court denied the Secretary's motion

and granted the cross-motion. Barr v. Galvin (Barr II), 659 F.

Supp. 2d 225, 230 (D. Mass. 2009). In rendering this judgment, the

court accepted without explicit discussion the parties' agreement

that their dispute was still live. Id. at 227.

On the merits, the district court held that a right to

substitute was guaranteed by the Equal Protection Clause "to ensure

that the names of the actual candidates appear on the ballot." Id.

at 230. Additionally, the court speculated that section 14 might

provide a mechanism for substitution but declared that section

unconstitutionally vague because it was unclear as to whether the

reference to "state . . . office" encompassed the presidency, the

vice-presidency, and/or presidential electors. Id. at 229-30.

This timely appeal followed.

II. ANALYSIS

We deal first with a threshold concern — mootness — and

then turn to the substance of the parties' dispute.

A. Mootness.

The Constitution "confines the jurisdiction of the

federal courts to actual cases and controversies." ConnectU LLC v.
-10-

Zuckerberg, 522 F.3d 82, 88 (1st Cir. 2008) (citing U.S. Const.

art. III, § 2, cl. 1). This means, of course, that federal courts

lack constitutional authority to decide moot questions. North

Carolina v. Rice, 404 U.S. 244, 245-46 (1971) (per curiam); United

States v. Alaska S.S. Co., 253 U.S. 113, 116 (1920). A case is not

shielded from this proscription simply because a live controversy

existed when it was brought. Roe v. Wade, 410 U.S. 113, 125

(1973). The rule is that "when an intervening event strips the

parties of any legally cognizable interest in the outcome," a case,

once live, is rendered moot (and, thus, non-justiciable).

ConnectU, 522 F.3d at 88. 

Litigants cannot confer jurisdiction over a moot case by

acquiescence or consent. See Overseas Mil. Sales Corp. v. GiraltArmada, 503 F.3d 12, 16 (1st Cir. 2007). If an appellate court

finds that the issues presented have become moot, it must dismiss

the appeal. Church of Scientology v. United States, 506 U.S. 9, 12

(1992); Cruz v. Farquharson, 252 F.3d 530, 533 (1st Cir. 2001);

R.I. Ass'n of Realtors v. Whitehouse, 199 F.3d 26, 34 (1st Cir.

1999). Thus, even though all the parties share the view that their

dispute survived the 2008 general election, we are duty bound to

inquire into mootness before proceeding further. See Overseas Mil.

Sales, 503 F.3d at 16; see also City of Erie v. Pap's A. M., 529

U.S. 277, 287 (2000). 
-11-

Although the 2008 election is now a fait accompli, the

mootness inquiry is more nuanced than it might appear at first

blush. The Secretary, with the support of the appellees, seeks to

avoid the mootness bar through a claim that the issues in this case

are "capable of repetition, yet evading review." S. Pac. Terminal

Co. v. ICC, 219 U.S. 498, 515 (1911). This is a well-established

exception to general principles of mootness, but it is a narrow

one. Cruz, 252 F.3d at 534. And although the exception has been

applied frequently in election-related cases, see, e.g., Storer v.

Brown, 415 U.S. 724, 737 n.8 (1974); Moore v. Ogilvie, 394 U.S.

814, 816 (1969), not every election case fits within its four

corners.

The Supreme Court has described the scope of the

exception, explaining that it applies where: "(1) the challenged

action is in its duration too short to be fully litigated prior to

cessation or expiration; and (2) there is a reasonable expectation

that the same complaining party will be subject to the same action

again." FEC v. Wis. Right To Life, Inc., 551 U.S. 449, 462 (2007)

(quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998)). With respect to

the second prong of this analysis, a party arguing against mootness

must show either "a 'reasonable expectation' or a 'demonstrated

probability' that 'the same controversy will recur involving the

same complaining party.'" Id. at 463 (quoting Murphy v. Hunt, 455
-12-

U.S. 478, 482 (1982) (per curiam)); accord CMM Cable Rep., Inc. v.

Ocean Coast Props., Inc., 48 F.3d 618, 622 (1st Cir. 1995).

The second prong usually demands that it be the same

party who is likely to face a similar conflict in the future. To

be sure, the case law admits of some imprecision on this point.

The main reason for this imprecision is that the "same complaining

party" requirement, though satisfied, is not always explicitly

stated. See Cruz, 252 F.3d at 534 n.4 (making this observation).

The Supreme Court sometimes has addressed the same complaining

party requirement without specifically flagging its significance to

the mootness inquiry, see, e.g., Int'l Org. of Masters, Mates &

Pilots v. Brown, 498 U.S. 466, 473 (1991) (noting complaining party

"has run for office before and may well do so again"), and in some

instances, this requirement has been disregarded or diluted on the

ground that the case was brought as a class action, see, e.g., Dunn

v. Blumstein, 405 U.S. 330, 331, 333 n.2 (1972); see also Sosna v.

Iowa, 419 U.S. 393, 399 (1975) (explaining that certification of

case as class action "significantly affects the mootness

determination"); Pallazola v. Rucker, 797 F.2d 1116, 1129 (1st Cir.

1986) (noting that "[i]n the absence of a class action," the

exception applies only where the same complaining party is likely

to face the same situation again).

Despite this imprecision, the language of the Court's

recent election-related cases indicates that the "capable of
-13-

repetition, yet evading review" exception depends in part upon a

"same complaining party" showing. See, e.g., Davis v. FEC, 128 S.

Ct. 2759, 2769-70 (2008); Wis. Right to Life, 551 U.S. at 462; see

also Norman v. Reed, 502 U.S. 279, 287-88 (1992). We therefore

abide by the "same complaining party" requirement here.

The facts of this case plainly satisfy the "evading

review" prong of the exception. Disputes concerning ballot access

procedures are often time-sensitive, and the temporal parameters

are sometimes too short to allow the issues to be fully litigated

within a single election cycle. See, e.g., Ill. State Bd. of

Elections v. Socialist Workers Party, 440 U.S. 173, 187 (1979);

Moore, 394 U.S. at 816. This case comes within that taxonomy.

The "capable of repetition" prong presents a more

imposing barrier, but we believe that barrier has been surmounted.

The LPM, though currently a recognized political party under

Massachusetts law, had no candidate for Governor or United States

Senator on the November 2010 statewide ballot in Massachusetts and,

thus, may very well lose its status as a recognized political

party. While there are other means of maintaining or obtaining

recognized party status, see Mass. Gen. Laws ch. 50, § 1, the LPM

has never been able to secure party recognition through the use of

such alternative means. Given this history, we see no likelihood

that the party will prove able to do so in the near future. The

LPM, then, has a reasonable expectation of being in a position to
-14-

complain about the lack of a substitution mechanism in future

Massachusetts elections. At any rate, we think that the parties —

all of whom implore us to find that the case is not moot — should

be given the benefit of the doubt. 

In sum, we find that the appellees have shown a

sufficient probability that the core events at issue in this case

may recur and may again involve the LPM and/or the Libertarian

National Committee. Because we find that most aspects of this case

satisfy both prongs of the "capable of repetition, yet evading

review" exception, we conclude that a live dispute remains with

respect to the constitutional questions at issue in this case.

B. The Merits.

We review an appeal from the entry of summary judgment de

novo. Gastronomical Workers Union Local 610 & Metro. Hotel Assoc.

Pension Fund v. Dorado Beach Hotel Corp., 617 F.3d 54, 60 (1st Cir.

2010); Osediacz v. City of Cranston, 414 F.3d 136, 139 (1st Cir.

2005). In so doing, we assay the facts and all reasonable

inferences therefrom in the light most favorable to the nonmoving

party. Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 4

(1st Cir. 2010). "We will affirm only if the record reveals 'no

genuine issue as to any material fact' and 'the movant is entitled

to judgment as a matter of law.'" Vineberg v. Bissonnette, 548

F.3d 50, 55 (1st Cir. 2008) (quoting Fed. R. Civ. P. 56(c)). With
-15-

this standard of review in mind, we turn to the merits of the

disputed claims. 

1. Vagueness. The appellees argue that "[t]he vagueness

of the substitution statutory framework allows the Secretary to

exert unconstitutional, unfettered discretion to allow or prohibit

substitution during any given election." Because this broad

interpretive discretion has allowed the Secretary to take

inconsistent positions regarding the availability of substitution,

their thesis runs, non-party candidates and unrecognized political

organizations are left without adequate guidance. This plaint

about excessive discretion boils down to an assertion that, with

respect to substitution, the statutory scheme is void for

vagueness. The district court so held. Barr II, 659 F. Supp. 2d

at 229-30. 

Section 14 admittedly is unclear as to whether it applies

to the kind of substitution requested by the appellees. The

statutory text contains two types of imprecision. First, it refers

to candidates seeking "state, city or town office," but provides no

further elaboration as to the specific offices that are

encompassed within that rubric. This, in turn, leaves open to

question whether candidates for presidential electors (who are, in

one sense, candidates for a state office) and, by reference,

presidential and vice-presidential candidates, come within its

sweep. Second, section 14 explains that vacancies "may be filled
-16-

by the same political party or persons who made the original

nomination." In the period leading up to the 2008 election, the

LPM did not qualify for recognition as a political party under

Massachusetts law. Still, the reference to "persons who made the

original nomination" arguably could apply to the LPM or,

alternatively, to the individuals who signed the nomination papers

qualifying Phillies and Bennett for inclusion on the ballot. The

text is opaque on this point.

Viewed against this backdrop, the appellees' complaint

that the procedures governing substitution of candidates for

president and vice-president are unclear strikes a responsive

chord. We are not convinced, however, that the lack of definition

in the statutory text necessarily invalidates the statute on

vagueness grounds. See IMS Health Inc. v. Ayotte, 550 F.3d 42, 61

(1st Cir. 2008) ("[S]tatutes do not need to be precise to the point

of pedantry, and the fact that a statute requires some

interpretation does not perforce render it unconstitutionally

vague."); Ridley v. MBTA, 390 F.3d 65, 93 (1st Cir. 2004)

(similar). Whatever its semantic shortcomings, section 14 seems

susceptible to clarification by judicial interpretation.

This does not mean, however, that a federal court should

undertake the task of parsing the statutory text to determine its

applicability to the substitution of non-party presidential and

vice-presidential candidates. Especially given the lack of urgency
-17-

— the next presidential election is almost two full years away —

we think that the needed interpretation is a task for which the

state courts, as the ultimate arbiters of state-law questions, are

better suited. See Acadia Ins. Co. v. McNeil, 116 F.3d 599, 604

(1st Cir. 1997) (explaining that state supreme court is "final

arbiter of the meaning of a statute of that state"). 

Although we recognize that "[a]bstention from the

exercise of federal jurisdiction is the exception, not the rule,"

Colo. River Water Conserv. Dist. v. United States, 424 U.S. 800,

813 (1976), we are also mindful of the Supreme Court's sage counsel

that "[a]mong the cases that call most insistently for abstention

are those in which the federal constitutional challenge turns on a

state statute the meaning of which is unclear under state law,"

Harris Cnty. Comm'rs Court v. Moore, 420 U.S. 77, 84 (1975); accord

Baggett v. Bullitt, 377 U.S. 360, 377-78 (1964). We believe that

Pullman abstention is appropriate in this case.

Pullman abstention was conceived by the Supreme Court in

a case bearing the Pullman name. See R.R. Comm'n of Tex. v.

Pullman Co., 312 U.S. 496, 499-502 (1941). Pullman abstention "is

warranted where (1) substantial uncertainty exists over the meaning

of the state law in question, and (2) settling the question of

state law will or may well obviate the need to resolve a

significant federal constitutional question." Batterman v. Leahy,

544 F.3d 370, 373 (1st Cir. 2008); see also Babbitt v. United Farm
-18-

Workers Nat. Union, 442 U.S. 289, 307-08 (1979) (noting that

abstention may be appropriate in cases where "it is evident that

the [state] statute is reasonably susceptible of constructions that

might undercut or modify appellees' vagueness attack . . . [and]

that an authoritative construction of the . . . provision may

significantly alter the constitutional questions requiring

resolution"); Zwickler v. Koota, 389 U.S. 241, 251 (1967)

(emphasizing that Pullman abstention is appropriate when a state

statute, never interpreted by a state court, is "fairly subject to

an interpretation which will avoid or modify the federal

constitutional question").

In the case at hand, an "uncertain issue of state law

[turns] upon a choice between one or several alternative meanings

of [the] state statute." Babbitt, 442 U.S. at 308 (quoting

Baggett, 377 U.S. at 378). The Massachusetts courts should

therefore be afforded the opportunity to address, in the first

instance, the question of the statute's application to non-party

presidential and vice-presidential candidates. See, e.g., Harris

Cnty., 420 U.S. at 84. 

The district court premised its conclusion that section

14 is void for vagueness on the fact that it "leaves the

determination of whether that statute is applicable to presidential

and vice-presidential nominees positively ambiguous," Barr II, 659

F. Supp. 2d at 229, and went on to state that where the meaning of
 Though the existence of a pending state court action is 3

sometimes considered as a factor in favor of abstention, the lack

of such pending proceedings does not necessarily prevent abstention

by a federal court. Duncan v. Poythress, 657 F.2d 691, 697 (1st

Cir. 1981). As noted above, the next presidential election is

nearly two years distant, and thus we find that any delay in

obtaining relief pending state court adjudication would impose no

onerous burden upon the parties. See Bonas v. Town of N.

Smithfield, 265 F.3d 69, 76 n.5 (1st Cir. 2001). 

-19-

a statute is unclear, that statute may be found unconstitutionally

vague. Id. That statement goes too far. The mere fact that a

statute requires interpretation does not necessarily render it void

for vagueness. Once the state courts clarify section 14's

relevance (if any) to substitution of presidential and vicepresidential candidates, such a clarification, however it comes

out, would end the "void for vagueness" argument. Thus, both of

the preconditions for Pullman abstention are satisfied in this

case.3

2. Equal Protection. Beyond their claim regarding the

uncertainty of the Massachusetts statutory scheme, the basic

thrust of the appellees' case is that substitution of non-party

candidates for president and vice-president is required as a

matter of equal protection. Indeed, they succeeded in persuading

the district court that they were entitled to this substitution

even if no provision of Massachusetts law explicitly authorized

it. Id. at 230. In the appellees' words, "the Secretary

discriminates arbitrarily" between recognized political parties
-20-

and non-parties by refusing to allow substitution of non-party

candidates for president and vice-president. 

We freely acknowledge that the right to vote is central

to the operation of a democratic society. Consequently, "any

restrictions on that right strike at the heart of representative

government." Werme v. Merrill, 84 F.3d 479, 483 (1st Cir. 1996)

(quoting Reynolds v. Sims, 377 U.S. 533, 555 (1964)). Some

substantial regulation of elections is necessary, however, to

ensure that they are fair, honest, and orderly. See, e.g., id.

(citing Storer, 415 U.S. at 730). 

To be sure, the fact that states have considerable

discretion in establishing the procedures that govern ballot

access does not mean that every restriction on ballot access is

permissible under the Constitution. Ballot access restrictions

that fall unequally on similarly situated candidates or parties

may threaten the right to equal protection of the laws guaranteed

by the Fourteenth Amendment. Libertarian Party of Me. v. Diamond,

992 F.2d 365, 370 (1st Cir. 1993).

A mere demonstration that a state provision distinguishes

among groups (such as candidates affiliated with a recognized

political party and those not so aligned) is insufficient by

itself to establish an equal protection violation. Rather, a

claim of unconstitutionality must be grounded in a showing of

substantial discrimination. "Statutes create many classifications
-21-

which do not deny equal protection; it is only 'invidious

discrimination' which offends the Constitution." Am. Party of

Tex. v. White, 415 U.S. 767, 781 (1974) (quoting Ferguson v.

Skrupa, 372 U.S. 726, 732 (1963)); see also Clements v. Fashing,

457 U.S. 957, 967 (1982) ("Classification is the essence of all

legislation, and only those classifications which are invidious,

arbitrary, or irrational offend the Equal Protection Clause of the

Constitution." (citing Williamson v. Lee Optical Co., 348 U.S.

483, 489 (1955))). 

In recognition of the competing interests at stake where

ballot access regulations are concerned, the Supreme Court has

developed a flexible "sliding scale" approach for assessing the

constitutionality of such restrictions. Timmons v. Twin Cities

Area New Party, 520 U.S. 351, 358 (1997); Burdick v. Takushi, 504

U.S. 428, 432-34 (1992). Under this approach, when the burden

imposed by a ballot access regulation is heavy, the provision must

be narrowly tailored to promote a compelling state interest.

Timmons, 520 U.S. at 358. Reasonable, nondiscriminatory

restrictions, however, need be justified only by legitimate

regulatory interests. Id. A court evaluating a challenge to a

state ballot access regulation must, therefore, conduct its

inquiry by weighing "the character and magnitude of the asserted

injury" to the complaining party's constitutional rights and

"evaluat[ing] the precise interests put forward by the State as
-22-

justifications for the burden imposed." Werme, 84 F.3d at 483

(quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)); see

also Libertarian Party of Me., 992 F.2d at 370.

The Massachusetts ballot access provisions at issue here

are nondiscriminatory. They do not specifically differentiate

among Democrats, Republicans, Libertarians, Mugwumps, or

candidates affiliated with any other political organization. In

other words, all political organizations are subject to the same

criteria for determining whether they qualify for recognition as

political parties and, thus, for the array of rights indigenous to

recognized political parties under Massachusetts law. See Mass

Gen. Laws ch. 50, § 1. These criteria are, essentially, twofold.

One avenue to recognition depends on a demonstration of

a proven ability to attract votes. Under the statutory scheme,

the LPM has essentially the same opportunity as any other party to

field attractive candidates, promote their candidates, and

convince voters to get on board. Distinguishing among political

organizations on the basis of success in past elections "is not

per se invidiously discriminatory." Werme, 84 F.3d at 484 (citing

Am. Party of Tex., 415 U.S. at 781). The LPM had the same chance

as any other political organization to qualify as a recognized

political party in this way and, in fact, did so in the 2008

election. 
 The appellees do not challenge the reasonableness of the 4

number of enrolled voters required under Massachusetts law.

-23-

The second avenue for qualification as a recognized

political party under Massachusetts law is through enrollment of

at least one percent of the voters registered in Massachusetts.

Where, as here, the necessary number of enrolled voters required

to achieve party recognition is reasonable, that methodology 4

constitutes an appropriate screen. Cf. Jenness v. Fortson, 403

U.S. 431, 442 (1971) (approving provision requiring prospective

candidate to obtain signatures from five percent of eligible

voters).

We add that the Massachusetts voter enrollment provision

is essentially an alternate means by which the state can ascertain

whether a political organization has demonstrated sufficient

support to warrant official recognition as a party. See, e.g.,

Libertarian Party of Me., 992 F.2d at 372. Nothing prevented

registered Massachusetts voters from aligning themselves with the

LPM, and, thus, the LPM had a full and fair chance to avail itself

of this avenue for becoming a recognized political party. 

To sum up, equality of opportunity exists here. And as

we said in Werme, 84 F.3d at 485, "equality of opportunity — not

equality of outcomes — is the linchpin of what the Constitution

requires in this type of situation." 
-24-

It is also important to note that the time available to

Barr and Root when they were directed by the Secretary (and, for

that matter, by state law) to procure the signatures necessary to

comply with section 6 was not so short as to impose an

unreasonable burden. Barr and Root had approximately 60 days

after the national convention and before the filing deadline

during which to secure the 10,000 required signatures, and the

Supreme Court has approved analogous time frames for collecting

signatures as not unduly burdensome. See, e.g., Am. Party of

Tex., 415 U.S. at 786 (finding that period of 55 days was not "an

unduly short time for circulating . . . petitions" and noting that

time frame would have required that signatures be collected at a

rate of no more than 400 per day to satisfy the statutory

requirement prior to the deadline). 

The modest nature of the burden is confirmed by the fact

that, during the same time period, Phillies and Bennett were able

to secure approximately 8,000 signatures on their own nomination

papers, ultimately submitting many more than the 10,000 signatures

needed to qualify for the ballot. While a state "may not act to

maintain the 'status quo' by making it virtually impossible for

any but the two major parties to achieve ballot positions for

their candidates," Clements, 457 U.S. at 965, the regime

challenged here clearly had no such effect.
-25-

Having evaluated the nature of the ballot access

restrictions at issue here and the extent of the burdens imposed,

we have no doubt as to the appropriate level of scrutiny to be

applied. We conclude that there need be only a rational basis

undergirding the regulation in order for it to pass constitutional

muster. See, e.g., Timmons, 520 U.S. at 358-59.

That threshold is satisfied. In defense of his refusal

to grant substitution to non-party presidential and vicepresidential candidates, the Secretary points to the state's

interests in using "substantial support" requirements as a means

of protecting "the integrity of elections by avoiding overloaded

ballots and frivolous candidacies, which diminish victory margins,

contribute to the cost of conducting elections, confuse and

frustrate voters, . . . and may ultimately discourage voter

participation in the electoral process." Libertarian Party of

Me., 992 F.2d at 371. This, in itself, justifies the regulations

at issue here. It is settled beyond hope of contradiction that

states have a legitimate interest in ensuring that a candidate

makes a preliminary showing of a substantial measure of support as

a prerequisite to appearing on the ballot. See, e.g., Munro v.

Socialist Workers Party, 479 U.S. 189, 193 (1986); Anderson, 460

U.S. at 788-89; Am. Party of Tex., 415 U.S. at 782; Jenness, 403

U.S. at 442. Logically, this interest is advanced by the

Secretary's refusal to grant to non-party candidates the right to
-26-

substitution in circumvention of the state's signature

requirements. Granting such substitution would effectuate an endrun around the signature requirement — a requirement that allows

the state to ascertain whether a given candidate has enough

support to warrant inclusion on the ballot.

In light of the state's legitimate interest in ensuring

that the candidates who appear on the statewide ballot have

demonstrable support among the voting public, the modest burden

imposed upon non-party candidates by requiring them to secure

signatures, rather than piggy-backing upon signatures collected for

other candidates, is not so onerous as to present an equal

protection problem vis-à-vis candidates affiliated with recognized

political parties. Cf. Jenness, 403 U.S. at 440-41 ("We cannot see

how [the state] has violated the Equal Protection Clause of the

Fourteenth Amendment by making available these two alternative

paths [to appearing on the ballot], neither of which can be assumed

to be inherently more burdensome than the other."). The appellees'

equal protection challenge therefore fails. 

3. Other Claims. The distance we have travelled to this

point does not end our odyssey. The parties joust over a final set

of claims, which implicate alleged inconsistencies in the

Secretary's position regarding the availability of substitution.

We need not linger long over any of these claims. 
-27-

First, the appellees argue that the Secretary should be

estopped from declaring that substitution of non-party presidential

and vice-presidential candidates is not the policy of his office.

To ground this argument, they rely on a communication received from

the Secretary's office in 2007, which informed them that the

Secretary could provide a form through which substitution could be

requested.

It is far from clear that the Secretary has adopted

inconsistent positions. After all, a statement that a party would

be permitted to request substitution in certain circumstances falls

short of an assurance that substitution would be allowed if

requested. Here, however, we need not decide whether or not the

Secretary heretofore has taken inconsistent positions. 

In the course of this litigation, the Secretary has made

his current position crystal clear: substitution is not available

in the circumstances presented by the appellees. That position, as

we have pointed out, depends on the interpretation of state law.

There is no election on the horizon, and the appellees have ample

time to litigate the validity of the Secretary's position in the

state courts. In light of these circumstances and the Secretary's

plainly articulated position, the appellees cannot reasonably

continue to rely on any earlier inconsistency. 

In any event, a definitive state-court interpretation of

the meaning of the statutory scheme will provide non-party
-28-

candidates with concrete guidance on the availability vel non of

substitution. There is plenty of time in which to obtain such an

interpretation: the run-up to the next presidential election has

barely begun. Accordingly, because there is no reasonable

likelihood of recurrence, the estoppel claim is moot. Cf. Spencer,

523 U.S. at 18 (finding claim moot because petitioner had not

"demonstrated a reasonable likelihood that he will once again be

paroled and have that parole revoked"); Oakville Dev. Corp. v.

FDIC, 986 F.2d 611, 615 (1st Cir. 1993) (finding claim moot because

it is "highly unlikely that appellant will again secure a mortgage

with a federally insured bank that then fails, prompting FDIC

involvement and ensuing foreclosure"). 

Second, and relatedly, the appellees complain that the

ambiguities in the statutory scheme have allowed the Secretary to

grant a right of substitution to non-party candidates in prior

elections, yet deny such a right to the appellees in 2008. The

appellees suggest that this erratic behavior creates an equal

protection problem vis-à-vis other "unrecognized" political parties

and/or non-party candidates.

The premise on which this suggestion rests is

unconvincing. We have examined the examples proffered by the
 These prior instances involved the substitution of a vice- 5

presidential candidate only (with the written consent of the slate

of electors) and the substitution of candidates who could not

otherwise have gotten on the ballot because their party's

nominating convention did not take place until after the deadline

had passed for submitting nominating papers. 

-29-

appellees and believe that none of the affected parties and/or

candidates appears to be situated similarly to the appellees.5

Regardless, any historical variations in treatment will

be rendered irrelevant once the Massachusetts courts have clarified

the way in which state law operates. Such clarification will help

to define the bounds of the Secretary's discretion to permit or

deny substitution, limiting his capacity to adopt arguably

haphazard policies across multiple election cycles. Because statecourt construction of the statutory scheme is likely to eliminate

the kinds of variations on which this equal protection claim is

premised, we think it prudent to forgo evaluation of it pending

resolution of the anticipated state-court action. See Bath Mem'l

Hosp. v. Me. Health Care Fin. Comm'n, 853 F.2d 1007, 1016 (1st Cir.

1988) (finding that Pullman abstention may be appropriate in

respect to claim that state commission's lack of decision-making

standards created equal protection problem, where state court might

read state law as importing standards, in which case claim would be

significantly altered or mooted); cf. El Dia, Inc. v. Hernández

Colón, 963 F.2d 488, 494 (1st Cir. 1992) ("[D]eclaratory judgments

concerning the constitutionality of government conduct will almost
-30-

always be inappropriate when the constitutional issues are

freighted with uncertainty and the underlying grievance can be

remedied for the time being without gratuitous exploration of

uncharted constitutional terrain."). 

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we reverse the decision of the district court on the equal

protection claim, vacate its decision and judgment in all other

respects, and remand to the district court with instructions to

abstain on the "void for vagueness" claim and dismiss what remains

of the action without prejudice. All parties shall bear their own

costs.

Reversed in part; vacated in part; and remanded.