United States Court of Appeals

For the First Circuit

No. 10-1360

LIBERTARIAN PARTY OF NEW HAMPSHIRE ET AL.,

Plaintiffs, Appellants,

v.

WILLIAM M. GARDNER, in his official capacity as

Secretary of State of New Hampshire,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. James R. Muirhead, U.S. Magistrate Judge]

Before

Lynch, Chief Judge,

Selya and Howard, Circuit Judges.

Gary Sinawski on brief for appellants.

Nancy J. Smith, Senior Assistant Attorney General, and

Michael A. Delaney, Attorney General, on brief for appellee.

February 24, 2011
Although New Hampshire election law defines the term 1

"party" narrowly as "any political organization which at the

preceding state general election received at least 4 percent of the

total number of votes cast for any one of the following: the office

of governor or the offices of United States senators," N.H. Rev.

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LYNCH, Chief Judge. This appeal raises constitutional

election law issues regarding the listing of political affiliations

next to the names of candidates on a state general election ballot.

On New Hampshire's 2008 ballot, in a column headed "Other

Candidates," in the row for the offices of President and Vice

President, two pairs of candidates were identified as

"Libertarian." One pair was Bob Barr and Wayne Root, who had

received the Libertarian Party's nomination at its May 2008

National Convention, and the other pair was George Phillies and

Christopher Bennett, who had failed to secure the nomination at

this convention.

There were also columns on the ballot headed "Republican

Candidates" and "Democratic Candidates," and under these headings

were listed only the names of the nominees of those parties. At no

point did the term "nominee" appear on the ballot, but the ballot

may be read as indicating that the names listed under "Republican

Candidates" and "Democratic Candidates" were those respective

parties' nominees. 

On September 11, 2008, the Libertarian Party of New

Hampshire and associated individuals (hereinafter, "the Libertarian

Party") brought suit in federal court arguing that the ballot's 1
Stat. § 652:11, we will refer to the plaintiff as it has described

itself, "Libertarian Party." No meaning under state law is to be

attached to this name; during the 2008 election, the Libertarian

Party was not a recognized political party under state law.

As in Werme v. Merrill, 84 F.3d 479 (1st Cir. 1996), we 2

will not categorically "distinguish between the burdens placed on

the rights of the Libertarian Party and those placed on the rights

of voters who wish to cast their ballots for that party's

candidates," because as "a general matter, political parties

purport to represent the interests of their supporters, and 'the

rights of voters and the rights of candidates do not lend

themselves to neat separation.'" Id. at 484 n.4 (quoting Burdick

v. Takushi, 504 U.S. 428, 438 (1992)).

-3-

identification of "Libertarian" candidates who were not the party's

nominees violated their First Amendment rights by causing voter

confusion, vote dilution, and interference with their associational

rights, and also their Fourteenth Amendment rights of equal

protection.2

Before the election, the Libertarian Party sought

declaratory and injunctive relief requiring that the Secretary of

State of New Hampshire, William M. Gardner, remove from the ballot

the names of the Libertarian non-nominees, Phillies and Bennett,

even though they had received the requisite number of petition

signatures to qualify for ballot placement. The Libertarian Party

argued that it had the right to "substitute" candidates, but what

it sought was in effect the removal of the non-nominees from the

ballot. The district court scheduled an evidentiary hearing on the

preliminary injunction request, but the day before the hearing the

Libertarian Party informed the court that it was no longer seeking
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a preliminary injunction and the court granted its motion to

dispense with the hearing.

After the election, in a cross-motion for summary

judgment, the Libertarian Party switched gears, stating that its

request for relief could also be met by striking the affiliation

"Libertarian" from the names of the two Libertarian non-nominees.

It explained that it only sought to vindicate the Libertarian

Party's right "to control the use of the 'Libertarian' designation

by candidates for public office in situations where the party

nominates or otherwise endorses candidates," and "to substitute

candidacies in appropriate situations."

After finding that the case had not become moot by virtue

of the passing of the election, the district court granted summary

judgment for the Secretary.

We affirm. The Libertarian Party has failed to identify

an unconstitutional burden on its First Amendment rights, having

put forward no evidence of actual voter confusion, vote dilution,

or other harm to its associational interests. As to the

Libertarian Party's Fourteenth Amendment claims, the various

distinctions that New Hampshire draws between candidates who appear

on the ballot as nominees of recognized political parties and

organizations, and those who appear on the ballot in their

individual capacities, are plainly constitutional.
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I.

New Hampshire's general election ballot on November 4,

2008 contained five columns. A copy of that ballot submitted to

the district court by the Secretary is attached to this opinion as

an Appendix. The first column was headed "Offices" and listed

vertically the contested offices in the election: President and

Vice President of the United States, Governor, United States

Senator, and Representative in Congress. The remaining four

columns were headed, in order from left to right, "Republican

Candidates," "Other Candidates," "Democratic Candidates," and

"Write-In Candidates." Listed vertically in these columns were the

names of the candidates. In the row corresponding to the offices

of President and Vice-President, the Republican and Democratic

columns each contained one pair of candidates: John McCain and

Sarah Palin, and Barack Obama and Joe Biden, respectively. The

Other Candidates column, located between the Republican and

Democratic columns, contained the names of three pairs of

candidates listed in this order: (1) Ralph Nader and Matt Gonzales,

(2) George Phillies and Christopher Bennett, and (3) Bob Barr and

Wayne A. Root. The ballot identified Nader and Gonzales as

"Independent," and identified each of the remaining two pairs of

candidates as "Libertarian." No names were listed in the Write In

Candidates column.
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We first describe how candidates qualify to appear on the

ballot under New Hampshire law, and then discuss how the listing of

their names and party affiliations on the ballot and other

pertinent features of elections are regulated by the state. 

New Hampshire provides potential candidates with three

avenues to placement on the general election ballot. The New

Hampshire Supreme Court has described this scheme. See Libertarian

Party of N.H. v. New Hampshire, 910 A.2d 1276, 1278-79 (N.H. 2006).

First, a candidate may be placed on the ballot as the

nominee chosen in the primary of a state recognized "party." A

"party" is defined as a "political organization which at the

preceding state general election received at least 4 percent of the

total number of votes cast for any one of the following: the office

of governor or the offices of United States senators." N.H. Rev.

Stat. § 652:11. 

Second, a candidate may be placed on the ballot as the

nominee of a state recognized "political organization." A

political organization may gain state recognition and "have its

name placed on the ballot for the state general election by

submitting the requisite number of nomination papers." Id.

§ 655:40-a. It must submit "the names of registered voters

equaling 3 percent of the total votes cast in the previous state

general election." Id. § 655:42(III). 
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Third, as an alternative to nomination by party or

political organization, "a candidate may have his or her name

placed on the ballot for the state general election by submitting

the requisite number of nomination papers." Id. § 655:40. In the

case of candidates for President, this avenue requires the

signatures of 3,000 registered voters--1,500 from each

congressional district in the state. Id. § 655:42(I). These

nomination papers must state "the political organization or

principles the candidate represents." Id. § 655:40. Both Phillies

and Bennett as well as Barr and Root followed this third avenue,

gathering the requisite number of signatures and listing

"Libertarian" as the political organization or principles that they

represented.

Inherent in New Hampshire's statutory scheme for ballot

qualification is another set of pertinent distinctions, these going

to the appearance of the ballot and the listing of "party columns"

and "additional columns." See id. § 656:5(I). There are two ways

in which a column on the ballot may be obtained. Any party

recognized under state law (that is, one that received at least 4%

of the prior vote for the pertinent offices) is able to obtain a

column and choose the candidates who appear in it; these candidates

"shall be arranged upon the state general election ballot in

successive party columns," and in general, "[e]ach separate column
However, "if only a part of a full list of candidates is 3

nominated by a political party, 2 or more such lists may be

arranged whenever practicable in the same column." N.H. Rev. Stat.

§ 656:5(I).

Although a political organization's entitlement to a 4

column is not clearly stated in the law, Scanlan's affidavit is

consistent with the statutory provision referring to "[t]he names

of the candidates to be listed on the state general election ballot

under the political organization nominated pursuant to RSA

655:40-a," N.H. Stat. § 655:40-b (emphasis added), as well as the

provision stating that "the secretary of state shall determine the

vertical location of any additional columns that may appear on the

ballot," id. § 656:5(I). That the New Hampshire statutory scheme

does not use the term "party column" to refer only to recognized

parties is also indicated by a provision requiring that the "names

of all candidates nominated in accordance with the election laws,"

not just those nominated by parties, "shall be arranged upon the

state general election ballot in successive party columns." Id.

(emphasis added).

-8-

shall contain the names of the candidates of one party." Id. Any 3

political organization that is recognized under state law (that is,

one that obtained nomination signatures equaling at least 3 percent

of the total votes cast in the prior state general election) has

the same entitlement to a column, according to the affidavit of the

Deputy Secretary of State David M. Scanlan. See also id.

§§ 655:40-b, 656:5(I). In the 2008 election, only the Republican 4

and Democratic parties qualified for party columns. The

Libertarian Party did not qualify for a party column or a political

organization column; if it had done so, its nominees could have

been listed under its party name.
At no time did the Libertarian Party propose that the 5

Secretary add the term "nominee" after the term "Libertarian" to

the appropriate set of candidates when the different sets of

candidates were listed in the Other Candidates column. Because the

issue was never raised, we consider it no further.

For a candidate who is not nominated by a party or 6

political organization, the Secretary apparently interprets this

provision as requiring or permitting the placement on the ballot of

"the political organization or principles the candidate

represents," which the candidate is required to list on his or her

nomination papers. N.H. Rev. Stat. § 655:40.

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Significantly, the Secretary is authorized by state law

to list the party affiliations of candidates on the ballot, but

that authorization is limited:

Every state general election ballot shall

contain the name of each candidate who has

been nominated in accordance with the election

laws, except as hereinafter provided, and

shall contain no other name except party

appellations.

Id. § 656:4 (emphasis added). The Secretary must comply with this 5

limit on his ability to place information other than "party

appellations" on the ballot. The Libertarian Party has not 6

specifically challenged, either on its face or as applied, the

limitation in this provision, but rather says its challenge is to

the overall scheme that produced the result here.

A third feature of New Hampshire's election law that is

worth highlighting has to do with the limits it places on a

potential candidate's ability to appear on the ballot by filing

individual nomination papers. This avenue of placement on the

ballot is not available to an individual who "filed as a candidate
It appears that all of these substitution provisions 7

apply only to candidates nominated by recognized parties.

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in the state primary election." Id. § 655:43(IV). With this

disqualification provision, New Hampshire protects recognized party

nominees from challenge by primary losers. In the case before us,

this provision did not protect Barr and Root from challenge by

Phillies and Bennett because the Libertarian Party is not

recognized by the state and did not participate in the state

primary election. We note that the provision also does not protect

a recognized party from challenge by a candidate who is affiliated

with the party but was not a candidate in the party's primary. And

again, the Libertarian Party has not challenged this specific

provision of New Hampshire's law.

A final pertinent distinction in New Hampshire's election

law has to do with its provisions for the substitution of

candidates. A recognized party may, in the event of a vacancy for

any office on its party ticket following its primary, designate a

new candidate to fill this vacancy. Id. § 655:37. In addition, if

a party's nominated candidate dies, or makes an oath of

disqualification based on age, domicile, or incapacitating physical

disability acquired subsequent to the primary, a new candidate may

be substituted by the appropriate party committee. Id.

§§ 655:38, 39. 

7
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II.

We review de novo the question of whether this case

became moot when the election finished, "accepting as true the

material factual allegations contained in the complaint and drawing

all reasonable inferences therefrom in the plaintiff's favor."

Ramírez v. Sánchez Ramos, 438 F.3d 92, 96-97 (1st Cir. 2006). This

is a close question. Cf. Barr v. Galvin, 626 F.3d 99, 104-06 (1st

Cir. 2010).

If a case is moot, even if it becomes moot on appeal, we

cannot hear it because "Article III of the Constitution restricts

federal courts to the resolution of actual cases and

controversies." Chico Serv. Station, Inc. v. Sol P.R. Ltd., No.

10-1200, 2011 WL 228048, at *12 (1st Cir. Jan. 26, 2011) (quoting

Overseas Military Sales Corp. v. Giralt-Armada, 503 F.3d 12, 16

(1st Cir. 2007)) (internal quotation marks omitted). "[W]hen the

issues presented are no longer live or when the parties lack a

legally cognizable interest in the outcome . . . a case or

controversy ceases to exist, and dismissal of the action is

compulsory." Id. (quoting Cruz v. Farquharson, 252 F.3d 530, 533

(1st Cir. 2001)) (internal quotation mark omitted). 

The question here is whether this case falls within the

narrow exception to general principles of mootness for cases that

raise issues that are "capable of repetition, yet evading review."

Cruz, 252 F.3d at 534 (quoting S. Pac. Terminal Co. v. ICC, 219
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U.S. 498, 515 (1911)) (internal quotation marks omitted). Election

cases often fall within this category, Storer v. Brown, 415 U.S.

724, 737 n.8 (1974); N.H. Right to Life Political Action Comm. v.

Gardner, 99 F.3d 8, 18 (1st Cir. 1996), but "not every election

case fits within its four corners," Barr, 626 F.3d at 105.

The Supreme Court has placed on the party asserting that

a case is not moot the burden of showing "(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

or a demonstrated probability 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)) (internal quotation marks omitted); see also Barr,

626 F.3d at 105.

As to the first prong of this test, it is highly likely

that the merits of the constitutional challenge presented by this

case could not have been fully resolved between the time it became

ripe and the election. Cf. Barr, 626 F.3d at 106. Here, Phillies

and Bennett qualified to be listed on the ballot on July 30, 2008,

and Barr and Root qualified on September 3, 2008, which was the

deadline. The Libertarian Party filed suit on September 11, 2008.

The travel of this case, including appeal, could not have been

totally concluded before the election (let alone before the date on

which the general election ballot was printed). Indeed, had the
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Libertarian Party attempted to put on evidence of voter confusion

affecting the election, it would have relied in part on postelection analysis. Moreover, as the deadline for qualification by

nomination papers is the Wednesday one week before the state office

primary election, N.H. Rev. Stat. § 655:43(I), which is the second

Tuesday in September, id. § 653:8, the situation complained of

could again emerge only two months before the November elections as

it did here.

The more difficult question is whether there is a

reasonable expectation that what happened here will in fact happen

again. This precise situation--the listing of two pairs of names

in the Other Candidates column with the same party affiliation--has

apparently never come up before in New Hampshire. There is little

reason to doubt that there will be a candidate supported by the

Libertarian Party in future elections in New Hampshire. The

Libertarian Party has had sufficient support in New Hampshire to

have its candidates listed on the ballot for at least two decades,

so much so that in the 1992 and 1994 elections, the Libertarian

Party received enough votes to qualify, under section 652:11, as a

"party" in the 1994 and 1996 general elections.

The same issues presented here will only recur, however,

if the Libertarian Party does not achieve party or political

organization status and resorts, as it did here, to the individual

petition process of section 655:40 to get its nominees on the
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ballot. Although the Libertarian Party qualified as a "party" for

the 1994 and 1996 general elections, it lost this status when it

received insufficient votes in the 1996 election. In 2000, it

received enough signatures to qualify, under section 655:40-a, as

a political organization in the 2000 general election, but it has

not met this requirement since. It is reasonable to expect that

the Libertarian Party will again face a situation in which it does

not qualify as a recognized party or political organization, but

its nominee succeeds in receiving enough nomination petition

signatures to be listed individually on the ballot. Cf. Barr, 626

F.3d at 106. There is, however, more to the equation. 

The "problem" complained of only occurs if a qualifying

Libertarian individual decides to put his or her name on the ballot

despite the Libertarian Party naming another individual as the

party nominee. While apparently that had not happened before 2008,

it has now happened. That alone may encourage individual

Libertarians--or others--who do not end up being nominees to

qualify by submitting nomination papers in the future. The state's

constitution enshrines the concept that every individual has a

right to run for office. See N.H. Const. pt. 1, art. 11 ("Every

inhabitant of the state, having the proper qualifications, has an

equal right to be elected into office."). Here, Phillies and

Bennett knew that they had not won the nomination of the May 2008

Libertarian National Convention when they qualified for placement
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on the New Hampshire ballot at the end of July 2008. Some evidence

from the Libertarian Party about why it expects its nominees to be

challenged by other Libertarian candidates in the future would have

been helpful, but none was offered. While the question is close,

we conclude that the case is not moot.

III.

Our review of the dismissal of the case is de novo, both

because we are reviewing entry of summary judgment and because, in

the end, the case presents only issues of law. Chiang v. Verizon

New England Inc., 595 F.3d 26, 34 (1st Cir. 2010). 

We review all of the First and Fourteenth Amendment

claims under the sliding scale approach announced by the Supreme

Court in Anderson v. Celebrezze, 460 U.S. 780, 789-90 (1983), and

Burdick v. Takushi, 504 U.S. 428, 434 (1992). See Barr, 626 F.3d

at 109 (discussing the sliding scale approach); Werme v. Merrill,

84 F.3d 479, 483 (1st Cir. 1996) (same). This method of analysis

for election regulations requires an assessment of the burdens, if

any, placed on a plaintiff's constitutionally protected rights,

followed by an evaluation of the precise interests put forward by

the state as justifications for the burdens. Werme, 84 F.3d at

483. If a regulation places "severe restrictions" on a plaintiff's

First and Fourteenth Amendment rights, "the regulation must be

narrowly drawn to advance a state interest of compelling

importance." Id. at 484 (quoting Burdick, 504 U.S. at 434). By
Nor has the Libertarian Party alleged that New Hampshire 8

interfered with its constitutionally protected interest in how it

structures its nominating process under Tashjian v. Republican

Party of Conn., 479 U.S. 208 (1986). 

-16-

contrast, "when a state election law provision imposes only

reasonable, nondiscriminatory restrictions upon the First and

Fourteenth Amendment rights of voters, the State's important

regulatory interests are generally sufficient to justify the

restrictions." Id. (quoting Burdick, 504 U.S. at 434). 

Unlike many election cases, this case is not about denial

of access to the ballot or a party's inability to vote for its

nominee. See, e.g., Barr, 626 F.3d 99; McClure v. Galvin, 386 8

F.3d 36 (1st Cir. 2004); Torres-Torres v. Puerto Rico, 353 F.3d 79

(1st Cir. 2003). Rather, this is a case about a state's regulation

of what is said on a ballot about the party affiliation of a

candidate. See, e.g., Dart v. Brown, 717 F.2d 1491 (5th Cir. 1983)

(finding constitutional a state's decision to provide party

affiliation on ballot for candidates of parties recognized by the

state but not for candidates of unrecognized parties). We consider

the asserted First and Fourteenth Amendment "rights" in turn.

A. First Amendment Claims

1. Right of Exclusive Access

The Libertarian Party argued to the district court that

it had a right of "exclusive access to the ballot" which was denied

by the state. It sought relief that would have removed the names
There is no question but that Phillies and Bennett are in 9

fact Libertarians and have been active participants in the efforts

of the Libertarian Party.

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of the non-nominee qualifying Libertarian candidates, Phillies and

Bennett.

The Libertarian Party cites no case holding that a

political organization or party not recognized as such by a state

has the right to remove from a ballot the names of candidates who

otherwise meet state ballot law qualifications and who identify

themselves with that organization's philosophy.9

The Libertarian Party's cause is not advanced by its

attempt to characterize its request to remove the names of Phillies

and Bennett as a mere request for "substitution." New Hampshire

law provides recognized parties with the right to substitute

candidates in limited circumstances. See N.H. Rev. Stat.

§§ 655:37-39. But the Libertarian Party makes no argument that

these statutory rights are required by the First Amendment. And in

any event, none of the conditions under which parties can

substitute candidates under New Hampshire law provided the basis

for the Libertarian Party's claimed right of substitution. The

Libertarian Party was not seeking substitution to fill a vacancy

caused by the withdrawal, disqualification, or death of its

nominee. 

Furthermore, even if the Libertarian Party had

demonstrated a burden to its constitutionally protected rights, the
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state's policy of limiting substitution rights to party candidates

is based on its "undoubted right to require candidates to make a

preliminary showing of substantial support in order to qualify for

a place on the ballot." Anderson, 460 U.S. at 789 n.9.

"Logically, this interest is advanced by the Secretary's refusal to

grant to non-party candidates the right to substitution . . . . 

Granting such substitution would effectuate an end-run 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." Barr, 626 F.3d at 111. 

The Libertarian Party's claimed right to deny ballot

access to Libertarian candidates it does not endorse, via removal

or "substitution" of Phillies and Bennett, fails.

2. Right to Exclusive Use of Name

The Libertarian Party's next claim is that it has a right

to exclusive use of its name and that the state was at least

obligated to remove the affiliation "Libertarian" from the names of

Phillies and Bennett. It contends that the state's failure to do

so interfered with its members' rights of association and political

speech, and that the use of the Libertarian name by Phillies and

Bennett diluted the party's voting strength.

States may grant recognized political parties and

organizations the right to control the use of their names. See,

e.g., Norman v. Reed, 502 U.S. 279, 290 (1992) ("To prevent
-19-

misrepresentation and electoral confusion, [a state] may, of

course, prohibit candidates running for office in one subdivision

from adopting the name of a party established in another if they

are not in any way affiliated with the party."); Mass. Gen. Laws

ch. 53 § 8 ("If a candidate is nominated otherwise than by a

political party the name of a political party shall not be used in

his political designation . . . ."). But the Libertarian Party

cites no case holding that a political organization or party not

recognized as such by the state has this right under the First

Amendment.

What the Libertarian Party appears to be arguing is that

it had a free speech right to use the ballot to advertise who its

nominees were. But the Supreme Court in Timmons v. Twin Cities

Area New Party, 520 U.S. 351 (1997), expressly rejected the

argument that a party "has a right to use the ballot itself to send

a particularized message, to its candidate and to the voters, about

the nature of its support for the candidate." Id. at 363.

In Timmons, the Court upheld a state "fusion" ban that

prohibited a candidate from appearing on the ballot as the

candidate of more than one party. Id. at 369. The plaintiff, a

party that wanted to place on the ballot a candidate who was

already representing another party, claimed that the ban burdened

the party's right "to communicate its choice of nominees on the

ballot on terms equal to those offered other parties, and the right
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of the party's supporters and other voters to receive that

information." Id. at 362. The Court rejected this argument,

explaining that "[b]allots serve primarily to elect candidates, not

as forums for political expression." Id. at 363; see also Dart,

717 F.2d at 1499 ("Although the words 'Libertarian Party' did not

appear under [its candidate's] name, the Libertarian Party was not

denied access to the ballot. . . . It was a candidate, not a party,

ballot. . . . As [the party's candidate] was granted access to the

ballot, so was the Libertarian Party.").

Timmons built on earlier holdings to similar effect. In

Burdick, for example, the Court had explained that "[a]ttributing

to elections a more generalized expressive function would undermine

the ability of States to operate elections fairly and efficiently."

Burdick, 504 U.S. at 438. And the Court has since returned to the

theme, stating not only that the "First Amendment does not give

political parties a right to have their nominees designated as such

on the ballot," but also that "[p]arties do not gain such a right

simply because the State affords candidates the opportunity to

indicate their party preference on the ballot." Wash. State Grange

v. Wash. State Republican Party, 552 U.S. 442, 453 n.7. (2008).

Even if we assume arguendo that the Libertarian Party has

some interest in preventing voter confusion of its nominated

candidates with other candidates who also espouse Libertarian

ideals, the question of whether it may enlist state officials to
There is no requirement that a state show the existence 10

of voter confusion before it imposes reasonable restrictions on

ballot access. Munro v. Socialist Workers Party, 479 U.S. 189,

194-95 (1986).

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prevent such confusion is one we need not reach on the facts before

us. Here, the Libertarian Party has made no claim that Phillies

and Bennett were not in fact Libertarians or that the ballot was

otherwise inaccurate. And it has provided no evidence that the

ballot misled voters in any way. On its face, the ballot did not 10

itself indicate that Phillies and Bennett were the nominees of the

Libertarian Party. It identified them, as well as Barr and Root,

merely as Libertarian. "There is simply no basis to presume that

a well-informed electorate will interpret a candidate's

party-preference designation to mean that the candidate is the

party's chosen nominee or representative or that the party

associates with or approves of the candidate." Id. at 454.

As to the state interests at stake, New Hampshire has a

strong interest in identifying candidates in the Other Candidates

column with the political organization or principles that they

represent. The inclusion of this information helps prevent

uninformed voting by giving voters pertinent information about the

politics of all candidates on the ballot, not just those listed in

the columns of parties. "There can be no question about the

legitimacy of the State's interest in fostering informed and
-22-

educated expressions of the popular will in a general election."

Anderson, 460 U.S. at 796.

Further, under the New Hampshire Constitution, "[e]very

inhabitant of the state . . . has an equal right to be elected into

office." N.H. Const. pt. 1, art. 11. The state's ballot format

serves this goal, providing candidates running as individuals with

the same opportunities as nominees of recognized parties or

political organizations to be identified by their chosen ideology

to voters in an effective way. 

We reject the Libertarian Party's claim that it had a

constitutional right to remove the Libertarian label from the names

of Phillies and Bennett.

B. Fourteenth Amendment Claims

We see no viable claim of differential treatment under

the Equal Protection Clause and repeat what the Supreme Court said

40 years ago:

The fact is that there are obvious differences

in kind between the needs and potentials of a

political party with historically established

broad support, on the one hand, and a new or

small political organization on the

other. . . . Sometimes the grossest

discrimination can lie in treating things that

are different as though they were exactly

alike.

Jenness v. Fortson, 403 U.S. 431, 441-42 (1971); see also Werme, 84

F.3d at 485. 
-23-

It is well established that a state may base its

recognition of a party, and the benefits of recognition, on the

party's past electoral strength or demonstrated support. See Barr,

626 F.3d at 109-10; Werme, 84 F.3d at 484-85. New Hampshire has

done so in several ways. 

New Hampshire prohibits candidates who participated in

the state primary election from qualifying for ballot placement

through the submission of independent nomination papers, but it

does not place similar prohibitions on candidates who have sought

the nomination of unrecognized parties. See N.H. Rev. Stat.

§ 655:43(IV). 

The Supreme Court has made it clear that states have a

legitimate interest in preventing "party raiding and 'sore loser'

candidacies by spurned primary contenders." Clingman v. Beaver,

544 U.S. 581, 596 (2005); see also Burdick, 504 U.S. at 439 ("The

prohibition on write-in voting is a legitimate means of averting

divisive sore-loser candidacies."). A state may also insist "that

intraparty competition be settled before the general election."

Am. Party of Tex. v. White, 415 U.S. 767, 781 (1974); see also

Storer, 415 U.S. at 733-36. 

It is entirely rational for a state to conclude, as New

Hampshire has done, that it has a stronger interest in preventing

"sore-loser" challenges to recognized parties than to unrecognized

parties. In the case before us, the Libertarian Party National
The Libertarian Party also alleged that New Hampshire 11

allows a recognized party to prevent candidates in the Other

Candidates column from using its name, but this is not the case;

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Convention at which Phillies and Bennett lost was not a state

primary, and the winners of that vote, Barr and Root, did not

appear on the New Hampshire ballot by virtue of having won.

Rather, both sets of Libertarian candidates appeared on the ballot

in the same way--by submitting the requisite number of signatures.

Unlike the winners of party primaries who are protected by the

"sore loser" provision, neither set of Libertarian candidates had

demonstrated greater support than the other in the state.

New Hampshire also creates distinctions on the basis of

demonstrated support by allowing recognized parties and political

organizations to obtain a column for their candidates on the

ballot, while providing no such opportunity for candidates who

appear on the ballot in their individual capacities. The

Libertarian Party does not directly challenge this aspect of New

Hampshire's election law, and in any event, this differentiation is

plainly constitutional. See, e.g., McLain v. Meier, 637 F.2d 1159,

1168 (8th Cir. 1980) (listing similar cases). 

Finally, although New Hampshire allows recognized

parties--but not unrecognized parties--to substitute candidates

under certain circumstances, those circumstances simply are not

involved in this as applied challenge, so the Libertarian Party has

no viable claim of disparate treatment. And even if the 11
candidates who appear in the Other Candidates column may in fact

list Republican or Democratic as their affiliation, so there is no

disparate treatment here either.

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Libertarian Party had shown a modest burden on its Fourteenth

Amendment rights, New Hampshire has legitimate interests that

justify its decision not to provide a substitution mechanism for

non-party candidates. See Barr, 626 F.3d at 102. 

The Libertarian Party's Fourteenth Amendment claims fail.

IV.

The Libertarian Party has put no material fact in

dispute, and there was no error in the use of summary judgment

procedure. Nor was there error in the conclusion that its

constitutional rights were not violated. Judgment for the

Secretary is affirmed.
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 Appendix