United States Court of Appeals 

For the First Circuit 

No. 15-2068 

LIBERTARIAN PARTY OF NEW HAMPSHIRE, 

Plaintiff, Appellant, 

v. 

WILLIAM M. GARDNER, New Hampshire Secretary of State, 

in his official capacity, 

Defendant, Appellee. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW HAMPSHIRE 

[Hon. Paul J. Barbadoro, U.S. District Judge] 

Before 

Lynch, Thompson, and Kayatta, 

Circuit Judges. 

William E. Christie, with whom Shaheen & Gordon, P.A., Gilles 

R. Bissonnette, and American Civil Liberties Union of New Hampshire 

were on brief, for appellant. 

Laura E. B. Lombardi, Senior Assistant Attorney General, New 

Hampshire Department of Justice, with whom Stephen G. LaBonte, and 

Joseph A. Foster, New Hampshire Attorney General, were on brief, 

for appellee. 

Mark W. Freel and Locke Lord LLP on brief for Libertarian 

Association of Massachusetts, Green-Rainbow Party, United 

Independent Party, Maine Green Independent Party, and Moderate 

Party of Rhode Island, amici curiae in support of appellant. 

Bruce I. Afran, Mark R. Brown, and Oliver B. Hall on brief 

for the Center for Competitive Democracy, amicus curiae in support 

of appellant. 

Gordon J. MacDonald, Holly J. Barcroft, and Nixon Peabody LLP 
on brief for the Republican National Committee, amicus curiae in 

support of appellee. 

 

December 2, 2016 
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KAYATTA, Circuit Judge. Like most states, the State of 

New Hampshire has long required that political parties seeking to 

have their nominees listed on statewide election ballots first 

demonstrate a sufficient modicum of support among registered 

voters. New Hampshire law deems that a party has made such a 

demonstration if, in the most recent prior statewide election, one 

of its candidates received at least four percent of the statewide 

vote for Governor or United States Senator. N.H. Rev. Stat. Ann. 

§ 652:11. Otherwise a party need submit nomination papers signed 

by a number of registered voters at least equal to three percent 

of the total votes cast in the most recent state general election. 

Id. § 655:42(III). 

In this lawsuit, the Libertarian Party of New Hampshire 

("LPNH") focuses on the time period during which New Hampshire law 

allows parties to gather nomination signatures and submit 

nomination papers. Prior to 2014, this period ran roughly twentyone months from the prior November election to early August of the 

pertinent election year.1 In 2014, New Hampshire reduced this time 

period to a bit more than seven months (hereinafter "seven months") 

by delaying the start date to January 1 of the pertinent election 

year. See 2014 N.H. Laws § 29:1 ("HB 1542") (codified at N.H. 

 1 The end date, which varies each year, is five weeks before 

the New Hampshire primary, N.H. Rev. Stat. Ann. § 655:41, which 

falls on the second Tuesday in August, id. § 653:8. 
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Rev. Stat. Ann. § 655:40-a) (effective July 22, 2014). In the 

wake of this shortening of the time period within which it could 

gather nomination signatures, LPNH promptly filed this lawsuit 

claiming that the new restriction violated its rights under the 

First and Fourteenth Amendments to the United States Constitution. 

LPNH now appeals the district court's summary judgment decision to 

the contrary. For the following reasons, we affirm. 

I. Background 

LPNH qualified for the ballot in New Hampshire as a 

"political party" under state law in 1992, 1994, and 1996, based 

on the electoral performance of its gubernatorial candidates in 

prior elections. In 2000, LPNH managed to gather enough qualifying 

signatures to secure a place on the statewide ballot for all of 

its nominees. But no LPNH statewide candidate secured as much as 

four percent of the vote, and LPNH offers no evidence that any of 

its local candidates fared better. In 2002, 2004, 2006, 2008, and 

2010, LPNH did not gain party access to the statewide ballot. LPNH 

offers no evidence suggesting that New Hampshire law posed any 

unreasonable impediment to qualifying during those years. 

Apparently, some of LPNH's candidates, including its presidential 

candidate in 2004, also sought access through the individual 

nomination process, whereby an individual who gathers just 3,000 

signatures is listed on the statewide ballot. 
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In 2012, LPNH itself again reached the New Hampshire 

general ballot via the nomination papers route. The record of 

that successful effort reveals that the gathering of signatures on 

nomination petitions is largely a paid, professional undertaking. 

LPNH tells us (and defendants do not dispute) that "LPNH, like 

other minor political parties seeking ballot access or advocacy 

groups seeking to certify a ballot question, rel[ies] on outside 

professional petitioners to collect signatures." LPNH retained 

one local paid "petitioner" to gather signatures at a fee of $1 

per signature. LPNH also apparently paid a national outfit $2 per 

signature to gather roughly 13,100 signatures during August and 

September of 2011 plus roughly 1,700 signatures on a single day in 

July 2012.2 It appears that unpaid volunteers also gathered 

roughly 3,000 to 4,000 additional signatures. LPNH ultimately 

spent approximately $40,000 to gather 19,000 signatures in 2012, 

overshooting the mark (of roughly 14,000 qualifying signatures) 

because not all signatures submitted were likely to be certified. 

Getting nominating signatures in 2012 turned out to be 

easier than getting votes. LPNH's gubernatorial nominee received 

2.8% of the vote, its presidential nominee received 1.2%, and, in 

a state with hundreds of state legislative races, LPNH recruited 

 2 LPNH offers no clarity on exactly what it paid even though 

it presumably knows. We nevertheless will rely for purposes of 

this opinion on the testimony of LPNH chairperson Richard Tomasso. 
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only ten other candidates, just one of whom reached ten percent of 

the vote. LPNH apparently made no effort to get on the statewide 

ballot in 2014. 

Confronted with the shortened signature-gathering window 

in 2016, LPNH decided to "put all party-petitioning efforts--

including fundraising for those efforts--on hold until this 

litigation ends, as the outcome of this litigation would dictate 

whether [LPNH] would even go through the party-petitioning process 

during the 2016 general election." LPNH estimates that compliance 

with the new law would increase the cost of gathering sufficient 

signatures, because paid petitioners generally charge more during 

an election year. The current chairperson of LPNH testified that 

an election year paid-petition drive "would probably be a $50,000 

effort," that is to say, about $10,000 more than LPNH spent in 

2012. 

LPNH alleges that the shortened window for gathering 

signatures "facially" violates the Fourteenth Amendment's 

guarantee of equal protection and the freedom of association 

secured by the First Amendment. After discovery, the parties 

agreed that the case could be decided on cross motions for summary 

judgment. After holding a hearing to gather more evidence on 

LPNH's prior efforts to secure ballot access, the district court 

agreed that there were no genuine disputes of material fact. 

Neither party challenges this conclusion on appeal. Rather, they 
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limit their arguments to contesting whether the district court 

made an error of law in concluding that the undisputed facts did 

not establish a violation of LPNH's asserted constitutional rights 

because HB 1542 "imposes only a reasonable burden on ballot access 

that is outweighed by the State's interest in avoiding ballot 

clutter." Libertarian Party of N.H. v. Gardner ("Gardner"), 126 

F. Supp. 3d 194, 210 (D.N.H. 2015). The parties agree that our 

review of this conclusion should be de novo. 

II. Analysis 

A. Mootness? 

Even if we were to decide that signatures gathered prior 

to January 1, 2016, must be counted by the state, LPNH offers no 

evidence that it gathered any such signatures or, for that matter, 

that it gathered any material number of signatures this election 

cycle at all. And the 2016 election itself is now history. We 

must therefore ask whether this case is moot. See Barr v. Galvin, 

626 F.3d 99, 104 (1st Cir. 2010). 

We conclude that it is not. Statewide elections will 

regularly occur after this year. LPNH has a demonstrated (albeit 

episodic) record of seeking statewide ballot access in New 

Hampshire and elsewhere. In view of that record, we give the 

"benefit of the doubt" to LPNH's continuing practical interest in 

the resolution of its legal claim. Id. at 106. Moreover, a new 

suit to allow signature gathering in the pre-election years of 
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2017 and 2019 would need to start pretty much now anyhow to avoid 

the same type of arguable mootness. We thus conclude that there 

exists a sufficient probability that LPNH's challenge to New 

Hampshire's existing ballot-access regime is likely to reoccur, 

and is not now unripe. Jurisdiction therefore lies. See FEC v. 

Wis. Right To Life, Inc., 551 U.S. 449, 462 (2007) (noting that 

federal courts may hear otherwise moot controversies that are 

uniquely capable of repetition yet will often evade review); Barr, 

626 F.3d at 106 ("[A]lthough the [capable of repetition yet evading 

review] exception has been applied frequently in election-related 

cases . . . not every election case fits within its four 

corners."). 

B. Merits 

1. 

As we have described, LPNH objects to the effect of 

HB 1542 "not in the context of an actual election, but in a facial 

challenge." Wash. State Grange v. Wash. State Republican Party, 

552 U.S. 442, 449 (2008). Facial challenges to state laws are 

difficult to mount. See id. at 449–51. The Supreme Court has 

articulated two formulations of the standard for assessing facial 

challenges to statutes. See United States v. Stevens, 559 U.S. 

460, 472 (2010) ("Which standard applies in a typical case is a 

matter of dispute that we need not and do not address . . . ."); 

see also Hightower v. City of Boston, 693 F.3d 61, 77 n.13 (1st 
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Cir. 2012) (discussing the dual extant standards without 

"resolv[ing] the issue"). In United States v. Salerno, 481 U.S. 

739 (1987), the Court held that a facial challenge can only succeed 

where the plaintiff "establishes that no set of circumstances 

exists under which the Act would be valid." Id. at 745. In 

Washington State Grange, a facial challenge to a state ballotaccess provision, "the Court noted that 'some Members of the Court 

have criticized the Salerno formulation,' but that 'all agree that 

a facial challenge must fail where the statute has a "plainly 

legitimate sweep."'" Hightower, 693 F.3d at 77 n.13 (quoting Wash. 

State Grange, 552 U.S. at 449). We rely on this latter formulation 

of the standard. 

The difficulty in mounting a facial challenge to a state 

law arises most notably in challenges to laws that, by their terms, 

leave room for discretion in their application, meaning a state 

official could "accord the law a limiting construction to avoid 

constitutional questions." Wash. State Grange, 552 U.S. at 450. 

The state law at issue here, however, has no such play in the 

joints. It fixes its various requirements objectively and 

specifically, with the largely immaterial exception of the precise 

day in early August when papers must be submitted. It is also 

one-size-fits-all, for all comers. In short, the components of 

the burden it imposes are defined by its facial terms, not by any 

anticipated exercise of discretion in its application. 
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The facial nature of LPNH's challenge nevertheless still 

calls for some skepticism because it comes without the benefit of 

an actual demonstration of a failed effort to get on the ballot 

under the requirement being challenged. We are mindful that 

"[c]laims of facial invalidity often rest on speculation," id., 

and we are reluctant to engage in the "premature interpretation of 

statutes on the basis of factually barebones records," id. (quoting 

Sabri v. United States, 541 U.S. 600, 609 (2004)). 

2. 

The Supreme Court first considered a constitutional 

challenge to state-enacted ballot-access regulations in Williams 

v. Rhodes, 393 U.S. 23 (1968). Such challenges implicate "two 

different, although overlapping, kinds of rights--the right of 

individuals to associate for the advancement of political beliefs, 

and the right of qualified voters, regardless of their political 

persuasion, to cast their votes effectively," thereby triggering 

scrutiny under both the First and Fourteenth Amendments. Id. at 

30. The Ohio ballot-access regulations challenged in Williams 

required a new party seeking to place its candidates on the 

statewide ballot to file, by the February preceding the November 

election, nominating petitions signed by a number of voters equal 

to at least fifteen percent of the total vote cast in the most 

recent gubernatorial election. The regulations further required 

that the party establish a party organization, and conduct 
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primaries or national conventions. All in all, the Court found 

that the regulations "tend[ed] to give [the Republicans and 

Democrats] a complete monopoly," id. at 32, closing off the ballot 

to a party that actually gathered 450,000 nominating signatures. 

Id. at 26. Noting that, at that time, "[f]orty-two states 

require[d] third parties to obtain the signatures of only 1% or 

less of the electorate" with no apparent problems, id. at 33 n.9, 

the Supreme Court rejected Ohio's stated justifications. 

Three years later, the Court considered a similar 

challenge to Georgia's ballot-access laws. See Jenness v. Fortson, 

403 U.S. 431 (1971). In brief, Georgia granted a party's nominees 

automatic access to the ballot only if a candidate of the party 

"received 20% or more of the vote at the most recent gubernatorial 

or presidential election." Id. at 433. Otherwise, a candidate 

for an office needed to gather within 180 days signatures of five 

percent of the total number of voters eligible to vote in the prior 

election for that office, all of whom were eligible to sign such 

nominating petitions. Id. Pointing to what it regarded as "surely 

an important state interest in requiring some preliminary showing 

of a significant modicum of support before printing the name of a 

political organization's candidate on the ballot," id. at 442, the 

Court found in Georgia's regime "nothing that abridges the rights 

of free speech and association secured by the First and Fourteenth 

Amendments," id. at 440. It also concluded that the plaintiffs' 
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"claim under the Equal Protection Clause of the Fourteenth 

Amendment fares no better." Id. 

Another three years later, the Court considered 

California's claim that its five-percent requirement was similarly 

valid. Storer v. Brown, 415 U.S. 724 (1974). In California, 

though, the party seeking ballot access could gather signatures 

only from persons who did not vote in a primary conducted by the 

major parties. As the Court observed in remanding the case for 

further factfinding, one would need to gather more than five 

percent of this restricted subset of eligible voters in order to 

equal five percent of the entire set of voters in the previous 

election. Id. at 739; see also Am. Party of Tex. v. White, 415 

U.S. 767, 784 (1974) (finding that requiring signatures totaling 

one percent of the vote cast in the previous gubernatorial election 

to be gathered from only those who did not vote in a party primary 

"falls within the outer boundaries of support the State may 

require"). 

On the two occasions when the Supreme Court has actually 

struck down five-percent requirements where the pool of those who 

could sign was not substantially restricted, it has done so not 

because it determined a five-percent requirement by its nature 

imposed too significant a burden, but because the state itself 

recognized it could achieve its goals without so high a signature 

requirement. In Illinois State Board of Elections v. Socialist 
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Workers Party, 440 U.S. 173 (1979), for example, the Court struck 

down an Illinois signature requirement for ballot access in 

political subdivision elections that exceeded the signature 

requirements for ballot access in statewide elections. See id. at 

186–87. It did the same in Norman v. Reed, 502 U.S. 279 (1992), 

explaining that Illinois's requirement had "unconstitutional 

breadth" because "a prerequisite to establishing a new political 

party in . . . multidistrict subdivisions [was] some multiple of 

the number of signatures required of new statewide parties." Id. 

at 293. 

Neither the Supreme Court nor any circuit court has 

struck down a statewide ballot-access regime on the grounds that 

a signature requirement of five percent (or less) is too much, or 

that six months (or more) is too little time within which to gather 

the signatures from a pool of substantially all voters. See, e.g., 

Rainbow Coal. of Okla. v. Okla. State Election Bd., 844 F.2d 740, 

741–42, 747 (10th Cir. 1988) (finding a law requiring 45,497 

signatures, or five percent of the number of voters in the previous 

election, in one year a "relatively high signature requirement" 

but not impermissible); Libertarian Party of Fla. v. Florida, 710 

F.2d 790, 794 (11th Cir. 1983) (finding a law requiring 144,492 

signatures, or three percent of the state's registered voters, in 

188 days "not impermissibly burdensome"). 
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The New Hampshire combination of percentage and 

timeframe, while likely more demanding than the laws in many 

states, is markedly less burdensome than the regime at issue in 

Jenness. Ballot access under the actual New Hampshire requirement 

of three percent in seven months required approximately 2,114 valid 

signatures per month. By contrast, if applied to New Hampshire, 

the Georgia requirements of five percent in 180 days approved in 

Jenness would have required LPNH to gather well more than 4,111 

valid signatures per month to gain ballot access in 2016.3 

Moreover, the nominating petition in Georgia secured a place on 

the ballot only for the nominated candidate, not for a party's 

whole slate. Jenness, 403 U.S. at 432. 

LPNH argues that Jenness blessed only Georgia's fivepercent requirement, not its 180-day window. It is true that the 

specific challenge in Jenness focused on the five-percent 

requirement. But it is also true that in distinguishing Williams, 

Jenness contrasted "the totality of the Ohio restrictive laws taken 

as a whole," id. at 437 (quoting Williams, 393 U.S. at 34) with 

Georgia's entire "statutory scheme," id. at 438. Similarly, and 

as we have already noted, the differing results in Jenness and 

 3 The number of signatures required in New Hampshire under 

the Georgia five-percent requirement would almost certainly be 

much larger than 4,111 per month because Georgia applied its fivepercent requirement to the number of eligible voters, see Jenness, 

403 U.S. at 433, rather than (as in New Hampshire) to the smaller 

number of persons who actually voted. 
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Storer hinged precisely on consideration of the manner in which 

the five-percent requirement need be satisfied. Notably, Jenness 

expressly described Georgia as allowing a nominee to "seek, over 

a six months' period, the signatures of 5% of the eligible 

electorate . . . ." Id.; see also Developments in the Law -- 

Elections, 88 Harv. L. Rev. 1121, 1143 (1975) (Jenness 

"specifically endorsed a comprehensive approach to evaluating the 

constitutionality of a state's ballot access restrictions."). 

It therefore follows that LPNH's challenge to New 

Hampshire's three-percent-within-seven-months requirement must 

fail unless either Jenness's approval of a more broadly applicable 

five-percent-within-180-days requirement is no longer good law, or 

this case is distinguishable on other grounds. LPNH does not argue 

that Jenness is no longer good law. Rather, it argues that, for 

a variety of reasons, this case presents materially distinguishing 

facts. We consider these reasons in turn. 

First, LPNH correctly notes that, in sustaining 

Georgia's five-percent-within-180-days requirement, the Court in 

Jenness observed that Georgia's rules did not otherwise impose any 

"suffocating restrictions whatever upon the free circulation of 

nominating petitions." 403 U.S. at 438. The Court similarly noted 

that "Georgia has imposed no arbitrary restrictions whatever upon 

the eligibility of any registered voter to sign as many nominating 

petitions as he wishes." Id. at 442. New Hampshire voters, on 
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the other hand, may sign only one petition per election cycle. 

This restriction, LPNH reasons, materially distinguishes the New 

Hampshire ballot-access regime from the Georgia regime sustained 

in Jenness. LPNH, though, offers no evidence of losing even a 

single signature opportunity due to that restriction, or that any 

other party even circulated petitions for party access or will be 

doing so. Moreover, even allowing for such a possibility, the 

incremental impact on LPNH's efforts would seem to be far less 

than the burden of gathering signatures from as large a percentage 

of the electorate as was sustained in Jenness.4

LPNH also argues that the New Hampshire regulations do 

not really allow seven (or even six) months as a practical matter 

because the time period includes the winter months when, LPNH says, 

it is much more difficult to find people in groups outside. Of 

course, hundreds of thousands of New Hampshire citizens streamed 

in and out of polling stations in the presidential primaries held 

last February. And even if we were to view seven New Hampshire 

months as the equivalent of five Georgia months, the cumulative 

burden in New Hampshire would still be less than that sustained in 

Jenness because of New Hampshire's low percentage requirement. 

 4 Nor does New Hampshire's law impose any of the possibly 

"suffocating restrictions," Jenness, 403 U.S. at 438, that led to 

the remand in Storer. See Storer, 415 U.S. at 740. Any registered 

voter may sign a petition. Notarization is not required. 
- 17 - 

The record LPNH has compiled in this case also makes 

clear that the marginal impact of the difference between five, 

six, or seven months is quite small. With $50,000 in hand, a party 

can obtain 20,000 signatures within two or three months (or even 

seven days if we use LPNH's July 2012 experience as a gauge). Or, 

with the equivalent of twenty fulltime volunteers, a party can 

apparently gather enough signatures in a single month.5 Even 

reducing these experience-based estimates by half, one is still 

left to conclude that, once one has more than several 

months--and certainly five to seven months--the driving variables 

in determining success in gathering 20,000 signatures are money 

and volunteers, not time within which to gather signatures. The 

difference between seven months and more than seven months is 

therefore largely immaterial as long as the time for raising money 

and recruiting volunteers is not reduced. 

Reframing the issue, LPNH next attempts to pitch at least 

a portion of its challenge as a challenge only to the January 1, 

year-of-election start date mandated by HB 1542. The logic here 

seems to be that even if the combined burden of signature amount 

and gathering time is not impermissible in the abstract, a 

limitation on when the gathering time must occur may be invalid. 

We accept the premise that the precise point on the calendar during 

 5 Based on LPNH's experience in 2000, it appears that one 

fulltime volunteer can gather 1,000 signatures in a month. 
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which the signature-gathering window may remain open can pose a 

problem independent of the size of the window. For example, early 

dates may precede the events that give rise to third-party support, 

as in the presidential elections of 1892, 1912, 1924, and 1968, 

see generally Alexander Bickel, Reform and Continuity, The 

Electoral College, The Convention, and the Party System 87-88 

(1968), as well as 1980, see Anderson v. Celebrezze, 460 U.S. 780, 

790 (1983). In Anderson, the Supreme Court set aside an eightmonth qualifying date requirement that ended in March of the 

pertinent election year as too early for just this reason. See 

id. at 791–92. 

LPNH makes no claim that New Hampshire requires it to 

submit its nominating papers too soon. To the contrary, it argues 

that New Hampshire requires third parties to wait too long before 

they can gather signatures. The case for challenging a start date 

requirement as too late cuts against some of the reasons for 

striking down early end-date requirements. Moving ballot-access 

efforts closer to an election encourages third parties to first 

work within one of the two more established parties, advancing 

what the Supreme Court has called "the State's interest in 

preserving party harmony." Id. at 805 (citing Bickel, supra, at 

87-88). Similarly, as New Hampshire notes, signatures gathered 

nearer the end date are more likely to represent the views of the 

signers as of the end date than those signed well in advance. That 
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being said, New Hampshire's January 1 start date is a requirement 

not imposed by the Georgia regime at issue in Jenness, so we need 

consider whether it renders the New Hampshire ballot-access regime 

more burdensome than the Georgia regime the Supreme Court there 

approved. 

LPNH contends that the January 1 start date burdens a 

party seeking ballot access by requiring that it spend time on 

petitioning during the election year, rather than before the 

election year, thereby reducing the time available for 

"electioneering" when it is most effective. LPNH, however, 

simultaneously stresses that the gathering of nomination 

signatures is principally performed by paid professionals who are 

not otherwise engaged in the actual campaigns. The start date, in 

turn, does not apply to fundraising activities, hence LPNH can 

raise the funds to pay professional signature gatherers any time 

it wants. 

LPNH did use some volunteer time in 2012 to gather 

signatures. That time seems to equal only two and one-half months 

of volunteer time, more or less. We have no doubt that the petition 

process itself takes also some of the time of campaign officials 

even if they do not themselves gather signatures. The record, 

however, provides no quantification suggesting that any such 

effort materially detracts from "electioneering," especially 

keeping in mind that there is no claim that the candidates' efforts 
- 20 - 

are impeded. All in all, this is small beer. According to LPNH's 

own estimates, the entire "lost" election year effort could be 

regained for $5,000 paid to professional signature gatherers. And 

the effort is not lost, but simply time-shifted so that its value 

is arguably reduced but certainly not eliminated. 

Somewhat inconsistently, LPNH argues that the January 1 

start date sidelines its attempts to solidify support in years 

when no election occurs by forcing it to sit idly by instead of 

strengthening its infrastructure by collecting signatures during 

those years. This argument relies on the false premise that if a 

political organization is not actively soliciting signatures for 

nomination papers, there is nothing it can do to attract supporters 

and strengthen its organizational apparatus. To the contrary, as 

the district court observed, "[e]ven with the January 1 start date 

in place, LPNH remains free to plan its election-year petition 

drive[,] . . . recruit volunteers[,] . . . [and] raise funds for 

the drive during the off year that it can then spend on paid 

petitioning during the election year." Gardner, 126 F. Supp. 3d 

at 204–05. 

LPNH also claims that the January 1 start date deprives 

it of the chance to gather signatures at city off-year elections 

in November, fairs in the fall, and other such similar outside 

events before the cold New England winter begins. As we noted 

above, with New Hampshire voters turning out in droves for party 
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primaries in February, we doubt New Hampshire citizens hibernate 

as much as LPNH implies. In any event, New Hampshire traditionally 

holds town meetings in the spring, followed promptly by farmers' 

markets, parades, and ball games in the spring and summer months. 

In the words of a former LPNH gubernatorial candidate, spring gun 

shows are fruitful sources of signatures, and July 4th provides 

each year "the political mecca of parades." LPNH itself gathered 

1,700 signatures on a single day in July of 2012. All in all, we 

reject as greatly overstated LPNH's contention that the weather 

and calendar render the seven-month, January-to-August timeframe 

so unsuitable for signature gathering that we should regard it as 

more constraining than the 180-day window sustained in Jenness. 

Relatedly, LPNH contends that the start date forces it 

to "stand still" in the year prior to the year of the election. 

If this is simply another way of saying that it has to hold off on 

signature gathering until after January 1, we have just addressed 

that argument. If, instead, LPNH is saying that the new start 

date somehow restricts it from other campaign undertakings prior 

to January 1, it seems instead to do just the opposite. The new 

start date eliminates signature gathering prior to January 1, 

thereby increasing resources available for other activities during 

that time. Either way, this argument adds nothing. 

LPNH next argues that candidates will not be confident 

that they will make the ballot if the late start date prevents 
- 22 - 

LPNH from collecting all the signatures it needs by June 30 of the 

election year. There is no evidence, though, that LPNH has ever 

placed any premium on concluding before June 30. The major 

parties' nominees for governor and state senate are not even 

selected until September. And there is no reason that the 

professional signature gatherers cannot conduct all their work 

well before June 30 if LPNH wants. Again, the controlling factor 

would seem to be money, not time. 

But, says LPNH, the paid gatherers themselves cost more 

during an election year. The evidence of this is skimpy, to say 

the least, consisting solely of a back of the envelope guess of a 

$10,000 delta by an LPNH official. This is too little in both 

foundation and magnitude upon which to rest a facial challenge to 

New Hampshire's law. 

LPNH argues, finally, that the January 1 start date 

delays any effort to determine what it calls the "verification 

rate," meaning the percentage of signatures that are verified as 

accurate. This information apparently helps estimate how many new 

signatures need be gathered. LPNH makes no attempt to spell out 

what this actually means, or whether the resulting cost (if any) 

is already included in its $10,000 estimate. 

Collectively, these arguments that the change in start 

date by itself imposes a substantial burden fail to convince us 

that New Hampshire's ballot-access regime is as burdensome as--
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much less more burdensome than--the Georgia regime upheld in 

Jenness. To the extent they represent any burden for a political 

party that has a sufficient modicum of support to mount statewide 

campaigns that contribute to the voters' understanding and 

meaningful options, the burden is minimal. With social media and 

other modern technology, finding and connecting with supporters 

can happen with greater expediency than ever before. Contacting 

many supporters to contribute to fundraising efforts is easier 

today than it has ever been. And, perhaps more importantly, 

$50,000 just isn't what it once was, especially in politics. In 

a state in which twenty-four individual candidates spent an average 

of over $57,000 each to mount successful local campaigns for state 

senate in 2010, see Election Overview: New Hampshire 2010, Nat'l 

Inst. on Money in State Politics, http://www.followthemoney.org/ 

election-overview?s=NH&y=2010 (last updated June 13, 2016), it 

would be strange to say that a viable statewide political party 

cannot be expected to shoulder a $50,000 burden for statewide 

ballot access for its nominees. 

3. 

Unable to mount a persuasive case that the burden New 

Hampshire imposes on third parties seeking statewide ballot access 

for their nominees even equals, much less exceeds, the burdens 

imposed by the Georgia regime sustained in Jenness, LPNH turns its 

attention to the other side of the equation. LPNH correctly notes 
- 24 - 

that the burdens in Jenness were justified by Georgia's effectively 

asserted interest in demanding that a party demonstrate a modicum 

of support before receiving the right to have its nominees listed 

on the ballot. In this case, by contrast, New Hampshire has not, 

LPNH says, effectively asserted such a justification. Rather, in 

this case LPNH says that any reliance on the state's asserted 

interest in ensuring a baseline level of support among balloteligible parties is only a "new post-hoc justification" concocted 

mid-way through this litigation and a smokescreen for the 

legislature's real concerns in enacting the amendment. LPNH points 

to two New Hampshire legislative subcommittee reports bearing on 

HB 1542, both of which identify the facilitation of nominationpaper certification as the goal advanced by the amendment, and 

neither of which mentions an interest in protecting the integrity 

of elections by combating ballot overcrowding. Indeed, New 

Hampshire defended the new January 1 start date solely on the basis 

of its certification justification at an earlier stage in this 

litigation, not elaborating on the interest in limiting ballot 

access until after discovery had commenced. 

Based on this evidence, LPNH urges us to rule that New 

Hampshire's stated interest is an illegitimate post hoc 

justification that ought not be credited. LPNH argues that, 

applying the sliding-scale test developed in Anderson, "the 

precise interests put forward by the State as justifications for 
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the burden imposed by its rule" pale in comparison to "the 

character and magnitude of the asserted injury to the rights 

protected by the First and Fourth Amendments that the plaintiff 

seeks to vindicate." 460 U.S. at 789. 

Precedent, including Anderson, provides no direct 

guidance on whether we can rely on belated statements of interest 

first voiced in the course of litigation challenging a statute. 

LPNH and its amici urge us to adopt by analogy the approach used 

in equal protection cases, where a proffered justification cannot 

withstand a heightened degree of scrutiny if that justification is 

"hypothesized or invented post hoc in response to litigation." 

United States v. Virginia, 518 U.S. 515, 533 (1996). They observe 

that some courts applying Anderson have compared the middle range 

of its sliding scale to "intermediate scrutiny," see Guare v. 

State, 117 A.3d 731, 740 (N.H. 2015), and therefore urge us to 

ignore the state's asserted interest in ensuring a minimal level 

of support for parties appearing on the ballot. 

The problem for LPNH is that the burden here caused 

solely by the start date itself (as opposed to the three-percentwithin-seven-months requirement), for the reasons already stated, 

is minimal, placing it at the easier-to-justify end of Anderson's 

sliding scale. Applying LPNH's chosen analogy, we would 

accordingly find ourselves at the "rational basis" end of any equal 

protection analysis. And, at that end, we can rely on statements 
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of the state's interest first identified in litigation briefs. 

Barr, 626 F.3d at 110 (finding that if the law imposes only a 

"modest" or "reasonable" burden, "there need be only a rational 

basis undergirding the regulation in order for it to pass 

constitutional muster"); cf. Dudum v. Arntz, 640 F.3d 1098, 1116 

n.28 (9th Cir. 2011) (expressing doubt that "the normal ability of 

litigants to advance arguments justifying their out-of-court 

behavior is suspended in election challenges where, as here, the 

burden imposed on voting is minimal at best").6 

4. 

The foregoing leaves LPNH with one escape gambit: 

identify as a burden the cumulative weight of the ballot-access 

regime as shortened by HB 1542, characterize that cumulative burden 

as falling further along the Anderson sliding scale, and then weigh 

it against only the state interest identified by the legislature 

 6 We therefore need not decide whether we agree with the 

district court that post hoc justifications may be considered 

whenever Anderson balancing applies. See Gardner, 126 F. Supp. 3d 

at 209. We do note, though, that in Crawford v. Marion County 

Election Board, 553 U.S. 181 (2008), six Justices--three using 

Anderson's "balancing approach," id. at 190 (plurality opinion), 

to find that the law in question imposed a "limited burden," id. 

at 202 (quoting Burdick v. Takushi, 504 U.S. 428, 439 (1992)), and 

three relying on a "two-track approach," id. at 205 (Scalia, J., 

concurring in the judgment), to find the law's burden "minimal," 

id. at 209--declined to consider the distinct but related argument 

made by challengers to Indiana's voter identification law "that 

the statute was actually motivated by partisan concerns" and not 

the concerns advanced by the state in litigation, id. at 191 

(plurality opinion). 
- 27 - 

in passing HB 1542. We reject this approach as illogical. It 

mismatches the cumulative burden of the entire ballot-access 

regime with only the justification initially cited by the New 

Hampshire legislature for altering the start date (and thus the 

duration of petition gathering). We see no reason to require a 

state legislature to restate its facially obvious reasons for 

having a ballot-access law each time it enacts an amendment 

tweaking that law. Similarly, if the current regime would have 

withstood challenge had it been enacted now as a whole, we can see 

no reason why it should fall if developed over time by amendment. 

These ballot-access cases, unlike most voting-access 

cases, pose an identity between burden and purpose. The obvious 

purpose of the regime, in toto, is precisely to create the burden 

itself, which in turn has the effect, at the least, of limiting 

voters' selection to those who can make "some preliminary showing 

of a significant modicum of support before printing the name of a 

political organization's candidate on the ballot . . . ." Jenness, 

403 U.S. at 442; see also, e.g., Libertarian Party of Me. v. 

Diamond, 992 F.2d 365, 371 (1st Cir. 1993) (endorsing state 

interest in "avoiding overloaded ballots and frivolous 

candidacies, which diminish victory margins, contribute to the 

cost of conducting elections, confuse and frustrate voters, 

increase the need for burdensome runoffs, and may ultimately 

discourage voter participation in the electoral process"). In the 
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words of the Supreme Court, this is "an important state interest." 

Jenness, 403 U.S. at 442. 

Of course, we are not so naïve as to reject the 

possibility that a state legislature dominated by the two major 

parties may well wish to overshoot the mark, closing the door to 

all competitors. Our ultimate decision must therefore depend in 

large part on what we deem to be an appropriate "modicum of 

support." Do we mean, for example, that the party's nominees have 

enough support to make winning plausible? Or is it enough that 

the party's presence in the campaign will generate enough interest 

and support to help frame issues and introduce new ideas, affect 

the positioning of other candidates, and signal growing 

dissatisfaction with the dominant parties? In Anderson, the 

Supreme Court suggested that the hard-to-quantify spillover 

benefits of a third-party candidacy to the "diversity and 

competition in the marketplace of ideas," implicated "the primary 

values protected by the First Amendment." 460 U.S. at 794. 

In this respect, it is fair to read in Anderson a greater 

appreciation for the benefits of third-party participation than is 

apparent on the face of the opinion in Jenness. It would be quite 

a stretch, though, for a circuit court to leverage such a change 

in nuance into a license to stray from a clear ruling sustaining 

as constitutional a burden demonstrably greater than that imposed 

by New Hampshire. See Sarzen v. Gaughan, 489 F.2d 1076, 1082 (1st 
- 29 - 

Cir. 1973) ("When a . . . federal court has spoken, stability and 

stare decisis require that litigants and other courts take its 

pronouncement at face value until formally altered."); cf. Eulitt 

ex rel. Eulitt v. Me. Dep't of Educ., 386 F.3d 344, 349 (1st Cir. 

2004) (citing Sarzen, 489 F.2d at 1082) (noting that until a higher 

court revokes its binding precedent, a lower court "is hard put to 

ignore that precedent unless it has unmistakably been cast into 

disrepute by supervening authority"). And even were we to consider 

such an ambitious frolic, the record in this case provides little 

fuel for much of a journey. Neither LPNH nor its amici explain 

how easy or hard it is to gather $50,000 or a few dozen volunteers 

in today's world of social media. Are there examples of parties 

or candidates that cannot raise $50,000 statewide, yet can still 

mount viable campaigns? Or do the costs of staff and advertising 

and the thresholds set by debate organizers themselves require 

levels of support greater than that required by New Hampshire? 

Have any parties barely managed to crawl over access thresholds, 

yet ended up playing a substantial role other than as a spoiler? 

Or does an analysis of election results in New Hampshire show that 

it is easier to get on the ballot than it is to garner substantial 

support in the form of actual votes? If a truly viable third party 

emerges, would it not harm that party to have too low a threshold, 

resulting in many extra parties with no chance, rather than a 

single third party less easily lost in the clutter? And what 
- 30 - 

effect would lower thresholds have on laws providing public finance 

for campaigns? Anyone gauging the dividing line between a properly 

qualifying threshold and a barrier to meaningful competition would 

presumably want to consider these and other questions. The absence 

of information along these lines restricts the scope and quality 

of the judicial judgments required in cases such as this. As the 

litigant with the burden of proof, see, e.g., Harley-Davidson 

Credit Corp. v. Galvin, 807 F.3d 407, 411 (1st Cir. 2015), LPNH 

may suffer from that lack of detail in the record. 

III. Conclusion 

With a cumulative burden well less than that found 

acceptable in controlling precedent, and with no other attributes 

that themselves pose significant barriers to access, New 

Hampshire's regulations stand as an admittedly robust but 

nevertheless constitutional exercise of the state's "'broad power 

to prescribe the "Times, Places and Manner of holding Elections 

for Senators and Representatives," which power is matched by state 

control over the election process for state offices.'" Wash. State 

Grange, 552 U.S. at 451 (quoting Art. I, § 4, cl. 1; Clingman v. 

Beaver, 544 U.S. 581, 586 (2005)). We affirm the judgment of the 

district court granting New Hampshire's motion for summary 

judgment in this facial challenge to part of the state's ballotaccess framework.