UNITED STATES DISTRICT COURT
 

DISTRICT OF NEW HAMPSHIRE
 

LIBERTARIAN PARTY OF NEW HAMPSHIRE, 

BOB BARR, WAYNE A. ROOT, BRENDAN 

KELLY and HARDY MAC lA, 

Plaintiffs, 

v.
 

\\,'ILLIAM M. GARDNER, in his Official Capacity
 

as	 Secretary of State of New Hampshire, 

Defendant. 

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF 

Introduction 

I. The plaintiffs are an alternative political party (the Libertarian Party of 

New Hampshire, hereinafter "LPNH")~ its chairman (Brendan Kelly); one of its 

supporters (Hardy Macia)~ and the national Libertarian Party's candidates for 

President and Vice President of the United States (Bob Barr and Wayne A. Root), 

on whose behalf nomination papers have been circulated and filed pursuant to N.H. 

Rev. Stat. Ann. 655:40. Plaintiffs Kelly and \1acia also sue in their capacity as 

New Hampshire voters who want to support and vote for the Libertarian Party and 

for Barr and Root, its candidates for President and Vice President, in the general 

election on November 4. 2008. Defendant Secretary of State is the chief election 

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officer of New Hampshire. 

2. Upon information and belief, the Secretary of State plans to list on the 

November ballot not one but two Libertarian Party candidates for President of the 

United States, namely, plaintiff Bob Barr and one George Phillies, on whose behalf 

nomination papers were also circulated and filed pursuant to N.H. Rev. Stat. Ann. § 

655.40. 

3. The Secretary of State has refused to permit the plaintiffs to substitute 

the Barr candidacy for the Phil lies candidacy and has refused to list Barr on the 

November ballot as the sole Libertarian Party candidate for President. 

4. The plaintiffs seek declaratory and injunctive relief from the Secretary 

of State's refusal to permit such substitution. 

Jurisdiction and Venue 

5. Federaljurisdietion is claimed under 28 U.S.c. §§ 1331 and 1343 and 

42 U.S.c. § 1983. 

6. Venue lies in this district under 28 U.S.C. § 1391(b). 

Parties 

7. Plaintiff LPN H is an affiliation of voters formed for the purpose of 

influencing public policy by a variety of means, which include running candidates 

for public office and disseminating its views on policy issues through its candidates' 

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campaIgns. The LPN H was founded in or about 1972 and is the New Hampshire 

affiliate of the national Libertarian Party. It was a ballot-qualified "party" within the 

meaning of N.H. Rev. Stat. Ann. § 652.11 from Novcmber 1990 to November 1996. 

8. Plaintiff Bob Barr resides in Smyrna, Georgia and is the Libertarian 

Party candidate for President of the United States, having been nominated for that 

office at the Libertarian national convention held over the Memorial Day weekend 

during the period May 22-26,2008. He represented Georgia's seventh 

congressional district in the United States House of Representatives from 1995 to 

2003. 

9. Plaintiff Wayne A. Root resides in Henderson, Nevada and is the 

Libertarian Party candidate for Vice President of the United States, having been 

nominatcd for that office at the Libertarian national convention. 

10. Plaintiff Brendan Kelly resides in Seabrook, New Hampshire and is the 

chairman of plaintiff LPN H. He is a selectman in Seabrook and is a candidate for 

the New Hampshire House of Representatives. 

II. Plaintiff Hardy Maeia resides in Canterbury, New Hampshire and is an 

active member and supporter of the LPNH. 

12. Defendant William M. Gardner is the Secretary of State of New 

Hampshire and, as such, is the chief election officer of New Hampshire. 

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Facts 

13. During the period May 22-26, 200R, the Libertarian Party held a 

national nominating convention in Denver, Colorado at which plaintiffs Barr and 

Root were nominated as the party's candidates for President and Vice President of 

the l! nited States, respectively. 

14. At the convention, the aforementioned George Phillies also sought the 

nomination for President btlt was defeated by plaintiff Barr. 

15. Upon information and belief, anticipating that he might win the 

nomination but have insufficient time to obtain the 3,000 valid nomination papers 

required for access to the New Hampshire ballot, Phillies caused the requisite 

number of nomination papers to be circulated and filed on his behalf prior to the 

convention. 

16. On or about July 30, 2008 Phillies qualified to be listed on the 

November ballot as a candidate for President on the Libertarian Party line. 

17. After the convention, the requisite number of nomination papers were 

circulated and filed on Barr's behalf. 

18. On or about September 3, 2008 Barr qualified to be listed on the 

November ballot as a candidate for President on the Libertarian Party line. 

19. Plaintiffs expended some $20,400 to qualLfy Barr for the ballot. 

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20. Upon information and belief, Barr will be listed on the ballots of at 

least 4R states as the (only) Libertarian Party candidate for President. Ne\v 

Hampshire is the only state in which, absent judicial intervention, a second 

individual will also be listed on the ballot as a Libertarian Party candidate for 

President. 

21. The plaintiffs have sought to substitute the Barr candidacy for the 

Phillies candidacy and to have Barr listed on the Novemher ballot as the sale 

Libertarian Party candidate for President. 

22. The Secretary of State has refused to permit such substitution and, 

upon information and belief, plans to list both Barr and Phillies on the November 

ballot as Libertarian Party candidates for President of the United States. 

23. Plaintiffs seck declaratory and injunctive relief from the Secretary of 

State's refusal to permit the substitution of Barr for Phillies and to list Barr on the 

November ballot as the sole Libertarian Party candidate for President. Plaintiffs 

assert that the Secretary of State's refusal to permit such substitution unduly burdens 

their rights to cast their votes effectively, to associate for the advancement of 

politica1 beliefs, and to have due process and equal protection of law. They further 

assert that New Hampshire has no state interest which makes it necessary to burden 

their rights. 

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Claims 

24. Plaintiffs state a claim under 42 U.S.C. 19R3 and the First and 

I ourtccnth Amendments to the Constitution of the United States in that the 

lecretary of State's retusal to permit the substitution of Barr for Phillies and to list 

IBarr on the ballot as the only Libertarian Party candidate for President impairs 

II' la intitTs' rights to ha ve d ne process and equa I protection orIaW, to cast the ir votes 

leffectivelY and to associatc politically, including their "constitntional right ... to 

creale and develop [a] new political part[y]," Norman v. Reed, 502 U.S. 279, 2R8 

( 1992), and such impairment of plaintiffs' rights cannot be justified by a sufficient 

state interest. 

25. Plaintiffs state a claim under 42 U .S.C. § 1983. 

26. Plaintiffs state a claim for attorney fees and costs under 42 U.S.c. § 

1988. 

Other Averments 

27. By refusing to permit the substitution of the Barr candidacy for the 

Phillies candidacy, and by refusing to list Barr on the ballot as the only Libertarian 

Party candidate for President, the Secretary of State is acting under color of state 

law to deprive plaintiffs of due process and equal protection of law and of speech, 

voting and associationa I rights secured by the First and Fourteenth Amendments to 

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the Constitution of the United States. Defendant Secretary of State is therefore 

liable to plaintiffs pursuant to 42 U.S.c. 1983. 

28. Plaintiffs have no adequate remedy at law and will suffer irreparable 

injury unless injunctive relief is granted. 

Relief Requested 

29. WHEREFORE, plaintiffs request the following relief: 

a. a declaration that the Secretary of State's refusal to permit the 

substitution of the Barr candidacy for the Phillies candidacy, and to list Barr on the 

ballot as the only Libertarian Party candidate for President, is unconstitutional; 

b. a declaration that the Secretary of State is in violation of 42 

U.S.c. 1983: 

e. preliminary and permanent injunctions prohibiting the Secretary 

of State from refusing to permit the substitution of the Barr candidacy for the 

Phillies candidacy and to list Barr on the ballot as the sole Libertarian Party 

candidate for President; 

d. reasonable attorney fees and eosts pursuant to 42 U.S.C. 1988; 

e. such other and further relief as may be just and proper. 

Dated: September 4, 2008 

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Gary Sinawski 

180 Montague Street 25 th Floor 

Brooklyn, NY 11201 

Telephone: (516) 971-7783 

E-mail: gsinawski@aol.com 

E

s~van;;;;;pen 

280 Pleasant Street, Ste. 2 

Concord, NH 03301 

Telephone: (603) 223-000] 

Telefax: (603) 223-0007 

E-mail: gunesq] ({L}verizon.net 

Attorneys for Plaintiffs 

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