Libertarian Party v. Diamond ( 1993 )

May 25, 1993
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2026
LIBERTARIAN PARTY OF MAINE, ET AL.
Plaintiffs, Appellants,
v.
G. WILLIAM DIAMOND, ETC.,
Defendant, Appellee.
No. 92-2061
LIBERTARIAN PARTY OF MAINE, ET AL.
Plaintiffs, Appellants,
v.
G. WILLIAM DIAMOND, ETC.,
Defendant, Appellee.
ERRATA SHEET
The opinion of this Court issued on April 30, 1993, is
amended as follows:
At p. 20, last line in text:
Add "et seq.," after " 301,"
Replace the current first sentence beginning on line 1,
p. 21, with the following: "Indeed, a party can choose to
'disqualify' itself at any time up to April 15 of an elec-
tion year, even after submitting the party designation and
consent of its 'coattail' candidate under 302(1), merely
by eschewing the municipal caucuses required by 302(3)."
Replace " 301" in line 7 of with " 302"
The first line in fn. 11 should read as follows:
"The April 15 caucus deadline occurs two weeks after
. . ."
Lines 9 and 10 in fn. 11 should read as follows:
"may choose simply by withholding the certification
of caucus participation under 302(3) to nominate
its candidates to . . ."
At p. 23, 2, l.2:
Replace " 301" with " 302"
At p. 24, l.10 in text:
Replace " 301(D)" with " 302(3)"
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2026
LIBERTARIAN PARTY OF MAINE, ET ALS.,
Plaintiffs, Appellants,
v.
G. WILLIAM DIAMOND, ETC.,
Defendant, Appellee.
No. 92-2061
LIBERTARIAN PARTY OF MAINE, ET ALS.,
Plaintiffs, Appellants,
v.
G. WILLIAM DIAMOND, ETC.,
Defendant, Appellee.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Hector M. Laffitte,* U.S. District Judge]
Before
Torruella and Cyr, Circuit Judges,
and Bownes, Senior Circuit Judge.
*Of the District of Puerto Rico, sitting by designation.
Glenn S. Eddy with whom Berman & Simmons, P.A. was on brief for
appellants.
Cabanne Howard, Deputy Attorney General, with whom Michael E.
Carpenter, Attorney General, was on brief for appellee.
April 30, 1993
2
CYR, Circuit Judge. The Libertarian Party of Maine
CYR, Circuit Judge.
("Party") and seventeen of its candidates for elective office
("appellant candidates") challenge a district court ruling
upholding the constitutionality of Maine's ballot-access require-
ments, 21-A M.R.S.A. 301 et seq. We affirm.
I
Under Maine law, a group of voters seeking recognition
as a new political party may "qualify" in either of two ways.
First, the voter group may petition the Secretary of State to
participate as a political party in the primary election; the
petition must be signed by voters numbering at least 5% of the
votes cast in the preceding gubernatorial election. See 21-A
M.R.S.A. 303(1). Second, the group may organize a political
party around a prior candidate for the office of Governor or
President who (1) was not affiliated with a registered party;
(2) consents in writing; and (3) received more than 5% of the
total Maine vote cast for the office of Governor or President, as
the case may be, in the immediately preceding gubernatorial or
presidential election. See id. at 302(1). A party which
organizes itself under 302(1), on the "coattails" of a prior
independent candidate for office, need not demonstrate contem-
poraneously the level of voter support defined in 303(1), but
the party's candidates remain subject to the numerical voter-
support requirements for later listing on the general election
ballot. See id. at 304.
3
Party recognition entails certain benefits, including
public exposure, the prestige of "official" status, automatic
listing of the party's presidential candidate on the election
ballot, see id. at 331(2)(A), and the right to raise funds by
means of a special check-off box on the Maine income tax form.
See 36 M.R.S.A. 5283. With these benefits come certain respon-
sibilities, including the obligation to hold municipal caucuses
during election year, 21-A M.R.S.A. 301(1)(A), 311; to hold a
biennial state convention, id. at 301(1)(B), 321; and to
nominate candidates for office through a primary election pro-
cess, id. at 331(1). The primary election process is intended
to control "ballot clutter" by ensuring that each political party
nominates only one candidate for any particular office, and that
the party nominee possesses the prescribed levels of support
within his or her party and the general electorate. See Opinion
of Justices of the Supreme Judicial Court, 578 A.2d 183, 186 (Me.
1990).
To qualify for the primary election ballot, a party
candidate must present the Secretary of State, not later than
April 1, with a petition signed by enough enrolled party members
to demonstrate the level of party support prescribed for the par-
ticular "electoral division" to which the candidate seeks elec-
tion. Id. at 335(5). The required levels of petition support
are shown in Table I.
4
TABLE 1
Number of Signatures Required to Qualify For
Primary Ballot (Registered Party Candidates)*
President of the United States 2000 signatures
United States Senator 2000 signatures
State Governor 2000 signatures
United States Representative 1000 signatures
County offices
(other than County Commissioner) 150 signatures
State Senator 100 signatures
County Commissioner 50 signatures
State Representative 25 signatures
* Signatures may come only from enrolled members of
prospective candidate's party.
-
A party candidate who does not obtain the signatures required to
qualify for the primary election ballot may still qualify for the
general election ballot by winning a plurality of the party's
primary election write-in vote. Id. at 723(1)(A). The write-
in voting process is not restricted to members of the candidate's
political party, but is open to any registered voter who is
eligible to participate in the party primary. Id. at 340. On
the other hand, a successful write-in candidate must obtain votes
totalling twice the number of signatures which would have been
required to qualify for listing on the primary ballot under
335(5). See id. at 723(1)(A).
5
-
TABLE II
Number of Signatures Required to Qualify For
General Election Ballot by Nomination Petition *
or by Write-In Vote in Party Primary **
Presidential elector 4000 signatures
United States Senator 4000 signatures
Governor 4000 signatures
United States Representative 2000 signatures
County office
(other than County Commissioner) 300 signatures
State Senator 200 signatures
County Commissioner 100 signatures
State Representative 50 signatures
* Signatures may come from any registered voter
regardless of party affiliation.
** Write-in votes may come from any registered voter
whom the party declares eligible to participate in the
party's primary (including independent voters).
-
Candidates who are not enrolled in a "qualified" party,
or who withdraw their party affiliation at least three months in
advance, see id. at 353, may qualify for Maine's general
election ballot through a third process, a nomination petition.
Id. at 351. The nomination petition must bear the names,
signatures and addresses of enough registered voters, regardless
of party affiliation, to meet the prescribed level of support for
the particular "electoral division" to which the candidate
aspires. Id. at 354(1)-(2). Generally speaking, the number of
signatures required on a nomination petition for any particular
office is the same as that required for a write-in candidate to
6
qualify at a party primary, see Table II, supra; and totals twice
the number of signatures a party candidate would be required to
obtain on a primary petition. See id. at 354(5). A prospec-
tive candidate may list a party name (or "political designation")
of up to three words on the nomination petition, id. at 354(1),
and on the general election ballot if s/he qualifies. Id. at
602(B).
II
For some time, the Libertarian Party has participated
in Maine elections, apparently without achieving the level of
voter support needed to qualify as an official political party
under 303.1 In January 1991, however, Andrew Adam, an inde-
pendent candidate who won 9% of the vote in the 1990 Maine guber-
natorial election, permitted the Party to use his name to bypass
the nomination-petition process and qualify automatically as a
political party under the "coattail" provisions of 302(1).
Following its certification as an "official" party, the Party
made diligent efforts to attract members. By the date of the
1In May 1984, the Party sought to place its presidential
candidates on the Maine ballot by means of a nomination petition,
but fell short of the 4000 signatures required under the statuto-
ry predecessor to 354. The Maine Supreme Judicial Court
rejected the Party's challenge to the signature requirement, and
denied the Party's motion to enjoin the Secretary to place the
candidates' names on the general election ballot. See Crafts v.
Quinn, 482 A.2d 825 (Me. 1984). In June 1990, the Party began an
organizing campaign to "qualify" as an official political party
under the 303 petition process, which apparently fell short of
the level of voter support required by 303(1).
7
primary election on June 9, 1992, it had enrolled 1,048 regis-
tered voters statewide, but did not have sufficient concentra-
tions of membership support to satisfy the signature requirements
under 335 for getting the appellant candidates on the primary
election ballots in their respective districts.2 The appellant
candidates participated as write-in candidates in the Party
primary, and in some instances won a plurality of the write-in
votes cast in their respective districts,3 but the total number
of their write-in votes was insufficient to qualify the appellant
candidates for the general election ballot under 723(1)(A).4
Anticipating its candidates' inability to qualify for
the general election ballot through the prescribed statutory
process, the Party amended its by-laws on May 17, 1992, to permit
2Two of the Party's candidates, Victoria Linne and Carleton
Mabee, did meet the signature requirements for listing on the
primary ballot for the office of State Representative. Both
received a plurality of votes in their respective districts in
the Party primary (Linne received 26 votes, Mabee received 2
votes), and both qualified for the November general election
ballot under 331. Neither is named as a party to this appeal.
3Some of the appellant candidates failed to obtain a plural-
ity of support in the Party primary. For example, Charles
Potratz, the candidate nominated at the Party convention to
represent Senate District 4, finished third in the District
primary (one write-in vote) behind Charles Webster and Dana White
(each with four votes). In Maine's Second Congressional Dis-
trict, the Party's nominated candidate, Paul Fichtner, finished
second (22 votes) to Olympia Snowe (30 votes).
4A total of 103 write-in votes were cast, for 23 candidates,
to determine the Party's nominees for Maine's two Congressional
seats. The poor showing occurred despite the fact that the Party
permitted independent voters as well as Party members to parti-
cipate in its primary. The Secretary of State represented at
oral argument that independent (unenrolled) voters make up
approximately one-third of the Maine electorate, i.e., approxi-
mately 300,000 voters statewide.
8
its candidates in the general election to be nominated at the
Party convention. Following their nomination, the names of the
appellant candidates were submitted to defendant-appellee,
Secretary of State William Diamond ("Secretary"), who declined to
place their names on the general election ballot, citing the
mandatory language of the Maine election code. See id. at
331(1) ("a party's nomination of a candidate for federal, state
or county office shall be made by primary election") (emphasis
added); 7 ("[w]hen used in this Title, the words 'shall' and
'must' are used in a mandatory sense to impose an obligation to
act or refrain from acting").
On August 10, 1992, the Party brought an action for
injunctive relief against the Secretary, challenging, inter alia,
the constitutionality of Maine's ballot-access restrictions.
Following an expedited hearing, the district court dismissed the
action. See Libertarian Party of Maine v. Diamond, 799 F. Supp.
1 (D. Me. 1992). We denied injunctive relief pending appeal, on
the ground that appellants had not shown a likelihood of success
on the merits of their constitutional claim. In the 1992 general
election, no Party candidate was elected to any state office.
The Party's presidential candidates, Andrew Marrou and Nancy
Lord, who were "automatically" listed on the general election
ballot, received approximately one-quarter of one percent of the
Maine popular vote.5
5Because the Party's presidential candidates failed to poll
the 5% voter support needed to maintain "official party" status,
the Secretary contends that the Party lost its standing as a
9
Reiterating their constitutional claims on appeal,
appellants note that a Party candidate may be denied access to
the general election ballot under the Maine election code, even
if s/he commands the support of a plurality of the voters partic-
ipating in the Party's district primary, unless s/he also shows
that the Party itself has sufficient support, in the particular
"qualified" party under Maine law, and that its constitutional
claim is moot. See 21-A M.R.S.A. 304 ("a party . . . is not
qualified to participate in a subsequent primary election unless
it meets the requirements of 301"); see also id. at 301(1)(C)
("a party qualifies to participate in a primary election if . . .
its candidate for Governor or for President polled at least 5% of
the total vote cast in the State for Governor or President in the
last preceding gubernatorial or presidential election"). We
reject the State's contention, for three reasons.
First, we do not assume that a party is in fact subject to
disqualification under 301(1)(C) where its candidates failed to
poll 5% of the total vote in the preceding presidential election,
but did succeed in polling the requisite 5% level of support in
the preceding gubernatorial election. As noted, Andrew Adam (who
subsequently allowed the Party to petition for "official" status
under his name) polled 9% of the vote in the 1990 gubernatorial
election, and the Party contends that this showing "will carry
the Party through the 1994 gubernatorial election," regardless of
its performance in the intervening Presidential race.
Second, and more important, it may be that the process of
disqualification under 304 is not automatic, as it appears to
require a formal determination by the Secretary, under 305,
that the Party has not met the requirements of 301(1)(C). To
our knowledge, the Secretary has made no such official deter-
mination. To the extent that such a determination is a prere-
quisite to party disqualification, the Party would retain its
standing, and the State's argument would be groundless.
Finally, in all events the Party's complaint is one which is
"capable of repetition, yet evading review." See Anderson v.
Celebrezze, 460 U.S. 780, 784 n.3 (1983); Democratic Party of
United States v. Wisconsin, 450 U.S. 107, 115 n.13 (1981); Storer
v. Brown, 415 U.S. 724, 737 n.8 (1974); Rosario v. Rockefeller,
410 U.S 752, 756 n.5 (1973); Dunn v. Blumstein, 405 U.S. 330, 333
n.2 (1972). So long as the challenged statutory scheme remains
in effect, the Party and other small parties may qualify for
"official" party status under 302; so long as they qualify
without the necessary support to meet the signature requirements
of 335(5), the possibility exists that they will be "shut out"
of ballot access, as alleged here.
10
electoral subdivision, to enable the candidate (1) to gather the
requisite signatures from Party members to qualify for the
primary ballot under 335(5); or (2) to qualify for the general
election ballot by obtaining sufficient voter participation in a
write-in election under 723(1)(A). Appellants assert that
these additional requirements are unnecessary and unconstitution-
ally burdensome, since the Party has already qualified, under 21-
A M.R.S.A. 302, as an organization possessing "statewide
support." Furthermore, appellants assert, if any additional
showing of support is necessary, the Party should be able to rely
on demonstrations of support from other voters outside the Party
ranks.
III
Limitations upon ballot access may impinge two funda-
mental constitutional 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." See Williams v. Rhodes, 393 U.S.
23, 30 (1968); see also, e.g., Munro v. Socialist Workers Party,
479 U.S. 189, 193 (1987); Illinois State Board of Elections v.
Socialist Workers Party, 440 U.S. 173, 184 (1979). Where ballot
access restrictions fall unequally on similarly situated parties
or candidates, the Fourteenth Amendment right to "equal protec-
tion of the laws" may be threatened as well. See Anderson, 460
U.S. at 786 n.7; Lubin v. Panish, 415 U.S. 709, 713-14 (1974);
11
Bullock v. Carter, 405 U.S. 134, 141 (1972); Williams, 393 U.S.
at 30-34. The Supreme Court has recognized, nevertheless, that
"as a practical matter, there must be substantial regulation of
elections if they are to be fair and honest and if some sort of
order, rather than chaos, is to accompany the democratic process-
es." Storer v. Brown, 415 U.S. 724, 730 (1974). This legitimate
interest in reasonable regulation is based not only on "common
sense," Burdick v. Takushi, 112 S.Ct. 2059, 2063 (1992), but also
on the Article I reservation to the States of the power to
prescribe "Times, Places, and Manner of holding Elections for
Senators and Representatives." U.S. Const., Art. I, 4, cl. 1.
Accordingly, courts have attempted a constitutional equilibrium
between the legitimate constitutional interests of the States in
conducting fair and orderly elections and the First Amendment
rights of voters and candidates, balancing
"the character and magnitude of the asserted
injury to the rights protected by the First
and Fourteenth Amendments that the plaintiff
seeks to vindicate" against "the precise
interests put forward by the State as justi-
fications for the burden imposed by its
rule," taking into consideration "the extent
to which those interests make it necessary to
burden the plaintiff's rights."
Burdick, 112 S.Ct. at 2063 (quoting Anderson, 460 U.S. at 789).
"Only after weighing all these factors is the reviewing court in
a position to decide whether the challenged provision is uncon-
stitutional." Anderson, 460 U.S. at 789.
A. "Substantial Support"
12
As the Supreme Court repeatedly has held, States have a
legitimate interest in "protect[ing] the integrity of the elec-
toral process" by ensuring that "all candidates for nomination
make a preliminary showing of substantial support" among voters
in the relevant electoral districts. Over the years, the Court
has articulated the "support" requirement in various ways, but
its broad outlines are clear. See, e.g., Munro, 479 U.S. at 193
("modicum of support among the potential voters for the office");
Anderson, 460 U.S. at 788-89 n.9 ("preliminary showing of sub-
stantial support"); American Party of Texas v. White, 415 U.S.
767, 782 (1974) ("significant, measurable quantum of community
support"); Lubin, 415 U.S. at 715 ("serious candidates with some
prospects of public support"); Jenness v. Fortson, 403 U.S. 431,
442 (1971) ("significant modicum of support"). The "support"
requirement is meant to safeguard 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, increase the need for
burdensome runoffs, and may ultimately discourage voter partici-
pation in the electoral process. See Illinois State Board of
Elections, 440 U.S. at 183-84 (quoting Lubin, 415 U.S. at 715);
Bullock, 405 U.S. at 145. A State is permitted to consider a
party's primary-election performance as a relevant factor in its
measurement of "significant support." See, e.g., Munro, 479 U.S.
at 196-197 (upholding requirement that minor parties poll 1% of
participating electorate in primary election; observing that
13
"[t]he primary election . . . is 'an integral part of the entire
election process . . . [that] functions to winnow out and finally
reject all but the chosen candidates'"). "The State can properly
reserve the general election ballot 'for major struggles.'" Id.
(quoting Storer, 415 U.S. at 735).
The Party argues that its qualification as a political
party under the 302 "coattail" provision was enough to demon-
strate "substantial support" among the Maine electorate. We do
not agree. By choosing to qualify under the "coattail" provi-
sion, the Party bypassed the requirement of mustering significant
numerical support among eligible voters, rather than demonstrat-
ing its capacity to do so. As far as the record shows, the Party
has submitted no petitions, enrolled few members, and garnered
little support for the candidates who ran under its banner in the
1992 and earlier elections. Indeed, its only significant spon-
sorship to date has been the endorsement of Andrew Adam, whose 9%
showing in the 1990 gubernatorial elections may have suggested an
ability to interest independents in Party enrollment, but clearly
did not ensure that such support could or would be obtained. In
these circumstances, we think the State retained a legitimate
interest in ensuring that the Party in fact possessed a minimal
level of support among the electorate, as a prerequisite to
listing the appellant candidates on the primary and general
election ballots.6
6We believe the absence of any prior numerical showing of
support distinguishes this case from Tashjian v. Republican Party
of Connecticut, 479 U.S. 208 (1986), and Consumer Party v. Davis,
14
Moreover, even if we were to accept the Party's premise
that Adam's coattails invested the Party with some similitude
of "statewide support" more would be required. The Supreme
Court recently confirmed that a State possesses a separate, and
additional, interest in ascertaining that a political party which
nominates candidates for office in an electoral subdivision of a
larger political unit demonstrate support in the particular
electoral subdivision for which the candidate is nominated. See
Norman v. Reed, 502 U.S. , 112 S.Ct. 698, 708 (1992) (reject-
ing "overall" showing of support as basis for nominating local
candidate; "[a] Party [may not] cite its success in [one] dis-
trict as a sufficient condition for running candidates in the
[other]"). The Norman requirement makes sound electoral sense:
the potential for "confusion and frustration" when statewide
633 F.Supp. 877 (E.D. Pa. 1986), which the Party cites in its
briefs on appeal. In Tashjian, the Supreme Court invalidated a
state law prohibiting the participation of independent voters in
selecting convention-nominated candidates in a Republican Party
primary. But the Republican Party (with 425,695 registered
members) already had demonstrated a "significant modicum of
support" among the general voter population, under a legal
standard substantially stricter than Maine imposes. See id. at
211 n.2 (citing Conn. Gen. Stat. 9-372(5)(B) (1985)) (major
parties, eligible to participate in primaries, must have "re-
"
ceived . . . at least twenty per cent of the whole number of
votes cast for all candidates for governor" in the preceding
election). Clearly, in Tashjian the States retained little
compelling interest, prior to the challenged elections, in
reevaluating the Republican Party's "support." Likewise, in
Davis, a district court invalidated changes to Pennsylvania's
ballot-access restrictions that had the effect of "disqualifying"
a political party which (unlike the Party here) already had met
signature requirements for demonstrating "significant support,"
,
under an earlier version of the statute at issue. Although the
Davis court did not rely on the Consumer Party's preexisting
party status, that fact figures significantly in our evaluation
of its precedential weight in the circumstances of this case.
15
election ballots are overloaded with candidacies who lack even a
modicum of support among eligible voters poses similar risks in
local and district elections. As all appellant candidates sought
elective office at the local or district level, rather than
statewide,7 the State had a legitimate interest in ensuring a
modicum of candidate support among the relevant voter constituen-
cies, over and above any general support which might be imputed
to the Party based on Adam's "statewide" success in 1990.
B. Regulating Primary Participation
States possess a comparable interest in ensuring that a
party's nominating process includes sufficient participation by
the party's own members or supporters. Absent some level of par-
ticipation by party members, the integrity of party nominations
might be compromised by "party raiding," whereby "voters in
sympathy with one party . . . influence or determine the results
of another party's primary," Rosario, 410 U.S. at 761-62, which
in turn could threaten the integrity of general elections and
dilute the informative function of a party's label as a descrip-
tion of its collective political purpose. See Tashjian, 479 U.S.
at 220-21 (noting "informative function" of party labels as
"shorthand designation of the views of [the] party['s] candidates
on matters of public concern"); Rosario, 410 U.S. at 762 (noting
7Seven of the appellant candidates sought election in state
senate districts; eight in state representative districts; and
the remaining two as representative in each of Maine's two
congressional districts.
16
State's asserted interest in preventing primary votes which are
"not in sympathy with the party's principles").
Appellants correctly suggest that the Supreme Court, in
Tashjian, minimized the significance of the State's interest in
"attempting to act as the ideological guarantor of [a particular]
Party's candidates," 479 U.S. at 218, and reaffirmed its "faith
in the ability of individual voters to inform themselves about
campaign issues," id. (quoting Anderson, 460 U.S. at 796). In
arriving at this conclusion, however, the Court specifically
noted the state-law requirement that parties maintain a certain
level of support among the general electorate, see id. at 211
n.2, and that party candidates thereafter "garner substantial
minority support" at the Party's "closed" convention:
The Party is not proposing that independents
be allowed to choose the Party's nominee
without Party participation; on the contrary,
to be listed on the Party's primary ballot
continues to require, under a statute not
challenged here, that the primary candidate
have obtained at least 20% of the vote at a
Party convention, which only Party members
may attend.
Id. at 220-21 (emphasis added). In light of the Tashjian Court's
explicit reference to a "closed" nomination process, by a Party
possessing "substantial support" among the general electorate, we
do not think Tashjian signals a retreat from the position that
the State may impose reasonable safeguards to ensure active
participation by a significant number of a party's members or
supporters in the course of the nominating process.
C. Burden on Associational Interests
17
We next consider the burdensomeness of Maine's elector-
al scheme. Like all such schemes, Maine's ballot-access restric-
tions "inevitably affect[] at least to some degree the
individual's right to vote and his right to associate with others
for political ends." Anderson, 460 U.S. at 788. After carefully
examining the effects of Maine's nomination procedures, the
district court concluded that the challenged ballot-access
requirements were neither inappropriate to their purposes nor
unconstitutionally burdensome. We agree.
As the district court noted, the levels of electoral
support Party candidates are required to demonstrate in order to
get on the Party's primary ballot are not high:
The record shows that there are approximately
876,000 registered voters in Maine. In Maine
there are two Congressional seats, 35 state
senate seats, and 151 state representative
seats. If each electoral division has an
equal number of voters, then each Congres-
sional district would have approximately
438,000 voters, each state senate district
would have approximately 25,000 voters, and
each state representative district would have
approximately 5,800 voters. The requirements
for primary petition signatures for these
three districts are 1,000, 100 and 25, re-
spectively. Therefore, the numbers [of Party
members' signatures] that an aspiring Liber-
tarian candidate for each of these positions
would need amount to 0.22%, 0.4%, and 0.43%,
respectively, of the registered voters in
each district.
799 F. Supp. at 4. We endorse the district court's view that
these signature requirements indeed are modest in numerical
terms. Compare, e.g., American Party, 415 U.S. at 783 (upholding
requirement that 1% of voters in last gubernatorial election must
18
participate in minor parties' precinct conventions or sign
supplemental nominating petitions for statewide candidates; "[t]o
demonstrate this degree of support does not appear either impos-
sible or impractical, and we are unwilling to assume that the
requirement imposes a substantially greater hardship on minority
party access to the ballot"); see also Burdick, 112 S.Ct. at 2064(1% of all registered voters for party participation in statewide
primary); Illinois State Board of Elections, 440 U.S. at 186(25,000 signatures for statewide office); Storer, 415 U.S. at 740(325,000 signatures statewide in 24 days); Jenness, 403 U.S. at
431 (5% of state's registered voters).8
Unlike the statutes under challenge in American Party
and other cases, however, the Maine statute requires Party candi-
dates to obtain the signatures of Party members, as opposed to
independent voters or voters enrolled in other political par-
ties.9 Accordingly, the Party insists, the onerousness of the
signature requirements must be defined, for constitutional pur-
poses, as a percentage of party membership (the "eligible pool of
8The Party does not complain about, and we do not consider,
the potential onerousness of the signature requirements for
district and county offices under the Maine statute as a percent-
age of the total population of registered voters in those politi-
cal subdivisions.
9The apparent purpose of Maine's party-member signature
requirement is to collapse into a single, administratively
simpler requirement two legitimate State interests: ensuring
sufficient party support among the electorate and sufficient
candidate support within the party. We are persuaded that these
State interests are constitutionally defensible individually and,
in combination, impose no impermissible burden on associational
rights in the present case.
19
possible signers"), rather than the entire electorate. See
Storer, 415 U.S. at 742-43. Any broader view, says the Party,
would treat all registered voters as potential Party enrollees,
"amount[ing] to forced political association" violative of First
Amendment rights. See Democratic Party v. Wisconsin, 450 U.S. at
122 ("the freedom to associate for the 'common advancement of
political beliefs' necessarily presupposes the freedom to identi-
fy the people who constitute the association, and to limit the
association to those people only") (quoting Kusper v. Pontikes,
414 U.S. 51, 56 (1973)); Consumer Party, 633 F.Supp. at 889-90("a party may not be essentially required to broaden its message
or appeal in an effort to increase its membership; a group's
associative rights depend on having as members only those who
share a particular vision and collective purpose"); see also
Roberts v. United States Jaycees, 468 U.S. 609, 623 (1984)
("freedom of association . . . plainly presupposes a freedom not
to associate").10
Viewed as the Party urges, the Maine scheme indeed
would appear onerous; the Party lacks sufficient membership
support in many districts and counties to meet the primary-ballot
10The Party presented no evidence that its low membership
levels are related to voluntary exercise of its associational
right to exclude would-be members. Nevertheless, challenges to
the overbreadth of a statutory scheme, as impeding appellants'
First Amendment associational rights, are widely recognized as
exceptions to the rule that "a person to whom a statute may
constitutionally be applied will not be heard to challenge that
statute on the grounds that it may conceivably be applied uncon-
stitutionally to others." See Broadrick v. Oklahoma, 413 U.S.
601, 610 (1973).
20
access requirements of 335. We see the issue somewhat differ-
ently, however. We need not decide whether there may be circum-
stances in which significant constitutional problems would result
from a regulatory scheme which precluded candidate access to a
party's ballot by different means than those under challenge in
this case. If such limits exist, it suffices to say that they
have not been reached under the Maine electoral scheme.
First, the burden about which the Party complains is
self-imposed, for the most part. Under Maine law, a party which
adopts restrictive membership policies is not required to assume
"qualified" status under 301 et seq., or to assume the burdens
of the primary nomination requirement imposed by 331. Indeed,
a party can choose to "disqualify" itself at any time up to April
15 of an election year, even after submitting the party designa-
tion and consent of its 'coattail' candidate under 302(1),
merely by eschewing the municipal caucuses required by 302-
(3).11 If a party voluntarily chooses or continues to
pursue the 302 procedure for electoral participation as a
"qualified" party, it must be understood to have assumed the
11The April 15 deadline occurs two weeks after the April 1
deadline for primary candidates to file nomination petitions
under 335(8). Thus, any new or small party, uncertain of its
membership support, may withhold the final certification neces-
sary for "party qualification" while it attempts to enroll the
members necessary to nominate its candidates to the primary
election ballot. If, by April 1, the required membership support
is lacking in one or more electoral districts, the party may
choose simply by withholding the certification of caucus
participation under 302(3) to nominate its candidates to the
general ballot by the "nomination petition" procedure prescribed
by 351 et seq.
21
burden of maintaining membership rolls sufficient to nominate
candidates through the primary election process.
Second, and equally important, a party which chooses
not to participate in primary elections as a "qualified" party
retains the option to qualify candidates for the statewide
election ballot through the 351 "nomination petition" proce-
dure. The Party has offered no evidence whatever to suggest that
this alternate route to the printed ballot is substantially more
burdensome for a small party than a primary-qualification proce-
dure.12 In fact, in the 1992 elections, at least three inde-
pendent candidates for President Lenora Fulani, H. Ross Perot,
and Howard Phillips mustered the requisite 4000 signatures and
qualified by petition to be listed, along with their chosen
"political designation," on Maine's general election ballot. As
the Supreme Court recognized in Jenness, 403 U.S. at 441-42, a
nomination petition procedure for ballot access by new or small
political parties is not inherently impermissible, merely because
it is different from the procedure permitted for larger parties,
provided the procedure imposes no undue burden. "There are
obvious differences in kind between the needs and potentials of a
12Although a "nomination petition" requires twice the number
of signatures a party candidate would be required to obtain on a
primary petition, see 21-A M.R.S.A. 354(5), these signatures
may be obtained from any registered voter, even voters enrolled
in other parties. Moreover, the number of required signatures is
still quite low, compared to the signature requirements upheld as
reasonable in other contexts by the Supreme Court. See supra pp.
18-19. And a party which mobilizes its efforts toward garnering
signatures on a nomination petition is spared "the Procrustean
requirement of establishing elaborate primary election machin-
ery." Jenness, 403 U.S. at 438.
22
political party with historically established broad support, on
the one hand, and a new or small political organization on the
other. [A State is not] guilty of invidious discrimination in
recognizing these differences and providing different routes to
the printed ballot." Id.; see also Munro, 479 U.S. at 193 ("[i]t
is now clear that States may condition access to the general
election ballot by a minor-party or independent candidate upon a
showing of a modicum of support [in a primary election] among the
potential voters for the office"); American Party, 415 U.S. at
782 ("so long as the larger parties must demonstrate major
support among the electorate at the last election, whereas the
smaller parties need not, the latter, without being invidiously
treated, may be required to establish their position in some
other manner").
Finally, even if a small party chooses to "qualify"
under 302, and to nominate its political candidates under the
primary election procedure, Maine law provides a means by which
party candidates may gain access to the general election ballot
by soliciting support from unenrolled registered voters through
write-in ballots cast in the primary election. The write-in
ballot option ensures that no qualified primary voter is denied
the opportunity freely to vote for the candidate of his or her
choice, and that a small party which is unable to meet the
minimal membership requirements for listing any candidates on its
primary ballot, despite "significant support" among the general
electorate in a particular district, may nonetheless nominate the
23
candidate who receives a plurality of primary voter support.
Unity Party v. Wallace, 707 F.2d 59, 62 (2d Cir. 1983) (write-in
candidacy is acceptable alternative to ballot listing where
ballot access requirement imposes de minimis encumbrance). The
one impediment is that the successful primary candidate's write-
in plurality must be sufficient to satisfy the numerical require-
ments of 723(1)(A) (which are, in any event, the same as the
"nomination petition" requirements of 351).13 See supra note
12.
IV
CONCLUSION
13The Supreme Court frequently has disapproved write-in
ballot alternatives to printed ballot access, where the write-in
alternatives would have disadvantaged small party candidates
opposing established party candidates whose names were printed on
the same ballot. See, e.g., Anderson, 460 U.S. at 799 n.26
(holding write-in procedure "not an adequate substitute for
having the candidate's name appear on the [general election]
ballot"); Lubin, 415 U.S. at 719 n.5 ("The realities of the
electoral process . . . strongly suggest that 'access' via write-
in votes falls far short of access in terms of having the name of
the candidate on the ballot . . . . [A candidate] relegated to
the write-in provision [is] forced to rest his chances solely
upon those voters who . . . remember his name and take the
affirmative step of writing it on the ballot"). However, in a
small party primary such as that involved here, where no names
are printed on the ballot, the Party's write-in candidates
competed only against other write-in candidates; they did not
compete "head to head" against established party candidates whose
printed names appeared on the ballot. In these circumstances,
the write-in procedure imposes little, if any, comparative
disadvantage to small party candidates who are able to muster the
requisite electoral support, and any awkwardness in the mechanics
of the write-in process is adequately counterbalanced, in our
view, by the State's legitimate interests in requiring that such
support be demonstrated.
24
Under Maine's election code, small political parties
may choose to "qualify" under the "sponsorship" procedure estab-
lished in 302(1), postponing any showing of "significant
community support" under 303, if the party, its sponsor, and
its candidates believe they can enroll enough members to meet the
requirements of primary ballot access under 335(5). If the
party is unable to meet these requirements for primary ballot
access, it may either (1) draw on independent voters in its
primary, mustering a qualifying number of write-in votes for its
party candidates, under 723(1)(A), or (2) disqualify itself
under 302(3), and proceed under the "nomination petition"
process of 351. The Libertarian Party attempted to enroll
members under 302(1), but failed. Rather than elect disquali-
fication, the Party then chose to muster independent voters to
its primary banner under the 338 write-in process. It again
failed to show "significant support." Under these circumstances,
we do not believe that appellants' constitutional rights, or the
rights of the Party's members or other prospective voters, were
impermissibly burdened by the Party's subsequent exclusion from
the general election ballot.
Affirmed.
25