December 30, 2014
Today, in a significant victory for ballot access and voter choice in New Hampshire, the United States District Court for the District of New Hampshire denied the State’s motion to dismiss a lawsuit filed by the Libertarian Party of New Hampshire challenging the constitutionality of HB1542. The Libertarian Party is represented by the American Civil Liberties Union of New Hampshire and its attorneys William Christie and Courtney Hart of the law firm Shaheen & Gordon, P.A.
HB1542 is a state law passed in 2014 that imposes onerous restrictions on the ability of third parties to gain access to the ballot in future elections. “This law limits voter choice and stacks the deck against candidates who—like roughly 40% of Granite Staters—don’t belong to a major party,” said Gilles Bissonnette, the staff attorney for the ACLU of New Hampshire who is co-counsel on the case.
HB1542 is wrong and unconstitutional, and the Court today unequivocally rejected the State’s claim that the case should be dismissed, holding that “The Libertarian Party is entitled to proceed with its case under the fact-dependent framework that the Supreme Court has formulated for ballot access claims.” The Court added: “The State offers a number of arguments in favor of dismissal, but none are persuasive.”
HB1542 addresses the ability of a third party to gain access to the ballot as a recognized political party. Gaining access to the ballot as a recognized party has substantial advantages, including the ability to run a slate of candidates and engage in pre-election organizing.
HB1542 states that, when a third party seeks to gain access to the ballot before an election by collecting certified signatures, those signatures “shall be signed and dated in the year of the election.” In short, HB1542 prohibits third parties from collecting signatures before January 1 of the election year. This may sound benign, but it will make the task of obtaining ballot access far more difficult—if not impossible—for third parties. As explained in the lawsuit, this is true for two key reasons.
First, under HB1542, third parties now have only 7 months—from January 1 to early August—to collect the number of signatures necessary to get on the ballot. Given the harsh winter months, this new compressed time period is, in reality, much shorter. And the number of signatures that must be collected during this time frame is huge—3% of the total votes cast during the prior election. For example, to get on the ballot for the 2014 election, 21,330 signatures were required.
During the 2000 and 2012 election cycles, the Libertarian Party was able to collect the nearly 10,000 and over 13,600 certified signatures, respectively, necessary for the Party to get on the ballot. But to meet these high thresholds in what was already an arduous process, the Party had to start collecting signatures before the year of the actual election—namely, in 1999 and 2011. However, under HB1542, the Libertarian Party is now prohibited from collecting signatures prior to the election year, thus hampering its ability to obtain ballot access in future elections.
“To use a metaphor, this signature-collection process is like a marathon that’s hard enough just to finish, and now the State is essentially demanding that the Libertarian Party run the marathon in less than two hours. This is unfair and unconstitutional,” said William Christie of Shaheen & Gordon, P.A. who is co-counsel on the case.
Second, HB1542 will also put third parties at a disadvantage compared to major parties. Using the upcoming 2016 election as an example, a third party must now “sit on the sidelines” for all of 2015. Then, once January 1, 2016 arrives, the third party must use its limited resources to, rather than campaigning and fundraising like the major parties, rush to collect thousands of signatures. Once the third party completes this process by early August of the election year, the third party is further disadvantaged due to the drastically shortened remaining time frame to campaign. The result is to foreclose the third party from meaningfully participating in the general election and to substantially burden ballot access.
“Unfortunately, by restricting ballot access and voter choice, HB1542 hinders our democratic process from functioning vigorously,” said Courtney Hart of Shaheen & Gordon, P.A. who is also co-counsel on the case. As a Rhode Island court concluded in striking down a similar law, “[s]ociety is best served when political parties outside the two existing major parties play an active, ‘robust’ role in the entire campaign process—not simply appear on the final election ballot.” HB1542 prevents third parties from playing such a “robust” role. Voters deserve more choices at the ballot box, not fewer.