By Sarah Graffam

A lawsuit pending before the New Hampshire Federal District Court could have serious impact on third party access to the ballot in future elections. House Bill 1542, which became law on July 22, 2014, added one sentence to RSA 655:40: “Nomination papers shall be signed and dated in the year of the election.” In a suit filed the same day, the New Hampshire Civil Liberties Union, on behalf of the Libertarian Party of New Hampshire, argued HB 1542 imposes onerous restrictions on third party access to the ballot which limits voter choice and stacks the deck against candidates who do not belong to a major party.

Under HB 1542, third parties are prohibited from collecting the nomination papers necessary to qualify as a political party before January 1st of the election year for which they are seeking recognition. The NHCLU argues that this limitation hinders the democratic process and violates the First and Fourteenth Amendments. To be recognized on the ballot in New Hampshire, a third party must meet one of two requirements. A party may receive recognition for future elections if, in the last general election, the party’s candidate for governor or U.S. Senate obtains 4% of the vote. The second and more common way to obtain recognition is by collecting nomination signatures totaling three percent of the total vote in the previous election. Traditionally, these signatures must be submitted for certification by early August to the town or city where each signatory is registered. Therefore, a third party only has seven months to collection the necessary nomination papers. Due to New Hampshire’s harsh winter months, the NHCLU argues that period is in reality much shorter. The NHCLU predicts a party seeking ballot recognition would need to collect 21,330 signatures in that short period.

Creating this requirement for third party recognition forces a third party to sit on the sidelines during the “off” year before an election. This period is especially crucial to a third party because that is when a minor party shows much of its value though sparking debate, introducing new ideas, educating voters, and challenging the status quo. The NHCLU raises the point that although 40% of the New Hampshire electorate do not belong to a major party, this is not the first time the legislature has heightened requirements for ballot access. In 1997, the legislature amended the other method for third party recognition, raising the threshold requirement for gubernatorial and U.S. Senate party votes from 3 to 4%. NHCLU maintains this requirement is nothing more than an attempt to curb third party access without a valid state interest justifying the restriction.

HB 1542 was presented by the Secretary of State, William Gardner, to the state legislature as a simple “housekeeping” matter. The bill was passed on voice votes and without any evidence presented as to why the additional burden was necessary. The New Hampshire legislature seems to cite difficulty in verifying signatures as the reason behind the new legislation. According to local reports, an Election Law Committee member said the change “would reduce the number of invalid signatures, due to death or relocation, which might arise if signatures are submitted earlier.” The State’s response was originally due August 4th, but the court has since granted a request for an extension. It is assumed the State filed its response by the new September 22nd deadline, but that filing has not been made publicly available.

Although the State’s position is not yet publicly available, if the rationale of reducing invalid signatures remains the State’s argument, the future of this suit may not be completely shrouded in mystery. In 2009, the Rhode Island Civil Liberties Union filed a similar suit attacking an identical Rhode Island law which set a January 1st barrier for third party recognition. Similarly in that case, the State’s only justification for the new law was to avoid stale voter lists. In its decision holding the RI law unconstitutional, the court noted the January 1st restriction would fail under any standard of review because “the State [came] forward with no legitimate regulatory interest whatsoever that would necessitate placing this enormous speed bump on the path to party recognition.” Unless the State presents additional justifications for the January 1st restriction, HB 1542 will likely meet the same end as the 2009 Rhode Island law.

One Sentence May Fundamentally Alter Third Party Ballot Access in New Hampshire

Update (11/20/14):

See links to the memoranda of laws in support and opposition to the State’s motion to dismiss in this case here: Memo of Law re Motion to Dismiss Memo re Motion to Dismiss Exhibit A

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