

                  UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT

                                             

No. 95-1982

                       PAULA WERME, ET AL.,

                     Plaintiffs, Appellants,

                                v.

       STEPHEN MERRILL, GOVERNOR OF NEW HAMPSHIRE, ET AL.,

                      Defendants, Appellees.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF NEW HAMPSHIRE

       [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]                                                                    

                                             

                              Before

               Selya and Cummings,* Circuit Judges,                                                            

                and Coffin, Senior Circuit Judge.                                                          

                                             

     Barnes, Bender  &amp; Boehm, Martin Bender, and Paula Werme, pro                                                                      
se, on brief for appellants.
     Jeffrey  R.  Howard, Attorney  General,  and  Christopher P.                                                                           
Reid, Assistant Attorney General, on brief for appellees.              

                                             

                           May 23, 1996
                                             

          
*Of the Seventh Circuit, sitting by designation.

          SELYA, Circuit Judge.  We must determine in the  course                    SELYA, Circuit Judge.                                        

of this  appeal whether New Hampshire  overstepped constitutional

bounds  by denying a recognized third party the right, enjoyed by

the state's two  most popular political parties, to have election

inspectors  and ballot clerks  present at  the polls  on Election

Day.   We conclude, as  did the district court,  that the state's

statutory scheme passes constitutional muster.

I.  BACKGROUND          I.  BACKGROUND

          The  material facts are not in genuine dispute.  In New

Hampshire, as elsewhere,  the Democratic  and Republican  parties

dominate the  political scene.   Nevertheless, third  parties can

make their mark.   In  the 1990 gubernatorial  election one  such

group,  the Libertarian Party, garnered over 3% of the votes cast

statewide.  This level of achievement earned it the right to hold

party primaries  and to have its anointed candidates appear under

the party label on the official ballot.  See N.H. Rev. Stat. Ann.                                                      

   652:11 &amp; 655:14  (1986).  The Libertarian Party  retained that

status by virtue of  the number of votes its  candidates garnered

in subsequent elections.

          Despite  party  recognition  and  ballot   status,  the

Libertarian Party claims that it has been hampered by a series of

seemingly  unconnected  mishaps.1   Goaded  by  these  incidents,
                                                  

     1To  cite  a few  of the  more  bruited examples,  the party
claims  that  one  town   neglected  to  forward  the  count   of
Libertarian votes cast in the  1990 gubernatorial election to the
Secretary of  State; that,  in another town,  election officials,
contrary to then-existing state  law, see N.H. Rev. Stat.  Ann.                                                     
659:14 (1986), since  amended, see id.   659:14(I)  (1994 Supp.),                                                
refused  to  permit a  registered  Democrat to  change  her party

                                2

Paula  Werme,  a  registered   Libertarian,  requested  that  the

selectmen in Mont Vernon  appoint her to represent her party as a

ballot clerk at the March 1994 municipal election.  The selectmen

denied her request.   In rapid succession Werme then  brought her

campaign  to  the  Secretary  of  State  and, failing  to  obtain

redress, sought a judicial anodyne.

          Invoking 42 U.S.C.   1983, Werme  sued the Governor and

the Secretary of State in New Hampshire's federal district court.

She alleged  that the statutes governing  appointment of election

inspectors and ballot  clerks abridged her constitutional  rights

to  free  association, due  process,  and  equal protection;  she

prayed that the court enjoin their enforcement; and she sought an

order commanding the appointment of Libertarians to the indicated

positions  on the  same basis  as members  of the  Democratic and

Republican  parties.   The  Libertarian  Party  intervened as  an

additional plaintiff.   The district court,  after mulling cross-

motions  for  summary judgment,  concluded  that  the defendants'

interest  in  the  efficient  management  of election  activities

justified the  small restriction  on the plaintiffs'  rights that

the  challenged  statutes entailed,  and  upheld New  Hampshire's

statutory scheme.  This appeal followed.

II.  STANDARD OF APPELLATE REVIEW          II.  STANDARD OF APPELLATE REVIEW

          The  summary  judgment  standard is  both  prosaic  and
                                                  

registration and  affiliate with the Libertarian  Party; and that
on occasion voters discovered  that unauthorized changes had been
made  in their  listed  party affiliations.   No  complaints were
filed with the Secretary of State in connection with any of these
incidents.

                                3

familiar,  see, e.g.,  McCarthy v.  Northwest Airlines,  Inc., 56                                                                       

F.3d  313, 315 (1st Cir. 1995) (collecting  cases), and we see no

need to rehearse it here.  We simply  restate two basic verities.

First,  the district court may enter summary judgment only if the

record reveals no genuine  issue of material fact and  the movant

demonstrates an entitlement to judgment as a matter of  law.  See                                                                           

Fed. R. Civ. P. 56(c).  Second, the court of  appeals reviews the

grant  of  summary judgment  de  novo,  applying  the same  legal

principles that held sway in the  nisi prius court.  See Roche v.                                                                        

John Hancock Mutual  Life Ins. Co.,      F.3d    ,      (1st Cir.                                            

1996) [No. 95-1804, slip op. at 8].

III.  THE STATUTORY SCHEME          III.  THE STATUTORY SCHEME

          New  Hampshire's electoral machinery is pretty standard

stuff.   A  town moderator  supervises Election  Day activities.2

See N.H. Rev. Stat. Ann.   659:9.  The moderator commands a cadre             

of other  election officials,  including inspectors  appointed by

the  two political parties  that received "the  largest number of

votes  [cast]  for governor  in the  state  at the  last previous

general election. . . ."  Id.   658:2.  Each such political party                                       

may appoint two inspectors per  polling place, and one additional

inspector for  every 1,500 qualified  voters in  excess of  2,000

qualified voters registered at that polling place.  See id.  If a                                                                     

political party fails to appoint inspectors, the town's selectmen
                                                  

     2While procedures  are slightly different in  cities than in
towns, the differences are irrelevant to  the disposition of this
appeal.    Consequently,  we  refer throughout  to  the  election
procedures  in  towns,  omitting  particularized   references  to
counterpart procedures that apply in urban settings.

                                4

fill  the  lacuna by  naming inspectors  from  the ranks  of that

party.   See id.  In turn,  the moderator designates two election                          

inspectors, one from each of the two parties,  to serve as ballot

clerks.  See id.   658:25.                          

          Ballot  clerks exercise  no  discretion.   Their purely

ministerial duties include distributing  ballots at the polls and

keeping an official checklist containing the names of persons who

in fact vote.  See id.    658:25 &amp; 659:13.  In principle, a voter                                

presents herself to the ballot clerk; if the voter's name appears

on  an official  list  of  registered  voters, the  ballot  clerk

provides her with a ballot.3  Ballot  clerks are not empowered to

register voters, and do not have authority to modify the official

voting  list.   While voters  may declare  or change  their party

affiliation on Election Day under certain circumstances, see N.H.                                                                      

Stat.  Ann.       654:7-a   &amp;  654:7-b  (Supp.   1994),  election

supervisors or town clerks (who are themselves elected officials)

handle such  matters.  See N.H. Stat. Ann.   654:8 (1986).  Every                                    

recognized  political  party,  regardless  of  size  or  previous

electoral success, may  appoint a "challenger  of voters" at  any

polling place who may stand within the guardrail to "see and hear

each voter as he offers to vote."  Id.   666:4.                                                
                                                  

     3In  primary elections, a ballot clerk must give a voter who
has declared her party affiliation the ballot of that party.  See                                                                           
N.H.  Rev. Stat. Ann.    659:14(I) (1994 Supp.).   Exceptions are
made only when a  declared voter wishes to  support a party  that
did not have official existence when the voter declared her party
loyalty  (and  then  only  in the  primary  election  immediately
following the party's official recognition) or when the  voter is
undeclared  and  the   party's  rules  allow  such  a   voter  to
participate in its primary.  See id.                                              

                                5

          After the polls close,  the town moderator oversees the

counting  of votes.   See id.     659:60 &amp; 659:61.   Although the                                       

palsgrave  is  held in  public, see  id.    659:63,  only persons                                                  

holding  official positions  may take  part in  tallying ballots.

See id.   659:60.   Election inspectors sometimes participate  in                 

this  process.  Once the  votes have been  tallied, the moderator

announces  the  final results,  see id.     659:70, and  a formal                                                 

election  return is prepared by  the town clerk  and forwarded to

the Secretary of State.  See id.     659:74 &amp; 659:75.  Members of                                          

the  public  may inspect  the return.    Candidates may  call for

recounts, see id.     660:1-6 &amp; 665:6(II), and the  New Hampshire                           

Ballot Law Commission has jurisdiction to "hear and determine all

disputes involving alleged  violations of New  Hampshire election

laws  of a non-criminal  nature for  which no  specific statutory

appeal  procedure  has  already been  provided."    Id.    665:7.                                                                 

Moreover, election  officials are  subject to  criminal penalties

for  ballot tampering,  falsifying returns,  or  the like.   See,                                                                          

e.g., id.   666:1-3.                   

IV.  ANALYSIS          IV.  ANALYSIS

          We subdivide our analysis into four segments.

                                A                                          A

          It is apodictic that the right to  vote is a right that

helps to preserve all other rights.  As Chief Justice Warren  put

it:  "The right to vote  freely for the candidate of one's choice

is of the essence  of a democratic society, and  any restrictions

on  that right strike at the heart of representative government."

                                6

Reynolds v. Sims, 377 U.S. 533, 555 (1964); see also Wesberry  v.                                                                       

Sanders,  376 U.S.  1, 17  (1964) ("Other  rights, even  the most                 

basic, are  illusory  if  the  right to  vote  is  undermined.").

Nonetheless, the right to  vote is not absolute.   See Burdick v.                                                                        

Takushi, 112 S. Ct. 2059, 2063 (1992).  "[A]s a practical matter,                 

there must be a  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."  Storer v. Brown,                                                                          

415 U.S.  724, 730 (1974).   To that end, each  state retains the

authority to regulate state and local elections and to  prescribe

the duties and qualifications  of persons who work at  the polls,

and the manner  in which they will be selected.   See Sugarman v.                                                                        

Dougall, 413 U.S. 634, 647 (1973); see also U.S. Const. Art. I,                                                       

4,  cl. 1 (directing  that states  shall prescribe  "[t]he Times,

Places  and   Manner  of  holding  Elections   for  Senators  and

Representatives").

          To be sure, this authority to regulate elections is not

unfettered.  At  a minimum, states cannot  wield their regulatory

power in ways that contravene the First and Fourteenth  Amendment

rights  of their citizens.   See Tashjian v.  Republican Party of                                                                           

Conn.,  479 U.S.  208,  217 (1986).    As courts  review  states'               

regulatory efforts and strive  to distinguish between permissible

regulation and  impermissible abridgment  of voters'  rights, the

level of scrutiny looms  large.  The plaintiffs insist that a law

imposing  any burden (however modest)  upon the right  to vote is                       

always subject to strict scrutiny.  We do not agree.

                                7

          The Supreme  Court has  eschewed a  hard-and-fast rule,

and  instead has  adopted a  flexible framework  for testing  the

validity of election  regulations.   See Burdick, 112  S. Ct.  at                                                          

2063;  Anderson v. Celebrezze, 460  U.S. 780, 789 (1983); Storer,                                                                          

415 U.S. at 730. 

Under  the prescribed  framework,  the level  of  scrutiny to  be

applied corresponds roughly to  the degree to which  a challenged

regulation  encumbers  First  and  Fourteenth  Amendment  rights.

Consequently, a  court weighing a  challenge to a  state election

law must start by  assessing "the character and magnitude  of the

asserted  injury" to  the plaintiff's  constitutionally protected

rights and  then "evaluate the  precise interests put  forward by

the  State as justifications for the burden imposed by its rule."

Anderson, 460 U.S.  at 789;  accord Libertarian Party  of Me.  v.                                                                       

Diamond, 992 F.2d 365,  370 (1st Cir. 1993) (explaining  that the                 

court  must   attempt  to  achieve  a   sort  of  "constitutional

equilibrium").  In this process the court must take into account,

among  other things, "the extent to which those interests make it

necessary  to burden the plaintiff's  rights."  Id.   The Burdick                                                                           

Court crystallized the applicable standard of inquiry:

          Under  this  standard,  the  rigorousness  of
          [the]  inquiry into the  propriety of a state
          election law depends upon the extent to which
          a  challenged  regulation  burdens First  and
          Fourteenth Amendment  rights.   Thus,  as  we
          have recognized when those rights are subject
          to severe restrictions,  the regulation  must
          be narrowly drawn to advance a state interest
          of  compelling importance.   But when a state
          election    law   provision    imposes   only
          reasonable,   nondiscriminatory  restrictions
          upon  the  First  and   Fourteenth  Amendment

                                8

          rights  of  voters,  the   State's  important
          regulatory interests are generally sufficient
          to justify the restrictions.

Burdick, 112 S. Ct. at 2063-64 (citations and  internal quotation                 

marks omitted).

                                B                                          B

          Against this  backdrop,  we  proceed  to  consider  the

specifics  of  the plaintiffs'  challenge.    In performing  this

tamisage, we are cognizant that their claim is not that the state

misapplied New  Hampshire law,  but, rather,  that the  method of

staffing   the   polls   dictated   by   that   law   is   itself

constitutionally  infirm.    Thus,  we  regard   the  plaintiffs'

challenge as  a  facial  attack  on the  statutory  scheme  (and,

indeed, they have conceded this point).

          The  plaintiffs'  facial  challenge  is  susceptible to

further  refinement.   They  do not  contend  that the  statutory

scheme  directly prevents  members of  less successful  political

parties,  like the  Libertarians,  from ballot  access either  as

candidates  or as  voters.   Instead, their  claim  is on  a more

sophisticated  level;  they say  that  restricting  the right  to

appoint election  inspectors and  ballot clerks  to the  two most

popular parties  deprives members of recognized  third parties of

their  right  to  free  political  association,  and  invidiously

discriminates  against  them  on  the basis  of  their  political

affiliation.  Stripped of its rhetorical trappings, this argument

amounts to nothing less than a declaration that Libertarians have

a constitutional right to be represented at the polls by election

                                9

inspectors  and ballot clerks of  their own party  to ensure that

Libertarian  votes  are  counted.     In  the  plaintiffs'  view,

Democrats  and Republicans are not  to be trusted  in this regard

because they  are unconcerned with the  protection of Libertarian

interests  and,   if  left  alone,  they   will  likely  overlook

Libertarian ballots through lassitude, misfeasance, incompetence,

and the like.

          In  addressing this claim we  must first set  to rest a

straw man.  There  is simply no abstract constitutional  right to

be appointed to serve  as an election inspector or  ballot clerk.

See, e.g., Rhode  Island Minority Caucus, Inc.,  v. Baronian, 590                                                                      

F.3d 372,  376  (1st Cir.  1979).   Although  the  right to  vote

certainly  includes the  right to  have one's  vote  counted, see                                                                           

United States v. Mosley, 238 U.S. 383, 386 (1915), nothing on the                                 

face  of the  New Hampshire  statutes deprives  Libertarian Party

members of that right.  

          We  turn next to an  assessment of the  extent to which

the challenged statutes burden the First and Fourteenth Amendment

rights of Libertarians.4  We find the burden to be slight.

          In the  first  place,  New  Hampshire's  regulation  is

nondiscriminatory,  that is,  it  does  not  differentiate  among
                                                  

     4In conducting our evaluation, we do not distinguish between
the burdens placed  on the  rights of the  Libertarian Party  and
those  placed on  the rights  of voters  who  wish to  cast their
ballots  for  that  party's candidates.    As  a  general matter,
political  parties purport  to represent  the interests  of their
supporters,  and  "the  rights  of  voters   and  the  rights  of
candidates do not lend themselves to neat separation."   Burdick,                                                                          
112 S. Ct. at  2065-66 (quoting Bullock v. Carter,  405 U.S. 132,                                                           
143 (1972)).

                                10

Republicans,   Democrats,   and  Libertarians.      Instead,  the

regulation conditions  the right  to appoint  election inspectors

and  ballot clerks on  a certain degree of  success at the polls.

Distinguishing between recognized political parties based on past

electoral    accomplishment   is    not   per    se   invidiously

discriminatory.  See, e.g., American Party of Texas v. White, 415                                                                      

U.S.  767,  781  (1974)   (holding  that  it  is   not  invidious

discrimination  for  a  state  to grant  minor  parties  official

recognition,  but deny  them  the right  to  hold primaries  even

though the main  political parties  are so entitled).   So  here:

the Libertarian Party has exactly the same opportunity to qualify

as  a source of election  inspectors and ballot  clerks under New

Hampshire law as does  any other party.  Equality  of opportunity

exists,  and equality of opportunity   not equality of outcomes  

is the linchpin of what the Constitution requires in this type of

situation.  As the Court explained:

          The   fact   is   that   there   are  obvious
          differences  in  kind between  the  needs and
          potentials   of   a   political  party   with
          historically  established  broad support,  on
          the one  hand, and  a new or  small political
          organization on  the other . . . .  Sometimes
          the  grossest  discrimination   can  lie   in
          treating  things that are different as though
          they were exactly alike.

Jenness v. Fortson, 403 U.S. 431, 441-42 (1971).                            

          In the  second  place, the  New  Hampshire law  has  no

direct impact on  ballot access, on the right to  vote, or on the

right to have one's vote  tallied.  It is generally thought  that

indirect effects are less  burdensome than direct restraints, cf.                                                                           

                                11

Dole  v. South Dakota, 483  U.S. 203, 210  (1987) (discussing, in                               

connection   with  Congress'   spending  powers,   "the  indirect

achievement  of objectives  which  Congress is  not empowered  to

achieve directly"), and that generalization holds true here.

          In the third place, even these indirect effects are not

discernible  here.    The record  evidence  offers  no  reason to

believe  that  minority  parties are  at  special  or undue  risk

because they  have no  right to appoint  election inspectors  and

ballot clerks.  The law affords a panoply of other safeguards for

minority parties  (e.g., appointing  a challenger of  voters, see                                                                           

N.H. Rev. Stat. Ann.    666:4), and ultimate control  over voting

places  rests with elected officials.  To cinch matters, there is

no  showing of systematic discrimination against minority parties

in  the  casting and  tallying of  votes,  and mere  suspicion or

paranoia is too  flimsy a foundation on which to  rest a claim of

incipient fraud or mistake.5

          In  fine, the "burden" to which the plaintiffs allude  

that Libertarian  ballots will not be  counted unless Libertarian

election  inspectors  and ballot  clerks are  on  the prowl    is

purely  conjectural.   To  hold  otherwise  would require  us  to

conclude, without  a shred  of competent evidence,  that election

officials in New Hampshire  are unscrupulous individuals who will

breach the  public trust  in order to  serve the  interests of  a
                                                  

     5The plaintiffs conceded  below that none of  the mishaps to
which  they alluded, see  supra note 1, were  part of a concerted                                         
plan to deprive  Libertarians of the  right to vote.   There  is,
moreover,  no  showing that  similar  gaffes  have not  afflicted
Republican and/or Democratic voters from time to time.

                                12

political party,  and, moreover,  that Democrats  and Republicans

will  put aside their historic enmity so that, together, they may

repress third parties.  We refuse to indulge so cynical a view of

the electoral process.

                                C                                          C

          Having analyzed  the nature of the  burdens imposed, we

now  proceed  to ascertain  the level  of  scrutiny that  we must

apply.   See Burdick, 112 S.  Ct. at 2064; Anderson,  460 U.S. at                                                             

789.    We  recognize, of  course,  that  every  provision of  an

election  code,  even those  that  govern the  voting  process as

opposed  to those  that govern  ballot access  or eligibility  of

candidates, "inevitably affects    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.  But  different                                        

provisions of an election  code may burden rights unequally,  and

we believe that the impediment which New Hampshire law imposes in

respect to the selection of election inspectors and ballot clerks

is relatively minor.  Given the character and magnitude (or, more

aptly  put, lack  of  magnitude) of  the  alleged injury  to  the

plaintiffs'  First and  Fourteenth Amendment rights,  we conclude

that  the defendants  need only  show that  the enactment  of the

regulation had  a  rational  basis.   See,  e.g.,  Coalition  for                                                                           

Sensible and Humane Solutions  v. Wamser, 771 F.2d 395,  399 (8th                                                  

Cir. 1985); Baer  v. Meyer,  728 F.2d 471,  476 (10th Cir.  1984)                                    

(per curiam); Piricin v. Board of Elections, 368  F. Supp. 64, 71                                                     

                                13

(N.D.  Ohio)  (three-judge  court),  aff'd  mem.,  414  U.S.  990                                                          

(1973).6

          Our decision in Rhode  Island Minority Caucus, 590 F.2d                                                                 

372, is not to  the contrary.  There the  plaintiffs alleged that

the   Board   of   Canvassers   of   the   City   of   Providence

unconstitutionally conditioned  appointment as a  voter registrar

upon membership in  or affiliation  with one  of three  political

organizations.   See id. at 376.   The district court  denied the                                  

plaintiffs'  motion for  a preliminary  injunction mainly  on the

ground that the plaintiffs  had no probability of success  on the

merits.  See id. at 373-74.  We affirmed on a different ground                             

that there was  no showing of irreparable harm, see  id. at 374                                                                    

and added:

               [The state] may not  abridge fundamental
          First   Amendment   rights   of  speech   and
          association without establishing that such an
          infringement is necessary to achieve  a vital
          state interest . . . .
               So  viewed,  but without  prejudging the
          issue, it  appears  that plaintiffs  raise  a
          substantial first amendment question.

Id. at  376-77.  The panel  made clear, however, that  it was for             

the district  court to determine "the extent to which plaintiffs'

                                                  

     6We note that  one district court apparently disagrees.   In
Iowa  Socialist Party  v. Slockett,  604 F.  Supp. 1391  (D. Iowa                                            
1985), a handful of minor third parties contended that appointing
mobile  deputy registrars  solely from  persons nominated  by the
county chairmen of the two major political parties violated their
constitutional rights.   See  id. at  1392.  As  we do  here, the                                           
district  court   concluded  that  the  burden   imposed  by  the
regulation  was  "relatively minor."   Id.  at  1397.   The court                                                    
nonetheless proceeded  to apply  strict scrutiny  and invalidated
the law.  See id. at 1396-98.  We find this aspect of the court's                           
reasoning unpersuasive.

                                14

associational rights have been abridged, the burden, if any,  the

Board must  bear in  justifying that  abridgment, and  whether in

fact the Board can meet that burden."  Id. at 377.   Fairly read,                                                    

Rhode Island Minority Caucus is not inconsistent with our holding                                      

today.

                                D                                          D

          Using rationality review we conclude that the state has

justified the regulation.  The defendants rely principally on New

Hampshire's interest in limiting the number of election officials

to  manageable  proportions in  order  to  enhance administrative

efficiency and thereby safeguard against mistakes and fraud.  Too

many  cooks, the  defendants  say, will  spoil  the broth.    The

assertion makes good sense.

          The  state  has  a  valid interest  in  preserving  the

integrity and reliability of  the electoral process.  See,  e.g.,                                                                          

American  Party, 415 U.S. at 782 n.14; Coalition for Sensible and                                                                           

Humane Solutions, 771 F.2d at 399.  It is certainly reasonable to                          

assume that, at some point, "more" is not "better."  Common sense

suggests that if election inspectors and ballot clerks become too

numerous,  they  will merely  get in  each  other's way  and thus

frustrate the moderator's ability  to afford close  supervision.7
                                                  

     7A  fair parallel  can be  drawn to  ballot access  cases in
which  the  Court  has  acknowledged that  the  "important  state
interest  .  .  .  in  avoiding  confusion,  deception,  and even
frustration of  the democratic process" can be served by limiting
ballot access based on "some preliminary showing of a significant
modicum of support."  Jenness, 403 U.S. at 442.   We believe that                                       
this  reasoning  extends  to  the state's  strivings  to  promote
efficiency and  orderliness at  the polls through  limitations on
the number of persons who are permitted to work inside the rail.

                                15

Cf. Rudyard Kipling, Rewards &amp; Fairies 73 (1910) (suggesting that                                                

one should  keep no more cats than will catch mice).  Within wide

margins the place at which to draw the line   in other words, the

ideal size  of the complement    is for  the state to  determine.

See, e.g., Anderson, 460  U.S. at 788 n.9 (observing  that states                             

have broad discretion to set minimum requirements restricting the

number of candidates appearing on the ballot).

          The  plaintiffs'   riposte  is  to  suggest   that  New

Hampshire must  demonstrate that adding Libertarians  as election

inspectors and ballot clerks  would actually cause confusion, or,                                                      

put  another way,  that this  increment would  be the  straw that

broke the back of the dromedary of administrative efficacy.  That

suggestion  vastly exaggerates the state's  burden.  See Munro v.                                                                        

Socialist Workers Party, 479 U.S. 189, 195-96 (1986) (rejecting a                                 

similar  claim on  the  basis that  "[s]uch  a requirement  would

necessitate that a State's political system sustain some level of

damage  before  the legislature  could take  corrective action").

States are free to  head off potential problems in  the electoral

system before they materialize, as long as the solutions that the

state devises are reasonable and  do not significantly intrude on

constitutionally  protected rights.    See id.   New  Hampshire's                                                        

solution     which involves  restricting  the  number of  persons

behind  the rail at  polling places, and  puts the responsibility

for  appointing those persons in  the hands of  the two political

parties  that have proven most  successful in the  recent past at

earning the electorate's trust    is a reasonable response  to an

                                16

authentic problem.

          We  hold  that  New  Hampshire's  method  of  selecting

election  inspectors and  ballot  clerks is  a rational  means of

advancing  the state's interest  in dispelling confusion, warding

off fraud,  and ensuring administrative efficiency  at the polls.

See Baer, 728  F.2d at  476 (applying rational  basis review  and                  

upholding regulation  that did not uniformly  allow all political

parties to appoint poll  observers); Piricin, 368 F. Supp.  at 71                                                      

(applying   rational  basis   review  and   upholding  regulation

permitting membership  of boards of elections to  be drawn solely

from parties  garnering the  two highest  vote totals);  see also                                                                           

Bishop  v. Lomenzo,  350  F. Supp.  576,  588-89 (E.D.N.Y.  1972)                            

(three-judge   court)   (suggesting  that   regulation  requiring

volunteer  deputy  registrars  to  be  enrolled  members  of  the

Republican  or Democratic  parties  merited  only rational  basis

review, but concluding that law survived strict scrutiny on basis

that regulation reduced risk of "fraud or irregularity that might

exist  if registration by [only]  one party or  by an independent

were  permitted").    While  other  methods  of  selecting  these

officials, or a somewhat  different numerical formula, might also

serve, the  state is  free to choose  from among the  universe of

constitutionally acceptable alternatives.

IV.  CONCLUSION          IV.  CONCLUSION

          We need  go no further.8   Since New  Hampshire's grant
                                                  

     8The plaintiffs'  Equal Protection  argument is  unworthy of
separate  discussion.  This argument does not rest on a challenge
to   New  Hampshire's   requirements   for   achieving   official
recognition as a political party, but, rather, on the thesis that
once a party attains  official status under state law,  the state
may  not  draw  distinctions  between  it  and  other  recognized

                                17

of  a monopoly  over the appointment  of election  inspectors and

ballot  clerks  to the  two  most  popular political  parties  is

justified by legitimate state interests and imposes only a modest

burden on the plaintiffs'  First and Fourteenth Amendment rights,

it  is constitutional.   Nothing succeeds  like success,  and the

Libertarian Party  has the  same opportunity as  its better-known

competitors to attract voters  to its standard, finish in  one of

the top  two spots  in a gubernatorial  election, and  thereafter

play  a  more  active role  in  the  mechanics  of the  electoral

process.   But under New Hampshire law  that success is to be won

at the polls rather than in a federal court.

Affirmed.          Affirmed.                  

                                                  

political parties.  The thesis is untenable.  See American Party,                                                                          
415 U.S. at 781.

                                18
