             United States Court of Appeals
                        For the First Circuit

No. 09-2426

                           BOB BARR ET AL.,

                        Plaintiffs, Appellees,

                                  v.

       WILLIAM F. GALVIN, IN HIS OFFICIAL CAPACITY AS SECRETARY

                 OF THE COMMONWEALTH OF MASSACHUSETTS,

                         Defendant, Appellant.


                                 Before
              Boudin, Ripple,* and Selya, Circuit Judges.


                            ORDER OF COURT
                      Entered: December 28, 2010

     The appellees' petition for panel rehearing is denied. The
petition largely rehashes arguments that were made to, and rejected
by, the panel in its earlier opinion.

     One aspect of the petition does require comment.         The
appellees assert that the panel opinion gives rise to a circuit
split in light of the decision in Libertarian Party of Ohio v.
Blackwell, 462 F.3d 579 (6th Cir. 2006).        That is plainly
incorrect: nothing in the panel opinion is inconsistent or
irreconcilable with Libertarian Party of Ohio.        The timing
constraints imposed by the respective state ballot-access schemes
are sufficiently distinct that the panel's conclusion as to the
constitutionality of the Massachusetts scheme is not at odds with
the Sixth Circuit's determination as to the constitutionality of
the Ohio scheme.

     There, the Sixth Circuit reviewed a state statutory ballot-
access scheme that, pertinently, (i) demanded that all parties
nominate their candidates in the state's March primary in order to


*
    Of the Seventh Circuit, sitting by designation.
appear on the ballot in the election held the following November
and (ii) required any party that did not receive at least five
percent of the vote for its candidate for governor or president in
the previous election to file a petition, bearing the number of
signatures equal to one percent of the total votes cast in the
previous election, 120 days in advance of the March primary in
order to qualify to participate in it. See id. at 586. Ohio law
permitted candidates the alternative route of filing a nominating
petition 75 days prior to the general election.        Id. at 592.
Candidates who qualified for the ballot in this alternate way were
not listed with any party affiliation but, rather, were denominated
"independent" or "other party" candidates. Id. (citing Ohio Rev.
Code § 3513.257).

     The Massachusetts scheme at issue in this case is materially
different.    It allows candidates to ally themselves with a
"political designation" of their choosing even where they access
the ballot through the state's alternative petition mechanism.
Massachusetts requires that such petitions be submitted to local
canvassing officials in late July. Rather than requiring that a
minor party necessarily designate its candidates a full year prior
to the upcoming presidential election, as was the case under the
Ohio statute if a candidate wished to appear on the ballot with a
party designation of any sort, the Massachusetts scheme demands
that such a candidate file papers less than four months in advance
of the election.

     Seen in this light, the panel opinion does not, as the
appellees now for the first time argue, lead to the conclusion that
"minor parties must essentially become major recognized 'political
parties' . . . in order to gain ballot access."          Candidates
affiliated with minor parties remain entirely free to submit
nominating petitions bearing the requisite number of signatures up
until the late-July filing deadline. Political organizations not
formally recognized as "political parties" in Massachusetts
therefore have the opportunity to appear on the ballot if a
candidate aligned with their organization submits the papers
through this procedure.

     The petition for panel rehearing is denied.

                                    By the Court:
                                    /s/ Margaret Carter, Clerk



cc: Hon. Nathaniel M. Gorton, Ms. Sarah Thornton, Clerk, United
States District Court for the District of Massachusetts, Ms.
Spector, Mr. Baltay, Mr. Casey, Mr. Reinstein, Ms. Behr, Ms.
Goldman, Ms. Wadhera & Mr. Bialas.
