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 &amp; 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
