
USCA1 Opinion

	




          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 & 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                                          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                                          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                                         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"          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          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          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                                          IV                                      CONCLUSION                                      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.                    Affirmed.                    ________                                          25
