
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 95-1982                                 PAULA WERME, ET AL.,                               Plaintiffs, Appellants,                                          v.                 STEPHEN MERRILL, GOVERNOR OF NEW HAMPSHIRE, ET AL.,                                Defendants, Appellees.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF NEW HAMPSHIRE                 [Hon. Joseph A. DiClerico, Jr., U.S. District Judge]                                                 ___________________                              _________________________                                        Before                         Selya and Cummings,* Circuit Judges,                                              ______________                          and Coffin, Senior Circuit Judge.                                      ____________________                              _________________________               Barnes, Bender  & Boehm, Martin Bender, and Paula Werme, pro               _______________________  _____________      ___________          se, on brief for appellants.               Jeffrey  R.  Howard, Attorney  General,  and  Christopher P.               ___________________                           ______________          Reid, Assistant Attorney General, on brief for appellees.          ____                              _________________________                                     May 23, 1996                              _________________________          __________          *Of the Seventh Circuit, sitting by designation.                    SELYA, Circuit Judge.  We must determine in the  course                    SELYA, Circuit Judge.                           _____________          of this  appeal whether New Hampshire  overstepped constitutional          bounds  by denying a recognized third party the right, enjoyed by          the state's two  most popular political parties, to have election          inspectors  and ballot clerks  present at  the polls  on Election          Day.   We conclude, as  did the district court,  that the state's          statutory scheme passes constitutional muster.          I.  BACKGROUND          I.  BACKGROUND                    The  material facts are not in genuine dispute.  In New          Hampshire, as elsewhere,  the Democratic  and Republican  parties          dominate the  political scene.   Nevertheless, third  parties can          make their mark.   In  the 1990 gubernatorial  election one  such          group,  the Libertarian Party, garnered over 3% of the votes cast          statewide.  This level of achievement earned it the right to hold          party primaries  and to have its anointed candidates appear under          the party label on the official ballot.  See N.H. Rev. Stat. Ann.                                                   ___             652:11 & 655:14  (1986).  The Libertarian Party  retained that          status by virtue of  the number of votes its  candidates garnered          in subsequent elections.                    Despite  party  recognition  and  ballot   status,  the          Libertarian Party claims that it has been hampered by a series of          seemingly  unconnected  mishaps.1   Goaded  by  these  incidents,                                        ____________________               1To  cite  a few  of the  more  bruited examples,  the party          claims  that  one  town   neglected  to  forward  the  count   of          Libertarian votes cast in the  1990 gubernatorial election to the          Secretary of  State; that,  in another town,  election officials,          contrary to then-existing state  law, see N.H. Rev. Stat.  Ann.                                                  ___          659:14 (1986), since  amended, see id.   659:14(I)  (1994 Supp.),                                         ___ ___          refused  to  permit a  registered  Democrat to  change  her party                                          2          Paula  Werme,  a  registered   Libertarian,  requested  that  the          selectmen in Mont Vernon  appoint her to represent her party as a          ballot clerk at the March 1994 municipal election.  The selectmen          denied her request.   In rapid succession Werme then  brought her          campaign  to  the  Secretary  of  State  and, failing  to  obtain          redress, sought a judicial anodyne.                    Invoking 42 U.S.C.   1983, Werme  sued the Governor and          the Secretary of State in New Hampshire's federal district court.          She alleged  that the statutes governing  appointment of election          inspectors and ballot  clerks abridged her constitutional  rights          to  free  association, due  process,  and  equal protection;  she          prayed that the court enjoin their enforcement; and she sought an          order commanding the appointment of Libertarians to the indicated          positions  on the  same basis  as members  of the  Democratic and          Republican  parties.   The  Libertarian  Party  intervened as  an          additional plaintiff.   The district court,  after mulling cross-          motions  for  summary judgment,  concluded  that  the defendants'          interest  in  the  efficient  management  of election  activities          justified the  small restriction  on the plaintiffs'  rights that          the  challenged  statutes entailed,  and  upheld New  Hampshire's          statutory scheme.  This appeal followed.          II.  STANDARD OF APPELLATE REVIEW          II.  STANDARD OF APPELLATE REVIEW                    The  summary  judgment  standard is  both  prosaic  and                                        ____________________          registration and  affiliate with the Libertarian  Party; and that          on occasion voters discovered  that unauthorized changes had been          made  in their  listed  party affiliations.   No  complaints were          filed with the Secretary of State in connection with any of these          incidents.                                          3          familiar,  see, e.g.,  McCarthy v.  Northwest Airlines,  Inc., 56                     ___  ____   ________     _________________________          F.3d  313, 315 (1st Cir. 1995) (collecting  cases), and we see no          need to rehearse it here.  We simply  restate two basic verities.          First,  the district court may enter summary judgment only if the          record reveals no genuine  issue of material fact and  the movant          demonstrates an entitlement to judgment as a matter of  law.  See                                                                        ___          Fed. R. Civ. P. 56(c).  Second, the court of  appeals reviews the          grant  of  summary judgment  de  novo,  applying  the same  legal          principles that held sway in the  nisi prius court.  See Roche v.                                                               ___ _____          John Hancock Mutual  Life Ins. Co., ___  F.3d ___, ___  (1st Cir.          __________________________________          1996) [No. 95-1804, slip op. at 8].          III.  THE STATUTORY SCHEME          III.  THE STATUTORY SCHEME                    New  Hampshire's electoral machinery is pretty standard          stuff.   A  town moderator  supervises Election  Day activities.2          See N.H. Rev. Stat. Ann.   659:9.  The moderator commands a cadre          ___          of other  election officials,  including inspectors  appointed by          the  two political parties  that received "the  largest number of          votes  [cast]  for governor  in the  state  at the  last previous          general election. . . ."  Id.   658:2.  Each such political party                                    ___          may appoint two inspectors per  polling place, and one additional          inspector for  every 1,500 qualified  voters in  excess of  2,000          qualified voters registered at that polling place.  See id.  If a                                                              ___ ___          political party fails to appoint inspectors, the town's selectmen                                        ____________________               2While procedures  are slightly different in  cities than in          towns, the differences are irrelevant to  the disposition of this          appeal.    Consequently,  we  refer throughout  to  the  election          procedures  in  towns,  omitting  particularized   references  to          counterpart procedures that apply in urban settings.                                          4          fill  the  lacuna by  naming inspectors  from  the ranks  of that          party.   See id.  In turn,  the moderator designates two election                   ___ ___          inspectors, one from each of the two parties,  to serve as ballot          clerks.  See id.   658:25.                   ___ ___                    Ballot  clerks exercise  no  discretion.   Their purely          ministerial duties include distributing  ballots at the polls and          keeping an official checklist containing the names of persons who          in fact vote.  See id.    658:25 & 659:13.  In principle, a voter                         ___ ___          presents herself to the ballot clerk; if the voter's name appears          on  an official  list  of  registered  voters, the  ballot  clerk          provides her with a ballot.3  Ballot  clerks are not empowered to          register voters, and do not have authority to modify the official          voting  list.   While voters  may declare  or change  their party          affiliation on Election Day under certain circumstances, see N.H.                                                                   ___          Stat.  Ann.       654:7-a   &  654:7-b  (Supp.   1994),  election          supervisors or town clerks (who are themselves elected officials)          handle such  matters.  See N.H. Stat. Ann.   654:8 (1986).  Every                                 ___          recognized  political  party,  regardless  of  size  or  previous          electoral success, may  appoint a "challenger  of voters" at  any          polling place who may stand within the guardrail to "see and hear          each voter as he offers to vote."  Id.   666:4.                                             ___                                        ____________________               3In  primary elections, a ballot clerk must give a voter who          has declared her party affiliation the ballot of that party.  See                                                                        ___          N.H.  Rev. Stat. Ann.    659:14(I) (1994 Supp.).   Exceptions are          made only when a  declared voter wishes to  support a party  that          did not have official existence when the voter declared her party          loyalty  (and  then  only  in the  primary  election  immediately          following the party's official recognition) or when the  voter is          undeclared  and  the   party's  rules  allow  such  a   voter  to          participate in its primary.  See id.                                       ___ ___                                          5                    After the polls close,  the town moderator oversees the          counting  of votes.   See id.     659:60 & 659:61.   Although the                                ___ ___          palsgrave  is  held in  public, see  id.    659:63,  only persons                                          ___  ___          holding  official positions  may take  part in  tallying ballots.          See id.   659:60.   Election inspectors sometimes participate  in          ___ ___          this  process.  Once the  votes have been  tallied, the moderator          announces  the  final results,  see id.     659:70, and  a formal                                          ___ ___          election  return is prepared by  the town clerk  and forwarded to          the Secretary of State.  See id.     659:74 & 659:75.  Members of                                   ___ ___          the  public  may inspect  the return.    Candidates may  call for          recounts, see id.     660:1-6 & 665:6(II), and the  New Hampshire                    ___ ___          Ballot Law Commission has jurisdiction to "hear and determine all          disputes involving alleged  violations of New  Hampshire election          laws  of a non-criminal  nature for  which no  specific statutory          appeal  procedure  has  already been  provided."    Id.    665:7.                                                              ___          Moreover, election  officials are  subject to  criminal penalties          for  ballot tampering,  falsifying returns,  or  the like.   See,                                                                       ___          e.g., id.   666:1-3.          ____  ___          IV.  ANALYSIS          IV.  ANALYSIS                    We subdivide our analysis into four segments.                                          A                                          A                    It is apodictic that the right to  vote is a right that          helps to preserve all other rights.  As Chief Justice Warren  put          it:  "The right to vote  freely for the candidate of one's choice          is of the essence  of a democratic society, and  any restrictions          on  that right strike at the heart of representative government."                                          6          Reynolds v. Sims, 377 U.S. 533, 555 (1964); see also Wesberry  v.          ________    ____                            ___ ____ ________          Sanders,  376 U.S.  1, 17  (1964) ("Other  rights, even  the most          _______          basic, are  illusory  if  the  right to  vote  is  undermined.").          Nonetheless, the right to  vote is not absolute.   See Burdick v.                                                             ___ _______          Takushi, 112 S. Ct. 2059, 2063 (1992).  "[A]s a practical matter,          _______          there must be a  substantial regulation of elections if  they are          to  be fair  and honest and  if some  sort of  order, rather than          chaos, is to accompany the democratic process."  Storer v. Brown,                                                           ______    _____          415 U.S.  724, 730 (1974).   To that end, each  state retains the          authority to regulate state and local elections and to  prescribe          the duties and qualifications  of persons who work at  the polls,          and the manner  in which they will be selected.   See Sugarman v.                                                            ___ ________          Dougall, 413 U.S. 634, 647 (1973); see also U.S. Const. Art. I,            _______                            ___ ____          4,  cl. 1 (directing  that states  shall prescribe  "[t]he Times,          Places  and   Manner  of  holding  Elections   for  Senators  and          Representatives").                    To be sure, this authority to regulate elections is not          unfettered.  At  a minimum, states cannot  wield their regulatory          power in ways that contravene the First and Fourteenth  Amendment          rights  of their citizens.   See Tashjian v.  Republican Party of                                       ___ ________     ___________________          Conn.,  479 U.S.  208,  217 (1986).    As courts  review  states'          _____          regulatory efforts and strive  to distinguish between permissible          regulation and  impermissible abridgment  of voters'  rights, the          level of scrutiny looms  large.  The plaintiffs insist that a law          imposing  any burden (however modest)  upon the right  to vote is                    ___          always subject to strict scrutiny.  We do not agree.                                          7                    The Supreme  Court has  eschewed a  hard-and-fast rule,          and  instead has  adopted a  flexible framework  for testing  the          validity of election  regulations.   See Burdick, 112  S. Ct.  at                                               ___ _______          2063;  Anderson v. Celebrezze, 460  U.S. 780, 789 (1983); Storer,                 ________    __________                             ______          415 U.S. at 730.           Under  the prescribed  framework,  the level  of  scrutiny to  be          applied corresponds roughly to  the degree to which  a challenged          regulation  encumbers  First  and  Fourteenth  Amendment  rights.          Consequently, a  court weighing a  challenge to a  state election          law must start by  assessing "the character and magnitude  of the          asserted  injury" to  the plaintiff's  constitutionally protected          rights and  then "evaluate the  precise interests put  forward by          the  State as justifications for the burden imposed by its rule."          Anderson, 460 U.S.  at 789;  accord Libertarian Party  of Me.  v.          ________                     ______ _________________________          Diamond, 992 F.2d 365,  370 (1st Cir. 1993) (explaining  that the          _______          court  must   attempt  to  achieve  a   sort  of  "constitutional          equilibrium").  In this process the court must take into account,          among  other things, "the extent to which those interests make it          necessary  to burden the plaintiff's  rights."  Id.   The Burdick                                                          ___       _______          Court crystallized the applicable standard of inquiry:                    Under  this  standard,  the  rigorousness  of                    [the]  inquiry into the  propriety of a state                    election law depends upon the extent to which                    a  challenged  regulation  burdens First  and                    Fourteenth Amendment  rights.   Thus,  as  we                    have recognized when those rights are subject                    to severe restrictions,  the regulation  must                    be narrowly drawn to advance a state interest                    of  compelling importance.   But when a state                    election    law   provision    imposes   only                    reasonable,   nondiscriminatory  restrictions                    upon  the  First  and   Fourteenth  Amendment                                          8                    rights  of  voters,  the   State's  important                    regulatory interests are generally sufficient                    to justify the restrictions.          Burdick, 112 S. Ct. at 2063-64 (citations and  internal quotation          _______          marks omitted).                                          B                                          B                    Against this  backdrop,  we  proceed  to  consider  the          specifics  of  the plaintiffs'  challenge.    In performing  this          tamisage, we are cognizant that their claim is not that the state          misapplied New  Hampshire law,  but, rather,  that the  method of          staffing   the   polls   dictated   by   that   law   is   itself          constitutionally  infirm.    Thus,  we  regard   the  plaintiffs'          challenge as  a  facial  attack  on the  statutory  scheme  (and,          indeed, they have conceded this point).                    The  plaintiffs'  facial  challenge  is  susceptible to          further  refinement.   They  do not  contend  that the  statutory          scheme  directly prevents  members of  less successful  political          parties,  like the  Libertarians,  from ballot  access either  as          candidates  or as  voters.   Instead, their  claim  is on  a more          sophisticated  level;  they say  that  restricting  the right  to          appoint election  inspectors and  ballot clerks  to the  two most          popular parties  deprives members of recognized  third parties of          their  right  to  free  political  association,  and  invidiously          discriminates  against  them  on  the basis  of  their  political          affiliation.  Stripped of its rhetorical trappings, this argument          amounts to nothing less than a declaration that Libertarians have          a constitutional right to be represented at the polls by election                                          9          inspectors  and ballot clerks of  their own party  to ensure that          Libertarian  votes  are  counted.     In  the  plaintiffs'  view,          Democrats  and Republicans are not  to be trusted  in this regard          because they  are unconcerned with the  protection of Libertarian          interests  and,   if  left  alone,  they   will  likely  overlook          Libertarian ballots through lassitude, misfeasance, incompetence,          and the like.                    In  addressing this claim we  must first set  to rest a          straw man.  There  is simply no abstract constitutional  right to          be appointed to serve  as an election inspector or  ballot clerk.          See, e.g., Rhode  Island Minority Caucus, Inc.,  v. Baronian, 590          ___  ____  ___________________________________      ________          F.3d 372,  376  (1st Cir.  1979).   Although  the  right to  vote          certainly  includes the  right to  have one's  vote  counted, see                                                                        ___          United States v. Mosley, 238 U.S. 383, 386 (1915), nothing on the          _____________    ______          face  of the  New Hampshire  statutes deprives  Libertarian Party          members of that right.                      We  turn next to an  assessment of the  extent to which          the challenged statutes burden the First and Fourteenth Amendment          rights of Libertarians.4  We find the burden to be slight.                    In the  first  place,  New  Hampshire's  regulation  is          nondiscriminatory,  that is,  it  does  not  differentiate  among                                        ____________________               4In conducting our evaluation, we do not distinguish between          the burdens placed  on the  rights of the  Libertarian Party  and          those  placed on  the rights  of voters  who  wish to  cast their          ballots  for  that  party's candidates.    As  a  general matter,          political  parties purport  to represent  the interests  of their          supporters,  and  "the  rights  of  voters   and  the  rights  of          candidates do not lend themselves to neat separation."   Burdick,                                                                   _______          112 S. Ct. at  2065-66 (quoting Bullock v. Carter,  405 U.S. 132,                                          _______    ______          143 (1972)).                                          10          Republicans,   Democrats,   and  Libertarians.      Instead,  the          regulation conditions  the right  to appoint  election inspectors          and  ballot clerks on  a certain degree of  success at the polls.          Distinguishing between recognized political parties based on past          electoral    accomplishment   is    not   per    se   invidiously          discriminatory.  See, e.g., American Party of Texas v. White, 415                           ___  ____  _______________________    _____          U.S.  767,  781  (1974)   (holding  that  it  is   not  invidious          discrimination  for  a  state  to grant  minor  parties  official          recognition,  but deny  them  the right  to  hold primaries  even          though the main  political parties  are so entitled).   So  here:          the Libertarian Party has exactly the same opportunity to qualify          as  a source of election  inspectors and ballot  clerks under New          Hampshire law as does  any other party.  Equality  of opportunity          exists,  and equality of opportunity   not equality of outcomes            is the linchpin of what the Constitution requires in this type of          situation.  As the Court explained:                    The   fact   is   that   there   are  obvious                    differences  in  kind between  the  needs and                    potentials   of   a   political  party   with                    historically  established  broad support,  on                    the one  hand, and  a new or  small political                    organization on  the other . . . .  Sometimes                    the  grossest  discrimination   can  lie   in                    treating  things that are different as though                    they were exactly alike.          Jenness v. Fortson, 403 U.S. 431, 441-42 (1971).          _______    _______                    In the  second  place, the  New  Hampshire law  has  no          direct impact on  ballot access, on the right to  vote, or on the          right to have one's vote  tallied.  It is generally thought  that          indirect effects are less  burdensome than direct restraints, cf.                                                                        ___                                          11          Dole  v. South Dakota, 483  U.S. 203, 210  (1987) (discussing, in          ____     ____________          connection   with  Congress'   spending  powers,   "the  indirect          achievement  of objectives  which  Congress is  not empowered  to          achieve directly"), and that generalization holds true here.                    In the third place, even these indirect effects are not          discernible  here.    The record  evidence  offers  no  reason to          believe  that  minority  parties are  at  special  or undue  risk          because they  have no  right to appoint  election inspectors  and          ballot clerks.  The law affords a panoply of other safeguards for          minority parties  (e.g., appointing  a challenger of  voters, see                                                                        ___          N.H. Rev. Stat. Ann.    666:4), and ultimate control  over voting          places  rests with elected officials.  To cinch matters, there is          no  showing of systematic discrimination against minority parties          in  the  casting and  tallying of  votes,  and mere  suspicion or          paranoia is too  flimsy a foundation on which to  rest a claim of          incipient fraud or mistake.5                    In  fine, the "burden" to which the plaintiffs allude            that Libertarian  ballots will not be  counted unless Libertarian          election  inspectors  and ballot  clerks are  on  the prowl    is          purely  conjectural.   To  hold  otherwise  would require  us  to          conclude, without  a shred  of competent evidence,  that election          officials in New Hampshire  are unscrupulous individuals who will          breach the  public trust  in order to  serve the  interests of  a                                        ____________________               5The plaintiffs conceded  below that none of  the mishaps to          which  they alluded, see  supra note 1, were  part of a concerted                               ___  _____          plan to deprive  Libertarians of the  right to vote.   There  is,          moreover,  no  showing that  similar  gaffes  have not  afflicted          Republican and/or Democratic voters from time to time.                                          12          political party,  and, moreover,  that Democrats  and Republicans          will  put aside their historic enmity so that, together, they may          repress third parties.  We refuse to indulge so cynical a view of          the electoral process.                                          C                                          C                    Having analyzed  the nature of the  burdens imposed, we          now  proceed  to ascertain  the level  of  scrutiny that  we must          apply.   See Burdick, 112 S.  Ct. at 2064; Anderson,  460 U.S. at                   ___ _______                       ________          789.    We  recognize, of  course,  that  every  provision of  an          election  code,  even those  that  govern the  voting  process as          opposed  to those  that govern  ballot access  or eligibility  of          candidates, "inevitably affects    at least to some degree    the          individual's right to vote and his right to associate with others          for political ends."  Anderson,  460 U.S. at 788.  But  different                                ________          provisions of an election  code may burden rights unequally,  and          we believe that the impediment which New Hampshire law imposes in          respect to the selection of election inspectors and ballot clerks          is relatively minor.  Given the character and magnitude (or, more          aptly  put, lack  of  magnitude) of  the  alleged injury  to  the          plaintiffs'  First and  Fourteenth Amendment rights,  we conclude          that  the defendants  need only  show that  the enactment  of the          regulation had  a  rational  basis.   See,  e.g.,  Coalition  for                                                ___   ____   ______________          Sensible and Humane Solutions  v. Wamser, 771 F.2d 395,  399 (8th          _____________________________     ______          Cir. 1985); Baer  v. Meyer,  728 F.2d 471,  476 (10th Cir.  1984)                      ____     _____          (per curiam); Piricin v. Board of Elections, 368  F. Supp. 64, 71                        _______    __________________                                          13          (N.D.  Ohio)  (three-judge  court),  aff'd  mem.,  414  U.S.  990                                               _____  ____          (1973).6                    Our decision in Rhode  Island Minority Caucus, 590 F.2d                                    _____________________________          372, is not to  the contrary.  There the  plaintiffs alleged that          the   Board   of   Canvassers   of   the   City   of   Providence          unconstitutionally conditioned  appointment as a  voter registrar          upon membership in  or affiliation  with one  of three  political          organizations.   See id. at 376.   The district court  denied the                           ___ ___          plaintiffs'  motion for  a preliminary  injunction mainly  on the          ground that the plaintiffs  had no probability of success  on the          merits.  See id. at 373-74.  We affirmed on a different ground                      ___ ___          that there was  no showing of irreparable harm, see  id. at 374                                                            ___  ___          and added:                         [The state] may not  abridge fundamental                    First   Amendment   rights   of  speech   and                    association without establishing that such an                    infringement is necessary to achieve  a vital                    state interest . . . .                         So  viewed,  but without  prejudging the                    issue, it  appears  that plaintiffs  raise  a                    substantial first amendment question.          Id. at  376-77.  The panel  made clear, however, that  it was for          ___          the district  court to determine "the extent to which plaintiffs'                                        ____________________               6We note that  one district court apparently disagrees.   In          Iowa  Socialist Party  v. Slockett,  604 F.  Supp. 1391  (D. Iowa          _____________________     ________          1985), a handful of minor third parties contended that appointing          mobile  deputy registrars  solely from  persons nominated  by the          county chairmen of the two major political parties violated their          constitutional rights.   See  id. at  1392.  As  we do  here, the                                   ___  ___          district  court   concluded  that  the  burden   imposed  by  the          regulation  was  "relatively minor."   Id.  at  1397.   The court                                                 ___          nonetheless proceeded  to apply  strict scrutiny  and invalidated          the law.  See id. at 1396-98.  We find this aspect of the court's                    ___ ___          reasoning unpersuasive.                                          14          associational rights have been abridged, the burden, if any,  the          Board must  bear in  justifying that  abridgment, and  whether in          fact the Board can meet that burden."  Id. at 377.   Fairly read,                                                 ___          Rhode Island Minority Caucus is not inconsistent with our holding          ____________________________          today.                                          D                                          D                    Using rationality review we conclude that the state has          justified the regulation.  The defendants rely principally on New          Hampshire's interest in limiting the number of election officials          to  manageable  proportions in  order  to  enhance administrative          efficiency and thereby safeguard against mistakes and fraud.  Too          many  cooks, the  defendants  say, will  spoil  the broth.    The          assertion makes good sense.                    The  state  has  a  valid interest  in  preserving  the          integrity and reliability of  the electoral process.  See,  e.g.,                                                                ___   ____          American  Party, 415 U.S. at 782 n.14; Coalition for Sensible and          _______________                        __________________________          Humane Solutions, 771 F.2d at 399.  It is certainly reasonable to          ________________          assume that, at some point, "more" is not "better."  Common sense          suggests that if election inspectors and ballot clerks become too          numerous,  they  will merely  get in  each  other's way  and thus          frustrate the moderator's ability  to afford close  supervision.7                                        ____________________               7A  fair parallel  can be  drawn to  ballot access  cases in          which  the  Court  has  acknowledged that  the  "important  state          interest  .  .  .  in  avoiding  confusion,  deception,  and even          frustration of  the democratic process" can be served by limiting          ballot access based on "some preliminary showing of a significant          modicum of support."  Jenness, 403 U.S. at 442.   We believe that                                _______          this  reasoning  extends  to  the state's  strivings  to  promote          efficiency and  orderliness at  the polls through  limitations on          the number of persons who are permitted to work inside the rail.                                          15          Cf. Rudyard Kipling, Rewards & Fairies 73 (1910) (suggesting that          ___                  _________________          one should  keep no more cats than will catch mice).  Within wide          margins the place at which to draw the line   in other words, the          ideal size  of the complement    is for  the state to  determine.          See, e.g., Anderson, 460  U.S. at 788 n.9 (observing  that states          ___  ____  ________          have broad discretion to set minimum requirements restricting the          number of candidates appearing on the ballot).                    The  plaintiffs'   riposte  is  to  suggest   that  New          Hampshire must  demonstrate that adding Libertarians  as election          inspectors and ballot clerks  would actually cause confusion, or,                                              ________          put  another way,  that this  increment would  be the  straw that          broke the back of the dromedary of administrative efficacy.  That          suggestion  vastly exaggerates the state's  burden.  See Munro v.                                                               ___ _____          Socialist Workers Party, 479 U.S. 189, 195-96 (1986) (rejecting a          _______________________          similar  claim on  the  basis that  "[s]uch  a requirement  would          necessitate that a State's political system sustain some level of          damage  before  the legislature  could take  corrective action").          States are free to  head off potential problems in  the electoral          system before they materialize, as long as the solutions that the          state devises are reasonable and  do not significantly intrude on          constitutionally  protected rights.    See id.   New  Hampshire's                                                 ___ ___          solution     which involves  restricting  the  number of  persons          behind  the rail at  polling places, and  puts the responsibility          for  appointing those persons in  the hands of  the two political          parties  that have proven most  successful in the  recent past at          earning the electorate's trust    is a reasonable response  to an                                          16          authentic problem.                    We  hold  that  New  Hampshire's  method  of  selecting          election  inspectors and  ballot  clerks is  a rational  means of          advancing  the state's interest  in dispelling confusion, warding          off fraud,  and ensuring administrative efficiency  at the polls.          See Baer, 728  F.2d at  476 (applying rational  basis review  and          ___ ____          upholding regulation  that did not uniformly  allow all political          parties to appoint poll  observers); Piricin, 368 F. Supp.  at 71                                               _______          (applying   rational  basis   review  and   upholding  regulation          permitting membership  of boards of elections to  be drawn solely          from parties  garnering the  two highest  vote totals);  see also                                                                   ___ ____          Bishop  v. Lomenzo,  350  F. Supp.  576,  588-89 (E.D.N.Y.  1972)          ______     _______          (three-judge   court)   (suggesting  that   regulation  requiring          volunteer  deputy  registrars  to  be  enrolled  members  of  the          Republican  or Democratic  parties  merited  only rational  basis          review, but concluding that law survived strict scrutiny on basis          that regulation reduced risk of "fraud or irregularity that might          exist  if registration by [only]  one party or  by an independent          were  permitted").    While  other  methods  of  selecting  these          officials, or a somewhat  different numerical formula, might also          serve, the  state is  free to choose  from among the  universe of          constitutionally acceptable alternatives.          IV.  CONCLUSION          IV.  CONCLUSION                    We need  go no further.8   Since New  Hampshire's grant                                        ____________________               8The plaintiffs'  Equal Protection  argument is  unworthy of          separate  discussion.  This argument does not rest on a challenge          to   New  Hampshire's   requirements   for   achieving   official          recognition as a political party, but, rather, on the thesis that          once a party attains  official status under state law,  the state          may  not  draw  distinctions  between  it  and  other  recognized                                          17          of  a monopoly  over the appointment  of election  inspectors and          ballot  clerks  to the  two  most  popular political  parties  is          justified by legitimate state interests and imposes only a modest          burden on the plaintiffs'  First and Fourteenth Amendment rights,          it  is constitutional.   Nothing succeeds  like success,  and the          Libertarian Party  has the  same opportunity as  its better-known          competitors to attract voters  to its standard, finish in  one of          the top  two spots  in a gubernatorial  election, and  thereafter          play  a  more  active role  in  the  mechanics  of the  electoral          process.   But under New Hampshire law  that success is to be won          at the polls rather than in a federal court.          Affirmed.          Affirmed.          ________                                        ____________________          political parties.  The thesis is untenable.  See American Party,                                                        ___ ______________          415 U.S. at 781.                                          18
