Exhibit,Appendix: LIBERTARIAN PARTY OHIO Vs OHIO SECRETARY STATE VS.OHIO SECRETARY STATE ET AL

On January 19, 2016 a Exhibit,Appendix was filed involving a dispute between and for OTHER CIVIL in the District Court of Franklin County.

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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

LIBERTARIAN PARTY
OF MAINE, INC., et al.,

Plaintiffs,

Vv. 2:16-cv-00002-JAW

MATTHEW DUNLAP, et al.,

Defendants.

ORDER ON MOTION FOR RECONSIDERATION

This case relates to the failure of the Libertarian Party of Maine, the Plaintiffs

here, to qualify as a party under state law in December 2015. Under the impression

that the Plaintiffs sought to gather additional enrollees until May 31, 2016 and to

participate in the primary election on June 14, 2016, the Court denied their motion

for preliminary injunction as a practical impossibility: the Secretary of State, the

Defendants, simply would not have had enough time to carry out the primary

election. The Plaintiffs now move for reconsideration arguing that they did not seek

participation in the primary election.

As significant constitutional rights are at stake, the Court grants the motion

to reconsider. It finds the Plaintiffs have shown a likelihood of success on their claim

that Maine’s party-certification deadline of December 1 is unconstitutionally early.

To deprive the Plaintiffs of participation in the general election would constitute

irreparable harm, which outweighs any harm to the Defendants. Moreover, the

important public interest in orderly elections must bend to the overriding public
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interest in constitutional rights that protect a party's access to the ballot.

Accordingly, the Court, acting within its discretion, fashions relief to protect the

Plaintiffs’ constitutional rights, while not imperiling the Defendants’ ability to

prepare for and administer the general election on November 8, 2016.

I PROCEDURAL HISTORY

On January 4, 2016, the Plaintiffs, the Libertarian Party of Maine, Inc. and

several individuals affiliated with the Libertarian Party, filed a complaint against

Matthew Dunlap, the Secretary of State for the state of Maine (Secretary Dunlap);

Julia Flynn, the Deputy Secretary of State for the state of Maine (Deputy Flynn);

Tracy Willet, the Assistant Director, Division of Elections, state of Maine (Assistant

Director Willet); and the Maine Department of the Secretary of State (the

Department or the Secretary), seeking a declaratory judgment and an injunction

concerning the Defendants’ actions and omissions regarding the attempts of the

Libertarian Party to qualify as a recognized political party. Compl. for Declaratory

& Injunctive Relief (ECF No. 1) (Compl.). On March 8, 2016, the Defendants filed an

answer to the Plaintiffs’ Complaint. Defs.’ Ans. to Pls.’ Compl. (ECF No. 17).

On January 27, 2016, the Plaintiffs filed an emergency motion for preliminary

injunction, a request for oral argument, and a supporting memorandum. Pils.’ Emer.

Mot. for a Prelim. Inj. (ECF No. 8); Id. Attach. 1 Mem. of Law in Supp. of Pls.’ Emer.

Mot. for Prelim. Inj. (Pls.’ Mem.). On February 17, 2016, the Defendants filed their

opposition. Defs.’ Mem. in Opp’n to Pls.’ Mot. for Prelim. Inj. (ECF No. 14) (Defs.’

Opp’n). On March 9, 2016, the Plaintiffs filed a reply to the Defendants’ opposition.
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Reply Mem. in Supp. of Pls.’ Emer. Mot. for Prelim. Inj. (ECF No. 19) (Pls.’ Reply D.

On February 16, 2016, the Court granted the Plaintiffs’ motion for oral argument.

Order Granting Mot. for Oral Arg./Hr’g (ECF No. 12). On March 31, 2016, the Court

held oral argument, which included the presentation of testimonial evidence, Min.

Entry (ECF No. 24), and which broke for the day then resumed and concluded on

April 5, 2016. Min. Entry (ECF No. 26). On April 25, 2016, the Court issued an order

denying the Plaintiffs’ emergency motion for preliminary injunction. Order on Mot.

for Prelim. Inj. (ECF No. 30) (Order).

On April 29, 2016, the Plaintiffs filed an emergency motion for reconsideration.

Pls.’ Emer. Mot. for Recons. (ECF No. 32) (Pls.’ Mot.). The Defendants responded on

May 6, 2016, Defs.’ Mem. in Opp’n to Pls.’ Mot. for Recons. (ECF No. 34) (Defs.’ Resp.),

and the Plaintiffs replied on May 11, 2016. Reply Mem. in Supp. of Pls.’ Emer. Mot.

for Recons. (ECF No. 35) (Pls.’ Reply ID). On May 16, 2016, the Court held a hearing

on the motion for reconsideration. Min. Entry (ECF No. 36).

I. THE PARTIES’ POSITIONS

A The Plaintiffs’ Motion

The Plaintiffs move pursuant to Local Rule 7(g), arguing that “the Court’s

denial of the request for preliminary injunctive relief is based on a manifest error of

fact and/or law.” Pls.’ Mot. at 2-3 (citing D. ME. Loc. R. 7(g)). Although they

acknowledge that they initially requested participation in the June 14, 2016 primary

election, they say that they withdrew that request between the filing of their

preliminary injunction motion on January 27, 2016 and the hearing on March 31,
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2016. By the later date, the Plaintiffs “focused on enrolling voters in the Libertarian

Party, nominating candidates by convention rather than by primary, and securing

placement of its duly nominated candidates on the general election ballot, including

candidates for President and Vice President.” Id. at 3 (citing Pls.’ Ex. 7). At the end

of their motion, the Plaintiffs again change the relief they seek, asking for “not less

than forty-five (45) days from the date of the Court’s ruling to enroll additional voters

in the Libertarian Party and file a declaration with the Secretary of State, instead of

the May 31st deadline... .” Id. at 6.

B The Defendants’ Response

The Defendants do not contest that the Plaintiffs no longer sought

participation in the primary election by the time of the hearing. Defs.’ Resp. at 2.

Nonetheless, they write that “the Court’s findings are factually and legally correct

and support denial of the preliminary injunction.” Jd.

The Defendants point out the ways in which the Plaintiffs’ requested relief, in

particular ordering re-enrollment and allowing for new enrollments, “would disrupt

the orderly process of Maine’s elections.” Id. at 4. While re-enrollment is “technically

possible,” the Defendants raise concerns that “doing so could cause significant legal

harm because voters have a right to make their own enrollment decisions.” Id. “To

avoid violating voters’ rights,” the Defendants contend, “some type of notice would

need to be sent to the 4,518 voters informing them of the injunction and asking them

to affirmatively state within a certain period of time whether they wish to be re-

enrolled in the Libertarian Party.” Id. at 5. This would require the Court “to outline
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a procedure and a time frame for the issuance of and response to the notices,” which

in turn “would impose new administrative burdens on the Secretary of State’s small

elections staff... .” Id. The Defendants also bristle at enrolling new Libertarians

“during the same time period in which they must process applications for absentee

ballots, handle the normal flow of voter registration applications leading up to the

election, conduct the primary election, tabulate the results of that election, and enter

voter history for that election.” Id.

The Defendants consider the Plaintiffs’ request to nominate candidates via

convention as essentially “asking the Court to re-write Maine election law to fashion

an entirely separate legal process unique to the Libertarian Party.” Jd. at 6. Finally,

on the equities, the Defendants assert that “the Plaintiffs are not entitled to

injunctive relief to remedy a problem of their own making.” Id.

C. The Plaintiffs’ Reply

The Plaintiffs begin by pointing out that the Defendants do not dispute the

“central basis” of their motion, i.e., that they did not seek participation in the primary

election. Pls.’ Reply II at 1. They raise several objections to the Defendants’ claim

that they cannot re-enroll Libertarians without burdening the Secretary and

compromising voters’ rights. First, the Plaintiffs say that the argument—raised for

the first time in the Defendants’ response—comes too late. Id. at 2. Second, according

to the Plaintiffs and contrary to the position taken by the Defendants in their

response, Deputy Flynn testified at the hearing that her office would be able to re-

enroll Libertarians. Jd. at 3. Third, they perceive “a bizarre form of Chutzpah laced

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with a twist of irony” in the Defendants’ argument that re-enrollment would violate

voters’ rights: “By feigning newfound respect for the associational rights of these

4,513 voters, Defendants seek to persuade the Court not to intervene on their behalf

and on behalf of the Libertarian Party with whom they sought to associate ....” Id.

at 3-4.

To the extent the Court accepts the voters’ rights argument, the Plaintiffs offer

two fixes. First, “[iJfin fact any of those 4,513 unenrolled voters have subsequently

enrolled in other political parties, then the Secretary of State can notify such persons

of the Court’s ruling and give them the opportunity to either remain enrolled in that

party or instead be reenrolled in the Libertarian.” Jd. at 4. Second, the Court could

order the Secretary of State to give the Libertarian Party credit for the 4,513 verified

enrollments without re-enrolling any Libertarians. Id.

“Above all else,” the Plaintiffs emphasize, “the theme of the relief should be to

enjoin the state from enforcing the December 1st party qualification deadline and the

consequences thereof.” Jd. (citing Stoddard v. Quinn, 593 F. Supp. 300 (D. Me. 1984)).

They close by arguing that whatever their shortcomings in attempting to qualify as

a party, these shortcoming do not offer the Defendants “a legal defense to the

constitutional flaws inherent in the statute.” Id. at 5.

Il. DISCUSSION

A Motion for Reconsideration

Pursuant to Local Rule 7(g), a motion to reconsider an interlocutory order of

the court “shall demonstrate that the order was based on a manifest error of fact or
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law....” D. ME. Loc. R. 7(g). In addition to manifest error of fact or law, a district

court may grant a motion for reconsideration “if the Court has ‘patently

misunderstood’ a party, or if the court made an error ‘not of reasoning but of

apprehension.” Pro Con, Inc. v. Interstate Fire & Cas. Co., 831 F. Supp. 2d 367, 371

(D. Me. 2011) (quoting Ruiz Rivera v. Pfizer Pharms., LLC, 521 F.3d 76, 82 (1st Cir.

2008)). “A district court has ‘substantial discretion and broad authority to grant or

deny’ a motion for reconsideration.” Jd. (quoting Ruiz Rivera, 521 F.3d at 81).

The Court’s order rested on the practical impossibility of extending the

certification deadline to May 31, 2016 and allowing the Libertarian Party to

participate in the primary election on June 14, 2016. Order at 22-27. It concluded

that “[p]ut simply, the May 31 date would not leave enough time for the state of Maine

to run an orderly primary election.” Jd. at 23.

The Plaintiffs portray the Court as confused about their request to participate

in the primary, which they admit to have initially requested but from which they

claim to have later retreated, and argue that its decision to deny the preliminary

injunction follows from that confusion and constitutes a manifest error of either fact

or law. Pls.’ Mot. at 1-6. The Plaintiffs assert that their request for injunctive relief

“did not include a single request having anything to do with this year’s primary

election, scheduled to occur on June 14, 2016.” Id. at 2. In short, the Plaintiffs’

assertion is incorrect. In the Plaintiffs’ proposed order, they expressly included a

request “to participate in the primary election and nominate Libertarian Party

candidates for placement on the general election ballot ....” Pls.’ Ex. 7 at 1-2. So, in
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deciding the original order, in view of their specific request to participate in the

primary election, the Court concluded that the remedies the Plaintiffs suggested in

the proposed order would not achieve the relief they had requested, and the Court

denied the motion for injunctive relief based on practical impossibility.

Were this an ordinary case, the Court would readily conclude that the

Libertarian Party had unintentionally misled the Court as to the relief it was seeking,

and the Court would deny a motion for reconsideration caused by the Plaintiffs’ own

mistake. Nevertheless, the matter before the Court raises important questions of

First and Fourteenth Amendment rights and the Libertarian Party’s ability to place

its candidates on the general election ballot. Furthermore, the Defendants are not

asserting that the Plaintiffs waived the arguments they are now pressing.

Accordingly, the Court reconsiders its earlier order and reaches the merits of the

Plaintiffs’ arguments in order to assure full protection of essential constitutional

guarantees.

B Judicial Review of the State Electoral Scheme

Before turning to the substance of the motion now under reconsideration, the

Court sets out the principles that guide its review of the state electoral scheme.

As reflected in its earlier order, the Court takes full measure of the state

prerogative to regulate elections. The Supreme Court has written that such

regulation is “[clommon sense,” Burdick v. Takushi, 504 U.S. 428, 433 (1992), and

that “[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
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accompany the democratic process,” Storer v. Brown, 415 U.S. 724, 730 (1974); see

also Libertarian Party of Me. v. Diamond, 922 F.2d 365, 370 (1st Cir. 1993) (quoting

Storer). Indeed, the Constitution reserves to the states the power to prescribe “Times,

Places, and Manner of holding Elections for Senators and Representatives ....” U.S.

Const. art. I, § 4, cl. 1.

At the same time, the issue before the Court involves first principles, such as

“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’—both rights that, “of course, rank among our most precious freedoms.”

Williams v. Rhodes, 393 U.S. 23, 30 (1968). In the words of the Supreme Court,

“frlepresentative democracy in any populous unit of governance is unimaginable

without the ability of citizens to band together in promoting among the electorate

candidates who espouse their political views.” Calif. Democratic Party v. Jones, 530

U.S. 567, 574 (2000). “It is beyond cavil that ‘voting is of the most fundamental

significance under our constitutional structure.” Burdick, 504 U.S. at 433 (quoting

Ill. Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979)).

The Court thus undertakes its review with an appreciation of the need for state

electoral regulations, but also with a duty to uphold constitutional standards.

Cc Preliminary Injunction

A preliminary injunction “is an extraordinary and drastic remedy, one that

should not be granted unless the movant, by a clear showing, carries the burden of

persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam) (emphasis
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in original) (quoting 11A CHARLES A. WRIGHT, ARTHUR R. MILLER, & Mary K. KANE,

FEDERAL PRACTICE AND PROCEDURE § 2948 (2d ed. 1995)); see also Winter v. Natl

Resources Defense Council, Inc., 555 U.S. 7, 24 (2008) (‘A preliminary injunction is

an extraordinary remedy never awarded as of right”) (citing Munaf v. Geren, 553 U.S.

674, 689-90 (2008)).

“To grant a preliminary injunction, a district court must find the following four

elements satisfied: (1) a likelihood of success on the merits, (2) a likelihood of

irreparable harm absent interim relief, (3) a balance of equities in the plaintiffs favor,

and (4) service of the public interest.” Arborjet, Inc. v. Rainbow Treecare Sci.

Advancements, 794 F.3d 168, 171 (1st Cir. 2015) (citing Voice of the Arab World, Inc.

uv. MDTV Med. News Now, Inc., 645 F.3d 26, 32 (1st Cir. 2011); see also Bruns v.

Mayhew, 750 F.3d 61, 65 (1st Cir. 2014) (setting out the same preliminary injunction

standard). The “four factors are not entitled to equal weight in the decisional

calculus; rather, ‘[lJikelihood of success is the main bearing wall of the four-factor

framework.” Corp. Techs., Inc. v. Harnett, 731 F.3d 6, 9-10 (1st Cir. 2013) (alteration

in original) (quoting Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 16

(1st Cir. 1996)).

1 Likelihood of Success

In Anderson v. Celebrezze, 460 U.S. 780, 789 (1983) and Burdick v. Takushi,

504 U.S. 428, 433-34 (1992), the Supreme Court established a balancing test to

evaluate challenges to state ballot access requirements:

A court considering a challenge to a state election law must weigh the
character and magnitude of the asserted injury to the rights protected

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by the First and Fourteenth Amendments that the plaintiff seeks to
vindicate against the precise interests put forward by the State as
justifications for the burden imposed by its rule, taking into
consideration the extent to which those interests make it necessary to
burden the plaintiffs rights.

Burdick, 504 U.S. at 434 (citations and internal punctuation omitted). The First

Circuit has written of the Anderson-Burdick test as a “sliding scale approach.”

Libertarian Party of N.H. v. Gardner, 638 F.3d 6, 14 (1st Cir. 2011) (citing Barr v.

Galvin, 626 F.3d 99, 109 (1st Cir. 2010); Werme v. Merrill 84 F.3d 479, 483 (1st Cir.

1996)). “If a regulation places ‘severe restrictions on a plaintiff's First and Fourteenth

Amendment rights, ‘the regulation must be narrowly drawn to advance a state

interest of compelling importance.” Jd. (quoting Werme, 84 F.3d at 484). If, however,

“a state election law provision imposes only reasonable, nondiscriminatory

restrictions upon the First and Fourteenth Amendment rights of voters, the State’s

important regulatory interests are generally sufficient to justify the restrictions.” Jd.

(quoting Werme, 84 F.3d at 484).

a. Step One: Burden on Plaintiff

First, the Court considers the character and magnitude of the injury to First

and Fourteenth Amendment rights.

The Plaintiffs write that the December 1 deadline comes more than six months

before the primary election and more than eleven months before the general election,

and as a consequence, “all 5,000 enrollments must be gathered during an odd-

numbered year when public attention to and enthusiasm for the political process is

historically lowest, when the issues for the coming general election year are not yet

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fully formed, and when candidates are not yet declared.” Pls.’Mem. at 16. Moreover,

they point out that courts in no fewer than ten jurisdictions have struck deadlines

later than Maine’s, and they could not find a single case upholding a deadline as early

as Maine’s. Id. at 17 (collecting cases). At oral argument on April 5, 2016, the

Plaintiffs identified Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir.

2006) as the leading case supporting their argument. Min. Entry (ECF No. 26).

The Defendants, meanwhile, urge the Court to take a larger view. As they see

it, neither Blackwell nor Plaintiffs’ other cases “assessed the constitutionality of a

state law based on a calendar date, alone. ... Viewed in isolation, a calendar date is

meaningless.” Defs.’ Opp’n at 10. Rather, “the court must look at the combined effect

of all the relevant provisions in a state’s election law as well as the factual context.”

Id. Following this approach, the Defendants assess Maine’s process together with its

requirements for the number of voters (5,000) and the time period for enrolling those

voters (a year), as well as its provision of an alternative route to ballot access. Id. at

10-15.

Indeed, the Court’s analysis must not focus on only one aspect of the

qualification process, as constitutional challenges “cannot be resolved by any ‘litmus-

paper test’ that will separate valid from invalid restrictions.” Anderson, 460 U.S. at

789 (quoting Storer, 415 U.S. at 730). The Court therefore analyzes the early deadline

together with other relevant aspects of the Maine law. The caselaw is complex, as

the processes by which a state recognizes a new party (the situation on these facts)

or permits a non-party candidate to access the ballot (a related line of cases) contain

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many moving parts. That said, Blackwell presents a similar fact pattern to the case

at hand.

In Blackwell, the Sixth Circuit addressed the constitutionality of “the

combination of two Ohio election regulations—the requirement that all political

parties nominate their candidates via primary election and the requirement that all

minor political parties file a petition with the Secretary 120 days in advance of the

primary....” 462 F.3d at 582. Likewise, the Maine regulations require participation

in the primary election, 21-A M.R.S. § 331(1), and require the would-be party to file

a certification with the Secretary on or before December 1 of the odd-numbered year

preceding the election year. Jd. § 303(2). The question before the Court is whether

this deadline, in the context of the election scheme, is too early. Measuring the Maine

statute’s deadline in terms of days, the December 1, 2015 certification deadline

precedes the June 14, 2016 primary election by 196 days and the November 8, 2016

general election by 343 days.

“[T]he great weight of authority . . . has distinguished between filing deadlines

well in advance of the primary and general elections and deadlines falling closer to

the dates of those elections.” Blackwell, 462 F.3d at 590; see, e.g., id. at 582 (striking

petition deadline for new party formation of 120 days before the primary election);

New Alliance Party of Ala. v. Hand, 933 F.2d 1568, 1576 (11th Cir. 1991) (striking

deadline sixty days before the primary and seven months before the general election);

McLain v. Meier, 637 F.2d 1159, 1163-64 (8th Cir. 1980) (striking deadline more than

ninety days before the primary and more than 150 days before the general election);

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MacBride v. Exon, 558 F.2d 443, 449 (8th Cir. 1977) (striking deadline ninety days

before the primary and nine months before the general election); Calif. Justice Comm.

v. Bowen, No. CV 12-3956 PA, 2012 WL 5057625, at *4-9, 2012 U.S. Dist. LEXIS

150424, at *16-25 (C.D. Cal. Oct. 18, 2012) (striking deadline 135 days before the

primary and ten months before the general election); Libertarian Party of Tenn. v.

Goins, 793 F. Supp. 2d 1064, 1086-89 (M.D. Tenn. 2010) (striking deadline 120 days

before the primary and at least eight months before the general election); Citizens to

Establish a Reform Party in Ark. v. Priest, 970 F. Supp. 690, 697-98 (E.D. Ark. 1996)

(striking deadline five months before the primary and eleven months before the

general election); Libertarian Party of Nev. v. Swackhamer, 638 F. Supp. 565, 570-71

(D. Nev. 1986) (striking deadline that was effectively 140 days before the primary

when the 90-day official deadline was added to the 50-day verification period). Even

in the company of these invalidated deadlines, Maine’s deadline stands out.

Other aspects of the Maine party-qualification process exacerbate the impact

of the deadline’s earliness. First, the process is such that the de facto deadline is even

earlier. At the hearings on March 31, 2016 and April 5, 2016, Deputy Flynn’s

testimony established that the party submits enrollment forms to a municipal

registrar, then the registrar enters properly completed enrollments in to the Central

Voter Registration System (CVR), at which point the Secretary can verify the total

by simply logging in to the CVR and checking the number. Min. Entry (ECF No. 24);

Min. Entry (ECF No. 26); see also Defs.’ Opp’n Attach. 1 Julia Flynn Aff. J§ 19-26

(ECF No. 14) (explaining enrollment process). The problem is the lag between (1)

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when the municipal registrar receives the enrollment and (2) when it is entered in to

the CVR and thereby counted toward the 5,000-voter threshold. By the Defendants’

own admission, the workings of the enrollment process push the true deadline earlier

than December 1. Defs. Opp’n at 22 (“[A] reasonably prudent party organization

would anticipate the need to give local registrars some time to review and verify the

voter cards with Libertarian Party enrollments before December 1st so that the

voters’ names would appear as fully enrolled by the time the SOS queried the CVR

within five business days of that deadline”).

This point dovetails with the Plaintiffs’ other objection to the Maine party-

qualification process: the narrowness of the five-business-day verification period

following party certification on December 1. See 21-A M.R.S. § 303(2) (“The Secretary

of State shall verify the proposed party’s enrollment figures within 5 business days

of receiving the proposed party’s certification and notify the applicants whether the

proposed party has met the requirements to participate in a primary election in the

subsequent even-numbered year”); Pls.’ Mem. at 25 (objection thereto). During her

testimony, Deputy Flynn explained the reasoning underlying the five-business-day

verification period. She conceded that if the aspiring party filed a completed

enrollment form in late November, the municipal registrar might not be able to

process the form and enter it in to the CVR until sometime after December 1. The

five-business-day period was designed to allow such last minute enrollments to be

counted.

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However, as this case revealed, the five-business-day interval may be too short.

Here, the Libertarian Party filed its certification, as required, on December 1, 2015.

Jt. Ex. 3. The same day, Melissa Packard, Director of Elections at the Secretary of

State’s Office, emailed Jorge Maderal and attached the Enrolled and Registered

Report she had run that day. Jt. Hx. 4. She wrote that if Mr. Maderal wrote back to

her indicating there was a discrepancy between cards submitted and voters enrolled,

she would check with the municipalities to determine whether the registrars had

processed the enrollment forms or whether they were still pending. Id.

Mr. Maderal reviewed the Enrolled and Registered Report and wrote Ms.

Packard on December 2, highlighting those municipalities with significant

discrepancies between the number of cards the Libertarian Party turned in to the

municipal clerk and the number of verified enrollees. Jt. Ex. 5. By his calculations,

the top seven municipalities had rejected 1,044 enrollment forms, which he noted

would be more than enough to bring the Libertarian Party over the 5,000 threshold.

Id. In response, the Secretary contacted the seven towns that showed the largest

discrepancies and determined that five of those municipalities had fully processed

the enrollment forms, but two had not. Jt. Ex. 7. She discovered that the cities of

Lewiston and Auburn had been unable for local reasons to process all the enrollment

forms, and the Secretary agreed to allow Lewiston and Auburn to complete the

process, id., even though Deputy Flynn conceded in her testimony that the statute

did not authorize a certification beyond the five-business-days limit in 21 M.R.S. §

303(2).

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This episode confirms that the five-business-day provision may be too short or

should at least provide for a discretionary extension for good cause. Presumably, if

the verification period were extended beyond five business days, then (1)

municipalities could enter enrollments in to the CVR for a longer period after

December 1 and (2) the Secretary could wait longer to log in to CVR to verify the

number of enrollments as they continued to trickle in from the municipalities. This

would assuage concerns about the shortness of the verification period aggravating

the earliness of the certification deadline. Moreover, authorizing the Secretary to

extend for good cause should avoid the absence of any standards for extension under

the current provision.

Even so, the Libertarian Party has not demonstrated that the five-business-

day limitation had any impact on its certification attempt. As Deputy Flynn

explained it, the Secretary’s role in determining whether the 5,000 enrollment figure

has been met is perfunctory. The Secretary merely runs the total number of

Libertarian Party enrollees reflected in the CVR and makes a numerical

determination as to whether the total equals or exceeds 5,000; the Secretary does not

undertake a qualitative review of the enrollment denials. Once the Secretary agreed

to allow the cities of Lewiston and Auburn to file enrollments after the five-business-

day period, any problems that the Libertarian Party identified with the shortness of

the five-business-day interval were obviated.!

1 There is no evidence, for instance, of other late-filed municipal submissions. In other words,
there is nothing in this record showing that the Secretary received Libertarian Party enrollments from
the municipalities after the five-business-day period that the municipalities had themselves received
before December 1, 2015.

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Another exacerbating aspect is that the disqualification rate for the enrollment

forms was high. At the hearing, the parties entered into evidence and the Court

reviewed a few rejected forms that arguably might have been counted toward the

5,000-voter threshold. See Pls.’ Ex. 4 (Portland’s rejected enrollment forms). The

sheer numbers raise questions about the accuracy of the process: the Plaintiffs

submitted 6,482 enrollment forms and the Secretary ultimately accepted 4,513, a 30%

disqualification rate. See Pls. Mot. Attach. 2 Jorge Maderal Aff. § 16 (ECF No. 8).

This leads to whether there is a legal mechanism to challenge enrollment

disqualifications.

The answer is that there is no express statutory review mechanism for the

party to challenge the Secretary’s refusal of its certification. Maine law does provide

a mechanism for an individual voter to challenge a decision of the municipal registrar

to reject his or her registration application. 21-A M.R.S. § 103. The aggrieved person

has the right to demand a hearing before the local Registration Appeals Board and a

further right to challenge the Registration Appeals Board’s decision to the state of

Maine Superior Court. Jd. § 103(6). But this statutory mechanism is an awkward fit

for the formation of a third party. The third party has no statutory right to challenge

the municipal registrar’s rejection of its enrollment forms; the statutory right rests

instead with the rejected voter, who is not likely to be directly involved in the third

party’s certification process.

2 Assuming it has standing, the new party may have the right to challenge the Secretary's
refusal to issue a certification as a final agency action pursuant to the Maine Administrative Procedure
Act, 5 M.R.S. § 11001, e¢ seg., under Maine Rule of Civil Procedure 80C by filing an action in state of
Maine Superior Court. See ME. R. Civ. P. 80C(a). But unlike the review process to challenge a

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The omission of a statutory review mechanism is all the more glaring given the

relatively elaborate mechanism provided to any “registered voter residing in the

electoral division of’ a candidate who was nominated via petition. Id. 337(2)(A).

Section 337(2) provides for a public hearing before the Secretary, then the Secretary

makes a ruling, then either party can challenge the ruling in Superior Court, then

the aggrieved party can appeal to the Law Court. Id. § 337(2)(B)-(E). It seems odd

that Maine provides greater recourse to a registered voter who, for whatever reason,

wants to keep a petition candidate off the primary ballot than to an aspiring political

party that has its own application for certification rejected.

Regarding the character of the injury caused by an early deadline, the

Plaintiffs—complaining that they must generate support “when the public is not yet

fully engaged or paying attention”—quote Blackwell for the proposition that the

deadline imposes a burden by “requir[ing] minor political parties to recruit supporters

at a time when the major party candidates are not known and when the populace is

not politically energized.” Pls.’ Mem. at 18 (quoting Blackwell, 462 F.3d at 586).

The Court accepts this proposition with a couple of reservations. First, even

though the Sixth Circuit decided Blackwell in 2006, it seems that the advent of the

twenty-four-hour news cycle has created a perpetual election cycle with no

discernable rest period during the off-year. This point in Blackwell was stronger in

nominated candidate, see 21-A M.R.S. § 337(2)(A), there is no right to interim review by the Secretary.
For example, if the registrar rejected an enrollee’s application on the ground that the voter's street
address was illegible and the new party disagreed, the availability of some sort of mechanism to bring
that question to the attention of the Secretary, sort of full-blown civil litigation, seems both preferable
and more efficient.

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2006 than it is today. Next, although the Maine Libertarian Party in this case

complains about the need to enroll voters during the off-year, in 2015, its New

Hampshire counterpart made precisely the opposite argument by complaining about

the need to enroll voters during the election year:

LPNH [Libertarian Party of New Hampshire] next argues that HB 1542
imposes a severe burden on its ability to access the ballot because it
places the petitioning period squarely within the campaign season
preceding the general election. That placement, LPNH argues, imposes
a severe burden because it forces third parties to focus exclusively on
petitioning during a period that they would otherwise devote to
campaigning, placing them at an unfair disadvantage compared to the
major parties.

Libertarian Party of N.H. v. Gardner, 126 F. Supp. 3d 194, 203 (D.N.H. 2015), appeal

filed, Sept. 25, 2015, C.A. No. 15-2068. This contradiction makes the Court wonder

whether the Libertarian Party’s real complaint is not with the seasonality of the

enrollment requirements, but with the enrollment requirements themselves.

Despite these reservations, the Court acknowledges that other courts,

including Blackwell, have been concerned about off-year election requirements, and

there is some logical force to the argument that the average voter is less focused on

politics during the off-year than during the year of a general election. There is

perhaps stronger logical force to the related but distinct notion that issues continue

to develop well into the election year, so the Plaintiffs are on more solid ground when

they quote Blackwell for the proposition that an early deadline imposes a burden by

“hav[ing] the effect of ensuring that any contentious issue raised in the same year as

an election cannot be responded to by the formation of a new political party.” Pls.’

Mem. at 18 (quoting Blackwell, 462 F.3d at 586).

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Regarding the injury’s magnitude, a review of the caselaw shows that Maine

has an earlier deadline relative to the primary and general elections than several

states whose deadlines were struck as too early. Moreover, taking a broad view of

the party-qualification process, as the Court must, it sees a deadline that is effectively

even earlier than December 1 followed by a narrow verification period, as well as the

fact that the state disqualified nearly one in three enrollment forms, yet there is no

express statutory review mechanism through which to contest those

disqualifications. In sum, the Plaintiffs have shown that their burden is severe.

The Defendants raise two notable objections. First, at the May 16, 2016

hearing, the Court asked the Defendants whether they could cite a single case in

which a comparably early deadline was challenged and survived. They cited Arizona

Green Party v. Bennett, which upheld a law requiring a new party to file a petition

with the requisite number of signatures 180 days before the primary election. 20 F.

Supp. 3d 740, 742 (D. Ariz. 2014). But the Arizona Green Party “never filed such a

petition,” id., and the Bennett Court was left without an evidentiary basis on which

to find a severe burden. Jd. at 747 (“Plaintiffs have not demonstrated that a 180—-day

deadline alone, considered outside the context of the election cycle requiring it,

necessarily imposes a severe burden. And they have not offered evidence—or even

alleged—that the other interrelated provisions governing the election cycle impose a

severe burden”). Unlike the Arizona Green Party, the Libertarian Party of Maine

attempted to qualify as a party under state law before challenging the state’s party-

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