Swett v. NH Ballot Comm. CV-96-376-B 07/16/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Dick Swett v. Civil No. 96-376-B State of New Hampshire Ballot Law Commission O R D E R Charles G. Douglas, III, a registered voter, has filed a petition with the New Hampshire Ballot Law Commission asserting that United States Senate candidate Dick Swett has failed to comply with state laws reguiring candidates for the Senate to either pay a $5,000 filing fee and file 2,000 valid primary petitions or file an affidavit agreeing to abide by campaign spending limits specified in the New Hampshire Political Expenditures and Contributions Act, N.H. Rev. Stat. Ann. § 664:1, et seg. (Supp. 1995).1 Accordingly, Douglas has asked the Ballot proceeding Swett seeks to enjoin is an ongoing guasi-judicial proceeding to which Younger applies. See Ohio Civil Rights Comm'n v. Dayton Christian Schs., Inc., 477 U.S. 619, 626-27 (1986) (Younger applies to ongoing administrative proceedings). Second, New Hampshire has a constitutionally recognized interest in regulating matters of ballot access by candidates for federal office. See U.S. Const., Art. I, § 4, cl. ^[1] ("The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of chusing Senators"); Libertarian Party of Maine v. Diamond, 992 F.2d 365, 370 (1st Cir. 1993), cert, denied, 114 S. C t . 310 (1993) (recognizing important state interest in regulating issues of ballot access). New Hampshire's generic interest in regulating issues of ballot access is sufficiently important to warrant abstention even if it is ultimately determined that FECA preempts the specific state regulations that are at issue in this case. New Orleans Pub. Serv., Inc. v. Council of the City of New Orleans, 491 U.S. 350, 356-66 (1989) (substantiality of the state's interest must be determined by looking to the significance of the state's interest in the "generic proceedings" rather than the state's interest in the outcome of the particular case); Employers Resource Management Co. v. Sharon, 65 F.3d 1126, 1136 (4th Cir. 1995), cert, denied, 116 S. C t . 816 (1996) ("substantial claims of preemption do not automatically preclude abstention"); Berger v. Cuvahonga County Bar Ass'n., 983 F.2d 718, 729 n.6 (6th Cir. 1993), cert, denied, 508 U.S. 940 (1993) ("Even if preemption applies, it does not preclude abstention unless the state court is actually denied jurisdiction by federal statute.").2 Finally, Swett will have an opportunity to assert his preemption argument in the state proceedings. New Hampshire law provides for a direct appeal of Ballot Law Commission rulings, N.H. Rev. Stat. Ann. § 541:6 (1974), and the New Hampshire Supreme Court is eminently gualified to evaluate the merit of Swett's preemption claim.

Swett invokes an exception to Younger that allows a federal court to address the merits of a claim that would otherwise be subject to abstention if the state law at issue is "flagrantly and patently violative of express constitutional provisions in every clause, sentence, and paragraph and in whatever manner and against whomever an effort might be made to apply it." Younger, 401 U.S. at 53-54. Although the Supreme Court has yet to employ this exception and it has been suggested that the circumstances where the exception will apply are extremely limited, see Erwin Chemerinsky, Federal Jurisdiction, § 13.4 at 753 (1994), the First Circuit has recently relied on the exception in a preemption case where the court determined that it was "readily apparent" that the state law in guestion was preempted. Chaulk,

70 F.3d at 1370 (internal guotations omitted). Swett similarly argues that it is "readily apparent" in the present case that FECA preempts the state laws on which the Ballot Law Commission's jurisdiction is based.

FECA's preemption provision states that "[t]he provisions of this Act, and of rules prescribed under this Act, supersede and preempt any provision of state law with respect to election to federal office." 2 U.S.C.A. § 453. FECA's implementing regulations further note that the preemption includes "limitations on contributions and expenditures regarding federal candidates . . . . " 11 C.F.R. § 108.7(b) (3) (1996) . Relying on these provisions, at least one other court has determined that a similar state law regulating campaign expenditures is preempted by FECA. Weber v. Heaney, 995 F.2d 872, 876-77 (8th Cir. 1993) (Minnesota law making public funds available to candidates who agree to expenditure limits preempted by FECA).

Although it is likely that a reviewing court will ultimately determine that FECA preempts at least some portions of the New Hampshire Political Expenditures and Contributions Act, the scope of the preemption is by no means "readily apparent." The New Hampshire Legislature has enacted a complex statutory scheme in an effort to encourage candidates for public office to abide by certain expenditure limitations. N.H. Rev. Stat. Ann. §§ 655:19, 20, and 22 establish a generally applicable reguirement that candidates for the United States Senate who seek access to a party's primary ballot must pay a $5,000 filing fee and file 2,000 primary petitions. Sections 655:19 and 655:20 except from these reguirements candidates who, pursuant to N.H. Rev. Stat. Ann. § 664:5-a, file affidavits agreeing to abide by certain specified expenditure limits. The law also contains a severability provision stating that if part of the law is determined to be invalid, "the invalidity does not affect any other provisions or applications of the chapter which can be given effect without the invalid provisions or applica­ tions . . . N.H. Rev. Stat. Ann. 664:23. A court reviewing the matter could conceivably determine that all, some, or none of the cited statutes are preempted by FECA. The resolution of the preemption issue thus depends as much on the interpretation of state law as it does on the scope of FECA's preemption provision.

In conclusion, this case presents an important guestion of federal law. However, it also affects significant state interests and reguires a thorough understanding of a complex state statutory scheme. Since the matters Swett seeks to raise arise in the context of ongoing state proceedings where Swett will have a full and fair opportunity to litigate his preemption claim, principles of comity reguire me to abstain from acting on matters that the state courts are competent to resolve. Accordingly, I deny Swett's motion for a temporary restraining order.

SO ORDERED.

Paul Barbadoro United States District Judge July 16, 1996 cc: Robert E. Kirby, Esg. Christopher P. Reid, Esg. Joshua L. Gordon, Esg. Charles G. Douglas, III, Esg.