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    LIBERTARIAN PARTY OF NEW HAMPSHIRE, Plaintiff, Appellant, v. William M. GARDNER, New Hampshire Secretary of State, in his official capacity, Defendant, Appellee.
    No. 15-2068
    United States Court of Appeals, First Circuit.
    December 2, 2016

      William E. Christie, with whom Shaheen & Gordon, P.A., Concord, NH, Gilíes R. Bissonnette, and American Civil Liberties Union of New Hampshire were on brief, for appellant.
    Laura E. B. Lombardi, Senior Assistant Attorney General, New Hampshire Department of Justice, with whom Stephen G. LaBonte, Concord, NH, and Joseph A. Foster, New Hampshire Attorney General, were on brief, for appellee.
    Mark W. Freel and Locke Lord LLP, Providence, RI, on brief for Libertarian Association of Massachusetts, Green-Rainbow Party, United Independent Party, Maine Green Independent Party, and Moderate Party of Rhode Island, amici curiae in support of appellant.
    Bruce I. Afran, Princeton, NJ, Mark R. Brown, and Oliver B, Hall, on brief for the Center for Competitive Democracy, amicus curiae in support of appellant.
    Gordon J. MacDonald, Holly J. Barcroft, and Nixon Peabody LLP, Manchester, NH, on brief for the Republican National Committee, amicus curiae in support of appellee.
    Before LYNCH, THOMPSON, and KAYATTA, Circuit Judges.
   KAYATTA, Circuit Judge.

Like most states, the State of New Hampshire has long required that political parties seeking to have their nominees listed on statewide election ballots first demonstrate a sufficient modicum of support among registered voters. New Hampshire law deems that a party has made such a demonstration if, in the most recent prior statewide election, one of its candidates received at least four percent of the statewide vote for Governor or United States Senator. N.H. Rev. Stat, Ann, § 652:11. Otherwise a party need submit nomination papers signed by a number of registered voters at least equal to three percent of the total votes cast in the most recent state general election. Id. § 655:42(111).

In this lawsuit,.the Libertarian Party of New Hampshire (“LPNH”) focuses on the time period during which New Hampshire law allows parties to gather nomination signatures and submit nomination papers. Prior to 2014, this period ran roughly twenty-one months from the prior November election to early August of the pertinent election year. In 2014, New Hampshire reduced this time period to a bit more than seven months (heréinafter “seven months”) by delaying the start date to January 1 of the pertinent election year. See 2014 N.H. Laws § 29:1 (“HB 1542”) (codified at N.H. Rev. Stat. Ann. § 655:40-a) (effective July 22, 2014). In the wake of this shortening of the time period within which it could gather nomination signatures, LPNH promptly filed this lawsuit claiming that the new restriction violated its rights under the First and Fourteenth Amendments 'to the United States Constitution. LPNH now appeals the district court’s summary-judgment decision to the contrary.- For the following reasons, we affirm.

I. Background

LPNH qualified for the ballot in New Hampshire as a “political party” under state law in 1992,1994, and 1996, based on the electoral performance of its gubernatorial candidates in prior elections. In 2000, LPNH managed to gather enough qualifying signatures to secure a place on the statewide ballot for all of its nominees. But no LPNH statewide candidate secured as much as four percent of the vote, and LPNH offers no evidence that any of its local candidates fared better. In 2002, 2004, 2006, 2008, and 2010, LPNH did not gain party access to the statewide ballot. LPNH offers no evidence suggesting that New Hampshire law posed any unreasonable impediment to qualifying during those years. Apparently, some of LPNH’s candidates, including its presidential candidate in 2004, also sought access through the individual nomination process, whereby an individual who gathers just 3,000 signatures is listed on the statewide ballot.

In 2012, LPNH itself again reached.the New Hampshire general ballot via the nomination papers route. The record of that successful effort reveals that the gathering of signatures on nomination petitions is largely a paid, professional undertaking. LPNH tells us (and defendants do not dispute) that “LPNH, like other minor political parties seeking ballot access or advocacy groups seeking to certify a ballot question, reifies] on outside professional petitioners to collect signatures.” LPNH retained one local paid “petitioner” to gather signatures at a fee of $1 per signature, LPNH also apparently paid a national outfit $2 per signature to gather roughly 13,100 signatures during August and September of 2011 plus roughly 1,700 signatures on a single day in July 2012. It appears that unpaid volunteers also gathered roughly 3,000 to 4,000 additional signatures. LPNH ultimately spent approximately $40,000 to gather 19,000 signatures in 2012, overshooting the mark (of roughly 14,000 qualifying signatures) because not all signatures submitted were likely to be certified.

Getting nominating signatures in 2012 turned out to be easier than getting votes. LPNH’s gubernatorial nominee received 2.8% of the vote, its presidential nominee received 1.2%, and, in a state with hundreds of state legislative races, LPNH recruited only ten other candidates, just one of whom reached ten percent of the' vote. LPNH apparently made no effort to gét on the statewide ballot in 2014.

Confronted with the shortened signature-gathering window in 2016, LPNH decided to “put all party-petitioning efforts— including fundraising for those efforts — on hold until this litigation ends,, as the outcome of this litigation would dictate whether [LPNH] would even go through the party-petitioning process during the 2016 general election.” LPNH estimates that compliance with the new law would increase the cost of gathering sufficient signatures, because paid petitioners generally charge-more.during an election year. The current chairperson of LPNH testified that an election year paid-petition drive “would probably be a $60,000 effort,” that is to say, about $10,000 more than LPNH spent in 2012.

LPNH alleges that the shortened window for gathering signatures “facially” violates the Fourteenth Amendment’s guarantee of .equal protection and the freedom of association secured by the First Amendment. After discovery,, the parties agreed that the case could be decided on cross motions’ for, summary judgment. After holding a hearing to gather more evidence on LPNH’s. prior efforts, to secure ballot access, the district court agreed that there were no genuine disputes of material fact. Neither party challenges this conclusion on appeal. Rather, they limit their arguments to contesting whether the district court made an error of law in concluding that the undisputed facts did not establish a violation of LPNH’s asserted constitutional rights because HB 1642 “imposes only a reasonable burden on ballot access that is outweighed by the State’s interest in avoiding ballot clutter.” Libertarian Party of N.H. v. Gardner (“Gardner”), 126 F.Supp.3d 194, 210 (D.N.H. 2015). The parties agree that our review of this conclusion should be de novo.

II. Analysis

A. Mootness?

Even , if we were to decide that signatures gathered prior to January 1, 2016, must be counted by the state, LPNH offers no evidence that it gathered any such signatures or, for that matter, that it gathered any material number of signatures this election cycle at all. And the 2016 election itself is now history. We must therefore ask whether this case is moot. See Barr v. Galvin, 626 F.3d 99, 104 (1st Cir. 2010).

We conclude that it is not. Statewide elections will regularly occur after this year. LPNH has a demonstrated (albeit episodic) record of seeking statewide ballot access in New Hampshire and elsewhere. In view of that record, we give the “benefit of the doubt” to LPNH’s continuing practical interest in the resolution of its legal claim. Id. at 106. Moreover, a new suit to allow signature gathering in the pre-election years of 2017 and 2019 would need to start pretty much now anyhow to avoid the same type of arguable mootness. We thus conclude that there exists a sufficient probability that LPNH’s challenge to New Hampshire’s existing ballot-access regime is likely to reoccur, and is not now unripe. Jurisdiction therefore lies. See FEC v. Wis. Right To Life, Inc., 551 U.S. 449, 462, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007) (noting that federal courts may hear otherwise moot controversies that are uniquely capable of repetition yet will often evade review); Barr, 626 F.3d at 106 (“[Although the [capable of repetition yet evading review] exception has been applied frequently in election-related cases ... not every election case fits within its four.corners.”).

B. Merits

1.

As we have described, LPNH objects to the effect of HB 1542 “not in the context of an actual election, but in a facial challenge.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008). Facial challenges to state laws are difficult to mount. See id. at 449-51, 128 S.Ct. 1184. The Supreme Court has articulated two formulations of the standard for assessing facial challenges to statutes. See United States v. Stevens, 559 U.S. 460, 472, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (“Which standard applies in a typical case is a matter of dispute that we need not and do not address_”); see also Hightower v. City of Boston, 693 F.3d 61, 77 n.13 (1st Cir. 2012) (discussing the dual extant standards without “resolv[ing] the issue”). In United States v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987), the Court held that a facial challenge can only succeed where the plaintiff “establishes that no set of circumstances exists under which the Act would be valid.” Id. at 745, 107 S.Ct. 2095. In Washington State Grange, a facial challenge to a state ballot-access provision, “the Court noted that ‘some Members of the Court have criticized the Salerno formulation,’ but that ‘all agree that a facial challenge must fail where the statute has a “plainly legitimate sweep.” ’ ” Hightower, 693 F.3d at 77 n.13 (quoting Wash. State Grange, 552 U.S. at 449, 128 S.Ct. 1184). We rely on this latter formulation of the standard.

The difficulty in mounting a facial challenge to a state law arises most notably in challenges to laws that, by their terms, leave room for discretion in their application, meaning a state official could “accord the law a limiting construction to avoid constitutional questions.” Wash. State Grange, 552 U.S. at 450, 128 S.Ct. 1184. The state law at issue here, however, has no such play in the joints. It fixes its various requirements objectively and specifically, with the largely immaterial exception of the precise day in early August when papers must be submitted. It is also one-size-fits-all, for all comers. In short, the components of the burden it imposes are defined by its facial terns, not by any anticipated exercise of discretion in its application.

The facial nature of LPNH’s challenge nevertheless still calls for some skepticism because it comes without the benefit of an actual demonstration of a failed effort to get on the ballot under the requirement being challenged. We are mindful that “[cjlaims of facial invalidity often rest on speculation,” id. and we are reluctant to engage in the “premature interpretation of statutes on the basis of factually barebones records,” id. (quoting Sabri v. United States, 541 U.S. 600, 609, 124 S.Ct. 1941, 158 L.Ed.2d 891 (2004)).

2.

The Supreme Court first considered a constitutional challenge to state-enacted ballot-access regulations in Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968). Such challenges implicate “two different, although overlapping, kinds of 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,” thereby triggering scrutiny under both the First and Fourteenth Amendments. Id. at 30, 89 S.Ct. 5. The Ohio ballot-access regulations challenged in Williams required a new party seeking to place its- candidates on the statewide ballot to file, by the February preceding the November election, nominating petitions signed by a number of voters equal to at least fifteen percent of the total vote cast in the most recent gubernatorial election. The regulations further required that the party establish a party organization, and conduct primaries or national conventions. All in all, the Court found that the regulations “tend[ed] to give [the Republicans and Democrats] a complete monopoly,” id. at 32, 89 S.Ct. 5, closing off the ballot to a party that actually gathered 450,000 nominating signatures. Id. at 26, 89 S.Ct. 5. Noting that, at that time, “[f]orty-two states require[d] third parties to obtain the signatures of only 1% or less of the electorate” with no apparent problems, id. at 33 n.9, 89 S.Ct. 5, the Supreme Court rejected Ohio’s stated justifications.

Three years later, the Court considered a similar challenge to Georgia’s ballot-access laws. See Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971). In brief, Georgia granted a party’s nominees automatic access to the ballot only if a candidate of the party “received 20% or more of the vote at the most recent gubernatorial or presidential election.” Id. at 433, 91 S.Ct. 1970. Otherwise, a candidate for an office needed to gather within 180 days signatures of five percent of the total number of voters eligible to vote in the prior election for that office, all of whom were eligible to sign such nominating petitions. Id. Pointing to what it regarded as “surely an .important state interest in requiring some preliminary showing of a significant modicum of support before printing the name of a political organization’s candidate on the ballot,” id. at 442, 91 S.Ct. 1970, the Court, found in Georgia’s, regime “nothing that abridges the rights of free speech and association secured by the First and. Fourteenth Amendments,” id. at 440, 91 S.Ct. 1970. It also concluded that the plaintiffs’ “claim under the Equal Protection Clause of the Fourteenth Amendment fares no better.” Id.

Another three years later, the Court considered California’s claim that its five-percent requirement was similarly valid. Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974). In California, though, the party seeking ballot access could gather signatures only from persons who did not vote in a primary conducted by the major parties. As the Court observed -in remanding the case for further factfinding, one would need to gather more than five percent of this restricted subset of eligible voters in order to equal five percent of the entire set of voters in the previous election. Id. at 739, 94 S.Ct. 1274; see also Am. Party of Tex. v. White, 415 U.S. 767, 784, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974) (finding that requiring signatures totaling one percent of the vote cast in the previous gubernatorial election to be gathered from only those who did not vote in a party primary “falls within the outer boundaries of support the State may require”).

On the two occasions when the Supreme Court has actually struck down five-percent requirements where the pool of those who could sign was not substantially restricted, it has done so not because it determined a five-percent requirement by its nature imposed too significant a burden, but because the state itself recognized it could achieve its goals without so high a signature requirement. In Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979), for example, the Court struck down an Illinois signature requirement for ballot access in political subdivision elections that exceeded the signature requirements for ballot access in statewide elections. See id. at 186-87, 99 S.Ct. 983. It did the same in Norman v. Reed, 502 U.S. 279, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992), explaining that Illinois’s requirement had “unconstitutional breadth” because “a prerequisite to establishing a new political party in ... multidistrict subdivisions [was] some multiple of the number of signatures required of new statewide parties.” Id. at 293, 112 S.Ct. 698.

Neither the Supreme Court nor' any circuit court has struck down a statewide ballot-access regime on the grounds that a signature requirement of five percent (or less) is too much, or that six months (or more) is too little time within which to gather the signatures from a pool of substantially all voters. See, e.g., Rainbow Coal. of Okla. v. Okla. State Election Bd., 844 F.2d 740, 741-42, 747 (10th Cir. 1988) (finding a law requiring 45,497 signatures, or five percent of the number of voters in the previous election, in one year a “relatively high signature requirement” but not impermissible); Libertarian Party of Fla. v. Florida, 710 F.2d 790, 794 (11th Cir. 1983) (finding a law requiring 144, 492 signatures, or three percent of the state’s registered voters, in 188 days “not imper-missibly burdensome”).

The New Hampshire combination of percentage and timeframe, while likely more demanding than the laws in many states, is markedly less burdensome than the regime at issue in Jenness. Ballot access under the actual New Hampshire requirement of three percent in seven months required approximately 2,114 valid signatures per month. By contrast, if applied to New Hampshire, the Georgia requirements of five percent in 180 days appi’oved in Jenness would have required LPNH to gather well more than 4,111 valid signatures per month to gain ballot access in 2016. Moreover, the nominating petition in Georgia secured a place on the ballot only for the nominated candidate, not for a party’s whole slate. Jenness, 403 U.S. at 432, 91 S.Ct. 1970.

LPNH argues that Jenness blessed only Georgia’s five-percent requirement, not its 180-day window. It is true that the specific challenge in Jenness focused on the five-percent requirement. But it is also true that in distinguishing Williams, Jenness contrasted “the totality of the Ohio restrictive laws taken as a whole,” id, at 437, 91 S.Ct. 1970 (quoting Williams, 393 U.S. at 34, 89 S.Ct. 5) with. Georgia’s entire “statutory scheme,” id. at 438, 91 S.Ct, 1970. Similarly, and as we have already noted, the differing results in Jenness and Storer hinged precisely on consideration of the manner in which the five-percent requirement need, be satisfied. Notably, Jenness expressly described Georgia as allowing a nominee to “seek, over a six months’ period, the signatures of 5% of the eligible electorate — ” Id.; see also Developments in the Law — Elections, 88 Harv. L. Rev. 1121,1143 (1975) (Jenness “specifically endorsed a comprehensive approach to evaluating the constitutionality of a state’s ballot access restrictions.”).

It therefore follows that LPNH’s challenge to New Hampshire’s three-percent-within-seven-months requirement must fail unless either Jenness’s approval of a more broadly applicable five-percent-within-180days requirement is no longer good law, or this case is distinguishable on other grounds. LPNH does not argue that Jenness is no longer good law. Rather, it argues that, for a variety of reasons, this ease presents materially distinguishing facts. We consider these reasons in turn.

First, LPNH correctly notes that, in sustaining Georgia’s five-percent-within-180-days requirement, the Court in Jenness observed that Georgia’s rules did not otherwise impose any “suffocating restrictions whatever upon the free circulation of nominating petitions.” 403 U.S. at 438, 91 S.Ct. 1970. The Court similarly noted that “Georgia has imposed no arbitrary restrictions whatever upon the eligibility of any registered voter to sign as many- nominating petitions as he wishes.” Id. at 442, 91 S.Ct. 1970. New Hampshire voters, on the other hand, may sign only one petition per election cycle. This restriction, LPNH reasons, materially distinguishes the New Hampshire ballot-access regime from the Georgia -regime sustained in Jenness. LPNH, though, offers no evidence of losing even a single signature opportunity due to that restriction, or that any other party even circulated petitions for party access or will be doing so. Moreover, even allowing for such a possibility, the incremental impact on LPNH’s efforts would seem to be far less than the burden of gathering signatures from as large a percentage of the electorate as was sustained in Jenness.

LPNH also argues that the New Hampshire regulations do not really allow seven (or even six) months as a practical matter because the time period includes the winter months when, LPNH says, it is much more difficult to find people in groups outside. Of course, hundreds of thousands of New Hampshire citizens streamed in and out of polling stations in the presidential primaries held last February. And even if we were to view seven New Hampshire months as the equivalent of five Georgia months, the cumulative burden in New Hampshire would still be less than that sustained in Jenness because of New Hampshire’s low percentage requirement.

The record LPNH has compiled in this case also makes clear that the marginal impact of the difference between five, six, or seven months is quite small. With $50,000 in hand, a party can obtain 20,000 signatures within two or three months (or even seven days if we use LPNH’s July 2012 experience as a gauge). Or, with the equivalent of twenty fulltime volunteers, a party can apparently gather enough signatures in a single month. Even reducing these experience-based estimates by half, one is still left to conclude that, once one has more than several months — and certainly five to seven months — the driving variables in determining success in gathering 20,000 signatures are money and volunteers, not time within which to .gather signatures. The difference between seven months and more than seven months is therefore largely immaterial as long as the time for raising money and recruiting volunteers is not reduced.

Reframing the issue, LPNH next attempts to pitch at least a portion of its challenge as a challenge only to the January 1, year-of-election start date mandated by HB 1542. The logic here seems to be that even if the combined burden of signature amount and gathering time is not impermissible in the abstract, a limitation on when the gathering time must occur may be invalid. We accept the premise that the precise point on the calendar during which the signature-gathering window may remain open can pose a problem independent of the size of the window. For example, early dates may precede the events that give rise to third-party support, as in the presidential elections of 1892, 1912, 1924, and 1968, see generally Alexander Bickel, Reform and Continuity, The Electoral College, The Convention, and the Party System 87-88 (1968), as well as 1980, see Anderson v. Celebrezze, 460 U.S. 780, 790, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). In Anderson, the Supreme Court set aside an eight-month qualifying date requirement that ended in March of the pertinent election year as too early for just this reason. See id. at 791-92, 103 S.Ct. 1564.

LPNH makes no claim that New Hampshire requires it to submit its nominating papers too soon. To the contrary, it argues that New Hampshire requires third parties to wait too long before they can gather signatures. The case for challenging a start date requirement as too late cuts against some of the reasons for striking down early end-date requirements. Moving ballot-access efforts closer to' an election encourages third parties to first work within one of the two more established parties, advancing what the Supreme Court has called “the State’s interest in preserving party harmony.” Id. at 805, 103 S.Ct. 1564 (citing Bickel, supra, at 87-88). Similarly, as New Hampshire notes, signatures gathered nearer the end date are more likely to represent the views of the signers as of the end date than those signed well in advance. That being said, New Hampshire’s January 1 start date is a requirement not imposed by the Georgia regime at issue in Jenness, so we need consider whether it renders the New Hampshire ballot-access regime more burdensome than the Georgia regime the Supreme Court there approved.

LPNH contends that the January 1 start date burdens a party seeking ballot access by requiring that it spend time on petitioning during the election year, rather than before the election year, thereby reducing the time available for “electioneering” when it is most effective. LPNH, however, simultaneously stresses that the gathering of nomination signatures is principally performed by paid professionals who are not otherwise engaged in the actual campaigns. The start date, in turn, does not apply to fundraising activities; hence, LPNH can raise the funds to pay professional signature gatherers any time it wants.

LPNH did use some volunteer time in 2012 to gather signatures. That time seems to equal only two and one-half months of volunteer time, more or less. We have no doubt that the petition process itself takes also some of the time of campaign officials even if they do not themselves gather signatures. The record, however, provides no quantification suggesting that any such effort materially detracts from “electioneering,” especially keeping in mind that there is no claim that the candidates’ efforts are impeded.'All in all, this is small beer. According to LPNH’s own estimates, the entire “lost” election year effort could be regained for $5,000 paid to professional signature gatherers. And the effort is not lost, but simply time-shifted so that its value is arguably reduced but certainly not eliminated.

Somewhat inconsistently, LPNH argues that the January 1 start date sidelines its attempts to solidify support in years when no election occurs by forcing it to sit idly by instead of strengthening its infrastructure by collecting signatures during those years. This argument relies on the false premise that if a political organization is not actively soliciting signatures for nomination papers, there is nothing it can do to attract supporters and strengthen its organizational apparatus. To the contrary, as the district court observed, “[e]ven with the January 1 start date in place, LPNH remains free to plan its election-year petition drive[,] ... recruit volunteers[,] ... [and] raise funds for the drive during the off year that it can then spend on paid petitioning during the election year.” Gardner, 126 F.Supp.3d at 204-05.

LPNH also claims that the January 1 start date deprives it of the chance to gather signatures at city off-year elections in November, fairs in the fall, and other such similar outside events before the cold New England winter begins. As we noted above, with New Hampshire voters turning out in droves for party primaries in February, we doubt New Hampshire citizens hibernate as much as LPNH implies. In any event, New Hampshire traditionally holds town meetings in the spring, followed promptly by farmers’ markets, parades, and ball games in the spring and summer months. In the words of a former LPNH gubernatorial candidate, spring gun shows are fruitful sources of signatures, and July 4th provides each year “the political mecca of parades.” LPNH itself gathered 1,700 signatures on a single day in July of 2012. All in all, we reject as greatly overstated LPNH’s contention that the weather and calendar render the seven-month, January-to-August timeframe so unsuitable for, signature gathering that we should regard it as more constraining than the 180-day window sustained in Jenness.

Relatedly, LPNH contends that the start date forces it to “stand still” in the year prior to the year of the election. If this is simply another way of saying that it has to hold off on signature gathering until after January 1, we have just addressed that argument; If, instead, LPNH is saying that the new start date somehow restricts it from- other campaign undertakings prior to January 1, it seems instead to do just the opposite. The new start date eliminates signature gathering prior to January 1, thereby increasing resources available for other activities during that time. Either way, this argument adds nothing.

LPNH next argues that candidates will not be confident that they will make the ballot if the late start date prevents LPNH from collecting all' the signatures it needs by June 30 of the election year. There is no evidence, though, that LPNH has ever placed any premium on concluding before June 30. The major parties’ nominees for governor and state senate are not even selected until September. And there is no reason that the professional signature gatherers cannot conduct all their work well before June 30 if LPNH wants. Again, the controlling factor would seem to be money; not time.

But, says LPNH, the paid gatherers themselves cost more during an election year. The evidence of this is skimpy, to say the least, consisting solely of a back of the envelope guess of a $10,000 delta by an LPNH official. This is too little in both foundation and magnitude upon which to rest a facial challenge to New Hampshire’s law.

LPNH argues, finally, that the January 1 start date delays any effort to determine what it calls the “verification rate,” meaning the percentage of signatures that are verified as accurate. This information áp-parently helps estimate how many new signatures need be gathered. LPNH makes no attempt to spell out what this actually means, or whether the resulting cost (if any) is already included in its $10,000 estimate.

Collectively, these arguments that the change in start date by itself imposes a substantial burden fail to convince us that New Hampshire’s ballot-access regime is as burdensome as — much less more burdensome than — the Georgia regime upheld in Jenness. To the extent they represent any burden for a political party that has a sufficient modicum of support to mount statewide campaigns that contribute to the voters’ understanding and meaningful options, the burden is minimal. With social media and other modern technology, finding and connecting with supporters can happen with greater expediency than ever before. Contacting many supporters to contribute to fundraising efforts is easier today than it has ever been. And, perhaps more importantly, $50,000 just isn’t what it once was, especially in politics. In a state in which twenty-four individual candidates spent an average of over.$57,000 each to mount successful local campaigns for state senate in 2010, see Election Overview: New Hampshire 2010, Nat’l Inst, on Money in State Politics, http://www. followthemoney.org/election-overview?s= NH& y=2010 (last updated June 13, 2016), it would be strange to say that a viable statewide political party cannot be expected to shoulder a $50,000 burden for statewide ballot access for its nominees.

3.

Unable to mount a persuasive case that the burden New Hampshire imposes on third parties seeking statewide ballot access for their nominees even equals, much less exceeds, the burdens imposed by the Georgia regime sustained in Jenness, LPNH turns its attention to the other side of the equation. LPNH correctly notes that the burdens in Jenness were justified by Georgia’s effectively asserted interest in demanding that a party demonstrate a modicum of support before receiving the right to .have its nominees listed on the ballot. In this case, by contrast, New Hampshire has not, LPNH says, effectively asserted such a justification. Rather, in this case LPNH says that any reliance on the state’s asserted interest in ensuring a baseline level of support among ballot-eligible parties is only a “new post-hoc justification” concocted mid-way through this litigation and a smokeácreen for the legislature’s real concerns in enacting the amendment. LPNH points to two New Hampshire legislative subcommittee reports bearing on HB 1542, both of which identify the facilitation of nomination-paper certification as the goal advanced by the amendment, and neither of which mentions an interest in protecting the integrity of elections by combating ballot overcrowding. Indeed, New Hampshire defended the new January 1 start date solely on the basis of its certification justification at an earlier stage in this litigation, not elaborating on the interest in limiting ballot access until after discovery had commenced.

Based on this evidence, LPNH urges us to rule that New Hampshire’s stated interest is an illegitimate post hoc justification that ought not be credited. LPNH argues that, applying the sliding-scale test developed in Anderson, “the precise interests put forward by the State as justifications for the burden imposed by its rule” pale in comparison to “the character and magnitude of the asserted injury to the rights protected by the First and Fourth Amendments that the plaintiff seeks to vindicate.” 460 U.S. at 789, 103 S.Ct. 1564.

Precedent, including Anderson, provides no direct guidance on whether we can rely on belated statements of interest first voiced in the course of litigation challenging a statute. LPNH and its amici urge us to adopt by analogy the approach used in equal protection eases, where a proffered justification cannot withstand a heightened degree of scrutiny if that justification is “hypothesized or invented post hoc in response to litigation.” United States v. Virginia, 518 U.S. 515, 533, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996). They observe that some courts applying Anderson have compared the middle range of its sliding scale to “intermediate scrutiny,” see Guare v. State, 167 N.H. 658, 117 A.3d 731, 740 (2015), and therefore urge us to ignore the state’s asserted interest in ensuring a minimal level of support for parties appearing on the ballot.

The problem for LPNH is that the burden here caused solely by the start date itself (as opposed to the three-percent-within-seven-months requirement), for the reasons already stated, is minimal, placing it at the easier-to-justify end of Anderson’s sliding scale. Applying LPNH’s chosen analogy, we would accordingly find ourselves at the “rational basis” end of any equal protection analysis. And, at that end, we can rely on statements of the state’s interest first identified in litigation briefs. Barr, 626 F.3d at 110 (finding that if the law imposes only a “modest” or “reasonable”' burden, “there need be only a rational basis undergirding the regulation in order for it to pass constitutional muster”); cf. Dudum v. Arntz, 640 F.3d 1098, 1116 n.28 (9th Cir. 2011) (expressing doubt that “the normal ability of litigants to advance arguments justifying their out-of-court behavior is suspended in election challenges where, as here, the burden imposed on voting is minimal at best”).

4.

The foregoing leaves LPNH with one escape gambit: identify as a burden the cumulative weight of the ballot-access regime as shortened by HB 1542, characterize that cumulative burden as falling further along the Anderson sliding scale, and then weigh it against only the state interest identified by the legislature in passing HB 1542. We reject this approach as illogical. It mismatches the cumulative burden of the entire ballot-access regime with only the justification initially cited by the New Hampshire legislature for altering the start date (and thus the duration of petition gathering). We see no reason to require a state legislature to restate its facially obvious reasons for having a ballot-access law each time it enacts an amendment tweaking that law. Similarly, if the current regime would have withstood challenge had it been enacted now as a whole, we can see no reason why it should fall if developed over time by amendment.

These ballot-access cases, unlike most voting-access cases, pose an identity between burden and purpose. The obvious purpose of the regime, in toto, is precisely to create the burden itself, which in turn has the effect, at the least, of limiting voters’ selection to those who can make “some preliminary showing of a significant modicum of support before printing the name of a political organization’s candidate on the ballot_” Jenness, 403 U.S. at 442, 91 S.Ct. 1970; see also, e.g., Libertarian Party of Me. v. Diamond, 992 F.2d 365, 371 (1st Cir. 1993) (endorsing state interest in “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 participation in the electoral process”). In the words of the Supreme Court, this is “an important state interest.” Jenness, 403 U.S. at 442, 91 S.Ct. 1970.

Of course, we are not so naive as to reject the possibility that a state legislature dominated by the two major parties may well wish to overshoot the mark, closing the door to all competitors. Our ultimate decision must therefore depend in large part on what we deem to be an appropriate “modicum of support.” Do we mean, for example, that the party’s nominees have enough support to make winning plausible? Or is it enough that the party’s presence in the campaign will generate enough interest and support to help frame issues and introduce new ideas, affect the positioning of other candidates, and signal growing dissatisfaction with the dominant parties? In Anderson, the Supreme Court suggested that the hard-to-quantify spillover benefits of a third-party candidacy to the “diversity and competition in the marketplace of ideas,” implicated “the primary values protected by the First Amendment.” 460 U.S. at 794, 103 S.Ct. 1564.

In this respect, it is fair to read in Anderson a greater appreciation for the benefits of third-party participation than is apparent on the face of the opinion in Jenness. It would be quite a stretch, though, for a circuit court to leverage such a change in nuance into a license to stray from a clear ruling sustaining as constitutional a burden demonstrably greater than that imposed by New Hampshire. See Sarzen v. Gaughan, 489 F.2d 1076, 1082 (1st Cir. 1973) (“When a ..federal court has spoken, stability and stare decisis require that litigants and other courts take its pronouncement at face value until formally altered.”); cf. Eulitt ex rel. Eulitt v. Me. Dep’t of Educ., 386 F.3d 344, 349 (1st Cir. 2004) (citing Sarzen, 489 F.2d at 1082) (noting that until a higher court revokes its binding precedent, a lower court “is hard put to ignore that precedent unless it has unmistakably been cast into disrepute by supervening authority”). And even were we to consider such an ambitious frolic, the record in this case provides little fuel for much of a journey. Neither LPNH nor its amici explain how easy or hard it is to gather $50,000 or a few dozen volunteers in today’s world of social media. Are there examples of parties or candidates that cannot raise $50,000 statewide, yet can still mount viable campaigns? Or do the costs of staff and advertising and the thresholds set by debate organizers themselves require levels of support greater than that required by New Hampshire? Have any parties barely managed to crawl over access thresholds, yet ended up playing a substantial role other than as a spoiler? Or does an analysis of election results in New Hampshire show that it is easier to get on the ballot than it is to garner substantial support in the form of actual votes? If a truly viable third party emerges, would it not harm that party to have too low a threshold, resulting in many extra parties with no chance, rather than a single third party less easily lost in the clutter? And what effect would lower thresholds have on laws providing public finance for campaigns? Anyone gauging the dividing line between a properly qualifying threshold and a barrier to meaningful competition would presumably want to consider these and other questions. The absence of information along these lines restricts the scope and quality of the judicial judgments required in cases such as this. As the litigant with the burden of proof, see, e.g., Harley-Davidson Credit Corp. v. Galvin, 807 F.3d 407, 411 (1st Cir. 2015), LPNH may suffer from that lack of detail in the record.

III. Conclusion

With a cumulative burden well less than that found acceptable in controlling precedent, and with no other attributes that themselves pose significant barriers to access, New Hampshire’s regulations stand as an admittedly robust but nevertheless constitutional exercise of the state’s “ ‘broad power to prescribe the “Times, Places and Manner of holding Elections for Senators and Representatives,” which power is matched by state control over the election process for state offices.’ ” Wash. State Grange, 552 U.S. at 451, 128 S.Ct. 1184 (quoting Art. I, § 4, cl. 1; Clingman v. Beaver, 544 U.S. 581, 586, 125 S.Ct. 2029, 161 L.Ed.2d 920 (2005)). We affirm the judgment of the district court granting New Hampshire’s motion for summary judgment in this facial challenge to part of the state’s ballot-access framework.

      . The end date, which varies each year, is five weeks before the New Hampshire primary, N.H. Rev. Stat, Ann. § 655:41, which falls on the second Tuesday in August, id, § 653:8.

      . LPNH offers no clarity on exactly what it paid even though it presumably knows. We nevertheless will rely for purposes of this opinion on the testimony of LPNH chairperson Richard Tomasso,

      , The number of signatures required in New Hampshire under the Georgia five-percent requirement would almost certainly be much larger than 4,111 per month because Georgia applied its five-percent requirement to .the number of eligible voters, see Jenness, 403 U.S. at 433, 91 S.Ct. 1970, rather than (as in New Hampshire) to the smaller number of persons who actually voted.

      . Nor does New Hampshire’s law impose any of the possibly "suffocating restrictions,” Jenness, 403 U.S, at 438, 91 S.Ct. 1970, that led to the remand in Storer. See Storer, 415 U.S. at 740, 94 S.Ct. 1274. Any registered voter may sign a petition. Notarization is not required.

      . Based on LPNH’s experience in 2000, it appears that one fulltime volunteer can gather 1,000 signatures in a month.

      . We therefore need not decide whether we agree with the district court that post hoc justifications may be considered whenever Anderson balancing applies. See Gardner, 126 F,Supp.3d at 209, We do note, though, that in Crawford v. Marion County Election Board, 553 U.S, 181, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008), six Justices — three using Anderson's "balancing approach,” id. at 190, 128 S.Ct, 1610 (plurality opinion), to find that the law in question imposed a "limited burden,” id. at 202, 128 S.Ct. 1610 (quoting Burdick v. Takushi, 504 U.S. 428, 439, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992)), and three relying on a "two-track approach,” id. at 205, 128 S.Ct. 1610 (Scalia, J., concurring in the judgment), to find the law’s burden "minimal,” id. at 209, 128 S.Ct. 1610 — declined to consider the distinct but related argument made by challengers to Indiana’s voter identification law "that the statute was actually motivated by partisan concerns” and not the concerns advanced by the state in litigation, id. at 191, 128 S.Ct, 1610 (plurality opinion).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    SAI, Plaintiff, Appellant, v. TRANSPORTATION SECURITY ADMINISTRATION; US Dept. Of Homeland Security; United States; Massachusetts State Police, Troop F/MAssport (MPD); Massachusetts Port Authority; City of Boston, in both official and individual capacities; Tricia Tonge-Riley, TSA STSO; Shanna Kukla, TSA STSO; Paul Coleman, MPD Officer; John Ferragamo, TSA security manager; Alex Ransom, TSA Office of Intelligence (TSA-OI); William Evans, TSA incident monitor; Jeh Charles Johnson, DHS Secretary; John S. Pistole; Francine Kerner; Megan H. Mack; Tamara Kessler; Kimberly Walton; William McKenney; Seena Foster; Zachary Bromer; Jeremy Buzzell; Erika Lucas; Unknown TSA Counsel, Defendants, Appellees.
    No. 15-2526
    United States Court of Appeals, First Circuit.
    December 7, 2016

      Patricia E, Roberts, Tillman J. Breckenridge and Bailey & Glasser LLP, on brief for appellant.
    Before HOWARD, Chief Judge, THOMPSON and KAYATTA, Circuit Judges.
   PER CURIAM.

Plaintiff-appellant Sai (identified by an adopted mononym) seeks interlocutory review of a district court decision denying him appointed counsel as.a collateral order. Sai’s allegations, against the Transportation Security. Administration and other defendants include violation of federal statutes prohibiting discriminatory treatment of disabled persons. The statutory scheme specifically authorizes court appointment of counsel. See 42 U.S.C. §§ 2000a-3(a), 12188(a)(1). However, the mechanism, is not funded, and it is subject to the district court’s broad discretion, The difficulties in rationing the precious resource of volunteer lawyer services have been long acknowledged. See - Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172 (2nd Cir. 1989) (addressing situation in which “volunteer lawyer panels of the district courts are drowning in requests”).

We are aware of the circuit-split on interlocutory review of denials of appointed counsel as collateral orders. See Ficken v, Alvarez, 146 F.3d 978, 980-81 (D.C, Cir. 1998) (collecting cases). We are also-aware that some courts have distinguished refusals to.“request an attorney to represent any person unable to afford counsel” under 28 U.S.C. § 1916(e) from refusals to “appoint an attorney” for claimants under federal anti-discrimination statutes “in such circumstances as the court may deem just.” Id. In ;our estimatei this distinction is prudent, and we, do not begin with an automatic assumption: - that appointment decisions under § 1915(e) and under federal anti-discrimination statutes belong in a single category. Nonetheless, after giving the matter separate consideration, we are persuaded that the factors we identified in Appleby v. Meachum, 696 F.2d 145 (1983) (per curiam), for not categorizing the denial of appointed counsel under 28 U.S.C. § 1915(e) as a collateral order logically also apply to denial of appointed-counsel requests under 42 U.S.C. §§ 2000a-3(a) and 12188(a)(1).

As a legal matter, an order denying appointment-is inherently non-final because it is subject to revision as the case develops, however convinced or emphatic an individual judge appears to be at a given time. See Appleby, 696 F.2d at 147. The federal courts have identified several considerations (not constituting an exhaustive list) relevant to decisions on appointment of counsel for anti-discrimination claimants, including “the merits of plaintiffs case, the plaintiffs ability to pay for private counsel, his efforts to obtain a lawyer, the availability of counsel, and the plaintiffs ability to gather the facts and deal with the issues if unassisted by counsel.” Cooper, 877 F.2d at 172-74; see also Castner v, Colo. Springs Cablevision, 979 F.2d 1417, 1420-21 (10th Cir. 1992) (identifying four factors most relevant for purposes of deciding whether to appoint counsel in a Title VII case: “(1) plaintiffs ability to afford counsel; (2) plaintiffs diligence in searching for counsel; [ ]■ (3) the merits of plaintiffs case ... [and (4)] the plaintiffs capacity to prepare and present the case without the aid of counsel”). These considerations are not static, and would be subject to reevaluation as a case proceeds after an initial denial of appointed counsel. In the course of proceedings, the merits might well become dearer. What a district court deems to be insufficient diligence might be supplemented by a litigant’s additional efforts to obtain counsel, which could cast more light on the availability of counsel. The litigant’s pro se capabilities might also become clearer as a case advances. We note that, in a disability-discrimination matter, it can be especially important to evaluate and monitor with care the effect a disability is having on the claimant’s chances to seek out and obtain representation, and to conduct litigation on a pro se basis. Reevaluation of one or more of the above-summarized considerations in view of later developments could alter a district court’s treatment of an appointment request. We note that omitting the words “without prejudice” from an initial denial would hot prevent reassessment at a later date. See Appleby, 696 F.2d at 147.

In addition to the possibility of reassessment, as a practical matter, a wrongful denial of a request for appointed counsel should not easily escape review after entry of final judgment. “[I]f the district court erred at the outset in denying appointed counsel, its error would be presumptively prejudicial.” Id. “Moreover, ... where appointive counsel is erroneously denied, a reviewing court may relieve plaintiff of any untoward consequences of his lack of counsel.” Id. at n.3. Thus, while we decline at this time to join those circuits treating a denial of appointed counsel to an anti-discrimination claimant as an immediately reviewable collateral order, we intimate no doubts about the reviewability of such a denial in an appeal from a final judgment. Further, we emphasize that the presence in the record of a clear statement of reasons bearing on the district court’s exercise of its discretion in matters of appointment, including discussion of any pertinent factors from the non-exhaustive list set out above, may prove crucial to this court’s eventual review. See Castner, 979 F.2d at 1422-23 (remanding because record provided “no indication what considerations underlie[d] th[e] decision [to deny appointment], ■ and the record d[id] not contain sufficient evidence from which [the court of appeals] c[ould] make an independent determination whether it was an abuse of discretion not to appoint counsel”).

For the reasons explained above, this interlocutory appeal is dismissed.


author: SELYA, Circuit Judge.

text:
    Harry SANDERS, Executor of the Estate of Nancy A. Andersen and Assignee of John Doe, Plaintiff, Appellant, v. The PHOENIX INSURANCE COMPANY and The Travelers Indemnity Company of America, Defendants, Appellees.
    No. 15-2539
    United States Court of Appeals, First Circuit.
    December 7, 2016

      [Hon. George A. O’Toole, Jr., U.S. District Judge]
    [Hon. Jennifer Boal, U.S. Magistrate Judge]
    Robert D. Cohan, with whom Jonathan D. Plaut and Cohan Rasnick Myerson Plaut LLP were on brief, for appellant.
    Wystan M. Ackerman, with whom Jonathan E. Small and Robinson & Cole LLP were on brief, for appellees.
    Before LYNCH and SELYA, Circuit Judges, and BURROUGHS, District Judge.

       Of the District of Massachusetts, sitting by designation

   SELYA, Circuit Judge.

This case begins with a tragic tale of unrequited love and morphs into a series of imaginative questions regarding the coverage available under a standard form homeowner’s insurance policy. But when imagination runs headlong into settled legal precedent, imagination loses. Recognizing as much, the court below dismissed the complaint. After careful consideration, we affirm.

I. BACKGROUND

This diversity suit arises from the refusal of The Phoenix Insurance Company to defend and/or indemnify its named insured, an attorney whom we (like the court below) shall call “John Doe,” against claims advanced by Harry Sanders, suing in his capacities as executor of the estate of Nancy A. Andersen (his deceased spouse) and as Doe’s assignee. Inasmuch as the district court dismissed Sanders’s complaint for failure to state a claim upon which relief could be granted, we take as true the raw facts as alleged in the complaint. See SEC v. Tambone, 597 F.3d 436, 441-42 (1st Cir. 2010) (en banc).

Doe met Andersen in January of 2011 when she sought legal representation in possible divorce proceedings against Sanders. Roughly four months later, Doe initiated divorce proceedings on Andersen’s behalf. During this interval, Doe learned that Andersen suffered from severe depression and anxiety, had been prescribed several anti-depressant and anti-anxiety medications, and had recently attempted suicide. Nevertheless, Doe and Andersen began an on-again/off-again intimate relationship. Despite his personal involvement, Doe did not withdraw as her counsel.

The relationship did not go smoothly. As the fall of 2011 approached, Doe’s ardor cooled and he became progressively distant. Correspondingly, Andersen’s anxiety increased. Matters came to a head when, on or around October 1, 2011, Doe promised to join Andersen at her apartment. He did not do so. Distraught, Andersen wrote a suicide note lamenting Doe’s inconstancy and proceeded to drink herself to death. Doe tried unsuccessfully to contact Andersen by telephone the next day. When he could not reach her, he went to her apartment and discovered her body.

Sanders was appointed as executor of Andersen’s estate. Slightly over a year after Andersen’s death, he sent Doe a demand letter pursuant to Massachusetts General Laws Chapter 93A, Section 9. Cognizant that some of his meretricious interludes had occurred at his home, Doe promptly notified his homeowner’s insurance carrier (Phoenix). After looking into the matter, Phoenix denied coverage on two grounds: that Andersen’s death was not an “occurrence” covered under Doe’s homeowner’s policy (the Policy) and that the Policy’s professional services exclusion barred coverage.

In a letter dated September 19, 2013, Sanders notified Phoenix that he and Doe planned to mediate their dispute and invited Phoenix to participate. Phoenix declined the invitation. About three weeks later, Doe sought to have Phoenix reconsider its denial of coverage, informing it that Sanders was advancing a claim for negligent infliction of emotional distress; Unmoved, Phoenix reiterated its denial of coverage.

Eventually, Doe, Doe’s law firm, and Sanders reached an accord: the law firm’s insurers agreed to pay Sanders $500,000 in exchange for a release of all claims against the firm. Ancillary to the settlement, Doe agreed that his personal- liability to Sanders amounted to an additional $500,000 and assigned to Sanders all of Doe’s rights and interests under' the Policy vis-á-vis Andersen’s death and any claims that he might have against Phoenix as a result of its failure to defend and/or indemnify him. Sanders followed up by sending a Chapter 93A demand letter to Phoenix, see supra note 2, accusing it of unfair settlement practices and demanding $500,000 (the limit of liability under the Policy). Phoenix refused the demand.

Sanders repaired to a Massachusetts state court and filed this suit. Citing diversity of citizenship and the existence of a controversy in the requisite amount, Phoenix removed the case to the federal district court. See 28 U.S.C. §§ 1332(a), 1441. Phoenix then moved to dismiss. See Fed. R. Civ. P. 12(b)(6). The district court referred the motion to a magistrate judge, who recommended granting it. Sanders objected, and the district court, undertaking de novo review, overruled his objections and dismissed the action. This timely appeal ensued.

II. ANALYSIS

We review a district court’s dismissal of a complaint for failure to state a claim de novo. See Artuso v. Vertex Pharm., Inc., 637 F.3d 1, 5 (1st Cir. 2011). Accepting as true all well-pleaded facts contained in the complaint, we are constrained to draw all reasonable inferences in the pleader’s favor. See id. Where relevant, we may supplement the pleaded facts with “documentation incorporated by reference-in the complaint.” Rivera-Díaz v. Humana Ins, of P.B., Inc., 748 F.3d 387, 388 (1st Cir. 2014); see Hidalgo-Vélez v. San Juan Asset Mgmt., Inc., 758 F.3d 98, 101-02 (1st Cir. 2014).

Because this case is brought in diversity jurisdiction, we must look to state law for the substantive rules of decision. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). The parties agree that Massachusetts law applies, and we readily embrace that sensible agreement. See Artuso, 637 F.3d at 5 (“In determining which state’s law applies, a diversity court is free to honor the parties’ reasonable agreement.”).

If we are unable to discern any controlling Massachusetts authority on a particular point, we must make an “informed prophecy” as to how the state’s highest court — the Supreme Judicial Court (SJC) — would rule if faced with the issue. Ambrose v. New Eng. Ass’n of Schs. & Colls., Inc., 252 F.3d 488, 498 (1st Cir. 2001). Our prediction may be “guided, inter alia, by persuasive case law from other jurisdictions and relevant public policy considerations.” Id.

A, Alleged Breach of Duty to Defend.

We start with Sanders’s principal remonstrance (asserted in his capacity as Doe’s assignee): that Phoenix forsook its duty to defend Doe against the claims advanced by Sanders. In Massachusetts, the duty to defend under- an insurance policy arises “when the allegations in a complaint are reasonably susceptible of an interpretation that states or -roughly sketches a claim covered by the policy terms.” Billings v. Commerce Ins. Co., 458 Mass. 194, 936 N.E.2d 408, 414 (2010). When determining whether an insurer has a duty to defend, an inquiring court must consider “the facts alleged in the complaint, and [any] facts known or readily knowable by the insurer that- may aid in its interpretation of the allegations in the complaint.” Id. The precise scope of an insurer’s duty to defend is defined by the .insurance policy itself, to which we apply familiar rules of contract interpretation. See B & T Masonry Constr. Co. v. Pub. Serv. Mut. Ins. Co., 382 F.3d 36, 39 (1st Cir. 2004); Bos. Gas Co. v. Century Indem. Co., 454 Mass. 337, 910 N.E.2d 290, 304 (2009). We interpret the words of the policy in light of their plain meaning, considering the document as a whole. See B & T Masonry, 382 F.3d at 39; Golchin v. Liberty Mut. Ins. Co., 466 Mass., 156, 993 N.E.2d 684, 688 (2013). Our construction must be consistent with what an objectively reasonable insured, reading the relevant policy language, would expect the words to mean. See Hazen Paper Co. v. U.S. Fid. & Guar. Co., 407 Mass. 689, 555 N.E.2d 576, 583 (1990). If this analysis yields two reasonable (but conflicting) interpretations of the-policy’s text, the insured must be given the benefit of the interpretation that redounds to his benefit. See id.

In the case at hand, the Policy (to which we add our own emphasis and remove original emphasis) states in pertinent part:

If a claim is made or a suit is brought against any insured for damages because of bodily injury or property damage caused by an occurrence to which this coverage applies, even if the claim or suit is false, we will:

In Phoenix’s view, the Policy therefore provides that it must only furnish counsel to defend the insured in the face of a suit but may investigate and settle a claim. Thus, it has no obligation to provide a defense in the absence of a suit,

Sanders demurs. He points to the Policy’s other references to claims or suits and asseverates that the Policy obligates the insurer to defend broadly against pre-suit claims. This asseveration lacks force. The majority of the references that Sanders identifies come from the Policy’s credit card, fund transfer card, forgery, and counterfeit money provision, which covers losses of up to $1,000 incurred due to unauthorized use of the insured’s credit cards or similar forms of financial misfeasance. The particular subsection most loudly bruited by Sanders states:

Defense:
a. ... OUR OBLIGATION TO DEFEND ANY CLAIM OR SUIT ENDS WHEN THE AMOUNT WE PAY FOR
THE LOSS EQUALS OUR LIMIT OF LIABILITY.
b. If a claim is made or a suit is" brought "against any insured for liability under the Credit Card or Fund Transfer Card coverage, we will provide a defense at our expense by counsel of our choice.

The location of these statements within the credit card provision, coupled with the fact that the claims asserted in this case in no way implicate that coverage, persuasively indicates that the language cannot reasonably be read to support Sanders’s broader argument concerning the scope of the basic liability coverage afforded by the Policy. While an insurance policy must be read as a whole, see Golchin, 993 N.E,2d at 688, that prescription does not give a party license to transplant randomly words from one provision into the inhospitable soil of an entirely different provision.

Sanders’ next argument is no more convincing. He notes that the Policy states that Phoenix will cover “reasonable expenses incurred by any insured at [its] request ... for assisting [it] in the investigation or defense of any claim or suit.” Using this clause as a springboard, he contends that Phoenix has undertaken a duty to defend claims as well as suits.

This glib reading of the quoted language does not withstand scrutiny. Giving the language its natural meaning, it denotes no more than that — if the company does in-véstigate either a claim or a suiN-it will reimburse any reasonable expenses incurred by the insured. An objectively reasonable insured, reading this language, would surely come to this conclusion.

Of course, the general rule that there is no duty to defend before the filing of a suit is not ironclad. For example, the SJC has held that a Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) notice letter from the federal Environmental Protection Agency (EPA) to a potentially responsible party is sufficiently analogous to a suit as to trigger a duty to defend. See Hazen Paper, 555 N.E,2d at 580-81. The CERCLA letter notified Hazen Paper that it could be held responsible for the release of hazardous substances at a particular waste facility. See id. at 578. Hazen Paper asked its insurer to defend it in the CERCLA proceeding, but the insurer declined. The SJC held that the duty to defend had been triggered, reasoning that the litigation defense insurance purchased by Hazen Paper would be “substantially compromised” if the insurer’s duty to defend was not activated by the CERCLA letter. Id. at 580. After all, the CERCLA letter itself had severe consequences: without a response, the EPA could proceed unilaterally with its administrative action, and subsequent judicial review of the EPA’s final order would be limited to the administrative record created before the EPA. See id. at 581 (citing 42 U.S.C. § 9613(j)(l)). Moreover, the EPA’s final order would be subject to review only under an agency-friendly standard. See id. (citing 42 U.S.C. § 9613(j)(2)). In addition, merely failing to provide requested information to the EPA would have exposed Hazen Paper to monetary penalties, (independent of its potential responsibility for the hazardous substances). See id. at 580; 42 U.S.C. § 9604(e). This administrative structure, the SJC, said, left the insured with “no practical choice other than to respond actively to the letter.” Hazen Paper, 555 N.E.2d at 581-82. To characterize such a response as “voluntary” would be “naive.” Id.

,In the last analysis, though, the SJC’s decision in Hazen Paper was quite narrow and case-specific. Among other things, the SJC took great pains to distinguish the CERCLA letter from a “conventional demand letter based on a personal injury claim.” Id. at 581.

Sanders argues that this case comes within the confines of the Hazen Paper exception because of his Chapter 93A letter to Doe. In support, he notes that failure either to respond to a Chapter 93A letter or to make a reasonable settlement offer can expose the insured to multiple damages, attorneys’ fees, and costs. See Mass. Gen. Laws ch. 93A, § 9(3)-(4). That is true as far as it goes — but it does not take Sanders very far. A Chapter 93A demand letter is simply not a fair congener to the CERCLA letter discussed in Hazen Paper; rather, it is more like a “conventional demand letter based on a personal injury claim” — a type of communication that the SJC said was insufficient to trigger the duty to defend. Hazen Paper, 555 N.E.2d at 581.

In Hazen Paper, the failure to participate in the administrative process would have all but forfeited the insured’s case. Ignoring a Chapter 93A demand letter, however, would not “substantially compromise[ ]” an insured’s position: a failure to respond produces a much more limited effect. Id. at 580. Significantly, Doe’s underlying liability could not have been affected by the Chapter 93A letter — and his potential exposure to multiple" damages, attorneys’ fees, and costs would only"'come to fruition if a court established that underlying liability. See Mass. Gen. Laws ch. 93A, § 9(3X4).

The short of it is that Chapter 93A demand letters are fairly comparable to demand letters sent in anticipation of garden-variety personal injury litigation. Given the frequency with which they are used and the important differences that distinguish them from CERCLA letters, we are reluctant to widen the narrow boundaries sketched by the Hazen Paper court and hold that Chapter 93A demand letters are a functional equivalent of a suit. In our view, such restraint is particularly appropriate given our status as a federal court predicting state law. Cf. Katz v. Pershing, LLC, 672 F.3d 64, 73-74 (1st Cir. 2012) (declining to recognize novel exception to “bright-line rule” of state law because “federal diversity courts are charged with ascertaining state law, not with reshaping it”).

If more were needed — and we do not think that it is — there is substantial reason to doubt, based on the facts of this case, whether a failure to respond to "the Chapter 93A letter would have brought about the consequences that Sanders gloomily predicts. Chapter 93A applies to “acts or practices in the conduct of any trade or commerce.”. Mass. Gen. Laws ch. 93A, § 2(a). Here, however, Sanders alleges that Doe’s liability arises from personal— rather than professional — misconduct (presumably because the Policy excludes coverage for liability originating from professional services rendered by the insured);

Sanders also submits that the mediation in which he and Doe participated was the functional equivalent of a suit and, thus, triggered the duty to defend. For this proposition, he relies on the decision in Selective Insurance Co. v. Cherrytree Cos., 376 Ill.Dec. 159, 998 N.E.2d 701 (2013). There, the insurer denied coverage for a disputed claim, and the insured entered into a settlement agreement’with the claimant without suit having been filed. See id., 376 Ill.Dec. 159, 998 N.E.2d at 702-03. The court held that the absence of a lawsuit did not insulate the insurer from liability, explaining that “the indemnification provision in the policy ... did not require the filing of a ‘suit.’” Id. 376 Ill.Dec. 159, 998 N.E.2d at 709-10.

Sanders’s relianee on Cherrytree is triply misplaced. First, Cherrytree is an Illinois case, never adopted by the Massachusetts courts. Second, it is black-letter law that the policy language determines the scope of coverage, see B & T Masonry, 382 F.3d at 39, and the Policy on which Sanders sues contains no provision allowing indemnification without suit. Third, the Cherrytree decision did not in any way implicate the duty to defend. See Wesco Ins. Co. v. Regas, No. 14 C 716, 2015 WL 500702, at *6 (N.D. Ill. Feb, 3, 2015) (observing that, in Cherrytree, there was “no determination of whether the insurer had á duty to defend”). Given these salient distinctions, the Cherrytree decision fails to persuade us that the SJC would conclude that the mediation conducted in this case was the functional equivalent of a suit.

Bereft of any support in the case law, Sanders’s suggestion that mediation, in the circumstances of this case, should be regarded as the functional equivalent of a suit strikes us as patently unreasonable. The mediation to which he adverts .was a less formal, more ad hoc proceeding, and Doe’s involvement in it was completely voluntary. So viewed, the mediation was markedly different from a lawsuit, which operates under established procedural rules and in which a defendant must participate to protect his interests. In the face of a lawsuit, mounting a defense is a necessity; in the face of a proposal to mediate, opting to participate is a strategic choice.

In.an effort to catch lightning in a bottle, Sanders emphasizes that Doe’s desire for anonymity created an added pressure to settle before Sanders filed suit (thus making participation in mediation more imperative for fear that Doe’s name would be exposed in public court documents). This stated concern turns a blind eye to familiar procedural protections. Sanders could have filed a motion to seal the case along with his complaint or, if he did not, Doe himself could have moved to seal. See D. Mass. R. 7.2; New Eng. Internet Café, LLC v. Clerk of Superior Ct., 462 Mass. 76, 966 N.E.2d 797, 803 (2012). In the alternative, Doe could have sought— whether by agreement or by court order— to have his identity safeguarded through the use of a pseudonym (which is precisely what transpired here).

To sum up, the Policy, fairly read, draws a clear distinction between the duty to defend (which applies to suits alone) and the right to investigate (which applies to both suits and claims). Giving force to this clear distinction, we hold — as did the court below — that Phoenix’s duty to defend was never triggered (and, thus, never breached) in the circumstances of this case.

B. Other Theories of Liability.

Sanders raises a gallimaufry of other theories of liability. To begin, he asserts that, even in the absence of a duty to defend, Phoenix violated its separate duty to indemnify. In his view, the two duties are separate and distinct: the duty-to-defend analysis considers all preliminary allegations, whereas the duty-to-indemnify analysis examines the factual merits of the case, Phoenix counters that, under Massachusetts law, there can be no duty to indemnify if there is no duty to defend.

As a general matter, the duty to defend is broader than the duty to indemnify. See Bagley v, Monticello Ins. Co., 430 Mass. 454, 720 N.E.2d 813, 817 (1999). The SJC has made pellucid that “[i]f an insurer has no duty to defend, based on the allegations in the plaintiffs complaint, it necessarily follows that the insurer does not have a duty to indemnify.” Id. In other words, the broader duty (the duty to defend) swallows up the narrower duty (the duty to indemnify).

Sanders resists this formulation. He lauds decisions from other jurisdictions in an effort to cast the SJC’s formulation into doubt. See, e.g., Grinnell Mut. Reins. Co. v. Reinke, 43 F.3d 1152, 1154 (7th Cir. 1995) (suggesting that “because of the possibility that the legal theory of the underlying suit may change, a conclusion that the insurer need not defend does not [necessarily] imply that it need not indemnify”)- As federal judges sitting in diversity jurisdiction, though, we are not free to pick and choose which state’s jurisprudence is the most sound. Rather, we are duty-bound to accept controlling state law where it can be discerned. See Kassel v. Gannett Co., 875 F.2d 935, 949-50 (1st Cir. 1989). On this issue, then, it is incumbent upon us to accept the clear statement of Massachusetts law articulated by the SJC.

Here, moreover, the Policy affords us an independently sufficient reason to hold that Phoenix does not have a duty to indemnify. The Policy states that “no action with respect to [the insured’s personal liability coverage] can be brought against [Phoenix] until the obligation of the insured has been determined by a final judgment or [an] agreement signed by-[Phoenix].” In this instance, there is neither a final judgment nor a settlement agreement executed by Phoenix; there is only a settlement negotiated between Sanders and Doe, in Phoenix’s absence. Consequently, no action lies against Phoenix for indemnification under the terms of the Policy.

Sanders asks us to overlook this Policy language and focus instead on the Policy’s general indemnification provision. That provision states that Phoenix will “[p]ay up to [its] limit of liability for the damages for which the insured is legally liable.” Sanders contends that the phrase “legally liable” does not logically require that the insured’s obligation be reflected in a final judgment.

. This contention ignores the more specific provision cited by Phoenix. It likewise ignores the logical import of that provision: that an insured’s liability will either be adjudicated by a court of law or agreed to by the insurer. Massachusetts law teaches that an inquiring-court normally should give a more specific policy provision priority over a more general policy provision, see Certain Interested Underwriters at Lloyd’s, London v. Stolberg, 680 F.3d 61, 67 (1st Cir. 2012), and Sanders has not offered a plausible rationale for abandoning that tenet here.

This brings us to Sanders’s common-law claims sounding in tort and breach of contract. Those claims need not detain us. The complaint predicates them largely on Phoenix’s failure to defend or indemnify Doe. But here — as discussed above — Phoenix did not have a duty either to defend or to indemnify in the circumstances at hand.

The one remaining claim hinges on Sanders’s allegation that Phoenix is guilty of unfair and deceptive trade practices in violation of Massachusetts General Laws Chapter 176D. Specifically, he alleges that Phoenix’s liability rests on its refusal to effectuate a prompt, fair, and equitable settlement.

This claim fails -for two reasons. For one.thing, Phoenix has no duty to settle absent a duty either to defend or to indemnify. See Transam. Ins. Co. v. KMS Patriots, L.P., 52 Mass.App.Ct. 189, 752 N.E.2d 777, 783 (2001) (explaining that “[w]hen coverage has been correctly denied ... no violation of the Massachusetts statutes proscribing unfair or deceptive trade practices may be found”). For another thing, Massachusetts law only requires an insurer to effectuate settlement once “liability has become reasonably clear.” Mass. Gen. Laws ch. 176D, § 3(9)(f); see Clegg v. Butler, 424 Mass. 413, 676 N.E.2d 1134, 1140 (1997). Doe’s liability to Sanders — as a private individual, not an attorney — was far from reasonably clear. Sanders has not identified a case in which Massachusetts (or any other jurisdiction, for that matter) has held an individual’s romantic partner responsible for the individual’s suicide.

In lieu of case law, Sanders relies on the Restatement (First) of Torts section 325, which provides:

One who gratuitously undertakes with another to do an act or to render services which he should recognize as necessary to the other’s bodily safety and thereby leads the other in reasonable reliance upon the performance of such undertaking
(a) to refrain from himself taking the necessary steps to secure his safety or from securing the then available protective action by third persons, or
(b) to enter upon a course of conduct which is dangerous unless the undertaking is carried out,
is subject to liability to the other for bodily harm resulting from the actor’s failure to exercise reasonable care to carry out his undertaking.

Extending the type of voluntary undertaking of another’s care that section 325 contemplates to participants in an on-again/ off-again romantic relationship would involve mental gymnastics that we are not prepared to undertake. For present purposes, it suffices to say that such a leap in logic is far from reasonably clear.

III. CONCLUSION

We need go no further. For the reasons elucidated above, the judgment is

Affirmed.

      . Sanders sued both The Phoenix Insurance Company (which issued the homeowner’s insurance policy to Doe) and The Travelers Indemnity Company of America (which, like Phoenix, is a wholly-owned subsidiary of The Travelers Companies, Inc.). In the district court, the parties referred indiscriminately to both defendants. Phoenix now insists for the first time that The Travelers Indemnity Company of America is not a proper party. Because nothing in this case turns on any distinction between these sister companies, we refer throughout to them, collectively, as "Phoenix.”

      . Section 2 of Chapter 93A declares unlawful ‘‘[ulnfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce,” Mass. Gen. Laws ch. 93A, § 2(a). The statute creates a private right of action through which consumers may seek equitable and monetary relief from businesses employing unfair or deceptive practices. See id. § 9(1).

      . According to Phoenix, Doe’s liability to Sanders was on a non-recourse basis; that is, the settlement agreement stipulated that the additional $500,000 could be collected only from whatever proceeds might be due under the Policy. Sanders has not contradicted this description.

      . In our discussion of these rulings, it would serve no useful purpose to distinguish between the district judge and the magistrate judge. Instead, we take an institutional view and refer throughout to the district court.

      . The district court agreed with this conclusion, finding the Chapter 93A demand letter insufficient to trigger the duty to defend. So, too, another district court has held that a Chapter 2IE pre-suit demand letter did not animate the duty to defend. See Zecco, Inc. v. Travelers, Inc,, 938 F.Supp. 65, 68-69 (D. Mass. 1996) (discussing Mass. Gen. Laws ch, 2IE, § 4A; comparing that provision to Chapter 93A; and reasoning that the Hazen Paper court had "carefully avoided opening the door” tp having an array qf pre-suit demand letters impose the duty to defend). Yet a third district court, though, has reached a contrary conclusion (but held nonetheless that various policy exclusions precluded coverage), See Cytosol Labs., Inc. v. Fed. Ins. Co., 536 F.Supp.2d 80, 88, 90 (D. Mass. 2008). The Cytosol decision contains very little in the way of reasoning on this point, and we find that court’s conclusion less convincing than the contrary conclusions reached by the court below and by the Zecco court.

      . In somewhat the same vein, we note that Sanders also assigns error to the district court's ruling that the Policy’s professional services exclusion barred coverage. But the challenged ruling was simply that ”[t]o tire extent in this action that the plaintiff sought coverage of claims based on Doe’s professional misconduct under the homeowner’s policy, the professional services exclusion would be effective to preclude those claims.” Here, however, the liability that Sanders posits is premised upon Doe’s decision to embark on a volatile intimate relationship with a known vulnerable person. Since this asserted liability is not based on a professional responsibility theory, any error in the challenged ruling is harmless.

      . For essentially the same reasons, we reject Sanders’s assertion that "alternative.dispute resolution proceedings [can come] within the scope of policies utilizing the term 'suit' alone,” Without exception, the few cases that Sanders cites for that proposition involve policies that explicitly include arbitration or alternative dispute resolution ■ in their definitions of “suit,” See, e,g., Sunoco, Inc, v. Ill. Nat'l Ins, Co„ No. 04-4087, 2007 WL 127737, at *11 (E.D, Pa. Jan. 11,2007).