MEMORANDUM
BENSON LEGG, District Judge
Defendant Shalaby Porter is charged with possession with intent to distribute cocaine in violation of 21 U.S.C. § 841(a)(1) and possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c). On May 27, 2010, Porter filed a Motion to Suppress Tangible and Derivative Evidence (Docket No. 23), seeking suppression of: (1) five vials of suspected cocaine recovered from one Gary Bracey; (2) a Bersa Thunder .380 caliber semi-automatic handgun recovered from the rear yard of 1616 Barclay St.; (3) a white bag containing two vials of suspected cocaine recovered from the steps of 318 East Lanvale St.; and (4) $293 in U.S. currency recovered from Porter during the search incident to his arrest. On November 3, 2010, a hearing was held, and on November 4, 2010, the Court issued an Order denying Porter's Motion. (Docket No. 37.) The Court now writes to explain its ruling.
I. FACTUAL BACKGROUND
On June 9, 2009 at approximately 1:30 p.m., Detective Craig Streett of the Baltimore Police was conducting surveillance from the third floor of an abandoned house on the south side of East Lanvale St. between Latrobe St., on the west, and Barclay St., on the east. From his position, he observed three men sitting on the steps of 318 East Lanvale, across the street. The identities of two of the men are unknown, but the third was Shalaby Porter. Twice as Streett watched, individuals would approach and hand one of the two unidentified men U.S. currency. One of the men would then cross Lanvale and go south on Latrobe, entering an alleyway behind the house where Streett was stationed.
Streett would go through the house and climb out a third-story window onto a section of roof, from which he could observe the alleyway and the backs of the adjoining houses. Each time, the unidentified man would enter the alleyway and proceed to the rear yard of 1616 Barclay St., where he would bend down, apparently retrieving a small object. He would then return to the steps of 318 East Lanvale, where he would pass something to the person who had provided the money. Based on his knowledge and experience, Streett identified these proceedings as hand-to-hand drug transactions.
A short while later, a man identified as Gary Bracey approached the group, and this time it was Porter who received the currency and set off for the rear yard of 1616 Barclay. Unlike the two men before him, however, Porter walked deeper into the yard and put down a black object, later recovered and identified as a Bersa Thunder .380 pistol. As Porter left the yard and returned to the steps of 318 East Lanvale, Streett saw for the first time that he was carrying a white bag. Porter handed some small objects to Bracey, who then began to walk away.
At this point Streett called in an arrest unit, which consisted of four officers in two unmarked police cars. As the cars approached, someone shouted "knockers," a term that Streett testified denotes plainclothes police. At this signal Bracey and Porter fled, Bracey on foot and Porter on a bicycle that had been parked in front of the steps. In the process, Porter threw the white bag to the ground between the steps of 318 and 316 East Lanvale. Detectives Donald Hayes and Antonio Hopson chased Porter, apprehending him less than a block away. Hayes patted him down for weapons while Hopson, at Streett's direction, returned to retrieve the bag. Inside Hopson found two vials of what appeared to be cocaine. He returned to where Hayes had Porter detained, and directed that Porter was to be placed under arrest. Bracey was also apprehended and arrested, and both men were then searched. In Bracey's pocket police found five vials of what they believed to be cocaine, matching those found in the bag; in Porter's pocket was $293 in cash.
II. DISCUSSION
a. Cocaine Recovered from Bracey and Gun Recovered from 1616 Barclay
Porter's objection to two pieces of evidence may be dealt with summarily. He clearly lacks standing to challenge the introduction of either the vials of suspected cocaine seized from Gary Bracey or the handgun retrieved from the rear yard of 1616 Barclay St. The Fourth Amendment protects only a "subjective expectation of privacy that society recognizes as reasonable," and Porter had no reasonable expectation of privacy in either of these objects. Kyllo v. United States, 533 U.S. 27, 33 (2001).
It is well established that absent some special circumstance, a Defendant has no legitimate expectation of privacy in evidence seized from another person. "[S]uppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. Coconspirators and codefendants have been accorded no special standing." Alderman v. United States, 394 U.S. 165, 172 (1969); see also United States v. Taylor, 857 F.3d 210, 214 (4th Cir. 1988) (co-defendants lack standing to vicariously assert one another's Fourth Amendment rights). It seems clear that police had probable cause for their arrest and subsequent search of Bracey, but even if they did not, Porter may not challenge the fruits of that search.
Likewise, Porter has asserted no expectation of privacy in the rear yard of 1616 Barclay. He has not claimed 1616 Barclay as his residence, or advanced any cognizable argument as to why his Fourth Amendment rights were violated by the search of the yard.
Accordingly, Porter's motion to suppress the vials taken from Bracey and the gun found in the yard of 1616 Barclay must be denied.
b. White Bag Recovered Near 318 E. Lanvale St.
Porter similarly lacks standing to challenge the introduction of the white bag police recovered from the sidewalk next to 318 E. Lanvale St. Porter claims that he was unlawfully seized before throwing down the bag and fleeing, and he cites as support the Supreme Court's decision in California v. Hodari D., 499 U.S. 621 (1991). That case, however, clearly requires the opposite result. In Hodari D., the Court ruled that for a seizure to occur there must be either the application of physical force or a show of authority to which the defendant submits. Id. at 625-26. The Court found that the Hodari D., who fled at the approach of an unmarked police car, was not seized until bodily tackled because, even assuming that the approach of the police could be considered a show of force, it was not one to which he submitted. As a result, the crack cocaine he had thrown away during his flight was admissible against him. Id. at 629.
The facts of this case are similar, with the distinction that the "show of force" in Hodari D. was more immediate and direct. Hodari D. jettisoned the drugs while the police were in hot pursuit and closing in on him. Porter discarded the white bag, mounted his bike, and pedaled away as soon as he heard someone call out "knockers." On these facts, it is hard to characterize the officers' mere arrival in the vicinity to be a show of force. In any event, Porter, like Hodari D, did not submit to the show of force. Hence, Porter had not been seized when he discarded the bag, and the bag and its contents are admissible.
c. $293 in Cash
Finally, Porter contends that he was arrested without probable cause, and that the $293 discovered when police searched his pockets was, therefore, obtained in violation of his Fourth Amendment rights.
Police may stop and briefly detain a person when there is "reasonable suspicion" that criminal activity is afoot. Terry v. Ohio, 392 U.S. 1, 30 (1968). Warrantless arrests — and searches incident thereto — are permitted where there is probable cause to believe that a felony is being or has been committed by the arrested individual based on the totality of the circumstances.Illinois v. Gates, 462 U.S. 213, 230-31 (1983). Probable cause is that which "would warrant the belief of a prudent person that the arrestee had committed or was committing an offense." United States v. Manbeck, 744 F.2d 360, 376 (4th Cir. 1984).
In assessing the totality of the circumstances, it is appropriate to consider not only the officer's direct observations, but also "specifically: an officer's practical experience and the inferences the officer may draw from that experience, or the context of a high-crime area, or an individual's presence in a high-crime area coupled with his [h]eadlong flight upon noticing police." United States v. Humphries, 372 F.3d 653, 657 (4th Cir. 2004) (internal citations omitted).
The testimony in this case establishes that the police initially seized Porter but did not immediately place him under arrest. Only when Officer Hopson returned from investigating the contents of the discarded white bag was Porter arrested and searched. Officer Streett's observations prior to the arrest unit's arrival clearly supply the reasonable suspicion required for the initial seizure and, in the Court's opinion, probable cause for the arrest as well. But even assuming arguendo that probable cause was not established until Hopson's discovery of the suspected cocaine, that discovery was made and the information communicated to Officer Hayes before Hayes placed Porter under arrest. The arrest was therefore constitutional, and Porter's motion to exclude the fruits of the resulting search must be denied.
III. CONCLUSION
Because Porter lacks standing to challenge the introduction at trial of any evidence put forward by the Government except for the $293 in cash recovered from his person, and because that money was discovered during a search incident to a lawful arrest, his Motion to Suppress Tangible and Derivative Evidence must be DENIED.
Dated this 15th day of November, 2010.
gated within a single election cycle.
See, e.g., III. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 187,
99 S.Ct. 983,
59 L.Ed.2d 230 (1979);
Moore, 394 U.S. at 816,
89 S.Ct. 1493. This case comes within that taxonomy.
The "capable of repetition" prong presents a more imposing barrier, but we believe that barrier has been surmounted. The LPM, though currently a recognized political party under Massachusetts law, had no candidate for Governor or United States Senator on the November 2010 statewide ballot in Massachusetts and, thus, may very well lose its status as a recognized political party. While there are other means of maintaining or obtaining recognized party status, see Mass. Gen. Laws ch. 50, § 1, the LPM has never been able to secure party recognition through the use of such alternative means. Given this history, we see no likelihood that the party will prove able to do so in the near future. The LPM, then, has a reasonable expectation of being in a position to complain about the lack of a substitution mechanism in future Massachusetts elections. At any rate, we think that the parties — all of whom implore us to find that the case is not moot — should be given the benefit of the doubt.
In sum, we find that the appellees have shown a sufficient probability that the core events at issue in this case may recur and may again involve the LPM and/or the Libertarian National Committee. Because we find that most aspects of this case satisfy both prongs of the "capable of repetition, yet evading review" exception, we conclude that a live dispute remains with respect to the constitutional questions at issue in this case.
B. The Merits.
We review an appeal from the entry of summary judgment de novo. Gastronomical Workers Union Local 610 Metro. Hotel Assoc. Pension Fund v. Dorado Beach Hotel Corp., 617 F.3d 54, 60 (1st Cir. 2010); Osediacz v. City of Cranston, 414 F.3d 136, 139 (1st Cir. 2005). In so doing, we assay the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 4 (1st Cir. 2010). "We will affirm only if the record reveals `no genuine issue as to any material fact' and `the movant is entitled to judgment as a matter of law.'" Vineberg v. Bissonnette, 548 F.3d 50, 55 (1st Cir. 2008) (quoting Fed.R.Civ.P. 56(c)). With this standard of review in mind, we turn to the merits of the disputed claims.
1. Vagueness. The appellees argue that "[t]he vagueness of the substitution statutory framework allows the Secretary to exert unconstitutional, unfettered discretion to allow or prohibit substitution during any given election." Because this broad interpretive discretion has allowed the Secretary to take inconsistent positions regarding the availability of substitution, their thesis runs, non-party candidates and unrecognized political organizations are left without adequate guidance. This plaint about excessive discretion boils down to an assertion that, with respect to substitution, the statutory scheme is void for vagueness. The district court so held. Barr II, 659 F.Supp.2d at 229-30.
Section 14 admittedly is unclear as to whether it applies to the kind of substitution requested by the appellees. The statutory text contains two types of imprecision. First, it refers to candidates seeking "state, city or town office," but provides no further elaboration as to the specific offices that are encompassed within that rubric. This, in turn, leaves open to question whether candidates for presidential electors (who are, in one sense, candidates for a state office) and, by reference, presidential and vice-presidential candidates, come within its sweep. Second, section 14 explains that vacancies "may be filled by the same political party or persons who made the original nomination." In the period leading up to the 2008 election, the LPM did not qualify for recognition as a political party under Massachusetts law. Still, the reference to "persons who made the original nomination" arguably could apply to the LPM or, alternatively, to the individuals who signed the nomination papers qualifying Phillies and Bennett for inclusion on the ballot. The text is opaque on this point.
Viewed against this backdrop, the appellees' complaint that the procedures governing substitution of candidates for president and vice-president are unclear strikes a responsive chord. We are not convinced, however, that the lack of definition in the statutory text necessarily invalidates the statute on vagueness grounds. See IMS Health Inc. v. Ayotte, 550 F.3d 42, 61 (1st Cir. 2008) ("[S]tatutes do not need to be precise to the point of pedantry, and the fact that a statute requires some interpretation does not perforce render it unconstitutionally vague."); Ridley v. MBTA 390 F.3d 65, 93 (1st Cir. 2004) (similar). Whatever its semantic shortcomings, section 14 seems susceptible to clarification by judicial interpretation.
This does not mean, however, that a federal court should undertake the task of parsing the statutory text to determine its applicability to the substitution of non-party presidential and vice-presidential candidates. Especially given the lack of urgency — the next presidential election is almost two full years away — we think that the needed interpretation is a task for which the state courts, as the ultimate arbiters of statelaw questions, are better suited. See Acadia Ins. Co. v. McNeil, 116 F.3d 599, 604 (1st Cir. 1997) (explaining that state supreme court is "final arbiter of the meaning of a statute of that state").
Although we recognize that "[a]bstention from the exercise of federal jurisdiction is the exception, not the rule," Colo. River Water Conser v. Dist. v. United States, 424 U.S. 800, 813, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), we are also mindful of the Supreme Court's sage counsel that "[a]mong the cases that call most insistently for abstention are those in which the federal constitutional challenge turns on a state statute the meaning of which is unclear under state law," Harris Cnty. Comm'rs Court v. Moore, 420 U.S. 77, 84, 95 S.Ct. 870, 43 L.Ed.2d 32 (1975); accord Baggett v. Bullitt, 377 U.S. 360, 377-78, 84 S.Ct. 1316, 12 L.Ed.2d 377 (1964). We believe that Pullman abstention is appropriate in this case.
Pullman abstention was conceived by the Supreme Court in a case bearing the Pullman name. See R.R. Comm'n of Tex. v. Pullman Co., 312 U.S. 496, 499-502, 61 S.Ct. 643, 85 L.Ed. 971 (1941). Pullman abstention "is warranted where (1) substantial uncertainty exists over the meaning of the state law in question, and (2) settling the question of state law will or may well obviate the need to resolve a significant federal constitutional question." Batterman v. Leahy, 544 F.3d 370, 373 (1st Cir. 2008); see also Babbitt v. United Farm Workers Nat Union, 442 U.S. 289, 307-08, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979) (noting that abstention may be appropriate in cases where "it is evident that the [state] statute is reasonably susceptible of constructions that might undercut or modify appellees' vagueness attack . . . [and] that an authoritative construction of the . . . provision may significantly alter the constitutional questions requiring resolution"); Zwickler v. Koota, 389 U.S. 241, 251, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967) (emphasizing that Pullman abstention is appropriate when a state statute, never interpreted by a state court, is "fairly subject to an interpretation which will avoid or modify the federal constitutional question").
In the case at hand, an "uncertain issue of state law [turns] upon a choice between one or several alternative meanings of [the] state statute." Babbitt, 442 U.S. at 308, 99 S.Ct. 2301 (quoting Baggett, 377 U.S. at 378, 84 S.Ct. 1316). The Massachusetts courts should therefore be afforded the opportunity to address, in the first instance, the question of the statute's application to non-party presidential and vice-presidential candidates. See, e.g., Hams Cnty., 420 U.S. at 84, 95 S.Ct. 870.
The district court premised its conclusion that section 14 is void for vagueness on the fact that it "leaves the determination of whether that statute is applicable to presidential and vice-presidential nominees positively ambiguous," Barr II, 659 F.Supp.2d at 229, and went on to state that where the meaning of a statute is unclear, that statute may be found unconstitutionally vague. Id. That statement goes too far. The mere fact that a statute requires interpretation does not necessarily render it void for vagueness. Once the state courts clarify section 14's relevance (if any) to substitution of presidential and vice-presidential candidates, such a clarification, however it comes out, would end the "void for vagueness" argument. Thus, both of the pre" conditions for Pullman abstention are satisfied in this case. 2. Equal Protection. Beyond their claim regarding the uncertainty of the Massachusetts statutory scheme, the basic thrust of the appellees' case is that substitution of non-party candidates for president and vice-president is required as a matter of equal protection. Indeed, they succeeded in persuading the district court that they were entitled to this substitution even if no provision of Massachusetts law explicitly authorized it. Id. at 230. In the appellees' words, "the Secretary discriminates arbitrarily" between recognized political parties and non-parties by refusing to allow substitution of non-party candidates for president and vice-president.
Though the existence of a pending state court action is sometimes considered as a factor in favor of abstention, the lack of such pending proceedings does not necessarily prevent abstention by a federal court. Duncan v. Poythress, 657 F.2d 691, 697 (5th Cir. 1981). As noted above, the next presidential election is nearly two years distant, and thus we find that any delay in obtaining relief pending state court adjudication would impose no onerous burden upon the parties. See Bonas v. Town of N. Smithfield, 265 F.3d 69, 76 n. 5 (1st Cir. 2001).
We freely acknowledge that the right to vote is central to the operation of a democratic society. Consequently, "any restrictions on that right strike at the heart of representative government." Werme v. Merrill, 84 F.3d 479, 483 (1st Cir. 1996) (quoting Reynolds v. Sims, 377 U.S. 533, 555, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964)). Some substantial regulation of elections is necessary, however, to ensure that they are fair, honest, and orderly. See, e.g., id. (citing Storer, 415 U.S. at 730, 94 S.Ct. 1274).
To be sure, the fact that states have considerable discretion in establishing the procedures that govern ballot access does not mean that every restriction on ballot access is permissible under the Constitution. Ballot access restrictions that fall unequally on similarly situated candidates or parties may threaten the right to equal protection of the laws guaranteed by the Fourteenth Amendment. Libertarian Party of Me. v. Diamond, 992 F.2d 365, 370 (1st Cir. 1993).
A mere demonstration that a state provision distinguishes among groups (such as candidates affiliated with a recognized political party and those not so aligned) is insufficient by itself to establish an equal protection violation. Rather, a claim of unconstitutionality must be grounded in a showing of substantial discrimination. "Statutes create many classifications which do not deny equal protection; it is only `invidious discrimination' which offends the Constitution." Am. Party of Tex. v. White, 415 U.S. 767, 781, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974) (quoting Ferguson v. Skrupa, 372 U.S. 726, 732, 83 S.Ct. 1028, 10 L.Ed.2d 93 (1963)); see also Clements v. Fashing, 457 U.S. 957, 967, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982) ("Classification is the essence of all legislation, and only those classifications which are invidious, arbitrary, or irrational offend the Equal Protection Clause of the Constitution." (citing Williamson v. Lee Optical 348 U.S. 483, 489, 75 S.Ct. 461, 99 L.Ed. 563 (1955))).
In recognition of the competing interests at. stake where ballot access regulations are concerned, the Supreme Court has developed a flexible "sliding scale" approach for assessing the constitutionality of such restrictions. Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358, 117 S.Ct. 1364, 137 L.Ed.2d 589 (1997); Burdick v. Takushi 504 U.S. 428, 432-34, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). Under this approach, when the burden imposed by a ballot access regulation is heavy, the provision must be narrowly tailored to promote a compelling state interest. Timmons, 520 U.S. at 358, 117 S.Ct. 1364. Reasonable, nondiscriminatory restrictions, however, need be justified only by legitimate regulatory interests. Id. A court evaluating a challenge to a state ballot access regulation must, therefore, conduct its inquiry by weighing "the character and magnitude of the asserted injury" to the complaining party's constitutional rights and "evaluating] the precise interests put forward by the State as justifications for the burden imposed." Werme. 84 F.3d at 483 (quoting Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983)); see also Libertarian Party of Me., 992 F.2d at 370.
The Massachusetts ballot access provisions at issue here are nondiscriminatory. They do not specifically differentiate among Democrats, Republicans, Libertarians, Mugwumps, or candidates affiliated with any other political organization. In other words, all political organizations are subject to the same criteria for determining whether they qualify for recognition as political parties and, thus, for the array of rights indigenous to recognized political parties under Massachusetts law. See Mass. Gen. Laws ch. 50, § 1. These criteria are, essentially, twofold.
One avenue to recognition depends on a demonstration of a proven ability to attract votes. Under the statutory scheme, the LPM has essentially the same opportunity as any other party to field attractive candidates, promote their candidates, and convince voters to get on board. Distinguishing among political organizations on the basis of success in past elections "is not per se invidiously discriminatory." Werme, 84 F.3d at 484 (citing Am. Party of Tex., 415 U.S. at 781, 94 S.Ct. 1296). The LPM had the same chance as any other political organization to qualify as a recognized political party in this way and, in fact, did so in the 2008 election.
The second avenue for qualification as a recognized political party under Massachusetts law is through enrollment of at least one percent of the voters registered in Massachusetts. Where, as here, the necessary number of enrolled voters required to achieve party recognition is reasonable, that methodology constitutes an appropriate screen. Cf. Jenness v. Fortson, 403 U.S. 431, 442, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971) (approving provision requiring prospective candidate to obtain signatures from five percent of eligible voters).
The appellees do not challenge the reasonableness of the number of enrolled voters required under Massachusetts law.
We add that the Massachusetts voter enrollment provision is essentially an alternate means by which the state can ascertain whether a political organization has demonstrated sufficient support to warrant official recognition as a party. See, e.g., Libertarian Party of Me., 992 F.2d at 372. Nothing prevented registered Massachusetts voters from aligning themselves with the LPM, and, thus, the LPM had a full and fair chance to avail itself of this avenue for becoming a recognized political party.
To sum up, equality of opportunity exists here. And as we said in Werme, 84 F.3d at 485, "equality of opportunity — not equality of outcomes — is the linchpin of what the Constitution requires in this type of situation."
It is also important to note that the time available to Barr and Root when they were directed by the Secretary (and, for that matter, by state law) to procure the signatures necessary to comply with section 6 was not so short as to impose an unreasonable burden. Barr and Root had approximately 60 days after the national convention and before the filing deadline during which to secure the 10,000 required signatures, and the Supreme Court has approved analogous time frames for collecting signatures as not unduly burdensome. See, e.g., Am. Party of Tex., 415 U.S. at 786, 94 S.Ct. 1296 (finding that period of 55 days was not "an unduly short time for circulating . . . petitions" and noting that time frame would have required that signatures be collected at a rate of no more than 400 per day to satisfy the statutory requirement prior to the deadline).
The modest nature of the burden is confirmed by the fact that, during the same time period, Phillies and Bennett were able to secure approximately 8,000 signatures on their own nomination papers, ultimately submitting many more than the 10,000 signatures needed to qualify for the ballot. While a state "may not act to maintain the `status quo' by making it virtually impossible for any but the two major parties to achieve ballot positions for their candidates," Clements, 457 U.S. at 965, 102 S.Ct. 2836, the regime challenged here clearly had no such effect.
Having evaluated the nature of the ballot access restrictions at issue here and the extent of the burdens imposed, we have no doubt as to the appropriate level of scrutiny to be applied. We conclude that there need be only a rational basis undergirding the regulation in order for it to pass constitutional muster. See, e.g., Timmons, 520 U.S. at 358-59, 117 S.Ct. 1364.
That threshold is satisfied. In defense of his refusal to grant substitution to non-party presidential and vice-presidential candidates, the Secretary points to the state's interests in using "substantial support" requirements as a means of protecting "the integrity of elections by avoiding overloaded ballots and frivolous candidacies, which diminish victory margins, contribute to the cost of conducting elections, confuse and frustrate voters, . . . and may ultimately discourage voter participation in the electoral process." Libertarian Party of Me., 992 F.2d at 371. This, in itself, justifies the regulations at issue here. It is settled beyond hope of contradiction that states have a legitimate interest in ensuring that a candidate makes a preliminary showing of a substantial measure of support as a prerequisite to appearing on the ballot. See, e.g., Munro v. Socialist Worker Party, 479 U.S. 189, 193, 107 S.Ct. 533. 93 L.Ed.2d 499 (1986); Anderson, 460 U.S. at 788-89, 103 S.Ct. 1564; Am. Party of Tex., 415 U.S. at 782, 94 S.Ct. 1296; Jenness, 403 U.S. at 442, 91 S.Ct. 1970. Logically, this interest is advanced by the Secretary's refusal to grant to non-party candidates the right to substitution in circumvention of the state's signature requirements. Granting such substitution would effectuate an end-run around the signature requirement — a requirement that allows the state to ascertain whether a given candidate has enough support to warrant inclusion on the ballot.
In light of the state's legitimate interest in ensuring that the candidates who appear on the statewide ballot have demonstrable support among the voting public, the modest burden imposed upon non-party candidates by requiring them to secure signatures, rather than piggy-backing upon signatures collected for other candidates, is not so onerous as to present an equal protection problem vis-à-vis candidates affiliated with recognized political parties. Cf. Jenness, 403 U.S. at 440-41, 91 S.Ct. 1970 ("We cannot see how [the state] has violated the Equal Protection Clause of the Fourteenth Amendment by making available these two alternative paths [to appearing on the ballot], neither of which can be assumed to be inherently more burdensome than the other."). The appellees' equal protection challenge therefore fails.
3. Other Claims. The distance we have travelled to this point does not end our odyssey. The parties joust over a final set of claims, which implicate alleged inconsistencies in the Secretary's position regarding the availability of substitution. We need not linger long over any of these claims.
First, the appellees argue that the Secretary should be estopped from declaring that substitution of non-party presidential and vice-presidential candidates is not the policy of his office. To ground this argument, they rely on a communication received from the Secretary's office in 2007, which informed them that the Secretary could provide a form through which substitution could be requested.
It is far from clear that the Secretary has adopted inconsistent positions. After all, a statement that a party would be permitted to request substitution in certain circumstances falls short of an assurance that substitution would be allowed if requested. Here, however, we need not decide whether or not the Secretary hereto-fore has taken inconsistent positions.
In the course of this litigation, the Secretary has made his current position crystal clear: substitution is not available in the circumstances presented by the appellees. That position, as we have pointed out, depends on the interpretation of state law. There is no election on the horizon, and the appellees have ample time to litigate the validity of the Secretary's position in the state courts. In light of these circumstances and the Secretary's plainly articulated position, the appellees cannot reasonably continue to rely on any earlier inconsistency.
In any event, a definitive state-court interpretation of the meaning of the statutory scheme will provide non-party candidates with concrete guidance on the availability vel non of substitution. There is plenty of time in which to obtain such an interpretation: the run-up to the next presidential election has barely begun. Accordingly, because there is no reasonable likelihood of recurrence, the estoppel claim is moot. Cf. Spencer, 523 U.S. at 18, 118 S.Ct. 978 (finding claim moot because petitioner had not "demonstrated a reasonable likelihood that he will once again be paroled and have that parole revoked"); Oakville Dev. Corp. v. FDIC, 986 F.2d 611, 615 (1st Cir. 1993) (finding claim moot because it is "highly unlikely that appellant will again secure a mortgage with a federally insured bank that then fails, prompting FDIC involvement and ensuing foreclosure").
Second, and relatedly, the appellees complain that the ambiguities in the statutory scheme have allowed the Secretary to grant a right of substitution to non-party candidates in prior elections, yet deny such a right to the appellees in 2008. The appellees suggest that this erratic behavior creates an equal protection problem vis-à-vis other "unrecognized" political parties and/or non-party candidates.
The premise on which this suggestion rests is unconvincing. We have examined the examples proffered by the appellees and believe that none of the affected parties and/or candidates appears to be situated similarly to the appellees.
These prior instances involved the substitution of a vice-presidential candidate only (with the written consent of the slate of electors) and the substitution of candidates who could not otherwise have gotten on the ballot because their party's nominating convention did not take place until after the deadline had passed for submitting nominating papers.
Regardless, any historical variations in treatment will be rendered irrelevant once the Massachusetts courts have clarified the way in which state law operates. Such clarification will help to define the bounds of the Secretary's discretion to permit or deny substitution, limiting his capacity to adopt arguably haphazard policies across multiple election cycles. Because state-court construction of the statutory scheme is likely to eliminate the kinds of variations on which this equal protection claim is premised, we think it prudent to forgo evaluation of it pending resolution of the anticipated state-court action. See Bath Mem'l Hosp. v. Me. Health Care Fin. Comm'n, 853 F.2d 1007, 1016 (1st Cir. 1988) (finding that Pullman abstention may be appropriate in respect to claim that state commission's lack of decision-making standards created equal protection problem, where state court might read state law as importing standards, in which case claim would be significantly altered or mooted); cf. El Dia, Inc. v. Herná ndez Colon, 963 F.2d 488, 494 (1st Cir. 1992) ("[Declaratory judgments concerning the constitutionality of government conduct will almost always be inappropriate when the constitutional issues are freighted with uncertainty and the underlying grievance can be remedied for the time being without gratuitous exploration of uncharted constitutional terrain.").
III. CONCLUSION
We need go no further. For the reasons elucidated above, we reverse the decision of the district court on the equal protection claim, vacate its decision and judgment in all other respects, and remand to the district court with instructions to abstain on the "void for vagueness" claim and dismiss what remains of the action without prejudice. All parties shall bear their own costs.
Reversed in part; vacated in part; and remanded.