WILLIAMS v. RHODES
To be placed on the ballot in a presidential election, Ohio law required a new political party obtain voter signatures totaling 15% of the number of ballots cast in the preceding gubernatorial election. Both the American Independent Party and the Socialist Labor Party sought ballot access in Ohio for the 1968 presidential election. The American Independent Party, formed by supporters of George C. Wallace, obtained the requisite number of signatures but failed to file its petition for ballot access prior to the February 7, 1968 deadline. The Socialist Labor Party, which until 1948 had been on the ballot, failed to collect enough signatures and was also kept off the ballot. The parties filed separate suits in U.S. District Court against several state officials, including Governor James A. Rhodes, contending that being kept off the ballot violated their rights under the Equal Protection Clause of the Fourteenth Amendment. The cases were consolidated, and the court ruled that each party must be given write-in access but did not require the state to print the parties' candidates' names on the ballot. The American Independent Party requested and was granted an injunction forcing the state to add the party's candidates to the ballot while the case was on appeal. The Socialist Labor Party filed a similar request, but did so much later, and was denied primarily to avoid confusion in requiring the reprinting of another set of ballots.
Did Ohio violate the parties' equal protection rights under the Fourteenth Amendment by refusing to print their candidates' names on the ballot?
Legal provision: Equal Protection
Yes. In a 6-3 opinion authored by Justice Hugo L. Black, the Court found that Ohio failed to show a compelling interest in limiting the parties' ballot access. The Court concluded that Ohio's restrictions gave the two major parties a "total monopoly" and imposed a significant, unequal burden on minority groups. Given this fact, and the particular importance of the right to vote, Ohio's arguments that its restrictive policies maintained an orderly process and ensured an electoral victor would have at least 50% of the vote failed to meet the necessary standard of a compelling state interest. The Court struck down the Ohio restrictions and granted the American Independent Party full ballot access. To avoid confusion and a last-minute reorganization of the ballot, however, it denied the Socialist Labor Party such access for the 1968 election, in accordance with the injunctive order.
Argument of David J. Young
Chief Justice Earl Warren: Number 543, Glen A. Williams, et al., appellants versus James A. Rhodes et al.
Mr. Young, you may proceed with your argument.
Mr. David J. Young: Mr. Chief Justice and members of the Court, Mr. Lopeman, may it please the Court.
At the outset I would like to introduce Mr. Stan Sikes, an attorney admitted to the bar of Alabama whose associated with me in this case.
Chief Justice Earl Warren: Very well counsel.
Glad to see you Mr. Sikes.
Mr. David J. Young: First of all, the appellants would like to express their appreciation to the Court for the dispatch and vigilance with which they have scheduled this case, the case that may very well need additional remedial relief to protect the most basic of all of our rights in society, the right to vote.
We recognized that this has been an inconvenience to the Court but we are grateful that we have scheduled the case so expeditiously.
We place this case before the Court in urging fashion because we believe that the integrity of the 1968 presidential election is at stake.
We believe that the transcript evidence before the Court amply demonstrates that plaintiff's candidate Governor Wallace has sufficient voter support in Ohio that his chances of carrying that state are very substantial.
We -- the transcript evidence shows polls that were taken and they were placed before the lower court and each of the answers to those polls was prefaced on the condition that if Governor Wallace's name appears on the ballot they would vote for him.
On the other hand, it would appear to us and from the evidence in the transcript that if the plaintiffs in this case are relegated to the federal court relief of write-in status, this Governor Wallace's name is taken off the ballot in Ohio that his supporters in that state might as well forget about those 26 electoral votes.
Thus, we appear before the Court today seeking relief that's not only essential to the protection of the equal protection of the law rights of the voters in Ohio of the candidates of the minor political parties but also a protection of the integrity of this presidential election and an order which will convince at least 452,000 voters in Ohio that they cannot be fenced out of the democratic elective process simply because their views do not agree with the views of the majority party.
Justice John M. Harlan: Has there been any challenge to any states to the (Inaudible)?
Mr. David J. Young: There they have not.
We tendered them to the election officials.
They did not care to review them at the time they were placed before the District Court -- lower district court, they were placed before them as the transcript indicates by Certified Public Accountant.
Now, of course he would not have verified some of the things that he couldn't verify.
The petitions that were before the lower court are not required by Ohio law to be registered voters.
Therefore, the only verification that would be necessary would be the age and the residence in the state of Ohio.
The duplications were called out.
Justice William J. Brennan: Mr. Young, the right and I gather is only of the candidate's name, is it?
Mr. David J. Young: That is correct.
Justice William J. Brennan: How is this affect or accomplish a vote for electors?
Mr. David J. Young: Under Ohio law, we have an Ohio statute and we have that for many years that states that a vote for a presidential candidate whose name appears on the ballot is considered as a vote for the electors' pledge to him who have been certified by that candidate or party to the Secretary of State.
The order of the lower court then provided that a right hand vote for a presidential candidate would be considered as a vote for the electors certified to the Secretary of State.
Justice William J. Brennan: And they have been certified?
Mr. David J. Young: No, in this case have until October the 15th to accomplish that certification.
Justice Byron R. White: Well, on your scheme of things I take it the write-in -- does it satisfy any right by itself?
But I take it you asked for it separately.
Mr. David J. Young: We did not.
Justice Byron R. White: Well, I guess you didn't.
Mr. David J. Young: We did not seek.
Justice Byron R. White: What is your position that the write-in that the state could constitutionally dispense for the write-in?
Mr. David J. Young: No, I do think that the write-in does protect certain fundamental constitutional rights when the --
Justice Byron R. White: But not by itself?
Mr. David J. Young: Not and of itself, no and perhaps I might get ahead of myself and explain why.
I think that a very significant aspect of the inadequacy of the relief afforded by the lower court in this case is demonstrated when one reviews the election laws in Ohio and their relationship to the methods of write-in voting.
In Ohio, we have an excess of 13,000 precincts of with polling places.
The elections of such are governed by the 88 counties in the state.
Each clerk of the Board of Elections then and that Board of Elections selects the voting method that he feels would best suit his county's conditions.
Now, the problem is that there are five different voting methods scattered throughout the state of Ohio in this 88 counties and 13,000 precincts may review them just real quickly.
First of all, the basic paper ballot and of course the difficulties of a write-in, statewide write-in campaign aren't too great with that ballot because that simply has an extra space and rather than checking the space with the name on it; one writes in the name in the extra space and then checks it.
Moving from there however, we move to what we call the synthesized paper ballot that is used in the county -- Hamilton County with the third largest country in the State of Ohio with City of Cincinnati in that county.
They used a synthesized ballot the record shows.
It's a punch card that has four holes on the pointers of that synthesized ballot.
In order to -- now, the reason I have those are these are counted at the Secretary of State's office.
They are transported to the Secretary of State put on the machine and they push a button and just all go down to the machine and the synthesized votes are recorded.
Now, when a voter in Ohio would approach the booth to use that kind of a voting device, he would be given a cigar or lighter kind of apparatus that he would stamp his choice for the name of the candidates.
And on this stamp makes the marking that's recorded in this machine.
If he wanted to write in, he couldn't use this apparatus.
It writes too large.
There would be pencils available.
Now, if you pick up the pencil first and started to write in, there's no written instructions in the booth or on the card to show that the pencil would not record any of the votes for all of the other candidates.
So, if he -- he couldn't use the cigar lighter-kind of apparatus to write in, he couldn't use the pencil to mark the other ones.
The only way of voter in Ohio in this election would know what to do would have to be asked the voting officials.
So, this is going to -- and then of course they'll have to call out all of the synthesized cards with any writing on them and count them twice.
From those two methods, we move to the three voting machine methods.
The first one as the record demonstrates is the Shupe (ph) method which probably is the easiest to use in write-in situations.
It is the voting machine that has the offices listed vertically in to the left and then the candidates to the right.
It's quite simple to use the write-in process in those because the little door that you lift up to find the paper is just to the left of the office.
And so you just go over then write-in but the more frequently used automatic voting machine has its candidates and officers horizontally across the top and it has a little box some place else where you have to lift up doors to find the place to vote.
You have to correlate a number that's attributed to a specific office and go up some place else on the machine and lift up a door that relates to that number and then write-in your vote.
For this particular year, there's a major problem the little slants where you write-in slant in this direction for a right hand voter and a left handed voter would almost have to stand on his head to get up and write-in on that space.
Justice Potter Stewart: Mr. Young.
Mr. David J. Young: Yes.
Justice Potter Stewart: We're dealing here only with the Offices of President and Vice President of the United States --
Mr. David J. Young: Yes.
Justice Potter Stewart: -- more specifically with the election of Electors, are we not?
Mr. David J. Young: Yes.
Justice Potter Stewart: Not with senatorial or congressional candidate?
Mr. David J. Young: Not in this case.
The final voting apparatus that I would discuss is the coil voting machine.
This will present the problems also because it hasn't -- it's really a tabulating machine as the record shows.
A voter picks up an IBM card, this is later counted by an IBM machine and he puts this IBM card into this tabulating -- into this marking apparatus, a glass plate fits over it and it magnifies the markings on this ballot and then you go through and turn the card around and then when you get to the office that you want to vote for you punch it and it makes a mark on the ballot.
In order to write-in, you have to get that card out of the machine and get it back down and write.
Now, I would be pretty simple to most people but I think a lot of people might not realize how they're going to write with that card inside the magnified apparatus.
Justice Potter Stewart: Where is that apparatus, Butler County?
Mr. David J. Young: Yes, and I think down south in one of the other counties that maybe Sam can tell us later on.
I think that's down the southern counties in Ohio.
What I think that an explanation of these five different kinds of voting devices suggest if the other frustration of trying to mount a statewide voter education campaign of how you're going to go in and exercise the write-in right to vote.
It would be extremely difficult for some people even to accomplish it in many voters with many of the apparatus would have to discuss this with the voting officials and reveal in essence who they're seeking to vote for when they're trying to determine how to use this write-in device on these machines.
The record before the Court indicates that Governor Wallace's supporters have obtained ballot position for him in all 49 states.
He has been certified in a 49 states now and of course if we include the temporary order this would be 50 states.
But for this litigation and that's why it was broad this year, in the Presidential Election Ohio would -- could shamefully alone is the only state in the country denying ballot position to a presidential candidate who could demonstrate sufficient voter support to satisfy any reasonable any qualification requirement -- ballot position requirement established by any state.
We've demonstrated to the Court.
We hope that Ohio's election laws are more harsh and more discriminatory as they relate to the independent and third party candidate and voter than any other state in the country.
Mr. Sikes was doing some computations for me.
When we look through the voting laws in all 47 states where some form of a signature petition was used, the three others -- there were three states.
One of them the convention which used Alabama (Voice Overlap) -- the total requirement in District of Ohio (Inaudible) were signature petitions were used.
The total requirement and this included Ohio of signatures was 1,052,867.
When you subtract Ohio's requirement from this, 433,100 it takes 619,000 signatures using our methods to get on the ballot in 46 states and 433,100 a pretty close to that I figured just to get on the ballot on the State of Ohio and after you get those signatures before the Secretary of State you still can't get on the ballot and we hope to demonstrate that later on.
Just the 15% requirement that we'll be talking about is 75 times higher than the percentage requirement in the State of New York.
30 times higher then the ballot position requirements in each of the average of the each of the five states bordering on the State of Ohio.
Justice Byron R. White: Don't you have to win this point to win your case?
Mr. David J. Young: Which point is that Mr. Justice White?
Justice Byron R. White: The unconstitutionality of the 15%.
Mr. David J. Young: It would be helpful but it seems to me that even if the 15% requirement were held to be constitutional.
There are several other aspects of Ohio's voting laws which would demonstrate their violation of the protection of Equal Protection laws.
Justice Byron R. White: Let's assume those others were bad.
Mr. David J. Young: Let's assume they were not?
Justice Byron R. White: Let's assume they were bad, the other aspects of it, it would still leave to 15%?
Mr. David J. Young: If unfortunately, once you get the 15% you're nowhere in the State of Ohio.
Justice Byron R. White: I know but you didn't get the 15% end of the time, didn't you?
Mr. David J. Young: On -- it didn't know what you say by in time Justice White.
Justice Byron R. White: Will you see to concede now as I read your briefs that 15% would have to be in before the primary?
Mr. David J. Young: There is no statute in the State of Ohio that requires the 15% to be in it any time other than 90 days before an election.
Justice Byron R. White: That's right.
Mr. David J. Young: Now, the sec --
Justice Byron R. White: Did I read you incorrectly?
I thought you agreed that that was a proper interpretation of the law?
Mr. David J. Young: Yes, but perhaps I should explain why the argument is improperly so that in order to get on the ballot as a presidential candidate you would have to have delegates to a national convention elected a primary.
Justice Byron R. White: I under stand that but let's assume all the other provisions about a third party were unconstitutional.
Mr. David J. Young: Yes.
Justice Byron R. White: And Ohio came back and said, but we can see these other provisions unconstitutional but the 15% requirement before the primary is all illegal and this party didn't satisfy that so no relief.
Mr. David J. Young: I don't -- I wouldn't agree because here again I think the mere denial, the first attempt, was an independent nominating petition.
The mere fact that that is denied was taken away from voters in the State of Ohio in 1948 in and of itself would justify relief in this case, it seems to me even if --
Justice Byron R. White: Then you have to get to that, don't you?
If the Court said that the statement was entitle to force candidates to go through to a party, the party process then you would have to win on the 15%?
Mr. David J. Young: Yes, if they said that we must go through a political party process then we would have to show that the 15% is unconstitutional.
I'm satisfied that we can show that to this Court but --
Justice John M. Harlan: (Inaudible)
Mr. David J. Young: That's correct.
Now, we do not suggest to the Court however that because we could get the 15% that it's not a overwhelmingly prohibitive requirement, if he must have some reasonable relationship to a permissible state policy.
Justice John M. Harlan: (Inaudible)
Mr. David J. Young: Yes, although, we would hope to convince the Court that the timing is not the significant factor but rather that no matter when if we would've file those petitions five years ahead of time, five years before this election we still couldn't got known the ballot because there are so many other pitfalls for the new party that that 15% wouldn't have done as a bit of good.
We still couldn't have got on the ballot.
Justice Byron R. White: Yes, but that's based on these other provisions about the party.
Mr. David J. Young: That's correct.
That's correct and the 15% timing is only significant insofar as it relates to those other provisions because if those other provisions didn't exist we wouldn't have to worry about --
Justice Byron R. White: Well, why you would've -- you would've had to worry?
Let's assume if Ohio had said these other provisions are wholly unreasonable we want to apply them to you but you still have to get your petition in before the primary you wouldn't satisfy it.
Mr. David J. Young: Now, I'm not making myself clear Justice White because the Ohio could not have said that.
The law says, the petition must be in 90 days before the election.
Now, if you knockout those other laws, there would be no requirement that it be in on February the 7th, August the 7th would be perfectly satisfactory.
There is no statute in the State of Ohio that requires the 15% to be in 90 days before the primary.
That only comes about if you uphold the other party primary provisions which would be prohibitive against this party.
If you threw those statutes out, the 15%, 90 days before the general election would be satisfactory under Ohio law.
I know it's very complicated but this comes about by an interrelated reading of this statute with the political primary statute.
It's only by inference from the primary statutes that we get this necessity of filing 90 days before the primary.
One could read the laws I suggest the average lawyer for 50 hours and he would never realize that that petition had to be in 90 days with a primary because there's -- unless you understand every single election statute you don't get to that result.
Justice Potter Stewart: But you do concede Mr. Young, do you not that because of the interrelationship and interoperation of the various Ohio election statute the word “election” does mean primary election under Ohio laws, don't you?
It's not attacking this as being unconstitutionally vague or anything like that, are you?
Mr. David J. Young: No, it would mean that election first in some instances.
Let's say we were not attempting to qualify a presidential candidate or some other kind of candidate then that word “election” would not mean primary.
It could mean general election, it could me primary, it could mean special depending on what use you were trying to make of the 15%.
Justice Potter Stewart: But in this case so far as what the requirements of Ohio statute say they are, you're not questioning that they do require the signatures to be filed 90 days before the primary election.
That's one of the things you're objecting to.
Mr. David J. Young: Yes, we concede in this case in order to get on the ballot if they weren't all these other unconstitutional statutes we would've had to file on February 7, 1968.
Yes, no question about that.
The State of Ohio throughout this case and in its briefs that are before the Court at the present time have conceded the motivation, the reason for the adoption of the key statutes that we're concerned about in this case.
As to the legislation, amendments that occurred during -- back in 1948 to 1952 which completely eliminated the right of nomination of independent candidates.
They have stated that independent candidacy is an evil.
And then they explain it's an evil because people end up voting for someone they really shouldn't vote for.
And that these statutes back in 1948-1952 were designed to stamp out that evil to wit independent candidacy.
As to the political party laws, the State of Ohio states that it is a legitimate purpose to prevent third party candidates or third parties from interfering with the chances of the two major party candidates to get a clear cut victory in election.
We concede those motivations also and we do not believe that they withstand the requirements of the Fourteenth Amendment.
We do not believe that these are legitimate or permissible state policies.
Justice Potter Stewart: Mr. Young, we are dealing here of course with the constitutional issue and I suppose you would agree that one wouldn't begin with the Fourteenth Amendment in this case but rather one would begin at least with Section 1 of Article II of the Constitution, wouldn't you?
Mr. David J. Young: Yes and that's why I started out.
Justice Potter Stewart: And with the Twelfth Amendment?
Mr. David J. Young: Yes, Justice Stewart.
Justice Potter Stewart: And what does --
Mr. David J. Young: When I read that Section of the United States Constitution I note that it provides that a state may appoint --
Justice Potter Stewart: Shall appoint.
Each state shall appoint.
Mr. David J. Young: Shall appoint.
Justice Potter Stewart: Shall appoint.
Mr. David J. Young: That's correct.
Shall appoint its presidential electors, our constitutional history tells us that subsequent to about the 1870's that no state has appointed its presidential electors by the legislative body doing so but rather they have appointed their presidential electors by either -- by one form or another of letting the electorate vote for them.
So, when I read that section, I do note that the state could appoint but when I read it in conjunction with what the -- this Supreme Court has stated for example in the Harper case that once a state exercises a constitutional power by delegating that two the voters in the state that that delegation must comply with the requirements of the Fourteenth Amendment of the Constitution of United States.
Justice Potter Stewart: Well, the constitutional provision that you and I now talking about, you didn't -- it goes on and say and it says, each state shall appoint in such manner as the legislature thereof may direct in a number of electors.
You would concede I suppose that the -- a state today could constitutionally provide through its legislature that its electors be named by the state legislature, would you?
Mr. David J. Young: I -- I'm just probably so but as I read this Court's decisions I'm not 100% --
Justice Potter Stewart: Well, we're dealing -- we deal here with a written constitution and then in this respect the constitution is very explicit that says, each state shall appoint in such manner as the legislature thereof may direct a number of electors.
Mr. David J. Young: Certainly, but pardon me --
Justice Potter Stewart: Apparently, they must begin with that, must we, in consideration of the issues before us in this case?
Mr. David J. Young: That's certainly correct.
Now, I did not include in my reply brief but on the day that I had to file it I called opposing counsel and noted that with reference to that argument I should've cited one case by this Court which I feel comes closes to answering that particular contention and I gave the citation to counsel last Friday and that's the case of Katzenbach versus Morgan.
The Court will recall this was the New York case where the State of New York was attempting to uphold its literary test -- literacy test requirement as a qualification to voting and as against the federal legislation the Voting Rights Act which stated that if one attended Puerto Rican schools and went to sixth grade and wasn't taught English that they could not be barred from voting.
Now, one of the arguments presented in that case was the fact that the State of New York by reason of direct constitutional grant, United States constitutional grant had the power to establish qualifications of voters in election for United States -- members of the United States House of Representative and United States Senators.
So in another words, in this instance, the state like a state would be doing it if we're appointing electors was doing exactly what the United States Constitution told it to do.
And I have this real brief little quote here that I think comes very close to answering this requirement.
It starts up by recognizing under the distribution of powers affected by the Constitution.
The state established qualifications for voting for state officers and the qualifications established by the states for voting for members of the most numerous branch of the state legislature also determined who may vote for United States Representatives and Senators and then cites some authorities.
But of course, the states have no power to grant or withhold the franchise on conditions that are forbidden by the Fourteenth Amendment or any other provisions of the Constitution.
Such exercises of state power are no more immune to the limitations of the Fourteenth Amendment than any other state action.
Now, as I read that this Court is saying that regardless of the source of whether the state is regulating the qualifications simply by reason of the reserved powers in the state in the Constitution or because of some constitutional grant of authority like they were doing in the Katzenbach case but still that the restraints of the Fourteenth Amendment still apply.
Justice Potter Stewart: On a Katzenbach case first of all the -- we were dealing I think with an Act of Congress which we don't have here.
And secondly, we were not dealing, I think with this explicit provision of the Constitution not giving permission to the states but saying -- setting forth explicitly how the electors shall be chosen by the states and they shall be chosen, they shall be appointed as the state legislature may direct.
Mr. David J. Young: Yes.
Justice Potter Stewart: Those are two very obvious and evident first blush differences between this case and the Katzenbach case, aren't they or am I mistaken?
Mr. David J. Young: Those are differences I don't see the distinction the same as you do Justice Stewart but certainly they are differences.
It seems to me that that section that you are referring to however does not go on and say, the state shall appoint in such manners it will direct without regard to the protections of such and such and such and such.
Justice Potter Stewart: Well, of course the protections of such and such and such and such didn't exist at the time this was written because they didn't come along with 1860's after the civil war.
But certainly, before the post civil war alterations in the United States Constitution it would've been clear I suppose would it not that under the Second Clause, Section 1 of Article II of the Constitution, you wouldn't have any case at all.
You wouldn't have any argument either, would you?
Mr. David J. Young: Before the Fourteenth Amendment?
Justice Potter Stewart: Before the Thirteenth, Fourteenth, and Fifteenth Amendments.
Mr. David J. Young: I don't think we would have.
Justice Potter Stewart: And so the question is here really, is it not how much if that all the post civil war amendments have modified the explicit provisions of the Second Clause of Section 1 of Article II?
Mr. David J. Young: I'm not sure that that would -- we would have to say modification because I don't read that original provision is saying in such manners they shall direct discriminatory or otherwise and no case of this Court has ever held to my knowledge that simply because of that provision that once the state went forward with their appointment and appointed by way of delegation to the electorate, they could do it a discriminatory fashion.
The old case that we cited by our opponents McPherson versus Blacker, it seems to me even in that case which yes it was after the Fourteenth Amendment.
Justice Potter Stewart: Yes, 1892.
Mr. David J. Young: Went on and indicated that there was no discrimination alleged in that case.
Justice Abe Fortas: Well, isn't that -- do you really want to rest on the argument that you just elaborated based on Katzenbach against Morgan?
I thought your argument was that if the state chooses in effect to delegate this power to the electorate it must then do it on the basis which preserves equal protection rights to all voters that is to say that you once have to take the step of a state choosing who vest this constitutional apart which I read as my brother Stewart does but once a state chooses to vest that in the voters it has to provide that the right should be available to be exercised by the voters on that basis of equality.
Mr. David J. Young: That is precisely our position if I need plenty other answers suggested that was otherwise then I hope you disregard it, that is precisely our position in this case.
Justice Abe Fortas: Well, we were kind of off and left field then weren't we?
Mr. David J. Young: Well, --
Justice Byron R. White: Now, that you're very clear -- now, that you're clear, what's your position is, could the legislature to say to the voters, we're going to delegate you -- we're going to share this power with you but you're not going to get it at all.
We are going to let you choose between -- to choose between the candidate of the Republican Party and the candidate of the Democratic Party.
Mr. David J. Young: And once we conceded that after the state begins delegating to the voters that the Fourteenth Amendment protections apply, that seems to me that kind of delegation clearly must fall because there would not be a legitimate and permissible state policy to limit presidential candidates or presidential electors only to those who in here to the beliefs of the republican or democratic parties.
So, it would be my (Voice Overlap).
Justice Byron R. White: Although the legislature could say, to pass along and say the electors shall be chosen by the legislature of the state that they shall be chosen as between the electors for Democratic Party and the Republican Party and each year, each presidential year the legislature just chooses between the candidates of two parties.
Mr. David J. Young: I feel that would be blatant violation of the Fourteenth Amendment just as much as they said, you must choose between Jewish and Catholic -- members of the Jewish and Catholic religious faith.
I don think there's any justifiable, permissible basis for establishing such distinctions and I think that such a delegation would fall and should fall.
Chief Justice Earl Warren: Can there be any restrictions at all (Inaudible)?
Mr. David J. Young: Any restrictions, we do concede, yes.
We think that the state has indicated by this court in many, many cases the Carrington case and others that it is -- the state has performed the historic function of protecting the ballot, protecting the integrity of its elections, making sure that citizen's right to vote was really meaningful and they had proper methods for voting accuracy and all the rest.
So, we do feel that a state made a place of restrictions on all of these items but that in order to prevail and in order to withstand constitutional challenge that these must be reasonably or rationally related to a permissible state purpose.
I think that in the case at bar -- in the case at bar, counsel and the State of Ohio has said what their purpose in one of the statute says.
Their purpose is to stamp out independent candidacy.
Now, the statutes they adopted was rationally related to that first purpose.
But it seems to me the second half of the proposition fails that that purpose is not a permissible state purpose.
So, that would not -- these are not --
Justice Potter Stewart: Statutes -- well, who's not permissible -- it's not for us of course to judge the wisdom or the policy or the good sense of the Ohio legislature but simply whether or not its action is constitutional and it's not permissible under what provision of the Constitution is my question.
Mr. David J. Young: Of the Fourteenth Amendment of United States Constitution.
Justice Potter Stewart: Which part of the Fourteenth Amendment?
Mr. David J. Young: That which demands the equal protection of the laws.
Chief Justice Earl Warren: Do you think the Due Process Clause of the Fourteenth Amendment has got anything to do with this case?
Mr. David J. Young: As I have framed the case, I have placed it upon the Equal Protection Clause.
Chief Justice Earl Warren: Is that in your brief?
Mr. David J. Young: I have not come up with a theory that would put it into the Due Process category.
It seems to us that the Equal Protection Clause was so applicable here.
Justice Potter Stewart: You don't rely on the First Amendment?
Mr. David J. Young: The First Amendment is significant, it's not a significant to ballot position but it is significant in this whole area because of the free speech right and any -- it seems to us any legislation that prevents organization in free participation of minority parties in the political spectrum interstate can if the regulations are not reasonably related to a permissible state policy and it isn't permissible just to discriminate against them, it's got yet some other reason.
That in that instance if it denied participation which our laws do in Ohio then it seems to me where impairing a free speech rights too.
Justice John M. Harlan: Well, I thought that, from the answer, the right to organize the political purposes would be the essence of the First Amendment or the essence of the thing that you're talking about.
Mr. David J. Young: So do we and we ask why we based the right to organize.
Justice John M. Harlan: That's the thing related to my question.
Did you see or argued in the brief?
Mr. David J. Young: It would seem to us that the First Amendment has brought in through the Fourteenth permits the right to --
Justice John M. Harlan: It accords to what clause?
Mr. David J. Young: The Due Process?
Gives us the right to organize but we want to go further than just organize and just participate.
It seems to me that what we really need in this instance is ballot position and the reason we aren't getting ballot position is because of a -- laws that are discriminatory that do not provide equal protection of the laws and that's why we have based it but certainly this analysis would suggest that perhaps we could've place some more emphasize on the Due Process Clause.
I concede that.
Justice Abe Fortas: Mr. Young, assuming the unconstitutionality of the Ohio statute for whatever reason, the question of relief here I suppose is clearly and obviously difficult to an important one, are you familiar in a general way with the Socialist Labor Parties petition before us?
Mr. David J. Young: Yes, Justice Fortas.
Justice Abe Fortas: Is there -- would you say that there's any distinction between the relief that should be granted in those two cases assuming the unconstitutionality of the Ohio statute and also assuming the facts of life with which we're confronted?
Mr. David J. Young: Yes.
I do see it, it's a very substantial distinction when I explain it, I want to make it perfectly clear that we have no objection to the Socialist Labor Party appearing on the ballot.
Justice Abe Fortas: But I'm trying to get at the theory of this and this it seems to me to be the quickest way to do it.
Mr. David J. Young: Once we start out with the proposition recognizing because of the state historic function in controlling its procedures that it can come up with some reasonable regulation related to a legitimate policy.
It seems to us if we accept that proposition that the state could establish some reasonable requirements preliminary to obtaining ballot position practically every state in the country does this.
Now, if it's a number requirement, it has to be the size of the number has to be carefully scrutinized to make certain that the true purpose and effect isn't just discrimination rather than making certain that we don't have -- I mean we couldn't let every citizen have his name on the ballot.
Justice Abe Fortas: Well, I understand that but we're faced with the practical situation here and I notice what I must say a bit of surprise that in your paper you asked us to direct the Ohio legislature to formulate some sort of requirements that would be lawful and constitutional.
Do you really mean that that this Court should direct the Ohio legislature to do that?
I believe that appears in your reply brief.
And would you -- and is that the way you would as practical matter make the distinction between your case and the Socialist Labor Party case?
Mr. David J. Young: Perhaps the way you've asked the question I would direct them that if they are to be requirements that they'll be reasonable requirements --
Justice Abe Fortas: Well, that's not what I'm asking you, you phrase it in anyway you want to.
Mr. David J. Young: Yes, I do think so.
Justice Abe Fortas: I'm asking you how we go about in making a distinction between those.
Let's assume that Socialist Labor Party has 200 members all told something like that, it's been suggested, and you've got all these members hundreds of thousands of them as a matter of constitutional theory, the function of this Court could we make a distinction and it's so held or what is it that you're asking us merely to say to Ohio that its statute is unconstitutional because it is discriminatory against so-called independent parties and independent candidates.
And therefore, it must grant relief and that -- and the relief ordered is not the relief order to be ordered by the -- this Court is not the relief order merely ordered by the lower court which is a write-in but that the names of the both parties must be printed on the ballot.
Mr. David J. Young: It seems to us that when one brings a case like this before the Court, he must need two objectives.
First of all, demonstrate the unconstitutionality of the legislation as being challenged.
And secondly, demonstrate by reason of principles of equity that the Court should grant equitable relief.
Now, if a party came before the three-judge District Court in Ohio and said, we have one member and we don't want any more members and then one came in with 450,000 signatories on a petition.
It seems to us that a court of equity could make a distinction on these grounds as Justice -- Judge Kinneary did in this case.
His distinction was that this party has demonstrated that it has sufficient voter straight can be any constitutionally permissible number figure.
He did not find that the other party had demonstrated that it could meet constitutionally permissible standards.
Then, the Court of Equity must decide and take it the clearer case the one man party in the 450,000 is at state law that kept this one man party off the ballot or is it just the mere fact that they aren't large enough to be on the ballot.
So, it seems to me that once you concede reasonable number's regulations then it seems to me you get to the proposition that in plaintiffs coming before Court of Equity and asking equitable relief that a judge will look to their strength and to see whether the laws themselves or would kept this party off the ballot.
Justice Abe Fortas: Well, you think -- do you think that the Court should make a judgment as to whether the number of signatures on your petition are appropriate for equitable relief, is that what you're saying?
Mr. David J. Young: That is certainly something that this Court would consider.
I would assume that the facts in the case and whether they have shown to the Court that equitable relief is appropriate and I think the numbers are -- is probably the one of the biggest factors in this case 452,000 signatures.
Justice Abe Fortas: And you don't press your suggestion then that we instruct the -- that we direct the Ohio legislature that we direct this Court, direct the Ohio legislature to enact the -- an appropriate and constitutional law?
Mr. David J. Young: I have no misgivings about this Court directing the Ohio General Assembly to adhere to the United States Constitution in this case anymore than in the redistricting cases, or malapportionment cases or many other cases.
Justice Abe Fortas: You mean you think we have that power and could properly exercise power to direct the Ohio legislature to do that?
Mr. David J. Young: I have no quarrel with that proposition.
Justice Abe Fortas: That's not my proposition, it's yours.
Mr. David J. Young: If it's mine then I champion it.
Justice William J. Brennan: Mr. Young, can you suggest any occasion when this Court has ever directed a legislature, adopt the particular kind of law?
Mr. David J. Young: Well, in effect, it seems to me in the apportionment cases, this Court or upon remand the lower courts the Court have said that no election may go forward until you -- reapportion your areas of some elections have been voided by federal court cases, are set aside because there was not properly apportioned and it seems to me that it was always conditioned --
Justice William J. Brennan: That's all has been done, set aside is not properly apportioned with the suggestion that if it's not coming by the state but then the Court might set up a basis.
Mr. David J. Young: Well, perhaps then and that's exactly what I'm saying.
I'm not playing upon how this Court or any other federal court causes the -- a particular state legislature to accomplish this.
It seems to me that if this Court were to say to the Ohio General Assembly that unless you revise your laws to permit reasonable participation by independent and third party candidates that there can be no elections under those laws.
This in effect is directing the State of Ohio to revise its laws.
This is really what I'm saying and perhaps I should've given that answer to Justice Fortas.
It seems to me that this is as much direction as any other form of direction.
And with the Ohio Legislative Service Commission, these are laws that were adopted back in 1948.
There's no question in my mind right now that upon proper order of the Ohio General Assembly would be delighted to bring its laws up-to-date like the laws of every other state.
Chief Justice Earl Warren: But because of statute was 20 years old, it could've been attacked before July 29th of this year, couldn't it?
Mr. David J. Young: Not, not by our law firm Your Honor.
We were retained on July 23, 1968.
Chief Justice Earl Warren: How about you're being retained then?
I'm talking about the people you represent.
Mr. David J. Young: Well, this puts in a rather funny position when we were in the lower court we had two situations.
We had two cases, one group of plaintiffs attacked the law right away back in January of 1968 without trying to get petitions.
And they were met with the argument, hey, you should've going out and try to get petitions before you came in to court.
Now, on the other hand, we went out and got petitions and came in the Court and they said, you should've filed your lawsuit earlier so no matter which way we went, the State of Ohio, I think --
Justice Byron R. White: When did the State of Ohio say that to you about filing, was there another lawsuit, was there a lawsuit that was filed?
Mr. David J. Young: No, pardon me.
In these laws, we have two lawsuits, the Socialist Labor and the Wallace case.
Justice Byron R. White: Yes.
Mr. David J. Young: The Socialist Labor case was filed in January of 1968.
And ours was filed on July 29, 1968.
So, we have the two extremes that one situation of a lawsuit having been filed early and one in July 29, so it seems to us that there certainly was adequate notice and time to defend in this case.
Justice Thurgood Marshall: Mr. Young, you said that the legislature would welcome an opportunity to take another look at the 48 statute.
Why didn't you file in the state court to give them that opportunity?
Mr. David J. Young: When the time for filing this lawsuit came about the Ohio Supreme Court was not in session.
It has been my personal experience that they are not able to get back as quickly as has been accomplished in this case.
We fear that first of all --
Justice Thurgood Marshall: There were in session in February.
There were in session in February I assume.
Mr. David J. Young: In February, the plaintiffs in this case were attempting to comply a substantially as possible with the Ohio laws.
Justice Thurgood Marshall: Do you have declaratory judgment in Ohio state courts?
Mr. David J. Young: Yes, we certainly do but in this case, in February of 1968 the plaintiffs were operating under the assumption that if they proceeded forward and obtained 15% signatures that they would get ballot position for the candidate.
Justice Thurgood Marshall: It was a wrong assumption.
Mr. David J. Young: If I were in the case then I might have advise them a little differently.
Justice Thurgood Marshall: Yes.
Mr. David J. Young: But at that time there's no question in the world.
But what they were doing was proceeding on the assumption that they could meet Ohio law.
In Ohio law when we say it's a wrong assumption is the most confusing set of election laws that you ever -- I mean it's just utterly impossible almost --
Justice Thurgood Marshall: Isn't that was lawyers are for?
Mr. David J. Young: Please?
Justice Thurgood Marshall: Isn't that was lawyers are for, confused the statutes?
Mr. David J. Young: Sometimes the legislatures win and in this case they did over some.
Chief Justice Earl Warren: Did your clients make any effort to comply with the law other than to go out then they get signatures?
Mr. David J. Young: Yes, there are two early requirements in to get ballot position in a case like this if one uses the new political party technique.
One of them, one has to file or a subversive kind of affidavit and then there's an investigation and hearing to make sure that these people are non-subversives and this was done in this case.
The material was presented to the Secretary of State back in, I think it was May and the Secretary of State conducted an investigation and certified this new political party pursuant to that provision of the law.
Chief Justice Earl Warren: How about the other provisions or qualifications such as the hierarchy of the party in the state?
Did you undertake to fulfill that application?
Mr. David J. Young: The petition that was prepared for circulation in this case did they make provisions for the calling of a state convention and holding of a national convention.
By the same token, it gave alternatives the possibility of delegating the power to call the state convention to three people named in the petition as distinguished from first electing county chairman in all of the counties throughout the state having them to party functionaries.
The petitioners delegated the right to call such a convention to the three people named in the petition.
Chief Justice Earl Warren: The only question was to whether that conforms to a state bar?
Mr. David J. Young: Yes, the Secretary of State would not accept that in this letter.
By July -- no, wait a second, by the middle of July of this year, the petitioners in this case had somewhere between 300,000 and 350,000 signatures and it appeared quite clear to them that they would have no difficulty getting the -- an excess of 433,000.
At that time, a request was made of the Secretary of State of Ohio, if we meet this signature requirement we'll be placed on the ballot.
And one of the things that he noted was that this new party could not call a state convention which would he select electors and the reason he said that they couldn't call a state convention it's because the Ohio statutes require existing office (Inaudible) attendees at the convention who are apportioned based upon this party's vote at the last election and this is what the Ohio laws provide.
So you see, -- he's saying that you haven't had and you aren't going to have a convention and you don't have people that can attend the convention.
Therefore, you cannot certify electors to me.
So, this was one of the reasons provided by the Secretary of State for refusing.
So, he took the position that our form of holding a convention would not satisfy Ohio law.
Chief Justice Earl Warren: Well, I was wondering why it couldn't -- why you couldn't have gone in to the Court though prior to the 29th of July to have these matters determined so that the state would have ample time to either conform to its election laws or to change them?
Mr. David J. Young: Well, first of all it seems to me that we did not have in this case a question of interpretation of state laws.
Once you understand them, they do bar ballot position.
That seems to me that plaintiffs have a decision of whether to seek relief in the federal or in the state court.
Quite frankly, I would have advice in any given time to file a lawsuit such as this before three-judge federal court.
It has been a traditional forum as of late for these kinds of cases and I see no -- since it was not -- since we don't have an interpretation of state law question but really a constitutionally -- validity of state law.
I personally see no objection to the federal court forum.
Chief Justice Earl Warren: When do you conceive the first available date was open to you for the suit that you have here?
Mr. David J. Young: I am in somewhat of a difficult position Justice Warren because we did -- when you say May, we came into the case July the 23rd and filed it six days later.
(Voice Overlap) my predecessors have filed it.
Chief Justice Earl Warren: Yes.
Mr. David J. Young: Well, it seems to me that when they first became convinced that regardless of whether they accomplished this petition requirement or not that they would not get on the ballot.
You see they went for, what they first started out they were organized -- this party was organized in January of 1968.
It recognized that the method of nominating petition had been denied in Ohio.
You couldn't get on the ballot by independent nominating petition; I think it could in other states.
Justice Byron R. White: Well, at that very point, if you wanted to challenge the state's assistance that should be a party rather than an independent candidate you could've filed right then.
I mean that is perfectly fair that you have to be a party, you couldn't petition yourself on to the ballot.
That was clear wasn't it?
Mr. David J. Young: No, question about that.
Justice Byron R. White: And there are also nothing -- there's nothing vague about there being no write-in?
Mr. David J. Young: No question about that.
Justice Byron R. White: So these -- and also there was no question but -- that what if you were going to be a party that you have to be a party and there was no question that you had to get 15%?
Mr. David J. Young: That's correct.
Justice Byron R. White: You could've raised these questions very early.
Mr. David J. Young: I think when you look at the posture --
Justice Byron R. White: Without any confusion whatsoever.
Mr. David J. Young: I don't think -- I think that there would've been as much confusion then as there would've been when we filed a lawsuit but any petitioning group that's trying to accomplish ballot position, it seems to me files itself in the posture of doing everything possible to go about it and getting all the ballot without filing a lawsuit.
I mean this, any candidate throughout the country is really trying to accomplish its political objectives and if they can get on the ballot usually by using an alternate as is the case in many other states.
There are the states that have denied independent nominating petition but turn around and give you a political party method, it's practically the same or it's attainable.
These people apparently thought, I say apparently because I wasn't there then, apparently thought, we can meet the 15% even though it's -- even though it's burdensome we've got our strength to meet the 15% and I assume that's why they went forward hoping that they could get the 15% and get on the ballot and not have to file a lawsuit.
Chief Justice Earl Warren: Well, they did know at the time didn't they that that is in January when they organized the party that they had no officers, they have no officers that would enable and to compile with same law, they knew that, didn't they?
Mr. David J. Young: From what I can be able to -- can gather as they felt that they could --
Chief Justice Earl Warren: No, not what they felt.
Mr. David J. Young: I don't know what they --
Chief Justice Earl Warren: For the law was there -- the law was there and you're attacking it now because you couldn't have complied you say.
Well now, didn't they know that in January as well as you know it now?
Mr. David J. Young: They obviously did not.
Chief Justice Earl Warren: Well, you say they didn't -- maybe they didn't read the statute and I don't know but if you could know it now they could've known it in January, couldn't they?
Mr. David J. Young: It certainly was knowable at that time.
Chief Justice Earl Warren: I beg your pardon?
Mr. David J. Young: It was knowable.
Chief Justice Earl Warren: It was knowable as you say, yes.
Mr. David J. Young: Yes.
Chief Justice Earl Warren: Well, do you think that they have a right to proceed after that without any effort to meet that portion of it or nor to complain about it for a matter of six months until July 29?
Mr. David J. Young: My only answer can be is that they felt that they could meet substantial compliance with the statutes.
They went forward full steam ahead when they learned that even with substantial compliance that they wouldn't get on the ballot.
They filed a lawsuit as timely as possible.
They filed a lawsuit in sufficient time to allow the Court to adjudicate this case.
The case has been able to come all the way up to the United States Supreme Court in time to grant relief.
Justice Stewart was able to order temporary relief without disrupting the Ohio ballot.
So, true, the lawsuit is late but is it late solely that 400,000 voters in Ohio's right to suffer should be denied.
I agreed that the lawsuit is late but I don't think it's too late to -- I don't think relief should be denied just because these people didn't file earlier.
I don't think the Doctrine of Laches would be applicable when we're talking about the voting rights of an excessive 400,000 citizens in Ohio.
Justice William J. Brennan: Well, these in light of the fact mean that under Justice Stewart's order there is in fact an existence the ballots which contain the designation.
Mr. David J. Young: Yes.
Justice William J. Brennan: Unless for other reasons that designation should be deleted.
Mr. David J. Young: Yes.
Justice William J. Brennan: Your point is that Laches can't defeat your right to have the designation in the ballot.
Mr. David J. Young: Yes, it seems to me that's precisely yet.
I having found this lawsuit late made a difficult for my friend Sam Lopeman to defend it I'm sure.
But I don't think that the rights of any Ohio citizens have been prejudiced because temporary relief has been granted much later than that.
So, we feel when you look at this case as question of the rights of 400,000 -- 450,000 voters the Doctrine of Laches would not be applicable.
If I could, I'd like to reserve just a couple of minutes for rebuttal.
Chief Justice Earl Warren: Certainly.
But may I -- did I understand you to say that you have tendered these petitions to the election officials and they refused to consider them?
Mr. David J. Young: Yes.
I myself and I question into the case I have a writings communicated with Ted Brown, Secretary of State and I said, we have petitions if we give you sufficient number, will you put him on the ballot and they said, no.
The only other --
Chief Justice Earl Warren: Well, would you state again please.
Mr. David J. Young: Pardon.
When I came in to the case, --
Chief Justice Earl Warren: Yes.
Mr. David J. Young: -- I notified the Secretary of State of how many signatures we had that we could meet the requirements and that if we presented those petitions to him, would he provide ballot position.
He wrote back and said, no.
Then, we had the quandary, what do we do with these petitions?
We notified opposing counsel that we have them, that we have them in our offices and, did they want to inspect them?
They did not.
We turned them over to a Certified Public Accountant who could attest to the accuracy of the numbers and no duplications and they have been in storage ever since.
Chief Justice Earl Warren: Well, you may have five minutes additional to finish and counsel may have additional five minutes also.
Mr. Lopeman, you may proceed with your argument.
Argument of Charles S. Lopeman
Mr. Charles S. Lopeman: Mr. Chief Justice, Mr. Justices of the Court, may it please the Court.
At counsel table with me is Alan Schwartz, a member of the bar of the State of New York.
First, I would like to clear up a typographical error that appears in our brief on page 19.
The error was discovered too late to change.
It was discovered while the messenger was delivering these briefs to the Court and he misunderstood the direction.
On page 19, it should be November 1967, the 1968 should be crossed out and November should be left instead of 1968 being crossed out.
Chief Justice Earl Warren: 1967?
Mr. Charles S. Lopeman: Yes, and this is required by the District Court's opinion at page 16.
Although, appellant does not make the argument today here in oral argument that the appellee must cross appeal if he would question the basis on which the lower court decided a case.
Some suggestion was contained in his reply brief to that principle.
We would only cite the Court to these cases LeTulle versus Scofield 308 United States 415, Lucas versus Alexander 279 United States 573, and the Langnes versus Green 282 U.S. 531.
Justice John M. Harlan: What was your first citation?
Mr. Charles S. Lopeman: LeTulle versus Scofield 308 U.S. 415.
Justice Hugo L. Black: What point do you cite them on?
Mr. Charles S. Lopeman: The proposition that an appellee may argue any -- may use any argument to support in order of a trial court even if that order is -- even if the argument is inconsistent with the basis for the order.
The Ohio election laws require that a candidate for president must be nominated by a national political convention to which delegates have been selected in an Ohio primary.
In Ohio, in order to qualify as a primary -- as a new political party, the group seeking to qualify must present signatures of 15% of the total vote of those voting in the last gubernatorial election.
These requirements reasonably protect a valid state interest.
As we point out in our brief, at any given time there's a substantial number of disaffected people, disaffected with the candidates or the programs of the two major parties.
This group is obviously issue oriented and by signing an independent nominating petition, they are at most expressing some adherence to a principle.
In the interest of preventing any would be candidate or leader from coming in and grabbing this group without a contest.
The Ohio law requires that the candidate submit himself to a primary election.
This gives the disaffected, this more or less cohesive group the right to choose its candidate just as the primary laws give the members of the republican and democrat parties the right to choose their leader.
The 15% required dovetails with this primary requirement by preventing a would be leader from coming in circulating qualifying petitions obtaining only a few numbers and thus limiting those who would vote in the primary to those signing.
Of course, he would select the people who would be expected to support his candidacy.
Another would be leader with parallel political philosophy might be deterred by the initial filing from filing another qualifying petition.
This would -- the requirement that a primary be held supports the logical state interest in preventing a disaffected group from splintering itself.
It prevents -- it aids the disaffected in reasonable go of remaining to some extent cohesive.
So, they might be affected and in addition, the state has an interest in knowing the extent of the disaffection so that it may accommodate this disaffection within the system if that is possible.
Justice Thurgood Marshall: Mr. Lopeman, what interest does the state have in preventing splintering of a political party?
Mr. Charles S. Lopeman: Because the splintering distorts Your Honor the effect and weight of the disaffected group by --
Is the state interest is in political parties or the voters?
The state is interested at both political parties and voters but also it's in --
Justice Thurgood Marshall: Well, if a group of voters want to leave a party and to use your word splinter, they don't have that right in Ohio.
Mr. Charles S. Lopeman: I'm sorry, I did not mean splinter from a party, it splinter from the initial candidate that has filed to accommodate himself to the disaffection.
The state has an interest in maintaining the disaffection in such a form that it's not distorted, it's not splintered but this is not the party, it's the disaffected group.
So the state may know the extent of the disaffection.
Justice Thurgood Marshall: You really don't want third party?
Chief Justice Earl Warren: May I ask you this, in what sense do you use the word “disaffection”?
Disaffection from what?
Mr. Charles S. Lopeman: Disaffected from the two major qualified parties or any number of qualified parties.
Chief Justice Earl Warren: Well, it isn't necessary a disaffection, is it?
Isn't it a determination on their part to have a candidate who supports their views?
We don't start with the premise do we that because a man doesn't want to be a republican or a democrat that he's disaffecting, do we?
Mr. Charles S. Lopeman: That's true Your Honor and we -- in the State of Ohio would seek to preserve the right of these people to select their candidate.
But we also want to prevent any would be candidate from coming in and grabbing the support of the whole group just because he's first.
That is the interest that the state seeks to preserve through the primary requirement in the 15% requirement.
Justice Hugo L. Black: May I ask you, if the state takes a position that it is now impossible or would interfere or interrupt to regular elected process to grant the relief which these people asked?
Mr. Charles S. Lopeman: It would certainly provide an interruption but more significantly it would --
Justice Hugo L. Black: Well, what I want to know is just that, limiting to the question whether it is now practicable and reasonable for the state to permit the voters to consider this party along with the others.
Mr. Charles S. Lopeman: Yes, Your Honor.
Pursuant to Mr. Justice Stewart's temporary order, the state has put itself in a position that it can comply with an order of this Court.
Justice Hugo L. Black: So that that question is not to bother us one way or the other?
Mr. Charles S. Lopeman: That's correct.
In this case, it is not.
Justice Byron R. White: So, it's just in this one case?
Mr. Charles S. Lopeman: Yes, Your Honor that's correct.
Justice Byron R. White: That the others should be otherwise in the case?
Mr. Charles S. Lopeman: Certainly.
Justice Byron R. White: Yes.
Justice Potter Stewart: But Mr. Lopeman, I suppose we should be bothered by the urgency of this matter, should we not?
Can you tell us to the point of view simply of the mechanics of the states carrying out its -- in state officials carrying out their duties in order to run a proper election in the State of Ohio including absentee voters and sick voters and military votes, overseas and so on.
How soon the state will need to know the decision of this Court whatever it may be in order to carryout the (Voice Overlap) Ohio election.
Mr. Charles S. Lopeman: Oh!
Clearly Your Honor as quickly as this Court can decide but I would say that if -- that if a decision is made by the 15th of October, it is my understanding that the state can comply with the order whatever it is.
Justice Potter Stewart: That's a week from today?
Mr. Charles S. Lopeman: Yes, Your Honor that's correct.
Justice Potter Stewart: A week from tomorrow, I guess.
Mr. Charles S. Lopeman: The three-judge court found that probably as early as 1964 and certainly by November 1967 the appellants had been fully briefed by the Secretary of State and as to the requirements for ballot position in Ohio.
Consequently, that the appellants had adequate time after November 1967 to file a declaratory judgment action questioning the Ohio statutes which they feel are invalid.
And if that had been done and if these statutes have been determined to be invalid there would have been time for the Ohio General Assembly to reconsider the laws and amend them to comply with any order which would hold -- which would've held these laws invalid.
It would've preserve the requirement of a primary by one man or another or in the alternative the Court could've adopted a procedure for this one election which would've satisfied all the objections that they might have found in the Ohio election procedure.
Justice Abe Fortas: Mr. Lopeman, as I understand your adversary's position and maybe I'm wrong about this, it is that nobody can comply with this Ohio statute.
Let us say no third party or independent party or independent party candidate can comply with it regardless of when the party starts since were.
Now, has anybody ever complied with it, has there ever been a third party or third -- or an independent candidate for president on the Ohio ballot since the adoption in this statute?
Mr. Charles S. Lopeman: No, Your Honor there hasn't.
Justice Abe Fortas: And is it -- do you concede that as a practical matter it would be impossible to comply and do you say that nevertheless the Ohio statute is defensible, is that your position?
Mr. Charles S. Lopeman: No, Your Honor, the State of Ohio does not maintain that it is impossible.
We firmly believe that it is possible to comply with the requirements but nevertheless pursuant to the authority of Article II, Section 1, Clause 2, the State of Ohio is given plenary power to establish -- to appoint presidential electors in any manner it may direct.
Justice Abe Fortas: Well, so let me see if I clearly understand this now.
Your position is that even if it were impossible to comply to get a third party or an independent candidate on the ballot, it's Ohio's position that Ohio is still constitutionally justified in imposing such prohibition, but that you also argue that as a matter of fact it is possible to comply with the requirements of the Ohio statute, is that right?
Mr. Charles S. Lopeman: That's correct, Your Honor.
Justice Abe Fortas: Well, the lower court found to the contrary, did it not?
Lower court found that there could not be compliance with the Ohio statute or do I misread the opinion?
Mr. Charles S. Lopeman: We have trouble with the order of -- the decision and order of the lower court and I do not believe that order is clear what findings they did in fact to me.
Justice Abe Fortas: I'm not entirely clear on it myself and I wondered if -- and you say that you don't know whether there is a specific finding to that effect.
Mr. Charles S. Lopeman: We don't believe so but again there is some ambiguity.
Chief Justice Earl Warren: May I ask you this if you say there -- that you think there is no limitation upon the state whatsoever by reason of that Section of the Constitution, would you say that the State of Ohio could provide that no one could file in the state except democrats for instance instead of just saying nobody could file except democrats and republicans, could they limit it to democrats if they wanted to do it without constitutional invalidity?
Mr. Charles S. Lopeman: The question of the extent of the power of Article II is -- has not been decided because of the dearth of cases considering this.
However, it is not our position that the exercise of Article II power was -- is without any limitation at all.
We recognize that the state must comply with constitutional commands specific constitutional commands but the thing that we argue --
Chief Justice Earl Warren: What constitutional command?
Mr. Charles S. Lopeman: The constitutional -- the commands of the First Amendment as it is -- as it applies to the state pursuant to the Due Process Clause of the Fourteenth Amendment.
We -- the State of Ohio --
Chief Justice Earl Warren: It's equal protection?
Mr. Charles S. Lopeman: Equal protection after -- well, first, the state is not -- the state legislature is not required to have an election and that is clear after McPherson versus Blacker and this was affirmed as recently as 1951 in Ray versus Blair in this Court.
But if the Court -- if the state legislature is not required to have an election at all when it does have an election --
Chief Justice Earl Warren: Mr. Lopeman, you may continue your argument.
Mr. Charles S. Lopeman: Thank you Mr. Chief Justice.
When the argument broke for the luncheon recess, I was considering the application of the Equal Protection Clause to the Article II powers vested in state legislatures.
We agree that the Equal Protection Clause may very well apply some limitation to the power of the state legislatures to direct the appointment, the manner of the appointment of presidential electors.
We believe that that power may be limited in such a respect that the state legislatures could not disqualify anyone from being an elector on the basis of race.
However, no claim has been made that the Ohio procedures violate these kinds of equal protection guarantees.
We do deny however that there is any limitation on the legislature's power based on the principle that electors should be chosen on the basis of popular support of candidates.
This -- the McPherson case recognized and appellants can see that the legislature has the right to appoint electors.
When the legislature does appoint directly, it cannot appoint on the basis of popular support for the simple reason it doesn't know the popular support, no election having been had.
The argument is could be made however that once an election is held that some other kind of equal protection limitation suddenly appears.
Equal protection is not particularly applicable to elections.
It applies equally to the legislature when it appoints directly or when it holds an election.
There's no reason in --
Chief Justice Earl Warren: On the question of equal protection, do you make any distinction in these two cases that were hearing argued today?
That is in the result to be achieved that one could prevail and the other could lose?
Mr. Charles S. Lopeman: Not on the equal protection, Your Honor.
Both must fail on the equal protection because equal protection is not applicable.
However, in a situation where there is no right to have a vote but a vote is nevertheless had for example, the situation in Georgia where the -- this Court in Fortson held that there is no constitutional right for the governor of a state to be elected by popular election.
Nevertheless, Gray would suggest that there is some kind of limitation based on equal protection that applies to this situation.
However, this other kind of equal protection is not representative government for if it were, how can this Court explain Fortson when although the election was not required to be held.
When it was held, this Court allowed the legislature to disregard the result of that vote and select the candidate receiving the least popular votes.
Chief Justice Earl Warren: Then you don't concede that if Ohio provides for an elected process to get on the ballot for the presidency that that must be in accordance with the equal protection?
Mr. Charles S. Lopeman: No Your Honor, I'm not saying that I'm saying that there are, there may be some requirements --
Chief Justice Earl Warren: Would you think the opposite -- do you say the opposite that they are not required to honor or to equal protection if they have an election?
Mr. Charles S. Lopeman: They are required to honor some of the guarantees contained an equal protection race, religion, belief but they are not required to hold the election on an equal protection basis of representative government or any theory that the electors chose unless be the result of popular support of the candidate because in the Fortson versus Morris case it's impossible to reach that result.
The election was held, the -- this Court allowed the legislature of Georgia to select the candidate not receiving the most popular votes.
Representative government in this situation such in dissimilar, analogous situation of the right of the legislature to select presidential electors and the additional provision that they need not have an election requires that if an election is held it has to meet certain constitutional equal protection safeguards.
We cannot discriminate against the voter.
We can only discriminate against the right of the voter to have his candidate, have a chance to win which is exactly what happened in the Fortson versus Morris case in this Court.
Going back to the reasonableness of the laws of Ohio we would suggest an additional reason for the requirement that a primary be held and the requirement of 15% support and that is the experience in Ohio in the years 1944 and 1948 and the presidential electors -- elections in those years.
The elections were very close in both years.
A third party by taking support away from one of the two major parties who had a chance to win the election could distort the result of the election in Ohio by giving the entire electoral votes of Ohio to the least popular candidate.
Chief Justice Earl Warren: Why couldn't that happen in any state, in any state where you had three parties?
Mr. Charles S. Lopeman: There's no question it can Your Honor and we believe that any state can provide against that.
Chief Justice Earl Warren: Therefore you limit it so that nobody but democrats and republicans can contend with each other?
Mr. Charles S. Lopeman: The state legislature pursuant to Article II has not limited that but has provided that in order to participate, there must be a showing of the possibility of substantial political effectiveness, that's the 15% requirement.
It's a balancing by the state of the competing interest, one, the interest in not distorting the popular vote of those who may win and giving some voice to the party that may be effective though it can't win.
Justice Hugo L. Black: Would you defend the Act if it said 60%?
Mr. Charles S. Lopeman: That is a legislature -- legislative problem Your Honor and of course I would defend it if the legislature passed it but that is certainly not a judicial question that can be answered.
There are no constitutional standards.
Justice Hugo L. Black: Why isn't that if we have a right to any of it, that is the question of equal protection, the question of balancing equity as to see whether they have disturbed or setup too much, --
Mr. Charles S. Lopeman: Because --
Justice Hugo L. Black: -- why wouldn't the legislative -- a judicial question?
Mr. Charles S. Lopeman: Because Your Honor the court -- the legislature is not required to have an election at all and when it does --
Justice Hugo L. Black: Suppose it said they can have election by another party who had 95 -- they get 95% of the people on the petition.
Mr. Charles S. Lopeman: It would still be our position that Article II, Section 1, Clause 2 authorizes the legislature to have that kind of requirement.
Justice Hugo L. Black: Then you would say that equal protection does -- the clause does apply?
Mr. Charles S. Lopeman: Some parts of the Equal Protection Clause apply.
We could not disenfranchise voters from voting in the election.
This would be Gray versus Sanders.
We have to give the Wallace people or any other people the right to vote in the election if we're having it.
All we can do is control the candidates who are going to be submitted for the reason that we have the absolute right to make this election ourselves in the legislature.
Justice Hugo L. Black: Do you say the state has absolute right to appoint who the legislature and has the absolute right to say that there shall only be two parties in the state?
Mr. Charles S. Lopeman: For the purpose of selecting presidential electors?
Justice Hugo L. Black: Yes, that's what I mean.
That's right, that is the extent of your argument, isn't it?
Mr. Charles S. Lopeman: Yes, Your Honor, that's correct.
Justice Hugo L. Black: On this point?
Mr. Charles S. Lopeman: Yes.
Justice Hugo L. Black: But you don't have to have it, didn't you?
Mr. Charles S. Lopeman: No, that's correct.
Justice Abe Fortas: Mr. Lopeman, is there a distinction between the right of a candidate to appear on the ballot, have his name appear on the ballot and the right of a political party?
Now, there is in the Ohio election law as I read it, there are elaborate requirements for a party to appear -- to get its name on the ballot as to have a primary and so on.
And it has seem to me perhaps to be arguable that there is a reasonable distinction between what a state may do with respect to requiring a political party to qualify on the one hand and allowing an individual candidate to qualify on the other hand.
For example, when the other case is before us a California -- a California case I noticed that they have separate procedures for qualifying a candidate you say, he can be placed on the ballot by receiving a certain number and a relatively modest number as I recall it of a signatures but a political party for a political party in California has more onerous requirements.
Now, the order that has been in or pending final decision in this case provides that Ohio shall show -- enter on its ballot.
Both the American name of the American independent party and the name of Mr. Wallace and his vice presidential candidate would point to them asking about is whether the -- it is or you would make any argument to the effect that the Ohio requirements are certainly valid and reasonable with respect to a political party, do you see even though we might conclude that they are not reasonable and constitutional with respect to the qualification of an individual as a candidate or his electors?
Mr. Charles S. Lopeman: No Your Honor, I do not believe there is a distinction based on the power of Article II and the plenary power that the legislatures have whether or not it's an individual candidate or a party (Voice Overlap).
Justice Abe Fortas: Well, I understand that argument but on the other hand if you assume that the state's power has to be exercised reasonably.
I know you don't make that assumption in one leg of your argument.
But if we should arrive at the conclusion that the state's power has to be exercised reasonably, is it possible to say that the -- on analysis of the Ohio law is that state is exercising its power reasonably with respect to a political party but arguably not reasonably with respect to the candidate?
Mr. Charles S. Lopeman: No Your Honor, we believe that the State of Ohio was acting reasonably with respect to the candidate too for the reason that the state has a legitimate interest in protecting against the distortion of the popular vote against the two candidates having a chance to win.
Justice John M. Harlan: Is there any way that an individual can get on the Ohio ballot except through the party rule?
Mr. Charles S. Lopeman: A presidential candidate, Your Honor?
No, there is no way that a presidential candidate nor his electors can participate in the presidential election in Ohio except through a party primary and a party ballot.
Justice Potter Stewart: Mr. Lopeman, I have so much more practical and mechanical sort of a question.
The interim relief that I granted last month as I remember required the State of Ohio for the time being to put on the ballot the names of the American Independent Party and George Wallace and a man by the name of Griffin.
Well now, I read the papers every now and Griffin wouldn't seem to be the right name now, would it?
Would this require reprinting whatever the Court's decision is in this case?
Mr. Charles S. Lopeman: I think of that question we're better be left to cancel -- counsel for appellant because I don't know what they're doing.
Justice Potter Stewart: Well, it's a -- some importance I suppose that we tried to know what --
Mr. Charles S. Lopeman: Let me say that if the Ohio ballots are required to be reprinted with the different name for vice president, we are now too late to accomplish the result.
It is too late; we are too far down the road to change the ballot to that extent.
The ballots have been printed and put in a preparatory form to comply with any possible order of this Court pursuant to your order but we can't come up with a new name.
Justice Potter Stewart: And the name on there if for vice presidential candidate is Griffin, is it not?
Mr. Charles S. Lopeman: That's correct.
Justice Byron R. White: As I understood it, it was right?
Mr. Charles S. Lopeman: It's pursuant to Mr. Justice Stewart's order.
Justice Byron R. White: I know but it's a matter of fact --
Justice Potter Stewart: That's right.
Justice Byron R. White: -- he is the vice presidential candidate, is he?
Mr. Charles S. Lopeman: So far as we know.
Justice Byron R. White: Well, I guess he is for purposes of the independent party and -- in Ohio.
Those electors if Mr. Wallace carried the State of Ohio the electors would have to go to the Electoral College and vote for Mr. Griffin?
Mr. Charles S. Lopeman: Well, that that is another question Your Honor.
We feel that probably the presidential electors once they are chosen are not bound by names appearing on the ballot but we admit we don't know the answer to that question.
Justice Byron R. White: Well, you don't think Ohio electors about?
Mr. Charles S. Lopeman: We don't know the answer.
This Court has not decided it, we don't know.
Justice Byron R. White: What is the Ohio law say though?
Doesn't the Ohio law purport to bind electors to vote for the candidate of their party?
Mr. Charles S. Lopeman: Only as of the time they're nominated by convention which is another thing --
Justice Byron R. White: Do you think under Ohio law an elector maybe free to vote in the Electoral College for anybody he wants to?
Mr. Charles S. Lopeman: An elector may be free, yes.
Justice Hugo L. Black: Couldn't be punished by anyone?
Mr. Charles S. Lopeman: No, we -- well, there might be --
Justice Hugo L. Black: You can carry out that binding stipulation?
Mr. Charles S. Lopeman: Yes, that's correct Your Honor.
Although, it may be a provision of state law I guess we feel that there is a serious question about its enforceability.
We base --
Chief Justice Earl Warren: In what respect?
Mr. Charles S. Lopeman: The conflict of possible conflict between the rights, duties and authorities of electors under the federal constitution and the rights of -- and the requirements of law binding them.
Justice Potter Stewart: Well, that was decided in Ray against Blair, wasn't it?
That question if I understand the question you're raising.
That was the case and which Alabama did require by state law that the electors vote for the national candidates of their party and this Court in Ray against Blair and opinion by Mr. Justice Reed and all of that did not violate either Article II, Section 1 or (Voice Overlap).
Mr. Charles S. Lopeman: Yes, that's correct.
Justice Potter Stewart: But is there a provision of Ohio law which purports to require electors pledge to a certain presidential candidate to vote for him?
Mr. Charles S. Lopeman: I've been advised by my co-counsel that there is a requirement by such a requirement Ohio law.
It was one with which I was not familiar.
We've based much of our case on the authority of Article II but even if it does, it didn't exist appellants could not prevail on this appeal.
Although, one man, one vote is an applicable standard for judging legislative apportionment cases.
It does not answer the questions raised by the interrelationship and the interaction of third party candidates in presidential politics.
History shows us that third party candidates do not win presidential elections in Ohio.
Chief Justice Earl Warren: What was that statement you say just now?
Mr. Charles S. Lopeman: History shows us that third party candidates do not win the presidential electors in this country.
Chief Justice Earl Warren: Well, do you mean because they haven't that they should be prohibited from doing it?
Mr. Charles S. Lopeman: The question I would suggest Your Honor is, is this Court prepared to make the judgment that they can or they cannot?
Again, this is a problem that this Court faces.
Chief Justice Earl Warren: Don't we rather face the question as to whether the State of Ohio can limit the elected process to as between republicans and democrats alone without the right of a citizen to vote for anyone else but one of those two parties?
Mr. Charles S. Lopeman: The question isn't the right of the citizen to vote -- the right of the legislature to place qualifications in the in the path of one seeking to be in the ballot.
Chief Justice Earl Warren: And why do they do that?
Why do they have that right to afford people the opportunity to vote, do they not?
Mr. Charles S. Lopeman: Yes, they do.
Chief Justice Earl Warren: For the person of their choice?
Mr. Charles S. Lopeman: That's correct.
Chief Justice Earl Warren: And do they have the right to limit it to republicans and democrats?
Mr. Charles S. Lopeman: Yes Your Honor, they do pursuant to Article II.
Chief Justice Earl Warren: Could they limit it just to democrats?
Did they want it too?
Mr. Charles S. Lopeman: Yes, insofar as they could not have election, they can limit it --
Chief Justice Earl Warren: No, no, no, no, could they have election as we have here but although we don't care to have the republican's vote in the state we'll limit it to democrats alone, could they do that?
Mr. Charles S. Lopeman: Well, that case is not before this Court.
Chief Justice Earl Warren: No, it isn't before us but --
Mr. Charles S. Lopeman: But the state certainly doesn't do that and there may very well be some First Amendment guarantee which would apply, which would prevent the state from doing that.
Chief Justice Earl Warren: Well, let me put it this way then.
If they can limit it to two parties, why can't they limit it to one?
Mr. Charles S. Lopeman: They can't, that's our position.
Chief Justice Earl Warren: Alright.
Mr. Charles S. Lopeman: The effect on the electoral process of third parties lies in the territory of a cohesive minority can exert over major parties.
Does the standard of representative government require that a tyrannical minority can sway and affect the positions taken by major parties, and is this good or bad?
Justice Thurgood Marshall: And just restrict it to tyrannical minorities or not?
I'm using your words now.
Mr. Charles S. Lopeman: This -- no, I didn't use the word “radical” but --
Justice Thurgood Marshall: You said, “Tyrannical.”
Mr. Charles S. Lopeman: Tyrannical.
Justice Thurgood Marshall: Yes.
Is it restricted to tyrannical minorities or all minorities?
Mr. Charles S. Lopeman: The question the Court faces is whether it's restricted at all.
The Court must answer whether there's any standard by which it can --
Justice Thurgood Marshall: You used the word “tyrannical” minorities that one I was talking about.
Mr. Charles S. Lopeman: That's correct.
Justice Thurgood Marshall: But number two, I asked you, is it restricted to that order?
Are you trying to stop tyranny or you're trying to stop minorities from voting?
Mr. Charles S. Lopeman: We're trying -- I think the state is reasonably trying to stop the exercise of a tyranny by minority parties on major parties for example, in Israel --
Justice Thurgood Marshall: Let me get you straight, a minute ago you said, history shows that no minority party has ever won.
And five minutes later, you're arguing about the tyranny of minority party.
Are you talking about the same minorities?
Mr. Charles S. Lopeman: Yes.
That's correct Your Honor.
Justice Thurgood Marshall: So, they never won but still there's tyranny?
Mr. Charles S. Lopeman: That's correct Your Honor and a good example --
Justice Thurgood Marshall: That's interesting.
Mr. Charles S. Lopeman: The good example -- a good example is the situation that we know exists in Israel a very small --
Justice Thurgood Marshall: Israel?
Mr. Charles S. Lopeman: Yes, Your Honor.
And if it can exist in Israel today it could've existed in Ohio in the early 1950's, a small religious party in Israel requires the two major parties to conform with its religious philosophy --
Justice Thurgood Marshall: There's a little difference in government, people, area, etcetera of Israel and United States.
Let's talk about the United States.
Mr. Charles S. Lopeman: It would be the same if this kind of thing happened in the State of Ohio and what I'm suggesting is this Court does not have a standard to answer the question whether this is good or bad.
And certainly, the standard of representative government does not answer this question.
Justice Thurgood Marshall: We still have Fourteenth Amendment and First.
Mr. Charles S. Lopeman: Representative government does not, cannot answer this question whether a tyranny --
Justice Thurgood Marshall: I think that Fourteenth Amendment of Due Process can argue -- can answer the question to whether you can restrict the right to vote to one political party.
Wouldn't you agree?
Mr. Charles S. Lopeman: Not for presidential electors, Your Honor.
The Article II power would exclude the right to make this restriction.
Justice Thurgood Marshall: So, if in 50 states they decided that only democrats can vote republican be rather out of business, would it?
Mr. Charles S. Lopeman: Well, the answer --
Justice Thurgood Marshall: Wouldn't they?
Mr. Charles S. Lopeman: Yes, that's true but the answer to this kind of unfairness in the legislature is electing a new legislature and when the legislature is elected by one man, one vote we can be reasonably sure that this kind of thing will not happen.
Finally, where do we get the idea the representative government applies to presidential politics when the whole process is not representative.
The electors are selected in the states as a unit.
The popular vote frequently differs from the electoral vote and certainly there's no mathematical coalition.
Again, one man, one vote does not apply.
There is a further distortion by the provision that each state gets two electoral votes for each senator, thereby, increasing the representation of the smallest state over the larger states.
If there is no majority in the Electoral College and the election goes to the House of Representative the winners are decided on the basis of each state having one vote and this is certainly over states or over emphasizes the political representation of the smallest states.
And finally, they -- the Electoral College may choose or the House of Representatives may choose among the three highest candidates.
It is not limited to the highest.
So, the value of one man, one vote doesn't apply.
Since it is not a part of the system, since the electoral collegiate principle does not include representative government why must we say that any one part of it must.
For these reasons, one that the Ohio -- that the Ohio General Assembly has given broad clarity power pursuant to Article II for the question that this Court really doesn't have standards to answer the questions involved in the interrelationship between third parties and presidential politics.
For the reason that the Ohio laws are reasonable and are reasonably designed to accomplish a valid objective.
And finally, that the cases in this Court show definitely that although when an election is not required to be held, if it is held it must have some fairness but that does not include the right to maximize or equalize the chance of the voters candidate winning and I again emphasize Fortson versus Morris for these reasons, this Court should affirm the order of the United States District Court.
Chief Justice Earl Warren: Mr. Lopeman, will you tell me please what the petitioner should have done in order to comply with your law prior of the time he brought this action on the 29th of July but did not do?
Mr. Charles S. Lopeman: Yes, Your Honor.
First, if --
Chief Justice Earl Warren: Would you list them please.
Mr. Charles S. Lopeman: -- if this petitioners had questions about Ohio election laws, these other laws that have been referred to.
First, let me say that they do not relate to third parties.
The District Court did not find they're related to third parties.
The Ohio Supreme Court in Beck versus Hummel says that the Ohio election laws will be liberality construed and that this Court should probably not consider initially the constitutionality of the election laws not considered by the court below.
If they had questions about these laws, they should've filed the declaratory judgment action sometime prior to February of 1968.
Further, if they were clear about what the laws required they should've gone out and gotten signatures on their petitions prior to the filing date which was sometime in February 1967 to qualify their party as a political party in Ohio.
At the same time, they could've encouraged people who were signing these petitions to run for county committees and state committees.
Justice Byron R. White: Do you have to go that far now even if the rest of the provisions are invalid, they didn't satisfy that very personal, don't you not?
Mr. Charles S. Lopeman: That's correct Your Honor.
But I was just outlining the procedure that they should've followed if they had done everything that need be done.
Justice Byron R. White: That's not the point.
How about the point that made -- that the best of these cases were invalid, it doesn't have that motion to file (Inaudible)?
Is there section in the rank in between these provisions that if these other provisions were invalid the name was -- wouldn't have to be filed until 90 days before November whatever the date is?
Mr. Charles S. Lopeman: If the requirement that a party in Ohio must have a primary, a party primary to get on the ballot then clearly they would've had to file the petitions sometime in February 1968 because it would be impossible for a party --
Justice William J. Brennan: No, but hypothetical is that the provision requiring a primary in the Ohio law is unconstitutional.
If that were true if we were to conclude that it was unconstitutional, what then of the fact that they did actually get the 15% of signatures but they did not get them until after that February date?
Mr. Charles S. Lopeman: Well, that certainly unreasonably delayed and then necessary delayed their action.
Justice William J. Brennan: Because as I understand your adversary he argues that if all these provisions keyed to the primary are unconstitutional.
Now, then the 15% requirement should be read as satisfied so long as the signatures be collected 90 days before the general election.
Mr. Charles S. Lopeman: Well, insofar as the District Court did not consider these questions did not decide they were unconstitutional.
It's not for this Court but as a representative of the Attorney General of Ohio.
I'm telling you that these requirements other requirements of law fairly read do not deny ballot position to third parties or make it impossible for third parties to qualify.
And therefore, if it's not impossible it's not -- they could have done it and they could've done it last spring.
Justice Byron R. White: But at least the provision requiring primary would be reasonable you say.
Mr. Charles S. Lopeman: There has been no question of that provision Your Honor and I would suggest that yes it is reasonable, certainly it's reasonable.
Chief Justice Earl Warren: Very Well.
Justice Potter Stewart: How about a national convention that's another requirement and these I suppose there's no way on earth that even all the people in Ohio could require party to have a national convention, that would take cooperation from people in other states, wouldn't it?
Mr. Charles S. Lopeman: That's correct Your Honor.
But that again is one of the things that is required to get on the ballot in Ohio, one of the requirements that the Ohio General Assembly has provided pursuant to the ground authority in Article II, Section 1, Clause 2.
Chief Justice Earl Warren: Mr. Young.
Justice Abe Fortas: Mr. Young, who is the vice presidential candidate of the American independent party in Ohio?
Rebuttal of David J. Young
Mr. David J. Young: I'm an attorney not a politician and Marvin Griffin's name should appear in the ballot.
Justice Abe Fortas: Well, no, no.
Now, please this is question that goes to the issue before us.
You're asking this Court in effect to order that the name of Mr. Griffin be placed on the ballot as a candidate for the Office of Vice President of the United States.
Mr. David J. Young: That's correct.
Justice Abe Fortas: And may I suggest to you therefore that I want to know, who is the candidate for the Office of Vice President of the United States of the American Independent Party in Ohio?
Mr. David J. Young: I will answer you that we are perfectly satisfied with the order of Justice Stewart placing on the ballot the names that appeared in this order.
We do not seek to have that order modified.
Justice Abe Fortas: I understand that but I'm asking you whether he is the candidate of the American Independent Party and if he is, if your answer to that is yes, then I want to know two things; does the record show how he was selected, number one.
Number two, will the effect of this Court's order mean that if the voters of Ohio vote for the American independent parties ticket that the electors will vote, will pass their ballot for Mr. Wallace and Mr. Griffin?
Mr. David J. Young: I think I can answer that by staring at the back that Ohio has no requirement that the electors vote for a person to whom they're pledged.
Justice Abe Fortas: Now you and your adversary just arrived diametrically opposite conclusions on that question?
Mr. David J. Young: My adversary said he wasn't aware of any statute until someone just told him today.
Justice Abe Fortas: And someone was his --
Chief Justice Earl Warren: That disapprove that, --
Justice Abe Fortas: --co-counsel?
Chief Justice Earl Warren: -- was not?
Justice Abe Fortas: Wasn't it?
Mr. David J. Young: If there is one, I'd like to see it cited because I've never been able to find it and I asked to his co-counsel during argument to send me over the statutory provision because I don't know the one exist.
Justice Abe Fortas: Alright, now, next -- may I get to my next question if you care to.
As to say, if this Court orders that the American Independent Party appeared on the ballot and the names of Mr. Wallace and Mr. Griffin appear on the ballot.
What will be the effect of this Court's order in the event that the people of Ohio cast their votes for give that ticket a plurality of their votes?
Mr. David J. Young: Governor Wallace under those circumstances has announced his position.
He has indicated that he would come in --
Justice Abe Fortas: I'm asking a question of law, I'm not interested in the politics in this --
Mr. David J. Young: Well, then I can't, -- but you are asking me -- I beg your pardon.
It seems to me a political – legally, I can answer --
Justice Abe Fortas: Well, I'm asking you, what the legal effect will be.
Will the legal effect be that the electors will have to cast their vote for Mr. Griffin as Vice President?
Mr. David J. Young: No.
Justice Abe Fortas: Or will they not?
Mr. David J. Young: We do not think that would be the legal effect, no.
Justice Abe Fortas: And you're saying that legally they will be free to vote, to cast their vote for someone else --
Mr. David J. Young: Yes.
Justice Abe Fortas: -- as vice president?
Mr. David J. Young: Yes.
Justice Abe Fortas: Now, is Mr. Griffin, the candidate in whatever sense you want to put it at the present time of the American Independent Party of Ohio.
Mr. David J. Young: Now, if you allow me this to --
Justice Abe Fortas: In any sense whatever.
Mr. David J. Young: If you allow me to repeat what I have read in the papers I'll be glad to tell you that.
I'm not a member of this party; I can tell you that it's my understanding that Governor Wallace will commend the electors to vote for Curtis LeMay as Vice President of the United States.
Justice Abe Fortas: Mr. Griffin originally selected before you started it lawful?
Mr. David J. Young: The petitioners who signed this petition of 450,000 people gave to the three men who are named in the petition, the authority to call a state convention or in the absence of a state convention to make the selection.
A state convention was scheduled when it was indicated the results of that convention would not be recognized then it was exercised by the other three.
But a state convention was called, was scheduled to be held and the Secretary of State indicated that he would not respect the results of that convention and I think this answers the other point as to whether all of these other laws do apply to third parties.
Exhibit 13 in the transcript shows that the Secretary of State said that's why he didn't let them on the ballot because of those requirements.
So, and my answer is that I do not feel that the electors in Ohio were pledged that as for the vice presidential candidate they could select Curtis LeMay rather than Marvin Griffin in Ohio.
Chief Justice Earl Warren: Are they obliged to vote for Wallace?
Mr. David J. Young: No.
Chief Justice Earl Warren: They can vote for Mr. “x” and Mr. Griffin if they wanted?
Mr. David J. Young: This is as a matter of law I find no --
Chief Justice Earl Warren: As a matter of law --
Mr. David J. Young: Yes.
Chief Justice Earl Warren: -- that's what we're talking about?
Mr. David J. Young: Yes, I think they're free to vote for whomever they please in Ohio.
In Ray versus Blair, this Court held that a court could.
I mean a state could establish pledge requirements to participate in a primary.
This Court left open whether the question of whether electors are really free even if there were such a requirement to vote for whomever they seem fit but there's no suggestion it seems to me in any decision by this Court that if a state has no pledge requirement that the electors must vote for anyone.
Theoretically, they could vote for whomever they saw fit.
One of the final points that I would like to raise is the matter of relief that was touched upon before.
The temporary order rendered by Justice Stewart would, in these appellants' standpoint satisfy the temporary problem that exists.
It seems to me we have two problems; what about the 1968 Election and what happens henceforth?
The order rendered by Justice Stewart has been complied with.
The Secretary of State has notified us that if that order is not changed, everything is ready to move with the name of Governor Wallace on the ballot.
If this Court finds that it's difficult to render a final decision as to what's going to happen in future elections prior to say October the 15th then we would think -- seek a temporary order affirming that what has been accomplished by Justice Stewart for the 1968 Election because that has already complied with.
Justice Potter Stewart: Yes, but you're not -- for a moment suggesting that that's a reversal, are you?
Mr. David J. Young: Oh!
No, no sir.
Justice Potter Stewart: You mean it's your understanding it certainly my understanding that the state could with equal convenience and he is complied with an order which would in fact affirm the action of the District Court?
Mr. David J. Young: There're no -- you made that perfectly clearly to us and the order does that this Court is free to order Governor Wallace off the ballot but what I'm saying is that all steps have been taken and if no other order for example of this Court were rendered he would be on the ballot in the November 1968 Presidential Election.
I know the Court is troubled by the fact that we did not file this case sooner.
The only thing I can say is that under the old law that was changed, 38 days after we filed our case these people could have gotten on the ballot with 29,000 signatures as compared to 452,000.
In other words, if these laws hadn't been changed 38 days after we filed our lawsuit, they still could've gotten on the ballot in Ohio with only 29,000 signatures.
Justice Potter Stewart: Was that as a party or just a candidate?
Mr. David J. Young: Independent candidate, yes.
Justice Potter Stewart: Independent candidate?
Mr. David J. Young: Yes.
Under the old law that existed --
Justice Potter Stewart: Yes.
Mr. David J. Young: Pre-1948, sixty days before the election with 1% of the signatures someone could get on the ballot.
Justice Potter Stewart: As a candidate?
Mr. David J. Young: That's correct, yes.
And this was the method first sought in Ohio by these people and when it was foreclosed then they moved in the political party direction.
Justice Potter Stewart: The laws and actually after 1948 simply limited independent candidates, they didn't really affect the laws applicable to parties, do they?
Mr. David J. Young: That's -- except to the indirect --
Justice Potter Stewart: If that was I know that you could no longer be an independent, the only way you could be a candidate on a ballot would be through the party machinery?
Mr. David J. Young: Yes, before 1948, all of the parties used the independent nominating petition technique because that provided that even though you were technically an independent candidate you'd put a label.
So, all of the political parties in Ohio before 1948 used the independent nominating petition technique but they were allowed to put a label next to the name.
So, that's how there was this free -- there was this flourishing of independent parties under the prior system.
Just a final point, I see my time is up, I do hope this case is not decided on the basis that it is possible to get on the ballot in Ohio.
This group had over 2,700,000 throughout the country, 450,000 signatures in Ohio at adequate strength that comply with any kind of a requirement and it isn't a question of time, I've cited in my brief but there's just no way.
They're completely barred from these statutes and I hope whatever decision is rendered is rendered on recognition that independent and third party candidates are barred and barred effectively from participating in presidential elections in Ohio.
I hope that at least as far as the temporary relief by October the 15th, we can receive an order confirming the order of Justice Stewart and that the situation by order of this Court or upon remand will ultimately be cleared up in Ohio so that will have free elections not --
Justice Abe Fortas: I'm not sure I understand you.
What is -- what would be effect of a final order, why do you make a distinction between a temporary and the final order here?
Mr. David J. Young: Because there are two questions before the Court, the matter of temporary relief and ultimate relief.
Mr. Lopeman's statement suggested to me that unless you order his name off the ballot by October the 15th, they're going to have a hard time taking it off.
So, it seems to me you got a time pressure on the temporary question before you but not as much time pressure on the ultimate relief question of how do we handle all the future elections in Ohio.
Justice Abe Fortas: Well, do you mean to say that if we rule on the merits here and your opinion will be deciding something about the -- well, will have to be deciding constitutionality of the Ohio statute as applied in this case or generally in either event, wouldn't we?
Mr. David J. Young: Yes, yes as --
Justice Abe Fortas: And what you're saying is that one would be an interim order and the other would be a final order but we would not in any case be adjudicating whether there is such a thing as the American Independent Party as a formal Ohio party under Ohio laws for future purposes, is that right?
Mr. David J. Young: I don't think it's necessary for the Court to make that adjudication because even the name appearing on the ballot as it does now with the label would be much the same as the old technique that we used in Ohio.
Justice Byron R. White: What would you think if this was -- if today were the last day the Court could decide this case and still get the name off the ballot if it decided against your position?
What if these were the last day such as do you say that suggesting as the 15th as last day?
Suppose this one is the last day and we just -- after we confer this, this is how we can do it?
It's a question, too difficult to decide one day and write up.
Mr. David J. Young: I probably go way please it with the temporary relief that we've received.
Justice Byron R. White: Uh-huh, I thought you would be.
What would you suppose going to happen to the temporary relief in that respect if we can't --
Mr. David J. Young: Well, --
Justice Byron R. White: Because it could be you know that we might not be able to decide this case and we, who knows.
Mr. David J. Young: Here's the situation you have before you is that the lower court all three judges of the federal district court below found Ohio's laws were unconstitutional.
They were unconstitutional insofar as they denied ballot position to independent candidates and to third party candidates.
And you have --
Justice Byron R. White: But you said you've waited too long, they didn't want to -- they said among other things they said laches among other things, didn't they?
Mr. David J. Young: They did say that but they also declared these laws to be unconstitutional.
I don't think this Court would apply laches to millions of voters in this cause no one's hurt.
I mean laches is a balancing of interest.
Who on the one hand is hurt as compared with taking the right of suffrage away from these 100,000 of voters?
Justice Byron R. White: Well, I know but that assumes that they got some rights, that's the question you've got here (Voice Overlap).
Mr. David J. Young: The District Court did decide that that they have rights, that they had equal protection rights and that the State of Ohio has violated the equal protection law of cause when it denied ballot position to independent third party candidates.
Justice Byron R. White: I know but that's either their decisions been appealed up here and I just and let's assume there's no enough time to decide it.
Mr. David J. Young: I just have a strong belief that this Court will decide rights do exists under these circumstances.
I'm rather shock by the contentions I hear that they do not and I feel comfort this Court will find some rights no matter what the outcome is.
Thank you very kindly.
Justice William J. Brennan: Mr. Chief Justice may I ask --
Chief Justice Earl Warren: Yes, certainly.
Justice William J. Brennan: -- if they has the citation to any Ohio statute that binds the electors to the names --
Mr. David J. Young: No, Your Honor because we do not have this.
Justice William J. Brennan: Well, didn't you tell us earlier that there was such a statute?
Mr. David J. Young: I was told by my co-counsel that he believe there was.
It is my understanding now that there is a requirement in Ohio that presidential electors at the time they are certified to the Secretary of State from the state political convent -- party convention are required to pled that they will vote for the candidate of the party.
I think that is the only limitation and again I would --
Justice William J. Brennan: So that would not apply here in this instance, in this situation?
Mr. David J. Young: That's correct.
Justice William J. Brennan: Then there is no statute?
Mr. David J. Young: I don't believe there is now, I'm going back and forth but this is my understanding knowing everything that I know about it.
Justice Abe Fortas: Well, these people, the American Independent Party will have to certify at least some electors, won't it?
Assuming that they go into ballot, won't they have to certify a list of electors?
Mr. David J. Young: Yes, Your Honor if this --
Justice Abe Fortas: And then will those electors have to take the same oath as the electors selected pursuant to file the democratic or republican parties?
Mr. David J. Young: I would think that it would be up to the order of this Court; I don't know what it is.
We have departed from Ohio election law.
We're way passed, we're nine months passed Ohio election law and I can't answer that question.
You have to answer that for me by putting in your word is there is any need to mention electors what these electors are going to do.
Chief Justice Earl Warren: Very well, number 544, Socialist Labor Party et al., appellants versus James A. Rhodes, et al.
Mr. Spirer (ph).
Unknown Speaker: Mr. Chief Justice I would like to move the admission of Jerry Gordon of Ohio pro hac vice for this case.
Chief Justice Earl Warren: Motion is granted.
Mr. Gordon, --
Argument of Jerry Gordon
Mr. Jerry Gordon: Thank you Your Honor.
Chief Justice Earl Warren: -- you may proceed.
Mr. Jerry Gordon: Mr. Chief Justice and members of the Court, this is the companion action in the case below the appellants were plaintiffs in the District Court in the Southern District of Ohio, they are the Socialist Labor Party of America and its Ohio members.
They brought suit to challenge an Ohio electoral system which completely excluded them from participating on an equal basis with the other political parties in Ohio or even an unequal basis.
Their rights as a political party were in effect obliterated by a series of Ohio election laws.
They challenged those laws, a declaratory judgment favorable to their position was rendered, right in voting was provided for the November 1968 General Election, ballot position was denied.
From that branch of the opinion denying ballot position, we appeal.
Socialist Labor Party of America is a national political party with roots reaching back into the 19th century.
It advocates the Socialist reconstruction American society and it advocates that this be brought about to the ballot.
It has never used any other means but peaceful constitutional means to advance it to position.
Accordingly, it places great emphasize on elections.
It is currently in its 20th consecutive presidential campaign.
In 1964 presidential elections, it was on the ballot in 16 states conducted a write-in campaign in nine others.
Similarly, it has been on the ballot in Ohio going back into the 19th century.
Now, the party in Ohio has modest numbers pursuant to the request of the District Court documents were submitted which show to the parties members equal in some approximately 108.
These documents also show that the party distributed in single year and this is customary approximately a quarter of million of a pieces of literature leaflets.
It is a small party but an energetic one.
Justice William J. Brennan: Excuse me Mr. Gordon, I gather we have the practical problem here that your client is not beneficiary of the interim relief of the appellants in the previous case received so that what is the situation if you would've prevail, what is -- are there any opportunity as I understand the previous argument probably there isn't to get you on the ballot now?
Mr. Jerry Gordon: We take issue with that position, Your Honor.
We did apply for equivalent relief --
Justice William J. Brennan: I know, I say the practical finding is that you are not on these ballots which we are advised, they have now been prepared that have the American Independent Party name.
You are not named by any ballot, presently?
Mr. Jerry Gordon: That's correct.
Justice William J. Brennan: And there is a practical problem of how before election there can be printed if you prevail and distributed the ballots with the name of your party -- your client on it.
Mr. Jerry Gordon: That's right.
Justice William J. Brennan: Don't we have that problem?
Mr. Jerry Gordon: We have that problem but it's out position that there is more than ample opportunity to print ballots or if it's necessary to reprint ballots which in our judgment will conform to the imperatives of the Fourteenth Amendment and its Equal Protection Clause.
Justice William J. Brennan: Well, now what as a practical matter, what support do you have for the statement that there's ample of time now to print ballots with name of the Socialist Labor Party on it?
Mr. Jerry Gordon: Well, for one thing and counsel on both sides have to rely in representations to the Court that is what we do.
We've been in touch with some 10 counties.
Now, in four of these counties, ballots have been printed, completely printed.
And another four counties, ballots are in process of being printed.
Now, Cuyahoga County and in Mahoning County, ballots are going to be printed next week.
There are still opportunity and if it's possible in a county the size of Cuyahoga County which is the most largely populated, densely populated county in Ohio they still print ballots for the general election, then we submit that it is possible in every other county.
We are after all some 29 days before the election.
We have many, many printers.
It's still possible to print ballots in time for that election.
The McDougal versus Green are only 12 days before the election (Voice Overlap).
Justice Byron R. White: Can you print and program machines in 29 days?
Mr. Jerry Gordon: We would concede that there will be a great practical problem as far as programming machines.
We are not able to represent --
Justice Byron R. White: Well, how many -- what percent of the voters in the State of Ohio are going to vote on machine?
Mr. Jerry Gordon: Well, Your Honor it varies widely in Franklin County all the --
Justice Byron R. White: All for the whole state?
Mr. Jerry Gordon: Well, we have 88 different systems.
We don't have those statistics.
Justice Byron R. White: Well, what percentage of all the voters in Ohio are going to vote through machines one way or another?
Mr. Jerry Gordon: Well, I'm unable to say --
Justice Byron R. White: 75%?
Mr. Jerry Gordon: Well, in Cuyahoga County it's much less than, in Franklin County it's all.
So, may mean that if we secure the order that we seek and we'd like to argue why we feel the order should be rendered despite the practical difficulties that counties have planned to conduct their elections via voting machines may have to use paper ballots.
This may be the case but at any rate t is certainly possible at this juncture to print paper ballots, there's plenty of time for the entire state.
And for Cuyahoga County, their voting machines have already been programmed to provide for the Socialist Labor Party candidates any event this Court does order those candidates be placed in the ballot.
Justice Thurgood Marshall: When was the candidate selected?
Mr. Jerry Gordon: When were the candidates selected?
Justice Thurgood Marshall: Yes, sir.
Mr. Jerry Gordon: The candidates were selected by the Socialist Labor Party its national candidates at it's convention in May of this year.
Justice Thurgood Marshall: So, you couldn't have complied with the February rule, could you?
Mr. Jerry Gordon: Well, no Your Honor although I don't think that rule by itself precludes -- I was getting on the ballots because the other parties didn't nominate their candidates until August.
Justice Thurgood Marshall: Who was your candidate four years ago?
Mr. Jerry Gordon: Who was the candidate of the Socialist Labor Party for president four years ago?
Justice Thurgood Marshall: Uh-huh.
Mr. Jerry Gordon: I'm not --
Justice Thurgood Marshall: While you're answering that, the next question is why didn't raise the question then?
Mr. Jerry Gordon: Well, let me go to the next question because I'm not sure who the candidates of the party were.
I know that they are this time, they are Blowman and Taylor.
The reasons that the Socialist Labor Party did not bring its suit earlier, now, the documents submitted to the Court this question is covered in reports to the state conventions.
Party was anxious to test the constitutional of these laws some years passed.
It simply didn't have the resources, in 1946, it qualified for the ballot in Ohio had to file 30,000 signatures to qualify its candidate for governor, it filed 45,000.
And what happened?
The Board of Election said, not enough signatures had been filed.
The party had to file mandamus action in Ohio Supreme Court and finally got an order and put their candidate on the ballot but that exhausted the party's resources.
It's a small party and it's not affluent party and it -- for over a period of years it attempted to get counsel which could pursue this action and was unable to finance it.
And this case it has been brought by the Civil Liberties Union, that's the only way the party has been able to advance its position and challenge these laws.
Justice Hugo L. Black: Well, do you say party has only 108 voters?
Mr. Jerry Gordon: It has -- the party shows a membership of 108 in Ohio as of 1966.
Justice Hugo L. Black: Aren't the many county states have more than 108 counties?
Mr. Jerry Gordon: I'm sorry I didn't understand.
Justice Hugo L. Black: Aren't the many states that have more counties of 108?
Mr. Jerry Gordon: More candidates?
Justice Hugo L. Black: Counties?
Mr. Jerry Gordon: Counties?
Justice Hugo L. Black: Yes.
Mr. Jerry Gordon: I suppose there are but there's many states where a party of 108 it has no difficulty whatever in getting on the ballot.
In the State of Washington 100 people can come together.
Justice Hugo L. Black: You say this -- is it your position federal constitution bars the state for admitting the group has only 108 members going to the trouble and expense of putting them on the ticket in every county in the state?
Mr. Jerry Gordon: That's correct Your Honor.
We say this that a small political party has an absolute constitutional right to be on the ballot unless a state can prove and can show a compelling necessity which would justify legislation which has the effect of excluding that party from the ballot.
The rights of the members of the small party to be on the ballot are just as important to them perhaps more so than the rights of the members of a large political party.
One is just as important as the other.
Justice Hugo L. Black: Did I understand that your position is exact opposite -- your position is exact opposite of the state it takes the position they have an absolute right to bar for any reason at all, a minority party.
You take the position if minority party has an absolute constitutional right to be put on the ballot even when it has only 108 members.
Mr. Jerry Gordon: Well, no Your Honor.
We added a branch to that.
We said subject to -- if a state can prove a compelling justification to --
Justice Byron R. White: You can't take the one of those, can you?
Mr. Jerry Gordon: It's hard for me to, Your Honor, because we've examined the reasons that have historically been offered and we (Voice Overlap) --
Justice Byron R. White: So you really are as Mr. Justice Black suggests the claim very -- come very close to claim in absolute right to be on the ballot?
Mr. Jerry Gordon: The party is on -- the small political party --
Justice Byron R. White: Right, yes.
Mr. Jerry Gordon: That's essentially that's right.
We find no justification for keeping a small bar up.
Now, if you're to ask me well, can one person insist upon the right to be -- no, maybe not.
Requirements may be reasonable if reasonable is nominal or minimal but the small political party is on the ballot in many, many states in this union and the question we post is this, if there's a right to --
Justice Hugo L. Black: Suppose if there's only five members?
Mr. Jerry Gordon: Well, we have suggested the guideline.
Our guideline is one-tenth of 1%, file these number of signatures to qualify for the ballot.
One-tenth of 1% --
Justice Hugo L. Black: Why should there be any if you have an absolute right?
Mr. Jerry Gordon: We really don't think there should be any until it's proven that a problem has been created.
Now, if a problem is created, then it's time to take a new look but this Court has said time and time again and all the controversies before referring to voting rights, the Court has said this, it will meticulously scrutinize any impairment.
Now, I submit if you have a small political party and it's not on the ballot, if it's not able to meet qualifications, its rights have been impaired.
Justice Potter Stewart: Mr. Gordon, we are all throwing around the word “rights” around here -- rights, rights.
I understand Ohio's argument in the previous case as to the source of the right it asserts correctly or incorrectly, it cites Article II, Section 1 of the United States Constitution.
Now, what are you doing?
What source are you talking about for these “rights”?
Mr. Jerry Gordon: Alright, Your Honor --
Justice Potter Stewart: Because I presume you're talking about some asserted constitutional right --
Mr. Jerry Gordon: That's correct.
Justice Potter Stewart: -- federal constitutional right, from where?
Mr. Jerry Gordon: We based our rights on a number of sections of the Constitution but primarily on the Equal Protection Clause of the Fourteenth Amendment.
We'd like to develop that in this way, Judge Kinneary in District Court said this, he said that if the Wallace party is not placed upon the ballot that it will not have equal opportunity and that it's the electors, the people of Ohio will support that party will be treated as second class electors.
And that's not right and if the party therefore should be placed on the ballot but in the same breath he said that the Socialist Labor Party because it is small does not have a similar right.
Now, we submit that this type of philosophy is alien to basic constitutional tenants and guarantees and I want to illustrate an example in any other area involving the Bill of Rights fundamental rights.
This type of doctrine doesn't apply.
For example, assume in a southwest -- a community in the southwest part of this country a restaurant which has a policy in segregation.
Assume that the restaurant, the owner of the restaurant will not permit Mexican-Americans or Negroes to eat in that restaurant and a class suit is brought by representatives of both groups.
Now, what would this Court think if a court said, well, yes, the policy denies the members of those groups equal opportunity and then it treats them as second class citizens and it will not be permitted?
But, it will not be permitted for the Mexican-Americans because in this community they are substantial section of the population, a substantial minority.
But on the other hand, the policy will be permitted for Negro-Americans because there is small minority, that's exactly what we have here.
Justice Hugo L. Black: Is that exactly what you have?
You have a specific constitutional provision against discriminating on a count of race.
You do not have it on what you have here, you're going on to throw a general protection, Equal Protection Clause of the Fourteenth Amendment.
Mr. Jerry Gordon: Your Honor, I'm only using Judge Kinneary's language, he said himself that its language in his opinion he said that denying Wallace a position on the ballot would be treating the citizens like second class electors and denying them equality of opportunity.
Justice Hugo L. Black: But he's not the one we --
Mr. Jerry Gordon: Alright, --
Justice Hugo L. Black: -- construe?
Mr. Jerry Gordon: But we agree with that, we agree, we think both parties should be on the ballot.
We think that there is an impairment of the right of the small political party when it is kept of the ballot doesn't have its name on ballot the same as the logical political party and we asked this question, why shouldn't it be on the ballot?
The question is not why shouldn't.
Why shouldn't it, why shouldn't it co-equal with the other political parties it's done in Colorado, it's done in New York.
Justice Thurgood Marshall: Where did the political party get the “right” on this Court to be on the ballot?
Mr. Jerry Gordon: It gets its -- it derives its right from the Equal Protection Clause of the Fourteenth Amendment.
Here is a classification that's being established of a percentage which is too high.
If the percentage is set not by the State of Ohio, not by the Ohio legislature --
Justice Thurgood Marshall: Well, now you say its one and a half of 1%, the states has its 15% you got a half to bid him for us?
Mr. Jerry Gordon: Yes, the proposal that we have made is one-tenth of 1% with the maximum of (Voice Overlap) --
Justice Thurgood Marshall: Well, I've said, you say that --
Mr. Jerry Gordon: Yes.
Justice Thurgood Marshall: -- state has 15%.
Now, would give us a happy medium?
Mr. Jerry Gordon: No, Your Honor because the happy medium --
Justice Thurgood Marshall: Because you wouldn't qualify, right?
Mr. Jerry Gordon: That's correct.
Justice Thurgood Marshall: And that's the reason you want this one figured it just fits you like a glove?
Mr. Jerry Gordon: No Your Honor, we're suggesting that as a sealing on this basis that there is no justification, there is no compelling necessity to keep a small party off.
Other states permit the small political party is not --
Justice Thurgood Marshall: But would escape the right and limit in the ballot to 100 people, don't you think that was good?
Mr. Jerry Gordon: I would say this Your Honor, that problem --
Justice Thurgood Marshall: Would that be good?
Mr. Jerry Gordon: No, it would not be good.
I would be opposed to any arbitrary limitations.
Justice Thurgood Marshall: Do you think the state to have a ballot that would have a thousand people running for president?
Mr. Jerry Gordon: If the --
Justice Thurgood Marshall: Would that be the state have a right to protect itself from that?
Mr. Jerry Gordon: Yes, it might if that happened but then if you come to this Court and say, well, look we have a legitimate problem here.
The ballot is just too large, we've got a bed sheet down but no one has ever developed that kind of evidence for a court.
Nobody has ever shown that in the congressional raise, in the 21st Congressional District in Ohio.
We had 14 candidates for the primary, the democratic primary.
Nobody said, well, gee look how long his ballot is, look how many candidates that we have and to qualify.
To qualify to run for Congress all you needed was 100 signatures, that's a nominal requirement, that's okay.
But if we had 14 third parties on the ballot, the election officials would be screaming and they would say we've got to elevate way up and bar and deprive third parties of their rights (Voice Overlap) --
Justice Thurgood Marshall: Anytime may I ask the state court to correct this.
Mr. Jerry Gordon: The state court?
No, we have not Your Honor.
Justice Thurgood Marshall: Why not?
Mr. Jerry Gordon: Because we have more faith in federal courts than in state courts to relief the type of problem that this party has faced, the obliteration of its rights.
We have a case since --
Justice Thurgood Marshall: Since (Inaudible) date till date, you have never asked the state, you say the state is wrong, you never asked the state to correct its own error.
Mr. Jerry Gordon: You mean state legislature or the state court?
Justice Thurgood Marshall: The state.
Mr. Jerry Gordon: The state legislature is run by two political parties and to them the words “third party” are anathema.
Their desire is to perpetuate the type of monopoly a political power which they have enjoyed over the years.
The legislators feel --
Justice Thurgood Marshall: That's not true for the courts I'm sure.
Mr. Jerry Gordon: It's -- the courts are much more detached but the federal courts we have much greater faith and their willingness to be guardians of the constitutional rights of third political parties.
There is a spirit which pervades Ohio --
Justice Thurgood Marshall: (Voice Overlap) and they didn't go under state court?
Mr. Jerry Gordon: That's right Your Honor.
We thought there will be much better opportunity for getting relief in federal court.
Justice Thurgood Marshall: And it took you 20 years to find that out?
Mr. Jerry Gordon: Well, no.
The party attempted to assert its rights over the years but it did not have the resources.
This was the major cause of its delay, documents have been filed with this Court of reports to convention the Socialist Labor Party where the question is raised again and again.
The party did go to Court in 1946 but it cost a lot of money.
It just didn't have that kind of resources.
This is the problem of the small political party in America.
It doesn't have a lot of affluence, it doesn't have a lot of memories and its rights are taken from it.
Justice Hugo L. Black: Can they vote in Ohio?
Mr. Jerry Gordon: They can vote in Ohio Your Honor.
Now, before the rights they were completely excluded.
Now, they have the right in vote.
Justice Hugo L. Black: They have to write-in?
Mr. Jerry Gordon: They have to write-in but there's all kind of problems with write-in voting.
We consider --
Justice Hugo L. Black: Do you claim that the state doesn't have the right to say that such a small group, hundred, how many population in Ohio?
Mr. Jerry Gordon: Well, there's a vote in the election of about 3 million.
Justice Hugo L. Black: About 3 million there's only a hundred that is treating them or denying them the equal protection not to put them on the ballot if you put all the others I'm talking about.
Mr. Jerry Gordon: Your Honor, of the Socialist Labor Party with that small membership is -- was on the ballot for 75 years --
Justice Hugo L. Black: I'm not talking about having been on the ballot.
Mr. Jerry Gordon: Yes, we say that the State of Ohio cannot deny anybody its rights to be on the ballot unless it shows the compelling justification and that is the doctrine in all other phases of voting right cases that in order to impair when we talk about the segregation system --
Justice Hugo L. Black: Well, except the general provision of the Equal Protection Clause has to be treated some way practically, we cannot construe it because it's never been construed which means each particular class has to have exact the same treatment under all of circumstances but you do claim that application here.
Mr. Jerry Gordon: No, we do think there has to be a practical application but the question is what is that practical application for the State of Washington a hundred people can meet on a convention and the party is on the ballot.
In the State of New York 12,000 signatures can be obtained and a party is on a ballot.
The State of Colorado 300 signatures can be obtained, the party is on a ballot.
There's a series of states like this where it is possible for the third political party to share on an equal basis where the other political parties in the state's electoral process but now all of a sudden in Ohio they've got this horrendous requirements and the state as well we have a right and we say, no they don't have a right.
If the other states can carry on in the way they have and have a successful electoral system and make room in their process for the participation of third parties, why not Ohio, why not the other states.
Justice Abe Fortas: Well, do you have to -- do you rest on that extreme position and used that without (Inaudible), do you rest on that?
Is that your only position or do you also argue that assuming that the State of Ohio could make reasonable regulations and reasonable classifications to define a -- what is a political party to require in minimum amount of signatures.
It has not done so in this instance and therefore, since it has not done so in this instance, is it your argument?
You are -- you should -- this Court should so declare and should order that you got a place on the ballot because the write-in position ordered by the lower court is not adequate.
Mr. Jerry Gordon: That is our position Your Honor, yes.
Justice Abe Fortas: Well, do you have to take the extreme position for which you've been arguing or do you reach the same result by law in the lines that I've just suggested to you?
Mr. Jerry Gordon: Your Honor, to be perfectly candid well, the question of placing the party on the ballot is central at the same time our transcendent concern is this, what you referred to is an extreme position is the position which we feel ought to be urged upon the states.
We're not talking about this Court legislating for the states only setting ceilings because what's going to happen supposing that this Court can decide it --
Justice Abe Fortas: I understand that -- excuse me sir, I'm just -- I'm trying to -- what I'm trying to get from is your view as to this point, suppose that we don't go along with the -- what I've called the extreme position, suppose that we take the position however that lower court was right in saying that the Ohio law is unconstitutional because although Ohio could make reasonable regulations and set up reasonable classifications, these are not reasonable, do you see?
Mr. Jerry Gordon: Yes, I understand that.
Justice Abe Fortas: Now, would that -- would it or would it not, or would that or would it not suffice for your purposes?
Mr. Jerry Gordon: It would suffice for our purposes for the 1968 Elections because we would then argue as follows that in the absence of any restrictions constitutionally viable restriction imposed by the state, the Court has no right to set up its own and to keep a political party off.
Therefore, the District Court here shouldn't place the party on the ballot.
So, we would meet that proposition --
Justice Abe Fortas: Alright, that's what I'm trying to get --
Mr. Jerry Gordon: Yes.
Justice Abe Fortas: -- and in other words, your position would be that since by my assumption the statutes unconstitutional this Court should not then say that 100 members of the political party is not enough but we should then say that in all of parties before us are entitled to relief, is that your argument?
Mr. Jerry Gordon: That's correct Your Honor, yes.
But now, let me -- that would be one branch of the argument but the second branch is this, in the absence of guidelines, we all know what the tests are now.
The tests are -- any statute that's going to regulate the accessibility of the ballot to third parties as we understand it, the judicially determined tests are it must meet necessity, equality, and reasonableness.
Most perfectly obvious there's a wide variation as to what these words mean.
Your Honors have heard counsel who has said that the test can be such almost anything the legislature decides is constitutionally permissible.
We don't agree and the problem we face now even if this Court --
Justice Byron R. White: Elector could -- these days, the right to choose the electors?
Mr. Jerry Gordon: Well, we're referring to the percentage of signatures that it might require.
We -- as far as the elect choosing of the electors we think that if the legislature is going to have electors chosen by popular vote it's got to do it pursuant to the Equal Protection Clause.
Justice Byron R. White: Well, you don't think that legislature could permit the choice we make between A and B, and between A, B, C, and D?
Mr. Jerry Gordon: No, we do not, we think that all parties have to share and that if any are going to be kept off it's going to be on a reasonable basis in compelling necessity has to be shown which it never has been shown with respect to small third parties.
The cost for example placing a small third party in the ballot is negligible.
It's simply a matter of the printer setting some type.
This country and the states spend enormous sums of money on many other things of dubious value.
And when it comes to election which is the heart and soul of our constitutional system that's no time to practice economy.
The democratic process can't be measured in dollars and cents.
The member of the small third party is taxed.
His taxes flow into the public treasury and out of this treasury come the funds to pay for the ballots.
Now, why should he be taxed, this is a due process argument enforced the paper ballots which exclude this party.
He has just as much right to have his party on the ballot if he can meet minimal standards as the large parties just as the small minority has just as much right to have a protection against segregation laws as the large minority.
There's -- that's an invidious discrimination and we again urge and again repeat that in state after state it is possible for third political parties to be on the ballot.
We are concerned what Ohio is going to do in Ohio.
The words “third party” are anathema.
That state legislature is going to go back and if this 15% requirement has been knocked out, they are going to consider well, what's the next highest one we consent.
We don't want a multiplicity of suits.
We would like to have the manner settled the guidelines, the test of necessity, equality and discrimination are not precise enough.
And we would hope and urge that the Court will develop clear guidelines which would preclude arbitrary action.
Justice Potter Stewart: At clear where you get these guidelines from the District Court's --
Mr. Jerry Gordon: The District Court's decision based upon Wesberry case, Reynolds versus Sims, this language flows from these cases.
This Court had said again and again that any impairment of voting rights and being on the ballot is correlatively right to vote.
Justice Potter Stewart: No, you know Wesberry against Sanders, Reynolds against Sims have nothing to do with parties on the ballot?
Mr. Jerry Gordon: No, it did not but it had to do with voting rights.
Justice Potter Stewart: And had nothing to do with the Electoral College?
Mr. Jerry Gordon: No, it's a different but it's in the area of voting rights and it says in voting rights whenever there's any impairment or infringement it cannot be constitutionally warranted unless necessity is shown.
And that we've quoted those cases in our brief and we think that this Court has said that any impairment has to be meticulously scrutinized.
Well, now, if other states are able to have election laws which permit third party participation then we have to meticulously scrutinized those days which impose higher restrictions because what is happening is this, these legislators are precluding competition.
They are setting standards so high that third parties and independents cannot compete not just because of their fear of these parties but also because of the splitting votes.
If I may Your Honor I'd like to reserve time.
Justice Abe Fortas: Mr. Gordon, forgive me for taking another moment of your time but did you represent to us that Cuyahoga County that's Cleveland, isn't it?
Mr. Jerry Gordon: That's correct Your Honor.
Justice Abe Fortas: Has printed ballot with the Socialist Party name on it and your candidates on its subject to this Court's decision?
Mr. Jerry Gordon: No, Your Honor --
Justice Abe Fortas: Can you tell us that?
Mr. Jerry Gordon: What they have done is reserved space --
Justice Abe Fortas: I see.
Mr. Jerry Gordon: -- on, so that if this Court should decide to place the candidates on the ballot then it will be no particular problem in that county, the county is probably unique on the machine as well.
Justice Byron R. White: (Inaudible) don't you think if they take the ballots, they have got them printed?
Mr. Jerry Gordon: They have got them printed yet, there's time.
Justice Potter Stewart: We talk about time for printing.
There's also a matter of getting ballots over to Southeast Asia and back and then to the hospitals around the country for sick absentee voters and various other considerations in addition to printing.
Mr. Jerry Gordon: Well, that's correct Your Honor and we have stated in our final brief filed with the Court that that the absentee ballots we may have arrived and pointed no return but the only part, the only ones that would be injured this Court should decide to put a Socialist Labor Party candidates on the ballot.
The only ones that would be injured by not having those names on the absentee ballots would be the party itself and it would gladly waive any problems having to do with absentee ballots.
And the Secretary of State had announced that Wallace's name is on the --
Justice Hugo L. Black: How could you do that?
Mr. Jerry Gordon: Well, the Secretary of State Your Honor has announced that Wallace's name is going to be on the absentee ballot and will stay on regardless of any future decision of this Court and by the same token if that's the case then the -- so another words, it's possible the ballots will be different.
Justice Hugo L. Black: But they haven't waived it, are you claiming now the right to waive for other people aren't you or other people I understood to decide particular numbers of your party?
Mr. Jerry Gordon: Well, its just nothing can be done at this point.
The absentee ballots when we talked to the Director of the Board of Elections and we think it's just a problem that probably cannot be resolved, speaking now only of the absentee ballots.
So, we really have no choice.
Chief Justice Earl Warren: I suppose there are hundreds of times as many members in the Armed Forces overseas so you have members to your party, aren't there?
Mr. Jerry Gordon: Well, --
Chief Justice Earl Warren: You must have thousands, many thousands of members of the Armed Forces overseas, are you going to deprive them of their vote or --
Mr. Jerry Gordon: No, Your Honor, they would all have the right to vote for the Socialist Labor Party by the write-in.
Chief Justice Earl Warren: Well, they got it now, didn't they?
Mr. Jerry Gordon: They have that now -- they are going to use paper ballots.
All absentee ballots or paper ballots as we understand it so that they will all have the right to write if the Court should put the Socialist Labor Party candidates on the ballot those who cast absentee ballots and would want to go for the party can do so with facility because it's a paper ballot.
Chief Justice Earl Warren: Why can't all of the vote, vote with the same facility?
Mr. Jerry Gordon: Because on many have to vote by virtue of voting machine and as we have shown in the -- and his counsel for Mr. Wallace has pointed out there's all kind of problems in casting a write-in vote in the voting machine.
You've got to have that mechanical aptitude.
Now, that's what we mean by an invidious discrimination.
It's a difference, a sizeable difference between having to depend on the right info with all of complexities of a voting machine and simply casting a vote.
They're not the same, the race is not the same; one party has given a lead in front from the others.
It's not equality of opportunity and we don't --
Chief Justice Earl Warren: Don't you have that same inequality in all write-ins, for all officers in your state --
Mr. Jerry Gordon: That's right.
Chief Justice Earl Warren: -- there's a place there I suppose for write-in, for all officers and don't they have the exactly the same inequality?
Mr. Jerry Gordon: Well, there is that Your Honor and that's why a political party which consistently runs candidates should not be deprived of equal opportunity with the other parties.
Now, if you have some individual who for example did not file his nominating petition in time.
And then depends upon a write-in vote, there will be an inequality there but it's not a serious matter.
It was his fault he didn't file in time, it's a one time only proposition and there is inequality but at least he has the chance but for a political party which regularly election after election that goes to polls, certainly it should have as much opportunity as a larger party.
We don't have this discrimination in other areas of law relating to fundamental freedoms.
We should not have it in the political field either which is perhaps the touchdown of the other freedoms.
Chief Justice Earl Warren: You may have five minutes more too (Voice Overlap) --
Mr. Jerry Gordon: Thank you, Your Honor.
Chief Justice Earl Warren: -- Mr. Gordon.
Rebuttal of Charles S. Lopeman
Mr. Charles S. Lopeman: May it please the Court.
Appellant's request here relief which was not requested in the district court below, this is the first time a request has been made for an order directing a state official to put the names of the Socialist Labor Party candidates on the ballot.
Chief Justice Earl Warren: It was not raised at all in the court below?
Mr. Charles S. Lopeman: That's correct Your Honor.
It was not part of the prayer of the complaint and the complaint has not been amended.
Justice William J. Brennan: Well, Mr. Lopeman, didn't the court below treat it though as a case for that relief you sought?
Mr. Charles S. Lopeman: No, Your Honor, the court below treated the cases, the Williams' case and this case together for decision but the cases have maintained a separate identity.
Justice William J. Brennan: No, my question was, I have read that opinion somewhere but I thought that the court below treated the application of the Socialist Labor Party as also asking for ballot position, am I wrong about that?
Mr. Charles S. Lopeman: I think Your Honor, yes Your Honor.
I do not believe the court did treat it that way and it is clear that they did not seek (Voice Overlap) --
Justice William J. Brennan: But you may be right, I somehow read that opinion.
Justice Potter Stewart: Mr. Lopeman, I want into this pretty carefully some time ago and I would agree with you at the extent that it's rather ambiguous as to what they asked.
They recite in the body of their complaint their desire against such relief, I would agree with you of their prayer is not very clear.
I don't have it in front of me but as I finally understood it, it was rather a conditional prayer.
They asked first that the legislature be directed or be given an opportunity to do something about this and then they said, if the legislature fails to act then we ask the Court to give us that really, was that about right?
Mr. Charles S. Lopeman: Yes, if I may clarify Your Honor the --
Justice Potter Stewart: It's not a condition?
Mr. Charles S. Lopeman: -- the prayer requested the legislature to act and if the Court did not act and if the legislation does not act, they asked the Court to declare that Section 3517.01 of the Revised Code which requires which contains the 15% requirement be held invalid.
But there was no request for the specific injunction relief of having names physically put on ballots and machines which is initially asked for in this Court.
Justice William J. Brennan: And how about the practical problem Mr. Lopeman?
Mr. Charles S. Lopeman: As a practical matter, it is impossible at this time to -- for the State of Ohio to comply with an order granting the requested relief.
Mr. Gordon has apparently canvassed 10 Boards of Elections.He mentions Cuyahoga County, he does not mention that he checked Franklin County or he was advised that it was an impossibility.
I have asked the Secretary of State before filing this motion if it would be possible.
He has advised me that it would be impossible.
Nothing this Court can do short of setting back the election date can result in them appellants getting the relief they request.
Further, we feel that the arguments presented by this appeal are the same as the arguments and questions presented by the appeal in Williams versus Rhodes and therefore since four argument has been made, we do not wish to make any further argument at this time.
We would respectfully request this Court to affirm the decision of the United States District Court.
Justice John M. Harlan: Can I ask you a question?
Mr. Charles S. Lopeman: Certainly, Your Honor.
Justice John M. Harlan: Is there any provision in the Ohio election laws that govern the size of the party that is the members of party established distinguished a number of petitions that must be on them?
Mr. Charles S. Lopeman: Yes, Your Honor.
Section 3517.01 provides that a party will continue on the ballot as long as it gets 10% of the popular vote for governor or in the alternative the 15% requirement of signatures on the petition.
Justice John M. Harlan: And there's nothing to do with party, I would say.
But the fact the party itself having 108 members and then that it received 15% of the signatures that were gotten on the ballot.
Mr. Charles S. Lopeman: That's correct Your Honor.
Justice John M. Harlan: Well.
Justice Abe Fortas: Mr. Lopeman excuse me, I understood in the previous case, the Wallace case that your position was that the statutes in the Ohio procedures were lawful and constitutional.
Mr. Charles S. Lopeman: That's correct, Your Honor.
Justice Abe Fortas: Now, here ago, you're asking us to affirm the decision below but he had too the District Court held that the Ohio procedures were unlawful --
Mr. Charles S. Lopeman: We're -- I --
Justice Abe Fortas: -- or unconstitutional.
Mr. Charles S. Lopeman: The state is asking only that this Court affirm the order of the District Court.
Justice Abe Fortas: We can affirm the order without affirming the reason for it, can we?
I don't understand your position.
If we affirm the order of the District Court and the Socialist Labor Party case, doesn't that mean that we concur with the view that with the conclusion that the Ohio statute procedures are unlawful which means unconstitutional because the District Court gave the party relief.
It was the relief of a write-in requiring that there be a write-in.
They're asking for additional relief now.
But how -- Is it your position that we can affirm the District Court without concurring in the conclusion that the Ohio statute and procedures are unlawful?
Mr. Charles S. Lopeman: Yes, Your Honor.
We would ask the Court to refuse the requested further relief and affirm the order which denied relief.
We would request this Court to affirm the denial of relief by the District Court.
Justice Abe Fortas: I know, but the District Court granted relief here.
District Court ordered that the space be provided on the Ohio ballot for a write-in for the Socialist Labor Party and its candidates, am I right about that?
Mr. Charles S. Lopeman: That's correct Your Honor and the state has not appealed that order.
Justice Potter Stewart: You haven't taken a cross appeal from that?
Mr. Charles S. Lopeman: That's correct.
Justice Potter Stewart: You haven't appeal that although and suppose in strict logic your position is you could've, you have?
Mr. Charles S. Lopeman: Yes Your Honor that's correct we feel that there is no constitutional requirement of right in voting for presidential electors.
But we did not appeal that --
Justice Potter Stewart: But so you're asking us to affirm that -- the District Court's order refusing to give party designation not for the reasons that the District Court said necessarily but also alternatively for an addition for the reason that the District Court was wrong about the unconstitutionality of the Ohio statute.
Mr. Charles S. Lopeman: That's correct Your Honor.
Justice Potter Stewart: Is that it?
Mr. Charles S. Lopeman: Yes, sir.
Justice Hugo L. Black: Did you say 37 -- did you refer to 3715 of the Code?
Mr. Charles S. Lopeman: 3705.01 which I believe is appended to our motion in the Williams case.
Justice Hugo L. Black: 3705.01?
Mr. Charles S. Lopeman: 3517.01, I'm sorry.
Justice Hugo L. Black: 3517.01.
Now, what does that do?
Mr. Charles S. Lopeman: That is a definition section in which a definition of a political party is set out.
It requires first that a political party is one which obtain 10% of the total vote for its candidate for governor in the last election or one which presents to the Secretary of State a qualifying positions signed by a 15% of those who voted in the last gubernatorial election.
Justice Hugo L. Black: And then the other statute is one which authorizes of group of people to become known as a political party if they get 15% of the voters?
Mr. Charles S. Lopeman: No Your Honor, that is this section.
Justice Hugo L. Black: That's why I said that's this one?
Mr. Charles S. Lopeman: Yes, Your Honor.
Justice Hugo L. Black: But is that the same one as the 10%?
Mr. Charles S. Lopeman: Yes, Your Honor that is all part of the same section.
Justice Hugo L. Black: All part of one --
Mr. Charles S. Lopeman: Yes, Your Honor.
Yes, Your Honor.
Chief Justice Earl Warren: Mr. Gordon.
Rebuttal of Jerry Gordon
Mr. Jerry Gordon: May it please the Court.
I'd like to first again emphasize that the Socialist Labor Party, small though it was and is, was on the ballot many, many times in the course of Ohio's history, documents have been submitted to the Court.
What we actually ask is that the party's right to be restored that were taken from it and we'd like to emphasize this that in many other areas of voting rights do primarily to the contributions of this Court there has been great advance and progress, rights have been given to Negroes to vote and to women to vote and we had the reapportionment case --
Justice Potter Stewart: Well, this Court didn't give them the right to women?
Mr. Jerry Gordon: Oh!
Except the women but on the apportionment cases and on theory matter and the whole members --
Justice Potter Stewart: Part of this Court gave Negroes the right to vote, that's in the Fifteenth Amendment?
Mr. Jerry Gordon: Well, because so there are many other cases such as Louisiana versus United States where the right was circumscribed by the way it was implemented by the actions of local boards of elections.
And the Court has struck that down and issued decrease and in that case, incidentally the Court said that a decrease should not only prevent -- illuminate the discrimination which had existed up to that point but to prevent future discrimination as well.
This is the type of decree we seek because otherwise we're getting to go back to Ohio and go to through the same -- same experience we've had before.
We consider inevitable the Court has seen the resistance and hostility of these appellees and these pervades Ohio to third parties.
We asked for a restoration of these rights and the year 1908 in Ohio, the democratic candidate for governor got a half of million votes that republican candidate got a half of a million votes and the Socialist Labor Party got a small votes, 797 but it was on the ballot.
It didn't bankrupt Ohio.
It's possible for small groups of people to enjoy these kind of rights and there's no reason why they shouldn't.
We note in other areas of fundamental right such as the First Amendment.
A speaker who addresses a small crowd is permitted to speak just as the speaker who addresses the large crowd and we would never be suggested that the rights can be circumscribed and the words of Terminiello versus Chicago.
To circumscribe those rights you'd have to show it produces a clear and present danger of a serious substantive evil that rises far above public inconvenience.
All that we're told is well, there's a certain inconvenience to have a small party on the ballot.
That's not our reason to deny the right of that party to compete on an equal basis with the larger political parties.
What we asked most of all is for some guidelines to the state to prevent a repetition of the experience that this party has gone through where it went for decades, enjoying ballot status and now is denied that status.
And we believe that the guideline should be that states can regulate the accessibility the ballot to third parties but not more than as absolutely necessary and if this can be spelled out with some greater clarity in precision and has been before, this would certainly advance the cost of participatory democracy and the rights of small groups to participate.
We have today many small groups in this society who feel strongly have burning feelings about issues and are capable of causing substantial disruption.
Do we want to channel the discontent and the dissent in to the electoral process, I say we do.
But if we're going to say to those groups, yes, if you are not satisfied with our institutions the way to express your dissent to sue the political parties but do it through either the democratic or republican party, we're not going to channel the discontent through this type because they're not going to -- they're not going to participate on that basis.
They should be encouraged to form the wrong political groups and it should not be prohibitive and the requirement should be minimal so that it's easy for them to participate on the political process.
We think this is a very important policy consideration which should inspire the Court to make the accessibility of the ballot easy and to encourage groups to participate in this area.
Finally, we don't think that this, what we feel to be an invidious discrimination of the small versus the large should be dignified by excluding the Socialist Labor Party from the ballot in the November 1968 Elections because it would be saying in effect.
This has been the main rational the District Court and in this Court's decision granting temporary injunctive relief where the point was made there had been some delay.
What was quoted in that order was what the District Court had said about the small size of the party?
We would hope this Court would not dignify a position which says that the larger groups shall enjoy these rights but the smaller groups can --
Justice Potter Stewart: Mr. Gordon, what do you say to the representation -- professional representation by the representative of the Attorney General of Ohio that it's now a simple impossibility to give you the relief that you asked for 1968 and I'm not now talking about your laches perhaps it's all my fault but we're dealing with the fact not a theory as he represents it us, what do you say on that?
Mr. Jerry Gordon: Yes, Your Honor.
We did call Franklin County.
We included that in the brief we filed to the court Saturday.
We were never told that it was impossible.
We talked to Vernon Bob of the printing company and he did indicate some very large problems as far as reprinting strips for voting machines.
There's no question about that and it maybe that they wouldn't have time although he said, well, maybe some other printers could do it but then there's limitation -- there's limited number who can.
But we say this and we make this categorical statement, there is time to print paper ballots in every county of the state.
There's no question about that and Franklin County is elsewhere.
We've got plenty time before the election to do that.
And if members of this Court were prepared to make such an order in McDougal versus Green which is 12 days before the election, certainly with twice that time here there's time, Cuyahoga County has started making its paper ballots for --
Justice Potter Stewart: Did they which is --
Mr. Jerry Gordon: Yes.
Justice Potter Stewart: -- at the very least then, you would require these counties that have -- that vote by voting machines to turn by -- to turn the paper ballots to satisfy, you really if you ask, is that --
Mr. Jerry Gordon: We would say if that's what's necessary it should be not.
It's that important, it's not important to tell the people of Ohio we have seen these two cases come up together from the very inception in our case is the senior case.
It's then important to tell the people of Ohio that both groups shall be given relief and not one or the other.
We would favor both groups on the ballot and if there is a certain disruption of the electoral process that's a small price to pay for democracy.
That's a small price to pay for --
Justice Potter Stewart: For a total disruption of the electoral process and all?
Mr. Jerry Gordon: No.
We state in our brief that if we had waited -- if we sought relief now, obviously we wouldn't expect much response from the Court.
But in view of the fact that there is time, no disruption (Voice Overlap) --
Justice Potter Stewart: It still represented to us professionally as a fact that there is not time, that it's impossible to do.
Mr. Jerry Gordon: Well, I would hope the Court would take judicial notice of the fact that there is time to print ballots in 29 days to print paper ballots in the State of Ohio.
Chief Justice Earl Warren: To get them over to get them?
Mr. Jerry Gordon: No, Your Honor, not the absentee ballots.
Chief Justice Earl Warren: Or get them back in time to be counted as absentee ballots?
Mr. Jerry Gordon: No, because the absentee ballots should go out as they are, there is just not time on those.
Chief Justice Earl Warren: And then all these thousands of veterans would be disfranchised in the situation unless they've followed another procedure from the one that's in the existence in Ohio?
Mr. Jerry Gordon: Unless they could write-in.
The only ones that would suffer -- well, they could write-in and the write-in is no big problem with paper ballots that's what they will have.
They will be able to write-in the names the Socialist Labor Party candidates which they can do anyway.
Chief Justice Earl Warren: Yes.
Well, let me ask you this Mr. Gordon, you have two prongs to your case.
One of them is that these statutes are unconstitutional; the other is that you want some temporary relief.
Now, if the Court should determine that these statutes are unconstitutional but that it's too late to afford you the remedy that you asked for, wouldn't you win this case?
Wouldn't major source of your argument be satisfied and wouldn't you win to all practical purposes?
Mr. Jerry Gordon: Your Honor, we will only win this case if this Court take steps to preclude a recurrence of the experience that we have had in Ohio where the rights of these party were obliterated only if guidelines are established that will prevent, that will establish ceilings on the Ohio legislature because otherwise it's just as inevitable as it is that day follows the night, we will be back in Court in 1969 again challenging the new statutes which they passed.
Chief Justice Earl Warren: And that is no matter how late you come to this Court you had 20 years that you could've test to this if you wanted to as a national party because you have been a national party for 20 years but you think that regardless of the exigencies of the situation that you can come in just as late as you want and without regard to the disruption of the election process you can say to us in order to do your duty, you have to give us temporary relief.
Mr. Jerry Gordon: We say this Your Honor that the temporary relief was granted to the Wallace group on September 10.
We got the order in September 11.
We immediately notified and asked the Secretary of State to place the Socialist Labor Party candidates on the ballot, he declined, we notified him, we gave him notice of the filing of a motion.
Chief Justice Earl Warren: But that isn't final, we didn't say that that was going to be on that.
That was a temporary relief that can be changed by the judgment of this Court?
Mr. Jerry Gordon: That's correct Your Honor but the point is that there is still time and this we think is the crucial question.
We recognize this, that this Court has to weigh the competing equities and one thing it's going to take in to consideration is the state of preparation of the printing of the ballots.
We recognize that, all we're saying is this, that the factors on the other side outweigh this consideration and the factors are these, that a small group, the rights of a small group should be respected to the same extent as a large group and as long as it is still possible for that small group to have a place on the ballot, it should be where the place the ballot and this would dramatize by placing the Socialist Labor Party in the ballot it would dramatize the Court's adherence to that basic principle.
We think the language in the opinion which says that when you don't -- when you have to rely on write-in voting and you're not on the ballot that makes you a second class elector and denies your equality --
Justice Thurgood Marshall: Mr. Gordon, if you had filed this case on exact same time in 1964 and this Court had decided exactly what the Chief Justice suggests here you wouldn't be here today, would you?
Mr. Jerry Gordon: Well, that's correct Your Honor but we have to take --
Justice Thurgood Marshall: Well, isn't it that simple, you waited around.
Mr. Jerry Gordon: Well, the party didn't wait around.
The documents that it filed with this Court showed that year after year it was trying to get relief but it didn't have the resources to finance this type of legal challenge.
The party wasn't waiting around.
We have this problem in our society that people do not assert their rights because they are unable to.
And it was only because the American Civil Liberties Union took this case up that the case is here today.
Justice Thurgood Marshall: (Inaudible)
Mr. Jerry Gordon: That's right and there was admittedly some delay.
We recognize this is a factor too that the courts go in a way.
But there are these other factors which outweigh it.
We think it would be a grave tragedy if the one party, the party stand on the opposite ends of the political spectrum.
We're not anticipating what this Court is going to do we know better than that but we're just saying this -- we -- our position is all party should be on the ballot that if the ballot is going to be opened the time to do it is now, not later.
I don't want treat any further this question of whether we raise this in the court below because I think we documented it in the papers that we filed.
We agree that the prayer could've been somewhat clear but we have documented in the brief, filed it Saturday that we certainly did request this believing this relief and as a matter of fact the District Court did say that the main objective of both cases is for valid status.
We think this question is so important that you cannot impair rights of small groups without showing a compelling necessity, it never has been shown.
Therefore, if Socialist Labor Party like the democrats or republicans should enjoy equal rights and if this is an election race, the race should start at the same place.
Thank you very much, Your Honor.