MOORE v. OGILVIE
Legal provision: Equal Protection
Argument of Richard F. Watt
Chief Justice Earl Warren: Number 620, James L. Moore, et al., appellants versus Simon Shapiro and so forth.
Mr. Richard F. Watt: If the Court please.
Somewhat over 20 years ago, I appeared before this Court and argued the case of MacDougall versus Green in which an effort was being made to have declared unconstitutional a statute of the State of Illinois with regard to the right of new parties to a place on the general election ballot for statewide candidates.
In that case which was decided by this Court on October 21, 1948, a majority of the Court held in a per curiam opinion that the particular statute involved was constitutional as a reasonable exercise of the state’s power and specifically it held that it was proper for purposes of the requirements of a new party getting on the ballot that the state could require 25,000 signatures of which at there must be not less than 200 signatures from at least 50 different counties.
In the State of Illinois, there are 102 counties, and the population facts which were set out in the opinion then are substantially the same as they are now accepted the disparity between the more populous counties of Illinois and the less populous counties has somewhat increased.
We have here before this Court today virtually the same statute not on behalf of a new party but on behalf of independent candidates who sought to have themselves placed on the general election ballot as candidates for officers for the position of electors of president, vice president of the United States in the last general election.
And we are asking this Court now to reexamine MacDougall versus Green and to determine that it should be overruled.
The issue is precisely the same.
Is it proper for a state as condition of candidates getting on the ballot, who are not the candidates of one of the established political parties?
Is it permissible for the state to impose in addition to numerical standards?
Is it permissible that the state require that the numbers of voters who signify their determination to put candidates on the ballot must be distributed in a certain fashion throughout the state based upon where those voters reside?
Justice Potter Stewart: This is the precise statute that was before the Court in MacDougall against Green, is it not?
Mr. Richard F. Watt: The wording is the same, Your Honor.
The only difference is that there, it was Section 10.2 of the Illinois Election Code which dealt with new parties and here it’s Section 10.3 which deals with independent candidates.
Otherwise, it's precisely the same.
Justice Potter Stewart: The same statutory provision?
Mr. Richard F. Watt: That is correct.
Justice Potter Stewart: Exactly.
Mr. Richard F. Watt: Yes, it is.
Justice Potter Stewart: Identically.
Justice Abe Fortas: Well, I suppose you would agree that the answer to that question might be different depending upon the nature of the geographical distribution required so that we don't have a -- if that's so, we don't have before us merely the bowl of proposition that you have now stated but may we not also or alternatively have before us that proposition in the context of the fact that here you have such a tremendous disparity that is to say that only about 6.6% of the Illinois registered voters reside in 53 of the counties, is that right?
Mr. Richard F. Watt: That's correct.
Justice Abe Fortas: So, --
Mr. Richard F. Watt: In answer to that --
Justice Abe Fortas: I mean I assume that you're not saying that we have to base our decision solely on the abstraction that you put to us a moment ago.
Mr. Richard F. Watt: I think that's correct, Your Honor.
I would say this.
In the dissent that Mr. Justice Douglas wrote in MacDougall versus Green, there is the suggestion that it might be permissible to require a distribution of signatures provided that the distribution was proportionate to the population of the geographic areas involved.
So that I suppose you could state that if 25,000 signatures were required, it would be permissible for the state at that point to say those 25,000 signatures must be distributed throughout the state in proportion to the voting population of the various counties.
That particular issue is not here, that is correct.
Justice Abe Fortas: Well, I mean to say, what is here though is the fact that this question and the specific context of the demographic facts in the State of Illinois, in the distribution of people among the counties.
Here you could get, -- let's say, you could get the signatures of over 90% of the voters of the state and still not comply with its statute.
Mr. Richard F. Watt: That is correct.
You could not get the candidates on the ballot under those circumstances.
Justice Abe Fortas: And you might have another state in which a statute of this sort might work without that rather startling consequence.
If you have the population distributed more or less equally among the requisite number of counties.
Mr. Richard F. Watt: That is correct.
But I think I would interpret this Court's decision in Reynolds versus Sims as indicating that absent some of remarkable showing of the purpose of geographic distribution of voters, that if the unit with respect to which the candidates are concerned, let us say a statewide that then the validity and affect of a voter's indication of his intent should have nothing to do with where he lives.
And since, we elect in Illinois, the candidates for statewide office on a statewide basis, it would seem to me that there's a good reason for arguing that if you began imposing even some geographic distribution proportionate to population as a condition of putting the candidates on the ballot, that this might well in itself be an invalid research.
Justice Abe Fortas: I understand your position.
I think you want to go far broad.
But one has to go far broad on the straight numerical basis.
But I assume you do agree that there's at least a theoretical possibility of an alternative which is tied to the rather striking facts in the State of Illinois with respect to the unequal distribution of population.
Mr. Richard F. Watt: I would agree with that Your Honor.
I think to the certain extent, the Court has already in some of its decisions.
As you describe it gone far broad in so far as it is indicated, the irrelevancy of geographic location of where a voter happens to live.
It makes no difference.
It should make no difference how much his vote counts, dependent upon whether he lives in a small county or a large county.
Justice John M. Harlan: That does those cases arose under the Equal Protection Clause?
This case, the constitutional connotation of the case is not the Equal Protection Clause, this is (Inaudible)?
It is a presidential election.
Mr. Richard F. Watt: That is correct.
But it would be our position --
Justice John M. Harlan: In that specific provision of the Constitution.
Mr. Richard F. Watt: But there is no requirement in the Constitution as to the manner in which states provide for the nomination of the presidential electors.
Justice William J. Brennan: Well, Mr. Watt, does this statute apply only to presidential election?
Mr. Richard F. Watt: No it does not.
Justice William J. Brennan: All statewide officers.
Mr. Richard F. Watt: All statewide officers.
The only reason that we are here concerned only with presidential electors is because the petitions which were filed were simply petitions for the nomination of 26 presidential electors from the State of Illinois.
Justice William J. Brennan: But what I'm getting at, your submission is that we have a broader problem here than just that which --
Mr. Richard F. Watt: That is correct.
Justice William J. Brennan: Relates to the choice of presidential electors.
Mr. Richard F. Watt: It affects all independent candidates for statewide office in the State of Illinois and that would be United States Senator, Governor, Lieutenant Governor and so on.
Justice Byron R. White: Well, is your basic argument that 25,000 signatures should suffice wherever the 25,000 happen to live?
Mr. Richard F. Watt: That is correct.
I would not say that the state could not impose a different numerical total as a proper condition for getting on the ballot and the statute prior to 1935 in Illinois simply required the total of 25,000.
There was an amendment in 1935 which added the geographical distribution.
Justice Byron R. White: And you just say that geographic distribution is unconstitutional?
Mr. Richard F. Watt: Correct.
In violation of the Equal Protection Clause and basically in line with the dissenting opinion of Mr. Justice Douglas wrote in MacDougall versus Green and as that view in our position as we see it at least has been adopted by this Court in Reynolds versus Sims and in subsequent cases.
For the decisions below was based substantially upon the binding effect of MacDougall versus Green.
The three-judge Court which heard the matter took the position that if MacDougall versus Green was to be viewed as no longer the law that it should not be the task of three-judge Court to make that decision.
And in our argument before the three-judge Court by briefs, it was -- we contended that Reynolds versus Sims has substantially undercut the theory by which this Court in MacDougall versus Green upheld the statutory requirement and the view of this Court at that time was that it was perfectly permissible for a state as a condition of permitting candidates on the ballot by nomination petition to show that those candidates had support which was not confined to one geographic area.
Well, as Mr. Justice Fortas has pointed out, population statistics of Illinois really rather startling.
Well, over 50% of the registered voters reside in one county, Cook County.
Well, over 60% reside in the five most populous counties.
And the 49 most populous counties have 93.6% of the -- approximately 93.6% of the registered voters which means that any combination of voters no matter how you distribute them from those 49 counties could not under this statute put independent candidates or new party candidates on the ballot.
They would have to have signatures from additional counties.
Now, one of the necessary effects of this and I think everybody who has ever had anything to do with nomination petitions in which signatures are required, it's always desirable when you file petitions to have surplus of signatures.
It may turn out that some of the people who signed think they are registered voters when in fact they are not.
It may turn out that some individuals have moved from one residence to another and that their registered voting residence is different from what they put on the petition.
It may be that some signatures are illegible and consequently, you cannot to be absolutely certain that if you just file 25,000 that you will have a sufficient number of valid signatures.
Consequently, anyone preparing petitions of this kind would naturally want to have some margin but you could have any size of margin of additional signatures from Cook County or anyone of 49 other counties and none of those signatures would be sufficient to put you over the top, so to speak.
Now, you could have hundreds of thousands of signatures and in effect, those additional signatures would not count.
So that at a certain point, an individual from Cook County who signs a petition of this kind is in effect having his signature simply disregarded because it is irrelevant to the requirement and it will not count so to speak to offset the lack of signatures from many of the other counties.
It seems to me under those circumstances, that you have essentially the same kind of problem as this Court has concerned itself with where you have gross malapportionment.
The effective weight of one voter's indication of his position whether by signing a nomination petition or by voting really depends upon where he lives.
If he lives in a small county, it will count.
If he lives in a large county, it may not count at all.
As we read Reynolds versus Sims, this Court has determined as a general principle that the weight of a citizen's vote cannot be made to depend upon where he lives and --
Justice Potter Stewart: Did the Reynolds against Sims opinion of the Court deal with MacDougall case, do you remember?
Mr. Richard F. Watt: If the MacDougall case is cited in footnote 40, Mr. Justice Douglas' dissent is cited and the only way I can describe it, it seems to me that the principles set out by Mr. Justice Douglas' dissent are cited approvingly by the majority of this Court, Reynolds versus Sims.
Justice Potter Stewart: And that was the extent of the treatment of the MacDougall case.
Mr. Richard F. Watt: That was the extent of the treatment of the decision itself.
Justice Potter Stewart: Because I seem to remember in the Baker against Carr, there was more extensive treatment in the --
Mr. Richard F. Watt: There was discussion of the significance of MacDougall versus Green in so far as it possibly was the first case of a political -- this kind of political problem in which the Court decided the issue on the merits rather than simply saying that this was the kind of political thicket into which the Court would not go.
So that in 1948, I think it's fair to say MacDougall versus Green decided the issue on the merits and did not take the out of considering that it's non-justiciable.
Justice Byron R. White: So what do you do with the Dusch case?
Mr. Richard F. Watt: I think that's different in this sense Your Honor.
Justice Byron R. White: Because there -- there the requirement was that a candidate had to live in certain district, so there is a geographical qualification on the candidate himself.
Mr. Richard F. Watt: That is correct.
But they were elected at large by the votes of all the citizens that were eligible to vote overall in the community.
Even though the candidates, there has to be candidates geographically spaced so to speak.
The effect of the voter's vote had nothing to do with where he happened to live.
Justice Byron R. White: And here, it's not the candidate but its supporters who have to live in a certain place.
Mr. Richard F. Watt: That is correct.
Justice Byron R. White: And unless they live in a certain place, he can't even get on the ballot.
Mr. Richard F. Watt: That is correct.
Now, as I understand the position taken by the state of Illinois and asking that this decision of the court below be affirmed, it is essentially, first, that we really don't have an election here, that in Illinois, presidential electors get on the ballot so far as established parties are concerned by the action of state conventions.
And therefore, there is nothing in the nature of a primary to get them on the ballot.
They are placed on the ballot by virtue of official action of the state convention.
And secondly, that here we are concerned with nomination petitions and not the equivalent of election.
It seems to me that that argument simply cannot stand because the question is whether or not the procedure is an essential and integral part of the election process.
However, an individual gets officially on the ballot under a statutory scheme, that statutory scheme is part of the election machinery.
If it's by nomination petition or if it's by primary election, it seems to me the standards should be precisely the same, namely.
What is the effect of a voter doing something?
It cannot seem logical to me, at least, that he must have his vote counted regardless of where he lives and his vote must count equally where the vote of every other voter if it's a primary election that is concerned.
But that it is perfectly alright to discriminate against him and wait the votes of some individuals when what you're counting are signatures on a nomination petition.
It seems to me that the process is essentially part of the election machinery and it should meet the same standards.
The second argument that the state makes is that somehow rather what we are seeking here would interfere with the scheme for independent candidates and new party candidates.
I really don't understand that argument because as I suggested a moment before, the original requirement in Illinois prior to 1935 was simply 25,000 signatures regardless of where they came from in the state and that the only effect of a decision here determining the unconstitutionality of the amendment would as has been determined by many Illinois cases leave the underlying statute intact and therefore if this amendment were determined to be unconstitutional, the underlying statutory scheme of 25,000 signatures for statewide candidates would continue as a perfectly valid enactment of the state legislature.
So we do not think that a decision by this Court in any respect would interfere with a perfectly understandable and valid procedure and that the only effect of the Court's decision overruling MacDougall versus Green would be to eliminate a kind of unconstitutional restriction upon the nomination process by petitioner.
So we would ask this Court to do what we think the Court in effect has already done and that is by its decisions in such cases as Gray versus Sanders and Reynolds versus Sims to recognize that this kind of geographic requirement which has the necessary effect of giving more weight to one voter's influence than to another should be considered unconstitutional regardless of whether all we're concerned with is a nomination process by petition in as much as the petitions are an essential means for new party and independent party candidates to get on the ballot.
I have no further argument Mr. Justice -- Mr. Chief Justice.
Mr. Richard F. Watt: You may.
Argument of John J. O'toole
Mr. John J. O'toole: Mr. Chief Justice and may it please the Court.
At the outset, I would like to thank the Court for your permission in granting us leave to present two counsels and I would like to further elaborate and say that the reason we did so request even though the rule is quite clear is because Mr. Richard Friedman has been working very closely election laws for many, many years in the State of Illinois and perhaps his presence here will be helpful to the Court.
Chief Justice Earl Warren: Very well.
Mr. John J. O'toole: On some questions.
Basically, what we have here us we think a very reasonable and workable method for allowing individuals and new political parties to gain a position under ballot in State of Illinois and we have an attack made upon our statutory method of doing so based upon what we think is an unwarranted application of one man, one vote.
Essentially, counsel was very correct in that although this case merely reflects specifically as to electors, it does in fact our entire nominating procedure in the State of Illinois.
As Mr. Justice Harlan referred to, Article II, Section 1, Clause 2 of our Constitution permits those state legislatures to set up nominating provisions for electors.
Pursuant to that grant of power in the residual powers that our legislature had, we have set up a system whereby any existing political party who has garnered 5% of the vote in the last general election can nominate by party convention its electors or other state officials to be elected.
We also have a provision for new political parties to gain a place on the ballot, not on the primary but on the actual ballot by obtaining 25,000 signatures, 200 of which must be from at least 50 different counties, approximately 50% of our counties.
We have the same provision for individual candidate seeking a place on the ballot on the general election, not on a primary election.
In MacDougall versus Green, this Court sanctioned and in fact approved our use and method of allowing individuals and new parties to gain a place on the ballot and MacDougall versus Green has been cited since its decision 20 years ago mainly for the proposition that it was the first case which said, we, the Federal Courts, will decide these political issues in relation to elections which had previously not, they had not taken jurisdiction of, mainly --
Justice Byron R. White: Couldn't the people of Cook County through the control of the party nominate a candidate for the general election?
Mr. John J. O'toole: Could the people of Cook County place someone on the ballot for a statewide election under our present election code?
Justice Byron R. White: Well, through the party.
Mr. John J. O'toole: Through the party?
No, because through an established party, the established party can only place an individual on the ballot by party convention.
Justice Byron R. White: Yes and who control.
Mr. John J. O'toole: And a party convention.
Justice Byron R. White: Don't you have -- do you have some rules in your state which --
Mr. John J. O'toole: Yes, we do.
We have a Cook County Democratic Party, Cook County Republican Party.
We have a democratic and republican party in each of the 101 other counties.
Justice Byron R. White: What does it take -- what does it take in a statewide convention of the Democratic Party in Illinois for a man to be nominated as a candidate of that party?
Mr. John J. O'toole: In the -- I think I'm correct on this; Mr. Friedman can correct me if I'm wrong.
The party convention is made up of a representative of each of the 102 counties.
At this political --
Justice Byron R. White: Just one?
Just one candidate from every county?
Mr. John J. O'toole: One county chairman.
Justice Byron R. White: Is that comprise your state convention?
Mr. John J. O'toole: That's 101 counties.
Justice Byron R. White: Yes, 101 people will be in your state convention?
Mr. John J. O'toole: But the individual delegation from a county and might be more than one here carries weighted voting depending upon the amount of votes that that --
Justice Byron R. White: Let's assume that an issue comes up in the state convention and you have a vote in the state convention and all the Cook County representatives vote the same way, will the Cook County representation carry the state convention?
Mr. John J. O'toole: I would eventually say, at the present time, yes because I believe more than half of the democratic votes in the last general election were from Cook County.
Justice Byron R. White: So Cook County obviously can get itself -- can get a candidate on the primary ballot.
Mr. John J. O'toole: A democrat, a republican.
Justice Byron R. White: Yes, I understand that a democrat on the primary ballot.
Mr. John J. O'toole: Yes.
Justice Byron R. White: And --
Mr. John J. O'toole: No, no not on the primary -- on the general.
Justice Byron R. White: Well, you mean --
Mr. John J. O'toole: We do not have a primary if there are no contested --
Justice Byron R. White: Well, I know but how many votes does it take to get a person on a primary ballot by -- through the convention.
I mean the convention.
If you get him at the ultimate convention, you will get on the ballot, won't you?
Mr. John J. O'toole: A sure majority.
Justice Byron R. White: Well, how can more than one get a sure majority in the convention?
Mr. John J. O'toole: The vote to one has the majority.
Justice Byron R. White: Well, I know but then you mean you never have a primary in Illinois?
Mr. John J. O'toole: Oh!
Yes, we do have a primary in Illinois.
There are provisions in our election code for individuals to seek an office within a political party by nominating petitions.
Justice Byron R. White: I see.
Mr. John J. O'toole: But what we're talking about here --
Justice Byron R. White: So the party -- the party itself then just actually just puts up one candidate.
Mr. John J. O'toole: The party itself will support or if --
Justice Byron R. White: The people of Cook County may operate it through the party put a man on the general election ballot for statewide office.
Mr. John J. O'toole: That's right.
Justice William J. Brennan: But one of the -- those who will go into a primary again for the Democratic Party, who are these?
Mr. John J. O'toole: There are provisions in our election code which permit an individual to obtain a place on a party ballot in a primary by obtaining a requisite amount of signatures.
Justice William J. Brennan: But the choice of the party convention does not oppose him in any primary?
Mr. John J. O'toole: Oh!
Then at that time, there would be an election as a matter due course, we do have primary through the State of Illinois almost all the time because of the --
Justice William J. Brennan: How does the -- how does the one, who opposes the convention choice, how does he get on the primary ballot?
Mr. John J. O'toole: There's provision that he has to do it by nominating --
Justice William J. Brennan: There's any provision anything like this for an independent 25,000 vote?
Mr. John J. O'toole: I think that in the independent, I don't think it's quite the same.
It is based upon a percentage who voted in the prior democratic primary.
Justice William J. Brennan: In other words, what he had --
Mr. John J. O'toole: He --
Justice William J. Brennan: Would he get some percentage of those on his nominating petition.
Mr. John J. O'toole: That's right, Your Honor.
Justice William J. Brennan: All of whom perhaps might be voters living in Cook County?
Mr. John J. O'toole: I don't believe there's any county restriction on this basis.
But now this doesn't affect the electors that we have here because the electors are not elected out of a primary.
Those are chosen solely by party convention in cases of democratic and republican party, in the State of Illinois.
Justice Thurgood Marshall: And Cook County could select all the 26 electors at the convention?
Mr. John J. O'toole: Let's say that due to practicalities where the Democratic Party is mainly in Cook County, in the State of Illinois and the Republican Party is mainly in downstate.
Justice Thurgood Marshall: Well, assume that every democrat in Cook County at the convention selects all of the 26 electors.
They will be selected and will appear on the ballot.
Mr. John J. O'toole: That's possible, that's right.
As we have said before, counsel has based this entire attack of unconstitutionality thing on one man, one vote.
Now actually, one man, one vote doesn't apply here for two reasons.
And that is one, we don't have an election.
We fully agree that if there were an elective process, one man, one vote would apply.
But that would only be where we have representative districts or legislature.
We don't have that in this situation.
What we have done here is our legislature has determined that an individual seeking statewide office or federal office on a statewide basis should demonstrate at least the minimal requirements of statewide support.
And that we don't believe that the test applied to our statute should be one man, one vote not being based upon representation or election.
But rather whether we have created a situation in the States of Illinois which makes it practically impossible for any individual or new political party to gain a position on the ballot and we think that the facts will not bear this out.
In rela --
Justice William J. Brennan: By the way, the electors involved here who sought unsuccessful to get on this ballot, whom were they supporting here?
Mr. John J. O'toole: If the -- the record doesn't really reflect Your Honor but for a matter of what I was told that there were supporters of Senator Eugene McCarthy.
But that was only hearsay.
I have nothing of basis about what I heard.
In relation to the question propounded by Mr. Justice Fortas in view of the 6.6 debasement which counsel has set forth as being the basis of the unconstitutionality if we were to assume that one man, one vote applied in this situation.
What we tried to say was this.
That counsel wants us to take off the 200 votes -- the 200 signatures from 50 counties and just leave 25,000 signatures from any place or one county.
We can go into counties if they were accomplished.
We can go into counties in a corner of our state which can be 400 miles away from any other portion of the state, from Cook County let's say.
And we can debase of vote 99.5% of those living in the other counties because we can garner one-half of 1% from one county having 25,000 or more electors, people who are registered to vote.
And we suggest that that in view of the dissent in MacDougall under one man, one vote would create an unconstitutional situation which would be of greater significance than counsel suggest exists now.
Justice Abe Fortas: Why do you say that would debase the vote of the others?
Mr. John J. O'toole: Well, basically their argument is this, that people living in 50 counties representing 6.6% of the population can put someone on the ballot who is not acceptable to 93.4% of the people.
I suggest that if you remove the requirement --
Justice Abe Fortas: As I understand it, the argument is that people who live in 50 other counties with 6 point whatever it is, less than 7% of the population can prevent the remaining people in the state from putting somebody on the ballot.
Mr. John J. O'toole: In relation to the argument of the state from that point, I would have to say that while that might be possible, it certainly is not probable that an individual who has a serious candidate could not garner 200 signatures and that we would have such a conspiracy existing in 53 counties that would block anyone from getting on a ballot.
Justice Abe Fortas: Well, that may be but that's our argument, isn't it?
Mr. John J. O'toole: That is part of it but then you got it transversely.
Justice Abe Fortas: Why do you say that if you require that the statute be based solely upon numbers that that would -- that might result in debasing the vote of people throughout most of the state?
Mr. John J. O'toole: Basically on his arguments stated on the converse as I originally stated it, that 93.4% could be -- could have someone on the ballot that was not acceptable to them likewise 99.5% could have someone on the ballot that was not acceptable to them if this were removed.
But we think we have reached almost an optimum in allowing an individual to get on the ballot for the State of Illinois.
And I would like to leave the remaining time to Mr. Friedman for any questions you might have concerning particular aspects of the Illinois electoral system.
Chief Justice Earl Warren: Very well.
Argument of Richard E. Friedman
Mr. Richard E. Friedman: Mr. Chief Justice and may it please the Court.
The second basic issue in this matter is whether or not the Illinois requirements amounts to invidious discrimination whether it constitutes an unreasonable burden, the voters of the State of Illinois.
I suggest to you that Illinois has struck a good balance between the interest of the State of Illinois and the interest of those people who may be disadvantaged by this requirement.
There is no precise or objective test which may be applied to the situation such as this but there are a number of elements, a number of concepts which may be applied to this particular type of balancing problem.
To begin with, is there a showing of some voter interest by the candidate and further is this substantial interest manifest prior to the time of the election?
Also, does the candidate have some party structure, some political organization upon which he bases his candidacy?
But these three conceptual elements, I think, are all bound together further by the question of the experience of the State of Illinois and more than that, the practicality or the pragmatics of the situation.
A state legislative policy is composed of a number of elements.
For example, what is the history of the state?
What are the peculiar problems of its geography?
What are the attitudes of its people?
In a number of other elements, all of which may be variables that could be introduced into this mix.
State legislative objective is also based on an appreciation by the people of the State of Illinois of a particular political theory or a particular political concept.
The Constitution does not compel the state to adopt any particular political philosophy or political theory which underlies the legislative objectives which is served by this requirement.
What then are the legislative objectives which are served by this requirement?
To begin with, I think that there's a requirement that a serious candidate must show some voter interest in his candidacy.
And a reason for this may be based in part on a political theory appreciation of a legislative objective by the State of Illinois.
I would define it as the majority plurality theory based in part.
It would be in a situation where there is a third party candidacy.
It very well may be that the candidate with the highest number of votes may not obtain a majority.
He may merely win by a plurality.
It follows as a possibility that in combination, the third party may actually prefer the party with the second highest number of votes and in combination the two together may actually win or it's conceivable that they could have won by a majority.
This I suggest to you is one possible political theory which may be accepted by the State of Illinois.
Justice Byron R. White: Could be a clumsy one to get at this objective in this provision.
Mr. Richard E. Friedman: I don't suggest that that by itself Mr. Justice is the whole answer.
I would hope that we could regard the situation in its whole context.
We get into another area of experience and I suggest this to you.
The requirement was adopted by the general assembly in 1935 and it was first imposed for the presidential election of 1936.
In 1932, the presidential election immediately prior to the imposition of this requirement, there were four independent candidacies on the ballot in Illinois.
In 1936, the first year after the imposition --
Justice Potter Stewart: That is for the presidency?
Mr. Richard E. Friedman: For the -- well, it was for presidency.
It was also for other offices as well, other statewide offices, so I think it's quite apt in its broadest view.
But to follow, in 1936, the experience was that there were also four independent candidacies.
So I'm suggesting to you on a numerical analysis alone, immediately before and immediately after the imposition of these requirements, there were four independent candidacies and I don't think that we can demonstrate that a requirement which is rather easy to meet indicates that such candidacies would flourish nor does it necessarily follow that a more difficult requirement to meet would indicate that such candidacies would be more of it.
I'm only suggesting to you that in the whole political context, there are so many variables that enter into a situation in any given time.
There is no way to project with any degree of accuracy what would or what might occur in the future or what would've occurred had not this provision have been involved.
A second legislative objective to be served would be a concern by the State of Illinois that any proliferation of independent candidacies might tend to confuse the voters and I would distinguish the Ohio situation which is before the Court in the Williams case from the Illinois situation.
In Ohio, there was a requirement that there'd be signatures from 15% of the voters.
The numerical figure was I think something like 433,000.
In Illinois, the comparable figure is that we require only one-half, approximately one-half of 1% of the total voters or 25,000.
So it's a much easier provision to meet in terms of a numerical analysis alone.
Chief Justice Earl Warren: I wonder Mr. Friedman if you could tell us what the voting strength is in the 50th largest county in Illinois because they have to get two other signatures from each of 50 counties.
What would be the smallest of those 50 counties represent?
Mr. Richard E. Friedman: I made this analysis Your Honor and I don't know if I can quite need it.
Perhaps, I can give you another figure which might be helpful to you.
Chief Justice Earl Warren: Yes.
Mr. Richard E. Friedman: We have 102 counties.
A 50% rate would be 52.
My study shows that there are 54 counties in the state with more than 15,000 voters.
Perhaps that meets in part and doesn't quite hit it but I think its close enough.
There are 15,000 -- there are 54 counties where there are more than 15,000 voters in the state or in the county.
A third legislative objective to be served by --
Chief Justice Earl Warren: May I ask you, would you break that down into parties as to how in Cook County you are overwhelmingly democratic in counties like that, would they be overwhelming?
Mr. Richard E. Friedman: I don't have those figures at hand Your Honor.
I think I can give you a rather close approximation.
Chief Justice Earl Warren: Yes.
Mr. Richard E. Friedman: In terms of voter registration alone, Cook County has slightly more than 50%.
The balance of it being as it is called downstate Illinois that is all the counties other than Cook County.
The relative vote in Cook County would account for, I would say, perhaps 60% of the democratic vote throughout the state.
The converse would be true with the Republican Party.
Downstate, there would be something like 60%, in the downstate areas, about 40% in Cook County.
It would be something like that.
I'm afraid I don't have specific numbers at hand.
But that would be an essential waiting of the relative strength of the parties in the various areas of the state.
I would turn now to the third legislative objective that's served by this requirement and that would be that a candidate should have his support not limited to a concentrated locality and the reason for that would be that a candidate runs statewide, his policies and his programs should have statewide appeal.
But in addition to that, there's also a practical argument that can be put forward to this.
Any serious candidate of necessity would have to establish some sort of political structure at least in the major most populous areas of the State of Illinois.
And I suggest to you that this requirement of obtaining signatures in these counties would almost perfectly track what a serious political candidate would have to do anyway in developing an effective campaign.
Justice Thurgood Marshall: But this “serious political candidate” would not have to have an organization in every single county in order to win?
Mr. Richard E. Friedman: No, I'm not suggesting that Your Honor.
Justice Thurgood Marshall: But he does have to have it in order to get on the ballot?
Mr. Richard E. Friedman: Well, I'm suggesting to you, yes.
To answer your question, it is true that he would have to gather signatures from 50 counties but more than that, I am suggesting that if he wants to win an election, he must establish a political structure that should have headquarters in a substantial number of the counties in the state.
Justice Thurgood Marshall: But you don't -- is 50 what you consider a substantial number.
That's the point I'm talking about, this 50.
Mr. Richard E. Friedman: I would think in organizing a campaign, you would have to have a political organization and probably all but the smallest counties, I would say that the number I gave in response to the question of Chief Justice Warren would be that you probably you have to have an ongoing organization in a minimum of at least 54 counties.
Justice Thurgood Marshall: And that's the reason for it.
Justice Abe Fortas: Suppose a candidate on the democratic ticket got all of the -- got the solid democratic vote of Cook County and from all other counties, solid democratic vote, how many counties would have to go for him in order for him to be elected?
Mr. Richard E. Friedman: I'd have to do some rapid calculating.
Justice Abe Fortas: Well, it wouldn't be many, would it?
Mr. Richard E. Friedman: No, I would think that perhaps -- well, let me answer it this way.
I think the Cook County, and perhaps the seven or eight next most populous counties in the state that there was substantial trend for a candidate, I think he would be ensured to be a winner.
Justice Abe Fortas: Well, that's the point for whatever it might mean that is to say that in theory anyway, a candidate can be elected by a party vote, by a vote of like-minded people and let us say neither 10 counties only but in order for an independent to get on the ballot under this statute, he will have to have some people voting -- some people favoring him in 50 other counties.
Mr. Richard E. Friedman: That's true.
Mr. Justice Fortas, I'd suggest that there might be a slightly different focus to this argument.
Heretofore, we've been talking or in response to the questions, about the major political parties, the republican and democratic party but what we're talking about here is the viability of an independent candidate, how well he may do through this structure and I think that as a practical matter, in order for him to win, he would have to garner at least that many votes.
Justice Abe Fortas: Well, if he's an independent candidate who represents a splinter, a democratic splinter or a republican splinter, suppose he represented a democratic splinter, it might very well be that his appeal would be confined to a very few counties even though at the time of the election, he might have a formidable vote in the average if he could get on the ballot.
Mr. Richard E. Friedman: Well, yes --
Justice Abe Fortas: That's from the pragmatic point of view, it would seem to me that that might be the difficulty.
Mr. Richard E. Friedman: Your Honor, I would say that that's true but in addition to that, there's one other element of the history of independent parties in the State of Illinois that may be helpful to the Court.
That from the year 1912 through 1968 in presidential years, there were 39 independent candidacies.
This works out to approximately 2.6 per time, so I'm suggesting to you that both prior to and subsequent to the imposition of this requirement, there have been viable candidacies.
But one further fact under number --
Justice Byron R. White: What do you mean the requirement doesn't mean much anyway even in serving state interest, if it's your state interest is to keep down too many independent candidates.
Mr. Richard E. Friedman: Well, 2.6% is the figure that's occurred.
It goes slightly more prior to the imposition of this requirement than after but it's been about the same.
Justice Byron R. White: What interest does the state have in system that permits the democrats of Cook County, as to democrats from one county operating through their convention to put a presidential elector on the ballot and all of the independents in Cook County no matter how many they are can't get a presidential elector on the ballot?
Mr. Richard E. Friedman: Once again, the focus of the case before us is not necessarily related to the internal operation of either the two major political parties.
Justice Byron R. White: Well, I'm just suggesting that -- I'm just suggesting that this necessarily is part of the case, isn't it, when an independent claim has been denied equal protection as a law because he has to get 200 signatures on 50 counties and yet maybe 25,000 democrats in Cook County operating through their convention or did all the democrats in Cook County operating through their convention can put a candidate for a presidential elector on the ballot.
Mr. Richard E. Friedman: Well as a matter of practice --
Justice Byron R. White: Isn't that true though?
Mr. Richard E. Friedman: Yes it is.
But as a matter of practice, that's a theoretical possibility.
As a matter of practice, in putting together any slate, there is considerable concern to making it as broad-based geographically as possible.
It may be that the balance might be top heavy in terms of Cook County but I think invariably, you will find a substantial number of the slate in Illinois from counties other than Cook.
Justice Byron R. White: Do you think this is -- is it a part of your argument really that this requirement doesn't mean much, that any serious candidate can get it anyway and that this is just an afterthought?
Mr. Richard E. Friedman: No, I think not, Your Honor.
Justice Byron R. White: You think it is a substantial obstacle to an independent candidate?
Mr. Richard E. Friedman: It's an obstacle which must be overcome and it has been overcome in a number of instances.
The legislative objective that could be served would be as I indicated before, the requirement of substantial voter interest, the concern about possible proliferation of candidacies and the like.
Justice Byron R. White: Do you think this thing is kept off to good many candidates then?
Mr. Richard E. Friedman: Once again, it would be speculative, Your Honor.
I know that there have been perhaps every year since 1930 at least one potential candidate or potential prime independent slate that's applied for application and has been denied.
Now, what the reasons are, I don't know.
It relates precisely to this.
Justice Byron R. White: Well, I take it we could believe then it's a substantial obstacle in what you say.
At least you don't say it's easy.
Mr. Richard E. Friedman: No, I don't.
Chief Justice Earl Warren: Very well.
Mr. Watt, do you have anything further.
Rebuttal of Richard F. Watt
Mr. Richard F. Watt: Just one very brief comment if I may.
Mr. Friedman has indicated certain theoretical justification for the requirement and these are really a matter of political theory.
I would suggest they're also a matter of speculation.
In the State of Illinois unfortunately, we do not have the kind of material which makes it possible to determine what the legislature really had in mind when it adopted any given piece of legislation.
We do not have the raw material for determining legislative history and legislative intent, so that in order to speculate that there's a particular theory back of this, I would say that its interesting speculation but I don't think that it is anything which this Court can rely on in determining what the legislature had in mind in 1935.
I honestly don't know and I seriously doubt if there's anyway of finding out.
As to whether this is a substantial obstacle or not, I think the answer is clear that it is.
That it is.
There are many, many counties in Illinois where there are fewer than 10,000 registered voters and furthermore, there's one additional requirement that must be kept in mind with regard to ballot signatures for a nominating a petition.
Anybody who voted in either the democratic or republican primary is ineligible to sign a petition for either an independent candidate or a new party candidate.
The result is that it is not simply sufficient to look to the total number of registered voters in any given county.
You also have to take into account that many of them as potential signors of petitions are automatically eliminated if they voted either the republican or democratic primary, so this makes the obstacle a little bit tougher to get over.
I don't think there's any doubt that this particular requirement can be met but I also don't think there's any doubt that it is in a number instances kept people from the ballot.
Justice Hugo L. Black: How do you suggest it could be met to avoid constitutional objection you entertain?
Rebuttal of Richard E. Friedman
Mr. Richard E. Friedman: I would say that the only way that it could be geographic distributive requirements would be if they were proportional either to the population of the county or the registered voters of the county.
In line with the suggestion that Mr. Justice Douglas made in his dissent MacDougall versus Green, but unless that we're done, I would say that you would simply have to eliminate all geographic distributive requirements and the problem I would --
Justice Hugo L. Black: And how would you have the election?
How would a new party get in?
Rebuttal of Richard F. Watt
Mr. Richard F. Watt: A new party would get in by filing petitions with the required number of signatures of qualified voters who had not voted in one of the party primaries and if the total number of valid signatures was up to the minimum required, then that group of candidates or that individual candidate should go on the ballot.
Justice Hugo L. Black: From what counties?
Mr. Richard F. Watt: It would make no difference from what county.
Justice Hugo L. Black: Just from the state?
Mr. Richard F. Watt: Just from the state.
Justice Hugo L. Black: Is that -- could you think of any other way?
Mr. Richard F. Watt: Well, I suppose you could have almost any variety of techniques for getting independents or new party candidates on the ballot Mr. Justice Black.
In England, as I understand it, you pay a deposit and simply sign papers and pay a deposit of 200 Pounds for certain offices and if you fail to get a requisite number of the votes, you forfeit your 200 Pounds.
I have not heard that in England, they have a terrible problem of proliferation of political parties.
I think this is really an unreal fear that's used to justify a technique which realistically has a tendency to monopolize the ballot of the existing parties.
Chief Justice Earl Warren: We'll adjourn.