BROCKINGTON v. RHODES
Legal provision: Article 3, Section 2, Paragraph 1: Case or Controversy Requirement
Argument of Benjamin B. Sheerer
Chief Justice Warren E. Burger: Number 31, Brockington against Rhodes and others.
Mr. Sheerer you may proceed whenever you’re ready.
Mr. Benjamin B. Sheerer: Mr. Chief Justice, may it please the Court.
Case number 31 Brockington versus Rhodes today is an election case on appeal from the Ohio Supreme Court.
It’s a case that we feel as this Court has said deals with matters closed to the core of our constitutional system.
It follows a case previously decided by this Court under the title Williams versus Rhodes.
The Williams versus Rhodes case dealt with the right of third parties to attain ballot status in Ohio.
This case deals with the right of independent candidates to obtain ballot status in the State of Ohio.
We think the case itself raises two main issues.
The first issue arises in this manner.
Ohio allows independent candidates to secure ballot status through the filing of nominating petitions signed a certain number of qualified voters.
Now up to 1952, that number was 1%, that number was 1% for 60 something years.
In 1952, the amount was increased to 7%.
Now, under the 1% rule which had existed for 60 something years, there was no substantial, no disruptive interference with the election procedure by independents.
In fact, participation by independents was slight perhaps even minimal in the Ohio election process.
Justice Potter Stewart: Was that 1% rule applicable across the board all independent candidates for any elective office of the state?
Mr. Benjamin B. Sheerer: Yes, sir that is my understanding.
And in fact sir the 7% is likewise --
Justice Potter Stewart: Likewise.
Mr. Benjamin B. Sheerer: -- applicable across the board.
Justice Potter Stewart: Your client is a -- wanted to be an independent candidate for election to the House of Representatives.
Mr. Benjamin B. Sheerer: Yes sir that’s correct, for 21 first congressional District State of Ohio and in November 1968 general election.
Now we say that given that history of no disruption, no substantial interference, no overburdening of election process, the increase, the sevenfold increase in the requirement constitutes a burden on First Amendment, freedoms, a limitation of First Amendment freedoms of association and speech and a burden on the right to cast an effective ballot, a right to participate equally in the election process.
Now, the second main issue we see arising is the barrier itself.
In our case, for example, my man, Mr. Brockington, the appellant here would have had to secure 5,974 valid signatures to qualify for the ballot.
Now as a rule of thumb, any politician will tell you this means get 50% more.
In other words, he would have had to obtain 9,000 signatures most likely of which perhaps 6,000 would be valid in order to qualify.
Now a party candidate qualifies for the primary for being on the ballot in the primary by simply securing 100 signatures if it’s an office less than statewide, or 1,000 signatures if it’s a statewide office.
Justice Potter Stewart: Yes, but then, in order to appear on the ballot in November, he has to win a primary election and get a majority of the people voting on the primary.
Mr. Benjamin B. Sheerer: That’s correct.
Justice Potter Stewart: Which is many, many thousands.
Mr. Benjamin B. Sheerer: That may be the case.
We say however --
Chief Justice Warren E. Burger: Is there any alternative?
Mr. Benjamin B. Sheerer: To --
Chief Justice Warren E. Burger: To get on the final ballot?
Mr. Benjamin B. Sheerer: No, sir.
There is either through to the party primary or as an independent.
Those are the two methods that Ohio allows.
Chief Justice Warren E. Burger: Now what I think we were concerned about you said in response to Justice Stewart’s question that he may have to get a majority in his primary.
Mr. Benjamin B. Sheerer: My main --
Chief Justice Warren E. Burger: Many thousands of votes.
Mr. Benjamin B. Sheerer: My main response was that, it might be thousands of votes depending on the size.
That is the only -- that is true, he would have to prevail on the party primary.
I was responding mainly to the size.
It might be the required because it might be a small election district, that’s what I meant when I said that.
Justice Byron R. White: Well, the -- if the party only puts up one candidate, he doesn’t have to -- those two are primary at all.
Mr. Benjamin B. Sheerer: I would assume that his name would be on the ballot, that persons could cast right in votes for other people if they wanted to.
Justice Byron R. White: How do you get on the primary ballot?
Mr. Benjamin B. Sheerer: Their primary ballot is secured one or two ways, Your Honor.
If it’s a less than statewide office, in other words from a congressional district or something like that.
You have to obtain the signatures of 100 party or 100 qualified voters.
Justice Byron R. White: Of that party?
Mr. Benjamin B. Sheerer: Of that party.
If it’s for senator for instance which would be a statewide office or Attorney General, you would have to obtain 1,000 signatures of qualified voters in that party, the difference for the independent courses that he must obtain a number equally to 7% of those people who voted for governor in the applicable district in the last previous gubernatorial election.
Justice Byron R. White: Do you know -- do you have any idea how often candidates are on opposed to the primary?
Mr. Benjamin B. Sheerer: No, sir.
I would say that my feeling is not often sir.
Probably so --
Justice Byron R. White: As a general rule in primary in Ohio is that any significant office, there is competition.
Mr. Benjamin B. Sheerer: Yes, sir.
I think that so.
Justice Potter Stewart: This 7% requirement that you attack here.
Mr. Benjamin B. Sheerer: Yes, sir.
Justice Potter Stewart: Which we now know has been reduced to 4 but in any event attacked.
Mr. Benjamin B. Sheerer: Yes, sir.
Justice Potter Stewart: Those can be signatures of member of the Republican Party or the Democratic Party or no party.
Mr. Benjamin B. Sheerer: Yes, sir.
Justice Potter Stewart: Or some other third parties, isn’t it, is that correct?
Mr. Benjamin B. Sheerer: That is my understanding.
Justice Potter Stewart: Not limited to people who have not voted in party primaries for example, is he?
Mr. Benjamin B. Sheerer: No, it is not.
Justice Potter Stewart: The whole field is open to registered voters.
Mr. Benjamin B. Sheerer: Yes, sir.
We think that not only through comparison or disproportion of a 100 signatures for instance approximately 6,000 here but also of the election of the barrier itself.
The election of the 7% or now the 4% being offense to the equal protection clause is violative of it.
The equal protection clause as in the election area deals with fundamental rights and the classifications that might limit or restrict these rights are carefully scrutinized and closely confined to whatever might be determined to be a necessity of the case.
Now, the particular facts in which these case arise are these.
As has been noted, my -- the appellant was an independent candidate for the Twenty-first Congressional District in November of 1968.
His petitions were good and sufficient except for the signature requirement.
The number of signatures required.
When he was turned down for a ballot position, this suit was filed for mandamus against various officials of the State of Ohio having to do with the election process.
The theory of the suit was this, from the beginning.
We have urged in this case that the 7% requirement was unconstitutional as violative of First and Fourteenth Amendment.
This being so we said, he does say as prior to 1% requirement.
The 7% requirement being unconstitutional, the thing to do is to certify him for the ballot.
He met the 1% requirement.
The amendment to 7% being held unconstitutional is void and have no effect, the 1% requirement is in effect and he should have been given ballot status.
Now, at trial, the trial court agreed that he met the constitutional requirements for the office.
Essential facts of the case are admitted on the record in the trial court.
The trial court seemed to indicate and it believed that only the legal issue remained the constitutionality of the increase.
Nevertheless, in its opinion it ruled against us.
Its opinion to me can best be described as opaque.
I’m not sure what the basis of the rule.
Appeal was promptly taken to the Court of Appeals of our state.
We made several attempts to get on the ballot at that point.
We asked for a temporary restraining order.
That was denied.
By this time, this Court had acted in the Williams case and it had placed Governor Wallace on the ballot in Ohio depending upon the determination this Court made.
We suggest that the Court of Appeals it do likewise.
That is if Mr. Brockington want a suit there, he would be on the ballot, if not, he is to be blocked out.
That was denied us.
We brought the decision of the three-judge District Court in a Socialist Labor Party case, the Williams versus Rhodes case to the attention of Court of Appeals.
Nevertheless, they ruled against us without opinion.
We then went to the Ohio Supreme Court.
We obtained the prompt hearing there.
I think it was October 16.
This Court had just decided the Williams versus Rhodes case.
I brought that case to the Court’s attention.
Nevertheless, that court and before the election dismissed on our appeal sua sponte as involving no substantial constitutional question.
We took appeal to this Court, probable jurisdiction was noted.
Now since that time, the Ohio legislature has reduced the percentage to 4%.
I’m here to urge today that the 4% requirement is unconstitutional that this Court should still act in this case.
That the case requires decision and that the appellant deserves a decision from the court on these important issues.
Now throughout this case, to my mind the appellees have refused to deal with the constitutional issues.
We challenge them in the courts below to do that.
I don’t think they have done it at any point.
Now, my conclusion is they have not and for this reason that the 7% increase was patently unconstitutional and is unconstitutional and that the 4% requirement is also unconstitutional.
I say this for two reasons.
First of all, the 60-year history -- the 60-year history of an election system is running without problems under a 1% requirement.
Justice Potter Stewart: Before you get to the merits.
Mr. Benjamin B. Sheerer: Yes, sir.
Justice Potter Stewart: If you mention the question of mootness, I missed it, I trust you well before you conclude.
Mr. Benjamin B. Sheerer: I would be happy to respond to that at this time Your Honor.
It is true that the election just passed.
Justice Potter Stewart: The relief you asked and I’m looking at page 8 of the appendix, was not for a declaratory judgment but this was an action in mandamus in which you directed yourself to getting your client on the ballot for a specific election, i.e. the election of November 5, 1968 and no other.
And there is no request for general declaratory relief.
I was wondering if that quite a part from the fact of the statutes now have been amended to reduce the requirement from 7% to 4% quite apart from that.
I was wondering if this isn’t moot just by reason to the fact that the relief you ask is now impossible to be accorded to.
You didn’t ask that the election be set aside?
Mr. Benjamin B. Sheerer: No, sir.
I would hope not Your Honor and I believe it should not be regarded this moot.
First of all, although I’m not sure, I know in Ogilvie versus Moore recently decided by this Court election had passed.
Whether prayer was for declaratory relief, I don’t recall at this point.
If it was not, I would certainly say as authority at this time.
Your Honor, I believe the mootness rule is a rule, a judicial rule not mandated necessarily by the Constitution although perhaps by the case in controversy rule the Constitution.
But in any event, we have had in this case, a case that was tested to three lower courts as a completely adversarial proceeding.
The appellees here were -- at every proceeding filed briefs, I argued the case, I can assure you it was haughtily contested.
Justice Byron R. White: But Mr. Sheerer isn’t this a partial answer to the Ohio Supreme Court did not reach this mootness?
Mr. Benjamin B. Sheerer: Yes sir, I think that --
Justice Byron R. White: It’s not decided on the basis of remedy.
They got the constitutional issue.
Mr. Benjamin B. Sheerer: I believe they did, Your Honor.
Justice Potter Stewart: Well, I understood the Ohio Supreme Court and please correct me if I’m mistaken, decided this before the election for which you asked to relief.
Mr. Benjamin B. Sheerer: Yes sir, that is correct.
Justice Potter Stewart: So obviously it wasn’t moot then.
Justice Byron R. White: Did they decide the constitutional issue?
Mr. Benjamin B. Sheerer: I believe they decided the constitutional issue, Your Honor.
The appellees, one of the appellees makes the suggestion that the dismissal there was because they couldn’t grant relief but if that was so, I think they would have said so.
They said that they found no substantial constitutional issue involved.
I think it has been litigated and litigated solely on the merits through three courts below.
Secondly, I like to point out that election cases are treated differently, I believe, than other cases.
Election cases are peculiarly difficult to get complete and adequate review on.
They just are as effective length.
It’s the -- naturally the opponent in election case wants to delay, he wants to get the election over and so it’s just almost impossible to get adequate complete review on these cases and yet the question comes up again.
This is not a question that will be finally determined.
Now, if this Court does not resolve it, people arise --
Chief Justice Warren E. Burger: Are you suggesting that we now treat it as though you had sought a declaratory judgment?
Mr. Benjamin B. Sheerer: Yes, sir if that is possible I’m going to request it.
Chief Justice Warren E. Burger: On what authority do you suggest we do that?
Mr. Benjamin B. Sheerer: Well, sir I don’t have specific authority as to the capability of the Court to do that.
I do say this that this is not an unnecessary question.
That is a question that will come up again and that the mere fact that we did not include an allegation in the court below when this case was submitted should not be determined of this issue.
The -- this is not an academic question as I say.
It will come up again.
Election matters tend to recur and many times the courts have said that where it’s a matter of great and public importance, where it transcends the individual case, we will go ahead and decide this point for the benefit of the public to preserve the electoral process to enhance it and the cases to that effect are cited in our briefs, Your Honor.
Justice Thurgood Marshall: But Mr. Sheerer, you have asked the mandamus that’s an action at law.
Mr. Benjamin B. Sheerer: Yes, sir.
Justice Thurgood Marshall: To enjoin the enforcement of the statute is inequitable action, is that right?
Mr. Benjamin B. Sheerer: I didn’t here the --
Justice Thurgood Marshall: To enjoin the enforcement of a statute would be inequitable action.
Mr. Benjamin B. Sheerer: Well, sir we -- what we said and what we --
Justice Thurgood Marshall: Well, what do you want us to tell this brave Court of Ohio, to grant mandamus?
Mr. Benjamin B. Sheerer: We want this Court to say, Your Honor that the courts below were in error that they should have held that the 7% requirement was unconstitutional and that the 1% requirement was in effect.
Now, what we are asking is --
Justice Thurgood Marshall: And that he should have -- he should be prolonged about.
Mr. Benjamin B. Sheerer: That that was what --
Justice Thurgood Marshall: That he should have been prolonged about it?
Mr. Benjamin B. Sheerer: Yes sir.
That he should have been granted valid status.
Justice Thurgood Marshall: Do you have any case that suggests that?
You can do that in a mandamus action?
Mr. Benjamin B. Sheerer: Well sir, we do cite --
Justice Thurgood Marshall: You made no effort to change the mandamus action.
You got the same prayer now today that you have then.
Mr. Benjamin B. Sheerer: Yes, sir that is true.
However, the thrust of our lawsuit is --
Justice Thurgood Marshall: We could give sua sponte.
We could give a declaratory judgment.
Mr. Benjamin B. Sheerer: Well sir, the thrust of our lawsuit has always been that the 1% requirement was appropriate and the 7% was not.
Justice Thurgood Marshall: What about one and a half?
Mr. Benjamin B. Sheerer: Well sir, the -- we say this.
That the 60-year history shows that it had been an existence for 60 years that there was no need for an increase.
Now, I’m not suggesting to the court that it sanctify or hold that the 1% requirements constitutional because I don’t think that its quite the issue here because -- and I’m not clear in my own mind whether 1% could be said to be constitutional.
Justice Thurgood Marshall: I’ll presume somebody will have to decide that maybe like a legislature, wouldn’t it?
Mr. Benjamin B. Sheerer: I’m not asking the Court to substitute its judgment for the legislature here.
What I we’re saying is this that where there has been this type of history and no interference or disruption, the legislature cannot just increase -- make increase at sevenfold driving independents and minorities parties off the ballot.
They cannot show a justification for this increase.
Now as to the validity of the 1% requirement itself, I take it that could be the subject of litigation sometime, if so I wanted to litigate it.
Justice Harry A. Blackmun: Do you think the 1% --
Mr. Benjamin B. Sheerer: I’m not entirely clear on that Mr. Justice, I can --
Justice Harry A. Blackmun: Because my next question was going to be one is, why was it for?
Or you’re going to do it alone?
Mr. Benjamin B. Sheerer: Well, again I have to respond to my historical argument that this was not great participation that it was hardly any independent activity and the raise at sevenfold just about ended independent activity and also as a historical fact --
Justice Harry A. Blackmun: Well, I gather you think four is equally an affirmance in the same reasons.
Mr. Benjamin B. Sheerer: Yes sir and of course if we cannot prevail here, I’m sure that 4% statute is going to be subject of litigation.
We’d like to avoid that if we could.
We’d like to avoid another long process litigation when we think the issues could not be presented any differently to this Court if it came back again.
I cannot conceive of the question being different at all before this Court if it were brought back again.
I think the exactly the same contending issues would be before the Court if it came back.
Justice Byron R. White: Is there some contention that the -- that this man was to run again?
Mr. Benjamin B. Sheerer: I’m not clear, Your Honor whether he will or not.
Certainly, in the --
Justice Byron R. White: Or he might run again?
Mr. Benjamin B. Sheerer: Yes sir, I think it’s possible.
He might, he’s had a taste of it and he – it wasn’t very successful.
Justice Byron R. White: Or he’s not running?
Mr. Benjamin B. Sheerer: Well, he was able to run as a write-in candidate of course.
Thanks to the relief we got from the three-judge federal court in the Socialist Labor Party case.
I’m not entirely familiar with the case Carroll versus Princess Anne recalling that.
But I recall that that was a case in which relief could not be granted.
I believe it was an injunction case and as to whether or not, that was a declaratory judgment.
Prayer in that, I’m not sure but I do remember that was a case in which it was the question as considered of such public importance that this Court decided it.
Now, in addition to the history which we believe is a vital importance here.
This Court has held in this area, in the area of the election cases three principles I believe.
Number one, is that there is sanctity in the individual ballot that every man’s vote is equal the others and that our guarantee is the right to cast an effective ballot.
Secondly, that Constitution guarantees free and equal competition in areas, ideas, and governmental policy in the electoral process.
The First Amendment in the election process are inextricably intertwined.
And finally, that minority and independent candidates are not to be subjected to needless disadvantage.
Now in determining whether a statute can pass constitutional master in this area, the Court has said it will look at the facts and circumstances of the law.
Look at what the state claims to be protecting and look at the interests that are disadvantaged by the law.
And to allow verdicts, there must be a compelling state interest.
We suggest no state interest can be advanced, has not been advanced or could be advanced for the sevenfold or the fourfold increase.
We hope the Court will act, will indicate that the 1% was a sealing but beyond which the legislature could not go.
Help us restore some health to the Ohio election process.
Free as -- so that in the oncoming months, the legislature can take further action if they want to or so that independents can participate, minority parties can participate in the election process.
Otherwise, the result is going to be -- people will be frozen off the ballot and that there will be a necessity of further litigation on a question that is squarely before the Court on this record.
Chief Justice Warren E. Burger: Well, do you say that it is not a permissible or valid state interest to take some measures to preclude multiple splinter parties?
Mr. Benjamin B. Sheerer: I believe not Your Honor.
I believe not.
Chief Justice Warren E. Burger: And how many parties at all?
Mr. Benjamin B. Sheerer: I believe no, I believe there is nothing in the Constitution that requires that.
The Constitution is neutral on parties.
It does not enshrine them to give them any special sanctity.
Now, I do not maintain today that some regulation cannot be placed as to obtaining ballot status, but I say it must be minimal.
Chief Justice Warren E. Burger: Do you think if one -- you thought 1% was all right?
Mr. Benjamin B. Sheerer: Well I say this that -- and I want to be perfectly clear on this, I’m not saying that this Court -- this case requires this Court to say 1% is constitutional.
It asks only that this Court to say an increase beyond 1% in view of a history was unconstitutional.
Now someday, someone may be able to present a case, litigated case, present a record to a Court which would hold, which will lead it to hold that the 1% is unconstitutional.
I’m not asking today for endorsement of that 1%.
Justice Potter Stewart: How does this requirement compare to the requirements of other states with respect to independent candidate is contrasted with no parties?
Mr. Benjamin B. Sheerer: Very, very high.
You’ll remember that in footnote 9, in Williams versus Rhodes, the Court noted that 42 other states require 1% for third parties.
Justice Potter Stewart: Yes I know but that’s a different situation, is it not?
Mr. Benjamin B. Sheerer: But if there -- only require parties to require 1%, the party is a structure as to an organization is the one to obtain ballot status.
How much harder is it to require 7% from an independent candidate?
The other states in our research are much lower.
Much lower and --
Justice Potter Stewart: Is that material in your brief?
Mr. Benjamin B. Sheerer: No sir it is not.
I believe that we got in to that question in the Socialist Labor Party brief and I am not -- I am going by memory on that.
Chief Justice Warren E. Burger: Thank you Mr. Sheerer.
Argument of Robert D. Macklin
Mr. Robert D. Macklin: Mr. Chief Justice, may it please the Court.
We would first of all like to point out that the appellees in this case have suggested the element of mootness in this case and of course that is now pending for your decisions.
We feel very strongly however that in the event, in the unhappy event, that this Court might want to rule upon the constitutionality of our election statute which is under consideration here.
We do recognize the fact that when the Court rules, it affects whatever rule that -- or whatever piece of legislation may then be in effect and consequently feel would have an effect upon our 4% statute which is going to be effective some eight days and today on October the 30th.
Notwithstanding, we would like to ask for some silver reflection on the basic law of this particular case.
The appellant initially came in to the trial court seeking the extraordinary remedy of writ of mandamus to commend the respondent board of elections and certain state officials to place his name on the ballot as an independent candidate for election to Congress as United States represented from the 21st district in Ohio.
Mr. Brockington had failed at that time to comply with the existing statute requiring that he file nominating petitions signed by not less than 7% of the number of electors who were voted for governor in the next proceeding general election in that district.
He had filed petitions which are slightly in excess of the 1% which would have been the requirement under the former statute which preceded the 7% statute.
In Ohio, by statutory definition, a writ of mandamus commenced the performance of an act which the law especially enjoins as a duty resulting from the office, press or station.
In addition, our state law places a burden on the relator to establish a clear legal right to have the writ issued.
So implicit, that Mr. Brockington suit was a requirement that he showed the unconstitutionality of the 7% statute such that the court would be correct in reinstating the 1% statute and therefore granting the writ of mandamus.
Now the record will show that at the trial court level, there was no evidence introduced supporting our contention of unconstitutionality of the 7% statute.
The essence of the evidence was simple that Mr. Brockington had filed petitions with signatures consisting of about 1% rather than the records at 7% and that the respondent board of elections had denied certification because of the insufficiency of the petitions.
Nothing more, this was the entire thrust of the evidence which was heard at the trial court in Cuyahoga County in Ohio.
It was at that time, and for I know it still is, the rule in Ohio that before, that an act of the general assembly is presumed to be constitutional, and before a court made it very clearly constitutional, it must appear beyond a reasonable doubt the legislation and the constitutional provisions are clearly incompatible.
Absent in appearance of such incompatibility in the evidence of the record in this case, it was not unreasonable that our state court should find that no substantial constitutional question existed.
And now it’s made that rather than being an opaque determination in the court -- in the trial court, it was quite clear that really they had not carried the burden of showing that he had a clear legal right to the remedy which he ask for.
In Ohio, the basic philosophy underline the enactment of a statute requiring independent candidates to support the candidacy with petitions subscribed by a certain percentage of electors whether to be 1% or 4% or 7% is that we feel that for the best exercise of the democratic process, as a matter of principle that a candidate for any office be required to demonstrate that this is not the frivolous injection of its personality and publicity of a political campaign but rather in fact that he is seeking election to that office.
It is not unreasonable that he be asked or required rather to show some marked demonstration of support from at least a fraction of the electorate within the area from which he seeks election.
We believe that such a requirement is necessary to establish a bona fide intent on the part of the candidate.
And in this respect we are supported in our belief in the knowledge that some 44 sister states have some form of similar requirement and either greater or lesser degree.
In actual fact I believe there are 11 other states which now would require a greater degree of percentage than does Ohio in view of its 4% statute coming out.
Justice John M. Harlan: You don’t have any requirement.
Mr. Robert D. Macklin: There are five states which had no requirement at all Mr. Justice Harlan.
I can tell you, yes sir.
There are no provisions in Hawaii or in Delaware and Florida, Michigan or Mississippi.
And this is according to our research.
Unknown Speaker: No provisions for independent candidates?
Mr. Robert D. Macklin: No provisions for a coming up with a requirement of a certain percentage of electors to sign the petitions or nominations, Your Honor.
Unknown Speaker: Do they have a provision for independent candidate through states?
Mr. Robert D. Macklin: Would you please repeat, sir?
Unknown Speaker: Do they have a candidate for -- do they have a provision for independent candidates in those states?
Mr. Robert D. Macklin: I’m quite sure they do Your Honor but we only looked at this from the standpoint of whether or not there was a percentage requirement.
Unknown Speaker: Yes.
Mr. Robert D. Macklin: In the course of our research.
Chief Justice Warren E. Burger: Is that material in your brief?
Mr. Robert D. Macklin: No, it is not sir.
Justice Thurgood Marshall: Mr. Macklin, why the change in one to seven?
Mr. Robert D. Macklin: I don’t really know Your Honor.
This was established by the legislature.
I do think that the appellant indicates a long history of a very comfortable arrangement with the 1% requirement.
I think it’s conjectural.
I think that we might very well ask, what might the history have been with 1-1/2% percent, with a 4% with a 7% and moreover, I think --
Justice Thurgood Marshall: I think difficulty because I would assume in 60 years that the 1% would be much more than it was 60 years ago.
Because I assume the population of Ohio has increased.
Mr. Robert D. Macklin: Yes, Your Honor.
Justice Thurgood Marshall: I assume that.
So with the population increase and the man with more signatures required why would you raise the percent?
That’s my problem.
Mr. Robert D. Macklin: Well, I can only suggest that this was in the -- within the sole area of the legislature of that time.
However, since they have taken another look at it and they have reduced it to 4% and perhaps they have looked at other states and seen what they have but I think it’s purely a matter for the discretion of the legislature and in this case that’s what they did exercise.
Justice Potter Stewart: There is no way to get out the -- what we call a legislative history of that change in 1952 from 1% to 7% in the Ohio as there are no committee reports.
Mr. Robert D. Macklin: No Your Honor there are not, we looked for this.
We looked newspapers and everything else.
But as you know that the deliberations are not now set out as they were formally in 1852.
We believe the requirement of showing some bona fide intent upon the candidate really to be in the best interest of the voter and quite frankly, we believe it to be supportive of the one man, one vote principle.
In that, the voters are short that when he cast his vote for candidate he was qualified fro the ballot, his vote will be in effective expression of a preference for a candidate and the vote would be undiluted in its relationship to all other votes cast.
Since he will have voted in behalf of a candidate of proof and intent, now we freely admit that our statutes do distinguish between the independent candidate and the candidate who is running for a party nomination.
And as I pointed out previously I believe a party candidate is required only to have 100 signatures on his ballot.
But we consider that the reason for this distinction lies in the difference, in the path of the party candidate must follow as opposed to the independent candidate.
The party candidate is put to great time, expense, although he lays his principles on the line, on the issues which may be before the people of that time and certainly in Ohio party primary fights are very difficult time for the candidates.
We feel that to proscribe a parity between an independent and a party candidate would in effect be discriminatory as to the party candidates and this is.
But this is not really the issue that’s been raised in this case because the appellant certainly in his briefs openly subscribes to the 1% requirement and this of itself is a greater demand of the independent then it would be of the party candidate.
Its only complaint why is the degree of the burden that may be cast upon the independent candidate and he really fails to tell us what increment beyond 1% triggers off the avalanche of unconstitutional invalidity.
He would ask this Court to determine some magic figure of percentage and to oppose upon the State of Ohio and quite clear the other states would be affected by this, this Court’s ideas of what that policy might be.
We submit that the appellant has not offered guidelines.
There are no clear or valid criteria which been presented to this Court which might establish a basis for determining some magic percentage.
Justice John M. Harlan: But what’s the state interest precisely that you would say?
Mr. Robert D. Macklin: The state interest Mr. Justice --
Justice John M. Harlan: 4% or 1% or any other percent.
Mr. Robert D. Macklin: Mr. Justice Harlan, the state interest that we feel is as far as we can say a compelling state interest is simply that we are requiring that an independent candidate show that he has a valid intent to actually run and that he may -- that he does have the support of at least a fraction of the electorate in furthering his candidacy.
Justice John M. Harlan: Am I wrong in taking that that was the objective in the Williams v. Rhodes, that state interest?
I thought you have picked your argument in Williams and Rhodes on the proposition that you are to assure against the proliferation in the names on the ballot.
Mr. Robert D. Macklin: Well this would be a part of it --
Justice John M. Harlan: In many names and what your adversary says here that under the history of the operation, the 1% limitation your experience had only produced a few candidates on the ballots of that argument is not a -- did not tend to show a valid state interest as is going now.
Mr. Robert D. Macklin: Well, we didn’t particularly feel that Williams versus Rhodes was applicable to this particular case, Your Honor.
Justice John M. Harlan: No, it’s a different case.
Mr. Robert D. Macklin: Different case, a difference proposition.
And actually there was no consideration of this particular statute in the Williams versus Rhodes case and we didn’t feel that you completely knocked out the electoral --
Justice John M. Harlan: No, no.
Mr. Robert D. Macklin: -- machinery in Ohio when this took place.
Have I answered your question, Mr. Justice Harlan?
Justice John M. Harlan: Well, I guess so.
Mr. Robert D. Macklin: To go on, we submit that the determination of requirements to qualify an independent candidate for certification of a ballot ought properly to believe -- to be left to the discretion of the legislature where the knowledge of local conditions and special considerations of assessing the validity of candidate intent are really within the sphere of a political question belonging to the State.
For these reasons, we respectfully urge that this Court should affirm the decision of the Ohio Supreme Court.
Thank you very much.
Chief Justice Warren E. Burger: Thank you Mr. Macklin.
Mr. Sheerer you have four minutes left.
Rebuttal of Benjamin B. Sheerer
Mr. Benjamin B. Sheerer: Thank you Mr. Chief Justice.
If I might make some comments, first of all on the statements from appellees’ counsel.
I do not believe that a candidate for office has to be able to show that he can win.
The three-judge federal court in the Socialist Labor Party case pointed out that the right of free speech is the right also to be wrong.
And we said that anybody that manifests a degree of sincerity about this candidacy is entitled to be on the ballot and it does not matter whether other people might consider that candidacy frivolous or pointless whatever.
It’s part of our basic framework of our society that everyone is entitled to suffrage and to offer themselves as a candidate.
Chief Justice Warren E. Burger: Well did I understand you say before that there is no prohibition against the so-called sticker or write-in candidate under the present law?
Mr. Benjamin B. Sheerer: That was achieved by the Williams-Rhodes case in the three-judge District Court.
That is right.
I would point out of course --
Chief Justice Warren E. Burger: So this candidate, your client could be a write-in candidate in any election for any office, is that correct?
Mr. Benjamin B. Sheerer: Yes, sir with the exception of -- if you are running for president, he would have to -- well now, Ohio requires filing of declaration intent to serve shortly before.
Let me point out that Williams and Rhodes notes that write-in is not a comparable to ballot status that Mr. Justice Douglas in his concurring opinion points out it’s a disability, the majority opinion points out that it cannot be compared and that is a definite disadvantage to a candidacy.
The reduction of 4% in the Ohio legislature came after this Court and noted probable jurisdiction.
The guideline -- the only guideline we are advancing here is when that history is offered.
History has pointed out the guideline in this case.
Let me point out also this is not a case where the legislature is failed to act as was the case in the reapportionment cases where the legislature failed to reapportion.
This is a case where the legislature is acted twice in Ohio and against the interest of independent candidates and minority party candidates.
This is a case that particularly requires to relief that this Court can require, can give.
There are no independents in Ohio legislature.
Justice Potter Stewart: This could be argued that this is not necessarily legislation against or hostile to bona fide independent candidate.
In my own experience and observation in this very state that’s where I grew up there.
There are such things as people who pretend to be independent candidates when what they’re really looking at for is personal advertising or aggrandizement and they are not bona fide candidates and as the ballot has filled up with people like that with so-called bed sheet ballot of the candidate, of the kind that used to have in Detroit, Michigan.
It makes it more difficult for a bona fide or true independent candidate for public office to command the attention of conscientious and responsible voters, isn’t that true?
Mr. Benjamin B. Sheerer: That could be so Your Honor.
In Williams and Rhodes, the Court spoke of it as a remote danger.
Nothing in the case that it does exists and cited on Mine Workers case from Illinois.
He is saying that these rights cannot be infringed on a speculative danger.
I think that the intelligence of the legislature is equal to that sort of problem, if it became a problem.
There is no indication whatsoever that it was or will become a problem, and I would hate to defy bona fide candidate for the Court.
I think that probably an attack the Court should take this one noted in Williams versus Rhodes, the parties have to begin, people have to begin somewhere.
There should be allowed a free and equal chance to engage in a competition of our electoral process.
Chief Justice Warren E. Burger: Would you agree counsel of that the excessively long ballots sometimes called the bed sheet ballot has the tendency to discourage people from voting?
Would you accept that as a fact of life?
Mr. Benjamin B. Sheerer: I don’t know, not about him in nature Your Honor but I suppose that it might discourage some people.
Chief Justice Warren E. Burger: It’s widely thought that political scientists and other expert servers that is so.
Now, assuming them for a moment that that is correct, do you that the state of Ohio does not have a valid interest in preventing that situation for proliferating and standing?
Mr. Benjamin B. Sheerer: Certainly if there where a showing Your Honor that this was happening.
That people were being discouraged from voting or confused to something like that, this case -- the situation will be entirely different.
Chief Justice Warren E. Burger: Who must make that showing, the legislature when it fixes a 4% or 3% or 5% or 1%?
Mr. Benjamin B. Sheerer: That’s right Your Honor.
Because the holding of this Court is that where fundamental liberties are involved, the inquiry will be made as to what interest the state is protecting.
This Court is the defender of individuals, minority rights and it looks when these people’s rights are burdened or restricted; it looks to the interests that the State is against it.
Chief Justice Warren E. Burger: Would you say that in effect that 1% is not unconstitutionally burdensome but the 4% is and in effect you are saying that the judgment of the legislature of Ohio is an erroneous judgment by that difference.
Mr. Benjamin B. Sheerer: Yes, sir it is.
Chief Justice Warren E. Burger: Thank you Mr. Sheerer.
The case is submitted.