SOCIALIST LABOR PARTY v. GILLIGAN
Argument of Sanford Jay Rosen
Chief Justice Warren E. Burger: We’ll hear arguments next in Number 70-21 Socialist Labor Party and others against Gilligan.
Mr. Rosen, you may proceed whenever you’re ready.
Mr. Sanford Jay Rosen: Mr. Chief Justice and may it please the Court.
This case involves the constitutionality of Ohio Revised Code Section 3517.07 which imposes political tests on access to the ballot in Ohio.
The statute is set out in the appendix in pages 12 through 13.
But it precludes from the ballot in Ohio Elections, and if I may quote briefly from the statute, “Any political party or group which advocates, either directly or indirectly, the overthrow, by force or violence, of our local state or national government or which carries on a program of sedition or treason by radio, speech or press or which has in any manner, any connection with any foreign government or power or which in manner has any connection with any group or organization so connected or so advocating the overthrow by force or violence of these various governments.
Exempted from this requirement of the statute, that the party to get on the ballot actually meet these tests, are parties and groups that have a place on the ballot in each national and gubernatorial election in Ohio since 1900.
Those two parties -- there are only two parties that meet that tests. Of course, those are the Democratic and Republican parties.
Under the statute to secure a ballot position --
Unknown Speaker: You certainly are not suggesting that in the absence of the exception, they couldn’t get on the ballot of this?
Mr. Sanford Jay Rosen: Of course not, Your Honor.
I am implying an argument that I’ll get to some what later which is an equal protection argument that by exempting any parties from this requirement, the State is drawing invidious classification.
And I will come to that argument if I may, Your Honor.
But under the statute, parties that do have to meet this test in fact have to submit an affidavit signed by 10 members of the party or group, three of whom are to be executive officers of the party.
After the affidavit in the form of the statute is executed and filed to the Secretary of State.
The Secretary of State is required to conduct his own investigation of the facts appearing on the affidavit and to make his own determination of whether the party or group should be on the ballot.
Now the plaintiffs brought suit in 1970, challenging this provision as well as any number of other Ohio provisions, but those provisions which were in the litigation have all been washout of this suit by subsequent action of the legislature of Ohio.
We sought an injunctive and declaratory relief from a prejudge statutory Court and on May 5, 1970, the District Court declared the provision, the statute of Ohio unconstitutional on its face, but reading the controlling and only decision of the Ohio Supreme Court on the statute, the State ex rel. Beck v. Hummel case, excuse me, to narrow the statute.
The Court upheld the statute as construed and thus the Court held that the statute now means and this is quote in the appendix of page 62, that an oath is required that; one, the party is not engaged in an attempt to overthrow the Government by force or violence.
Two, the party does not carry on a program of sedition or treason as defined by criminal law.
And three, the party is not knowingly associated with a group attempting to overthrow the Government by force or violence.
Plaintiffs appealed from the denial of their injunction upholding the statute is construed, defendants have cross appealed from so much of the decision of the three-judge District Court holding the statute unconstitutional on its face.
Plaintiffs request this Court to reverse and remand with directions to the District Court to declare entire statute unconstitutional and to enjoin its enforcement in the future.
There are several reasons why the statute is unconstitutional.
Some of these reasons go to the statute on its face, some go to the statute as construed and interpreted by the District Court with the assistance in Ohio Supreme Court and some relate to both.
It’s the position of plaintiffs that the starting point for analysis of this statute is an appreciation of the importance of the right to vote and to gain access to the ballot.
This Court in numerous decisions over the last decades has held for example as in Wesberry versus Sanders, that no right is more precious in a free country than not of having a voice in the election of those who make the laws unto which its good citizens we must live.
Other rights even the most basic are elusory if the right to vote is undermined.
It is our first position in this case, Your Honors that there is an absolute right on the part of the electorate to vote for candidates for public office without the State interposing any kind of a screen between that right to vote and access to the ballot.
Unknown Speaker: This wasn’t a three-judge District Court, was it?
Mr. Sanford Jay Rosen: Yes, it was Your Honor.
It was a three-judge Court.
You recall the case did come up as one of two consolidating cases involving a broad gauge attack to a number of Ohio election provisions, and as I suggested, most of those provisions have been mooted out of the case by a legislative --
Unknown Speaker: (Inaudible)
Mr. Sanford Jay Rosen: Right.
And this is the only provision that appears to remain.
Okay, we think that there is a very substantial, first amendment component to the right to vote.
We believe that this Court has recognized that substantial First Amendment component.
In the predecessor to this case, Williams versus Rhodes for example, the decision by Justice Black on equal protection grounds started of from an appreciation of the fact the right of individuals to associate for advancement of political beliefs and the right of qualified voters regardless of their political persuasion to cast there votes effectively is a fundamental right and was the issue involved in that particular case and indeed remains the issue in this case.
For our first position on this law is that Ohio has no right to interpose any kind of a political test for the vote itself and for access to the ballot.
The question of what Ohio may do in terms of qualifying elected officials when it comes time for them to take their oath of office is not a question before this Court, we don’t even act that point.
So we would submit that not even the oath of office contemplated in Article 6 of the Constitution in the United States is appropriate.
Now, on the other hand, should the Court be reticent about taking this particular step in this case.
Our second position is, that Article 6 of the Constitution which provides for a constitutional oath of office for elected officials in the United States read together with Amendment Number 1 has to mean that at most in terms of political credentials, speech and association credentials of candidates for public office, parties on about, all that can be required is a test basically in the form of in Article 6 affidavit or oath of office.
We believe that this, although is not the holding of the Court in the case of Bond versus Floyd involving access to the legislature in the State of Georgia and it is not of course the holding of the case in this Court’s decisions in Powell versus McCormack involving the Court’s ability to review a determination by the Congress that a member should be refused his sit and holding that the house is limited in its consideration only to those constitutional requisites which the member must meet and which are set forth.
These two decisions do imply very strongly at the most that the State may require the Article 6 kind of test.
We would refer the Court as well to a number of state court decisions, the leading one of which -- although dealing with state constitutional law is Imbrie versus Marsh.
It is not cited in brief unfortunately, it is a decision of Chief Justice Vanderbilt of the New Jersey Supreme Court and its reference is 71 Atlantic second 352, three New Jersey 578, in which Chief Justice Vanderbilt faced with a State law of New Jersey which added to the qualifications for ballot access and for office as an elected official, things that were not contemplated in the constitutional oath provided under federal and state constitution.
The Court ruled quite clearly that the constitutional oath requirement brooked no additions, whatsoever.
On this point, the Court might also refer to Shub v. Simpson which is cited in our brief.
The Maryland Court of Appeals decision, although it disavowed the Imbrie case so far as state offices are concerned, it clearly accepted the Imbrie rationale on a preemption basis so far as federal elected officers are concerned.
Now, in addition to our first two points, we have a number which are perhaps more fully briefed in our brief.
The third point on constitutionality of this Ohio provision pertains to the statutes invasion of the right to political association.
The statute does not even screen candidates as such.
It is not a requirement that a candidate execute an oath which was precisely the question before this Court in the Guinn case of which the District Court below made much.
That’s not the case, the question in this case.
What we have here is a statute which presumes to screen political congeries, associations, groups and parties and to keep them off of the ballot.
We will submit the cases like Gibson v. Florida Legislative Investigation Committee and NAACP v. Alabama would suggest that such a statute is at least constitutionally presumptively unconstitutional.
In addition, since the statute requires that 10 members of the party whether candidates or not, only three of whom are to the offices of the party must execute the affidavit, there is a direct invasion of the associational rights of those individuals as indicated in the Shelton and Bates decisions and the decisions involving the Subversive Activities Control Act and the registration requirements for communist action organizations, Albertson v. CP and the like.
This statute in addition is unconstitutionally overbroad.
It is perfectly clear the statute on its face if all the Court had before was the statutory language is unconstitutionally broad.
With fully briefed that point and I won’t go over the statute on its face in terms of the overbreadth.
The State does suggest that the statute is still constitutional on its face, but the District Court below certainly held to the contrary.
We submit that even as construed by the Supreme Court of Ohio in the Beck case, the statute is unconstitutionally broad and indeed the District Court below misread the Supreme Court of Ohio’s decision.
It is our position that the Supreme Court of Ohio in narrowing the statute only narrowed it to the point of drawing a distinction between violence or engaging in violence, but including in that category mere advocacy of violence or violent overthrow, and on the other hand, peaceable change as through use of the amendment process.
A careful reading of the decision of the Supreme Court of Ohio, I think, will make that clear.
In addition, I think that although there are no other Ohio Supreme Court decisions on point, there are a number of Ohio lower court decisions dealing with analogous statutes which seemed to indicate as well that their understanding of the law in Ohio was -- that the distinction being drawn is between violence including mere advocacy and peaceable change.
Even as construed as interpreted by the District Court below, however, the statue remains unconstitutionally broad.
Again, to a large extent, this point has taken up in our argument I just mentioned the two most notable aspects of the overbreadth statute as construed by the District Court.
Fourth, the District Court in its narrowing construction of statutes speaks of the party knowingly associated or associating with a group attempting to overthrow Government by force or violence.
We submit that the use of the term knowingly associated is two-open ended even though this term itself two-open ended, in addition, we submit that this criterion established by the District Court does not take account of numerous decisions of this Court which hold that mere knowing association membership in or participation in a group which is engaged in or advocating violent overthrow is not enough.
There must be specific intent on the part of the person or in this case party associating to further or fulfill the unlawful goals of the organization which is engaged in the unlawful act or advocacy.
Unknown Speaker: Not when I gather Mr. Rosen, you don’t extend your overbreadth argument to either elements one or two of the District Court’s construction.
Mr. Sanford Jay Rosen: We don’t extend the overbreadth argument to such.
I do extend the next point which of course is a vagueness point to points one and two.
I must say to the extent that I understand what number one means, the party is not engaged in an attempt to overthrow the Government by force or violence.
It would be difficult for us to argue that that is overbroad, assuming that this inquiry can be made or this investigation can be made and we do not conceive that.
It seems a silly thing to ask somebody to make an affidavit about since it is speaking of the immediate present and this instant and has no reference to future behavior activity, but I suppose we couldn’t say it is overbroad if anything, it is incredibly narrow.
However, we do think that there may be some vagaries involved in that particular language.
Less in a point one, except this red with the statute itself than in the point two, the party does not carry on a program of sedition or treason as defined by the criminal law.
Well, I supposed we know what treason means under the criminal law.
I assume, and I think the Court would assume that treason would be limited by Article 3 of the Constitution to mean making war on the United States or any of them or adhering to their enemies proven according to the two-witness rule or open confession.
And indeed, I believe there is an Ohio statute on treason though I don’t know that it has ever been enforced.
However, there is no sedition law in Ohio.
The closes thing to a sedition law in Ohio was the Criminal Syndicalism Act which this Court declared was unconstitutional in Brandenburg versus Ohio.
There is no referent in Ohio jurisprudence at all for meaning for the term sedition and of course this Court has recognized – I’ve had the reference to your language Mr. Justice Brennan on the difficulty the Court has with you, so those two words, sedition and treason and the difficulty of the defining them.
But that is quoted in the brief and we would rest on that proposition so far as the construction by the District Court is concerned, these are the primary vague provisions in this newly construed statute.
But again, we do not agree that the District Court was correct in its construction in light of the Supreme Court of Ohio’s view.
We think it’s perfectly clear further that the vagueness that’s found on the statute and the overbreadth is incredibly magnified by the deprivations of due process of law in a procedural sense that are found in the statute.
First is a burden of going forward which is placed immediately upon the party.
The statute requires that an affidavit be submitted on behalf of the political party or group.
It seems to us that that kind of a requirement is interdicted by this Court’s decision in Speiser versus Randall, once you’re in the First Amendment area.
Further, the affidavit isn’t enough.
It is not even presumptively dispositive of the facts of not being subversive or not fitting within the statute.
The statute provides that the Secretary of State shall undertake an independent investigation, and the evidence of the kind of an investigation the Secretary of State is likely to conduct is presented in the opinion of the Supreme Court of Ohio in the Beck v. Hummel case.
It was cursory and anti First Amendment at best.
And so the Supreme Court of Ohio itself found in that particular case.
In the course of the investigation, the Supreme Court of Ohio ruled that the Secretary of State need, provide no hearing, none whatsoever, he can do his own ex parte investigation.
Clear offense to procedural due process and further, the Supreme Court of Ohio ruled that once he made his findings and certified that the party or group should not have access to the ballot, it should not be placed upon the ballot.
The Supreme Court ruled they would review, they and the other Ohio courts review according to a test of substantial evidence.
Whether there is substantial evidence, I assume the Court meant on the record as a whole to support the decision of the Secretary of State, although the test may not be even as generous to the party or group as a substantial evidence rule because the Court also speaks about reviewing according to a determination whether will overrule the Secretary of State, only if his finding is manifestly against the weight of the evidence.
Much too stringent and evidentiary test onto this Court’s decisions in Speiser versus Randall, Kernel versus Hagen Buffin, and Law Students Association versus Wadmond, so again, another constitutional infirmity in the scheme.
And finally, to return to the point that Justice Stewart brought out in his question.
We think all of these defects are further magnified by the fact that there is an exemption for parties with a great deal of continuous longevity on the ballot in the State of Ohio, those two parties of course being the democrats and Republicans.
We do not imply at this time that either of those parties would have difficulty securing the ballot position under the test of this statute even as construed assumingly quite understand what they are.
What we do mean to imply is your observation Justice Stewart in Jenness versus Fortson where you said time after time, established political parties at local state and national levels has while maintaining their old labels, change the ideological direction because of influence and leadership of those with unorthodox or “radical” views.
The history of this United States is replete with examples of changes of ideological direction on the part of political parties in the United States.
I just reviewed a document that had been prepared by the former Secretary of State of Ohio on the election experience in Ohio over a long period of time from the beginning of the republic to the present.
I counted 37 separate political parties of whom I know at least 10 engaged in one type of metamorphosis or another of which several were more or less revolutionary for their time including the evolutionist part.
Presumably that party might not be able to secure ballot position in Ohio today if it attempted to go on the ballot.
On the basis of this various defects, it is the appellants’ position that the decision of the Court below should be reversed, the case remanded and with instructions to enjoin the operation of statute.
I would like to reserve for rebuttal.
Chief Justice Warren E. Burger: Very well Mr. Rosen.
Argument of Donald J. Guittar
Mr. Donald J. Guittar: Mr. Chief Justice and may it please the Court.
I would like to answer the first objection which has been raised which is a question of the violation of due process, procedural due process.
I think if the Court will examine the Ohio case of Beck versus Hummel.
They will find out that the Ohio Court and the Ohio law does not run a fall of the previous decisions of this Court such as Speiser for this reason.
The Secretary of the State of Ohio makes a determination on the basis of the affidavit.
It is true that that is a unilateral determination.
The next step is he then refuses to certify and put the party on the ballot.
The next step then is that the person or I mean the party must go to Court.
At this point and in the Beck case, the Ohio Supreme Court held that the affidavit has a presumption in its favor of good faith and truth and that the Secretary of State in answering that has got to overcome that presumption and further that the Secretary of State has got to come forward with substantial evidence, so this is not the usual situation.
This is not the situation which the Court had before such as in the Speiser case in which the entire burden of overturning and adverse administrative determination was put on the part of the taxpayer.
Justice Potter Stewart: So, how did this case arise as -- or how far does a case with controversy did they -- if somebody refused to put this people on the ballot because of the lack of an affidavit?
Mr. Donald J. Guittar: No, Mr. Justice Stewart.
The Socialist Labor Party refused to execute the affidavit.
If you will examine the pleadings, they sought that they have just plead as their third course of action, just the alleged conflict, the statute and then they applied the conflict.
Unfortunately, I can not give you the fullest factual answer that I would like to Mr. Justice Stewart because I was not present at that time or at the trial.
Justice Potter Stewart: This is a third course of action is it not for you, beginning on page 12 of the appendix?
Mr. Donald J. Guittar: That’s correct.
Justice Potter Stewart: Alright.
And they recite, they quote the language of the statute and they say it’s unconstitutional and they say at paragraph 21 as they granted relief, they’ll be irreparably injured but they don’t say how or why, do they?
Mr. Donald J. Guittar: No, they do not.
Justice Potter Stewart: I wondered if they refuse to file an affidavit and for that reason denied a place in the ballot or filed an affidavit that the Secretary of State found deficient?
Mr. Donald J. Guittar: As to my understanding, based upon a transcription which I had made of the oral argument from the Statement of the Attorney for the Socialist Labor Party that they had refused to execute the affidavit.
Unknown Speaker: I don’t think they alleged that, do they?
Mr. Donald J. Guittar: No, it is not alleged in the petition.
Unknown Speaker: The case is kind of a search and destroy of the complaint lead. Here is the statute on the --
Mr. Donald J. Guittar: That’s right.
Unknown Speaker: -- and brought some of the Ohio General Code and we do not like, so that is about what they said.
Mr. Donald J. Guittar: That’s correct.
Unknown Speaker: I’m not going to say more than that.
They say it’s unconstitutional.
Mr. Donald J. Guittar: That’s right and invoked.
Unknown Speaker: But they do not say how they are harmed?
Mr. Donald J. Guittar: Oh, they do not.
Justice William H. Rehnquist: The case was decided on summary judgment, wasn’t?
Mr. Donald J. Guittar: Yes, it was Mr. Justice Rehnquist.
I think that -- I do not recall whether any harm is alleged in the prayer subsequent to the pleading of the third cause of action.
I believe you’re correct Mr. Justice Stewart.
I believe that the standard of substantial evidence which the Ohio Supreme Court in the Beck case plays upon the Secretary of State of Ohio is sufficient to meet the procedural defective allegations which the plaintiffs have raised here.
I would like to pass on next to the question of the statute itself.
I believe it’s fair to say that if this Court has spoken out against any words or any particular words and condemned them for vagueness, the word advocacy and its use in loyalty oath.
The Court has repeatedly condemned the use of that language.
If the Court wishes to apply that to a political party statute, a political party oath then certainly, this statute of the State of Ohio is unconstitutionally vague and the ordinary person could not tell from use of the words advocacy and so on, whether he was in fact violating that statute.
With the reservation that we deal here with a political party and the practicalities of the matter is, not that any individual is punished, but it is solely that a political party label or mean does not go on the ballot.
I think, in examining the cases which the Court has decided in the area of loyalty oaths.
I think it would be well to take in mind that there is no discharge and no dismissal problem here as the Court has had before at so many times, particularly in the academic freedom cases.
I would like to point out to the Court that we also are dealing with a matter of what the state legislature has deemed the self-preservation and the self defense of the state through requiring the oath as restricted by the District Court.
Justice Thurgood Marshall: What is the interest of the state?
Mr. Donald J. Guittar: The interest is --
Justice Thurgood Marshall: Then, if I understand in correctly, it is not this man will hold office, right?
Mr. Donald J. Guittar: That’s correct in the statute, Mr. Justice Marshall and the statute really does not operate against the man.
The man can go on the ballot but he cannot have a party label on it if the affidavit is not the next --
Justice Thurgood Marshall: Even if the man is the most loyal citizen in the world, and he wants to run on that label, he can’t.
Mr. Donald J. Guittar: Well, I believe that, Mr. Justice Marshall, that an examination of the Beck decision by the Ohio Supreme Court, so as that, if the communist party itself would attended this oath, that the Ohio Supreme Court is recognized that the fact that someone is a communist, it does not necessarily mean that they believe in force or violence.
Justice Thurgood Marshall: But my point is that, a man who is not a member of this party and who does not advocate anything but good, solid Americanism close-motherhood who wants to run on that label, he can not.
Mr. Donald J. Guittar: I believe he can.
Justice Thurgood Marshall: Well, how could he, if they do not file the affidavit?
Mr. Donald J. Guittar: Well, yes you would have to file the affidavit.
You would have to file --
Justice Thurgood Marshall: There is no way that they can run, unless they filed the affidavit.
Mr. Donald J. Guittar: Under the party label, that’s right.
In other words, let the loyal individual --
Justice Thurgood Marshall: What is the interest that Ohio has in that?
Mr. Donald J. Guittar: Well, Ohio, I think it’s fair to say cannot have any interest in keeping loyal American citizens and citizens of Ohio of the ballot and I do not believe that it is.
Justice Thurgood Marshall: (Inaudible)If loyal party has talked about?
Mr. Donald J. Guittar: Well, my use of the word disloyal was unfortunate.
That is not part of the District Court’s reading.
Justice Thurgood Marshall: Well, I am still trying to find out, what is the interest in the state in not letting the party use his name on a ballot?
Mr. Donald J. Guittar: If a party is committed to the overthrow, to attempting to overthrow the government --
Justice Thurgood Marshall: What if before he is not let the men have the name on the ballot?
Mr. Donald J. Guittar: Well, if they become elected through the use of the name --
Justice Thurgood Marshall: Then you can keep them out by the oath.
Mr. Donald J. Guittar: That’s right, but if they also were not there --
Justice Thurgood Marshall: What is the interest in not letting him run?
Mr. Donald J. Guittar: It is, to my understanding, it is not an interest in not letting him run.
It is an interest in not letting them run without the party label, to my understanding.
Justice Thurgood Marshall: Is he not having the party label on the ballot, Does it contaminate the ballot or something?
Mr. Donald J. Guittar: No, it does not.
Justice Thurgood Marshall: Well, then what’s the reason for it?
Mr. Donald J. Guittar: Well, unfortunately, Mr. Justice Marshall, I cannot refer you to legislative history, this statute which was passed in 1941.
There are no debates.
There is no legislative intent to refer to that I can give for further explanation other than that --
Justice Thurgood Marshall: Do you feel any responsibility of the Assistant Attorney General of Ohio to give to this Court a reason that the state has for the statute?
Mr. Donald J. Guittar: Yes.
Justice Thurgood Marshall: Do you have any responsibility for it?
Mr. Donald J. Guittar: Yes, I do.
Justice Thurgood Marshall: That’s all I am asking.
Mr. Donald J. Guittar: I know Mr. Chief Justice Marshall.
I am endeavoring as best as I can to answer you.
I believe what you’re asking me is what difference, so long as someone can be on the ballot.
Justice Thurgood Marshall: My question is, what is the state’s interest in enforcing this statute?
Mr. Donald J. Guittar: I think it is in keeping off the ballot individuals who are members of a party who could be elected through the use of a party name which party attempts to overthrow the government by force and violence, to thereby become elected and to use the offices of the state in an attempt to overthrow the government by force or violence.
Unknown Speaker: I don’t see anything in the oath that says that.
I mean in this thing, this says that.
But I guess it’s the best you can do.
Mr. Donald J. Guittar: With respect to the state’s interest in avoiding that which I just referred, I believe this Court has implicitly recognized or explicitly recognized this interest in the Gardner case, in the Doyle case, and implicitly in the Duren case.
Moving along to the Court’s opinion below, in the restricted reading which the Court gave the statute below with respect to item number one, this Constitution, I believe is fully constitutional.
There are no cases cited, nor can there be any which do anything other than sustain the constitutionality of the language required namely, that one, should not be attempting, that the party should not be attempting, engage and attempt to overthrow the government by force and violence.
Chief Justice Warren E. Burger: I think we will resume right after lunch on that point.
You may proceed Mr. Guittar.
Mr. Donald J. Guittar: Thank you Mr. Chief Justice and may it please the Court.
With respect to, going to the second limitation which the District Court below placed upon of the Ohio Statute 3517.07, the second limitation, the first being that the party is not engaged in an attempt to overthrow the government by force or violence.
The second one, the party does not carry on a program of sedition or treason as defined by the criminal law.
As my brother points out in his brief, there is no Ohio Criminal Law defining sedition, but there is for treason and that is substantially the same as the treason which is provided by the Federal Law.
And the treason citation is 2921.01 of the Ohio Revised Code has to do with the levying of war.
With respect to, I would like to point out to the Court that in the Keyishian case, this Court has specifically validated from vagueness the treason, the use of the word treason with respect to oaths.
With respect to the third provision, which is that a party is not knowingly associated with the group attempting to overthrow the government.
I believe that there is sufficient scienter in there, from both from the decision of the Ohio Supreme Court and the scienter which can be implied from this Court’s case in Duren which was approved in Bengate and also Whitehill.
At page 137 of the Beck case, the Ohio Supreme Court, with respect to this question stated that the individuals involved must be personally, personally engaged, in these activities.
But further, if the Court should find that there is not sufficient scienter in the third limitation placed on the oath, we suggest that the Keyishian Case which requires you must have a specific intent to further the illegal aims of the organization would be a proper and further limitation.
We believe, for all the reasons that the oath as limited is not unduly vague and can be understood by those who required to sign it on behalf of a party.
With respect to the Equal Protection claims violations thereof, I believe, it is a legitimate state interest and can reasonably be a legislative by a state legislature, that parties who have perpetually participated in the election process over the years and parties who have not had anyone utilize the state in attempting to overthrow the state by force or violence, that is a perfectly proper and natural use of the power and does not violate the Equal Protection.
I would like to point one citation which is not in our brief, which the Court may wish take in consideration in its deliberations and decision on this case and that is Lisker vs. Kelley which was affirmed just last year, 401 U.S. 928.
That case involved candidates and the use of a candidate’s oath.
That oath was found proper in that case.
In summation, I urged that the Court approve defining a decision of the District Court, I believe that the interest of the State in self-preservation are sufficient to require this party oath.
We believe that the grounded decision is still the law of the land and is controlling in this case.
I thank the Court very much, Mr. Chief Justice.
Chief Justice Warren E. Burger: Mr. Rosen, do you have anything further?
Rebuttal of Sanford Jay Rosen
Mr. Sanford Jay Rosen: If I may Mr. Chief Justice.
Unknown Speaker: Mr. Rosen, may I ask you a question.
Justice Stewart asked Mr. Guittar as to the steps that the party had actually taken to get on the ballot on Ohio.
I know it as they pointed out in David's file in connection with the motion for summary judgment that I don’t find in the appendix.
Did those affidavits make an offer in the institutional information other than the pleadings this Court has been done by the party towards getting on the ballot?
Mr. Sanford Jay Rosen: Your Honor, I cannot honestly say, I have not seen those affidavits in a while myself and I do not recall what they are in the file but your question, it seems to me is a broader question addressed to, precisely the consideration that Mr. Justice Stewart was raising and that was the first point that I did wished to make on rebuttal.
And that is, how was the issue raised and why is it in such a rather thin status?
It may well be that the affidavit still allege additional harm.
The issue was raised in the following form, Your Honors.
The complaint was filed on January 28, 1970.
Now, for complaint to be filed on that day, it was impossible under the statute for my clients to execute the affidavit.
The statute provides that the affidavit must be filed with the Secretary of State between nine months prior to the next election and six months prior to the next election.
Conceivably, they might have waited a few more weeks to actually submit the affidavit or to make a request for consideration on the ballot, for placement on the ballot, without an affidavit or they might have try to fulfill all other requirements for inclusion on the ballot without an affidavit but you have to recall this case has a history.
That case has been before this Court once, twice, the Ohio Election Laws have been before this Court.
This is the third time there was a small portion that the Ohio Election Law has dealt within the Zepalady case, I believe, which this Court did resolved in summary fashion earlier this term, and of course Williams versus Rhodes.
And my clients, reading Williams versus Rhodes, and being cognizant of the fact that they were denied, injunctive relief by you, Mr. Justice Stewart, and then confirmed by the Court in William versus Rhodes for failure to prosecute their cause of action quickly, can hardly be faulted for moving at the earliest possible opportunity to challenge as many as the provisions of the interconnected, into tangled web of Ohio Election Laws which they believe were inhibiting their ability to get ballot position.
Unknown Speaker: Are they in the position to challenge the ones they can test until they’ve complied with the ones that they do(Inaudible)?
Mr. Sanford Jay Rosen: Now, on an oath type-provision, it has not been the understanding of this Court that there is any requirement that efforts be made to comply with the oath requirement first.
Unknown Speaker: I do not mean to comply with the oath, but I mean to comply with presumably, administerial type of filing regulation that may existed that you do not quarrel.
Mr. Sanford Jay Rosen: Well, but you see as the case was formulated, this was one of ten provisions engaged in two separate lawsuits that were consolidated in order to try to bring to an end the questions over the Ohio Elections Laws, our clients, decided to go in one lawsuit and to bring all of their challenges at once.
It doesn’t seem to me possible that they could have attempted to comply by registration requirements.
They could not register because they did not have the requisite number of signatures at that point.
They weren’t in the position yet to attempt to certify that they wanted to have a primary yet.
They were challenging the primary provisions.
They were challenging an entire range of provisions.
Some of which had some bearing on the rightness, with the pure rightness of the way in, which the affidavit provision might be dealt with.
Now, in order to bring their challenge to the affidavit provision early enough to get complete relief before the 1970 election, they have to bring it all in one lawsuit, and it seems to me that’s the reason why there wasn’t a kind of pleading that Justice Stewart was alluding to, which would focus on the specific harm of this kind of an affidavit.
It is my understanding further that the appellees intend to enforce the statute as construed in the future.
It is my understanding that my clients intend to occupy a ballot position in the 1972 Election and presumably will attempt to have a ballot position in subsequent elections as well.
So, they are still operating under the gun of this affidavit requirement and the statute itself.
For this election, the appellees or, well I guess he is not a successor at this point, presumably could refuse that position on the ballot for failure to file the affidavit.
I know that he is, in fact, precluding them at this election but he could certainly do it in a subsequent election.
So, for those various reasons, we do believe that the pleadings are a little bit skimpy, do assert or an alleged irreparable harm and do meet the test of pleading and state before this Court and adequately right controversy for this position by the Court.
I just wanted to address two other points that came up in argument on the part of the appellees.
The first, perhaps the minor or more minor point, is appellee represents to this Court, to the Supreme Court of Ohio in ex parte Beck versus Hummel, adopted a rule that the affidavit when filed are presumed to be true and made in good faith.
Now, I have been re-reading the language of the Supreme of Ohio on that particular point and perhaps I believe something, but I find that the Supreme Court of Ohio says, there is no showing in the record before the Secretary that anyone connected with the Ohio Wallace for President Committee advocates the overthrow of Government by force.
And the fact that some members among the many thousands made along to the Communist Party, or the Communist may advocate the election of Wallace is no proof that the affidavit is in accordance with the statute were was not filed in good faith or that it is not efficacious for the purpose for which it was filed.
All the Supreme Court of Ohio presumable is saying is once that the affidavit is filed, the burden of going forward shifts to the Secretary and he must take some steps to investigate.
It does nothing about the ultimate burden of truth.
Justice Thurgood Marshall: But isn’t an affidavit presumed to be true?
If not, why do you have and affidavit?
I don’t see how this material in this case goes?
Mr. Sanford Jay Rosen: Perhaps initially, it is presumed to be true. But the next point is, Mr. Justice Marshall, once the Secretary conducts his investigation, his findings are sustained unless they are not supported by a substantial evidence or are against the weight of the evidence which is hardly the kind of test that this Court has applied in cases like Speiser and other cases involving scrutiny of administrative determinations behind upon First Amendment Rights.
Unknown Speaker: Was there any allegation in the complaint or in the affidavits of the party that your clients would refuse to execute the affidavit?
Mr. Sanford Jay Rosen: The complaint certainly does not specifically allege that they would refuse to do so.
But, I do not think that is a fatal flaw in pleading because presumably even if they executed the affidavit, they are still subject to the burden of the statute and that does not get them on the ballot automatically.
The other flaws in the Ohio provision and procedure are still clearly before the Court.
I am sorry that I am not talking with the affidavits that supported the motion for summary judgment.
Chief Justice Warren E. Burger: When you speak of the other requirements, are you referring to the 7%?
Mr. Sanford Jay Rosen: No, I am sorry Mr. Chief Justice.
I am referring to the investigation that is to be conducted by the Secretary of State for him to make a determination of whether the party should have a ballot position.
The statute does not just let it rest on affidavits.
It charges the Secretary of State to go forward and conduct an investigation, quite exclusively charges him to conduct an investigation.
And there is nothing in the opinions of any of the Courts to deal with this statute to indicate --
Chief Justice Warren E. Burger: Can you state how can you, how do you come to the conclusion that the Secretary of State would not find you eligible to get on the ballot provided that you signed the affidavit?
Mr. Sanford Jay Rosen: Well, in the context of the First Amendment of course and the vagueness in overbreadth doctrine, according to the decisions of this Court, it is not necessary for us to put ourselves precisely in the position of being denied of ballot position.
In fact, in Speiser versus Randall, the procedure is infirmed from beginning to end, we do not have to take the first step to conform to that procedure, we can stop at the door and say this is bad, we go no further and we have adequate standing and right enough controversy to raise of all of those issues.
Chief Justice Warren E. Burger: At this stage and on this record, we have no way of knowing, (Inaudible) clients would decline to sign the affidavit, do we?
Mr. Sanford Jay Rosen: Unless there is something in the affidavit in support of the motion for summary judgment, we don’t.
And I am sorry, I am just not cognizant, that may be on the record --
Chief Justice Warren E. Burger: We really [Voice overlap] the case as you bring it here though?
Mr. Sanford Jay Rosen: Yes, but the record, of course, the case includes the record and the record includes the affidavit in support of motion for summary judgment.
I am just not familiar with that portion of the record.
Unknown Speaker: Mr. Rosen, except for what is the affidavits may contain, all we have, as I understand it, is paragraphs 18, 19, 20 and 21 appearing on page 12, 13 and 14 of the appendix, is that correct?
Mr. Sanford Jay Rosen: That is correct.
We also have of course page 18 of the appendix, the answers of the defendants.
Unknown Speaker: After in which 19 is submitted and 20 and 21 are denied.
Mr. Sanford Jay Rosen: 20 and 21 are denied.
That is all that we have.
That end the determination of the District Court that it felt it had a lie of controversy before it at the time and certainly in view of the decision of the Supreme Court of Ohio in the Beck case, it certainly feels like a lie of controversy.
The highest Court of Ohio said this is a viable operational statute.
The only other decision are in point of that particular statute also sustained it as a lie of viable statute, on that case is State ex rel. Beck versus Hummel, 59 N.E. 2d 238 as a Court of Appeals decision in Ohio.
But so far, as the record is concerned, you are quite right, Mr. Justice Stewart, as I have suggested, I do think that this does still present the case.
Unknown Speaker: Well, I gather you don’t prefer, you prefer not to sign a loyalty oath or to subject yourself to investigation.
That is because you don’t like it or would it be like, do you allege this is going to chill you in some way.
Mr. Sanford Jay Rosen: Yes, the allegation is that they would be a irreparable harm, that it will subject the plaintiff in this case to an investigation of whether they are engaged --
Unknown Speaker: How about the affidavit?
Mr. Sanford Jay Rosen: The affidavit itself puts them on record in terms of their political views and their political position.
None of the other loyalty of the case is required the actual presentation of the affidavit, the request for the affidavit itself is adequately chilling.
I beg your pardon?
Unknown Speaker: If I am not mistaken, the loyalty of the cases involved people who refused to sign a loyalty oath, didn’t they?
Mr. Sanford Jay Rosen: Yes.
Unknown Speaker: And there’s no such allegation here.
Mr. Sanford Jay Rosen: I think, I hope that the affidavit in support of motion for summary judgment will bear that out.
Secondly, even if not the statute is still before the Court, even assuming my clients worked to execute such an affidavit, the statutory machinery becomes engaged and that machinery does itself have the kind of chilling effect which they can complain about even after they filed the affidavit.
It still puts upon them the burden of going forward, the burden of ultimate proof and provides them with no procedural safeguards in terms of the investigation and fact finding determination.
Unknown Speaker: But surely, a person can’t just sit down when this law has been some through the code of laws of the state and final end, that he thinks it is unconstitutional and bring at our suit in attacking it, can he?
He has to show somewhere or another that he’s hurt by it.
Mr. Sanford Jay Rosen: But, I’ve just suggested one way in which he has been hurt and I don’t think that this is a case in which somebody has been trying to go through a code and find a law and hunted peck sort of like sorting strawberries.
This case has to be evaluated in context.
The Ohio Election Law has been in litigation for five years now.
This is running into the fifth year, this is the third case to come before the Supreme Court on its merits.
Unknown Speaker: But I don’t see what does has to do with --
Mr. Sanford Jay Rosen: When it’s particular pleading, I am trying to in effect formulate the context in which this suit would be actually --
Unknown Speaker: Well, I am not asking you about the context.
It is just these three paragraphs.
Mr. Sanford Jay Rosen: That’s right.
Unknown Speaker: The context to this claim, the three --
Mr. Sanford Jay Rosen: Yes, in that fact.
Unknown Speaker: Because whatever the affidavits may show?
Mr. Sanford Jay Rosen: Right, but I am trying to suggest that it was a complicated lawsuit that was being mounted and that a lot of the energy in terms of the pleadings may have been focused on some of the other provisions as well as upon this provision just as when we formulated our brief to this Court.
But unfortunately we spent some 15 or 16 pages dealing with the issues involved in this particular provision but we focused more on the other provisions that we were attacking as well as this provision and indeed the appellees were found themselves in precisely the same setting in an effort to keep the suit within manageable paper range.
Unknown Speaker: No one is making to file a piece of paper in the District Court the brief here, and then we go and limit to record to find out what the case is all about?
Mr. Sanford Jay Rosen: Well --
Unknown Speaker: Well, at least we have to go and file an affidavit, don’t we?
Mr. Sanford Jay Rosen: The affidavit in support of the motion for summary judgment?
Unknown Speaker: Well, then we had to look for that?
Mr. Sanford Jay Rosen: I would assume it is a yes.
Unknown Speaker: I will do it for you.[Laughter]
Mr. Sanford Jay Rosen: Thank you Your Honor.
Thank you very much.
Chief Justice Warren E. Burger: Thank you Mr. Rosen, thank you Mr. Guittar.
The case is submitted.