KUSPER v. PONTIKES

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Argument of Aldus S. Mitchell

Chief Justice Warren E. Burger: We will hear arguments next in Number 71-1631, Kusper against Pontikes.

Mr. Mitchell, you may proceed whenever you’re ready.

Mr. Aldus S. Mitchell: Mr. Chief Justice and may it please the Court.

I represent the Board of Election Commissioners of City of Chicago.

Our case is here on appeal from a decision in judgment of a three-judge District Court, Northern District Illinois finding a section of Illinois Election Code unconstitutional.

The section that’s involved is Chapter 46, Section 7-43 (d) of the Illinois Revised Statute.

That section provides that there can be changes in participation in political party primaries, only if 23 months has elapsed since the time that the voter has last participated in a primary election.

I think it’s important here that this Court understand that the territory of the Board of Election Commissioners of City of Chicago encompasses the City of Chicago and four suburban towns at the time that this case came to the Court.

Those towns were the towns of Berwyn, Cicero, Stickney and Lyons.

In addition, the City of Chicago is divided into 50 wards and in the 50 wards and the four suburban towns, there are approximately 3500 precincts.

What we have in this case is a single voter from the 36th precinct of the 50th ward of the City of Chicago, who brought in action claiming that Section 7-43 (d) of the Illinois Election Code deprived her of a right to participate in the primary election to be held on March 21, 1972.

She filed a complaint asking that Section 7-43 be declared unconstitutional.

In that complaint, she alleged that she had voted in the Republican primary in 1971.

The Republican Party primary for the Chicago Municipal Officers, that there was Section 7-43 (d) of the Code which prohibited her from voting in the March 21, 1972 Democratic Party primary election.

And she asked the Court to find that that section deprived her of rights guaranteed protected by the Constitution of the United States.

I think that this case presents two basic problems, two basic differences between the plaintiffs or appellants here and the defendant -- the defendants were appellants here and the plaintiffs.

And that is whether or not the Courts, the Federal Court System has a right in every claim made by a voter to take jurisdiction and to decide that question on whether or not the Federal Courts are limited by the terms of the Constitution of the United States, particularly the Tenth Amendment, to those situations in which that is a demonstrated interference with a right that is granted by some other section of the Constitution.

I don’t think that there’s any question here that there is a right to vote.

But in the case that’s before the Court, the claim that there was a denial by any section of the Illinois Election Code is erroneous.

What Mrs. Pontikes complains about is that she is not permitted to participate in primary elections and she sees fit.

The state of Illinois has seen fit to set up regulations which in there in fact as to protect the integrity of political parties and it is not just the integrity of the Democratic and Republican Party, but it is designed to protect the integrity of any political group which comes together and asserts itself under the terms of the Election Code.

The complaint that Mrs. Pontikes brought, we believe was insufficient to ward the District Court in undertaking to hear and decide the case.

The bare on its face, the most that she says is that she desires to participate in an election, a Democratic Party primary elections and that the section of the statute involved here would prevent her doing so.

I think that a look at the statute discloses that that just is not true.

Justice William H. Rehnquist: Mr. Mitchell, Judge Marovitz who was with you on the merits will disagreed with you on your procedural point here, did he, and agreed with the majority of the District Court?

Mr. Aldus S. Mitchell: Yes Mr. Justice.

But we take the position that Judge Marovitz was wrong on the procedure.

This was a case that should never in which a three-judge court should never have been convoked because the complaint on its face was insufficient, to state of claim upon which relief could be granted in the District Court.

There is certainly no claim here of any discrimination by the Illinois Election Code between the plaintiff and any other citizen in the state of Illinois.

And there is no claim that there is any denial of due process as might have been involved in Williams versus Rhodes.

It’s just the flat assertion that she will not be permitted to participate in the Democratic Party primary in 1972.

That’s statewide because she had participated in the primary election for Republican Party for municipal offices in the prior year within 23 months of the election that was to be held on March 21, 1972.

I think that there were a series of problems that were overlooked by the judge to whom the case was originally assigned.

Even if you get passed the hurdle of whether or not the complaints’ states of claim upon which relief may be granted, I think you run head on into the question of whether or not it is a case that ought to be heard by the Court.

In Illinois, there had been an interpretation, a construction of the statute involved.

In Faherty versus Board of Election Commissioners in which the Illinois Court had decided that participation in a statewide primary would determine how you could participate, the party’s primary that you could participate in after the municipal office is left.

Now, I think that in the opinion of the District Court, they mentioned that they did not believe that the Constitution required or permitted that these people, that citizens, voters be locked in to a particular political party at every level of government or at every level of politics.

We do not argue --

Chief Justice Warren E. Burger: We’ll resume there after lunch Mr. Mitchell.

Mr. Aldus S. Mitchell: Mr. Chief Justice, may it please the Court.

I think as we broke, I was speaking to the question of the complaint which had been filed by Mrs. Pontikes in the case at bar.

I had just suggested that she had not made any allegations in that complaint indicating that she claimed any denial of equal protection nor had she made any claim that the statute denied her due process of a sort that the Court had spoken to in William versus Rhodes.

I think that this, the fact that these allegations were not made, very serious questions as to her standing to maintain the action.

I think that the Court for quite a long time and more recently in Jiggens versus McKeegan (ph) had decided that unless the person bringing the lawsuit could indicate in some fashion that they were going to be harmed and damaged in some way differently from the way in which the other members of the community would be harmed by the statute that they had no right to maintain a lawsuit.

I think that all of these are questions that were in the bosom of the judge to whom the case was originally assigned in the District Court.

At the time that a motion was made to convene the three-judge court pursuant to the statute, I think that the District Judge at that point did not carry out his responsibility on the laws, the rules and the law by searching this complaint and deciding all of these questions before convoking that three-judge court, before asking the Chief Judge of the Seventh Circuit to convoke that three-judge court.

Justice Potter Stewart: The complaint seems to mention only the alleged right to be free from the invasion of privacy allegedly protected by the First and Fourteenth Amendment, is that right?

Mr. Aldus S. Mitchell: I think that -- well they allude to the First and Fourteenth amendment though --

Justice Potter Stewart: That’s all.

The right to be free from an invasion of privacy protected, allegedly protected by the First and Fourteenth Amendment.

That is all that there is the complainant, isn’t it, so far as the federal Constitution goes?

Mr. Aldus S. Mitchell: That’s correct.

Justice Thurgood Marshall: But you only raised one question on the question presented.

Mr. Aldus S. Mitchell: I didn’t understand.

Justice Thurgood Marshall: You only raised one question on your question presented and I don’t see there is any point in there.

This point you are now making.

Mr. Aldus S. Mitchell: Well, I think that we have raised this in the section of the brief where we suggest that the --

Justice Thurgood Marshall: What about your question presented on page 3 of the jurisdictional statement.

Mr. Aldus S. Mitchell: Well I think this is necessarily included in the questions that we presented in the jurisdictional statement and I think that the rules provide --

Justice Thurgood Marshall: You keep saying questions but one.

Mr. Aldus S. Mitchell: But I think that the jurisdictional questions are questions that were necessarily included in any question that is presented in this Court if there was no jurisdiction.

I think that this Court has determined that it has the right to look at that question and to decide that question no matter what other questions might have been raised by the parties.

Justice Thurgood Marshall: Well, I submit that in the future, if you have those it would be better if you raised them.

Mr. Aldus S. Mitchell: I would take note and do that Mr. Justice Marshall.

Unknown Speaker: You did set the matter on page 4 of your brief as I recall.

Mr. Aldus S. Mitchell: On pager 4, we did set out the questions.

But we thought that those are necessarily included in the questions that we had set out in the jurisdictional statement.

I think that once the question of the three-judge court had been presented to the District Judge and the Court had been convened that there were two questions that faced both the District Judge before the Court is convened and the Court at the time it was sitting and that was whether or not this was the sort of question that the statute 2281 had considered to be within the jurisdiction of the three-judge court whether or not this was a local question which should be decided by a single judge.

And if that question was answered in the affirmative, it was a local matter.

The three-judge court should have returned the matter to a single judge.

In this case, we have a single individual who is a resident of one precinct out of some 3500 precincts within the jurisdiction of the Board who claims to be affected by statute which on its face seems to show that there are some areas in the state of Illinois which will not be affected by the terms of that statute.

The jurisdiction of the Board of Election Commissioners in this case is limited to the City of Chicago.

The other areas in the County of Cook do not have the Republican and Democratic Parties presenting candidates for election, for municipal office and we suggest that in that circumstance that this is the local situation, that is not included within the jurisdiction of the statutory three-judge court.

But I think even more important, even if there is jurisdiction, I think the Court faces a further problem and that is the question of whether or not the Court should hear and decide the particular case that it is presented with.

We would suggest here that in the light of the fact that the Illinois Supreme Court had not considered this statute on the factual situation that was presented in this case, that this was a proper case before the Court not to construe that statute, but to allow the Illinois Courts to construe it.

The Illinois Court had considered the case -- considered the statute in the case of Faherty versus the Board of Election Commissioners in the City of Chicago in determining whether or not participation at the statewide primary level would determine the political party primary that a voter could participate in, in the municipal offices primary.

They had decided that it did.

We suggest that that decision does not -- is not a decision or an indication that it would decide the adverse of that question that is the question of whether or not participation in a municipal primary which Mrs. Pontikes alleged here also prevents a change in political party primary when the statewide primary is being held.

These are questions that should be left to the Illinois Courts.

I think that the Court has in numerous cases decided that where a statute is capable of a construction which would prevent the statute from being determined to be unconstitutional that the presumption should be that it will be construed in that fashion and the Courts that were primarily concerned with the statutory construction should be allowed to construe the statute.

It was not done in this case though there is a ready means of that in the state of Illinois because there is a declaratory judgment statute and the Illinois Supreme Court has decided that election matters or matters which can be determined under that declaratory judgment action or declaratory judgment statute and under that statute, declaratory judgment matters were given preference over other matters that are pending in the Courts.

So that this could have been quite rapidly done probably in time for a decision to have been made on the construction to be given to that statute before the election in all probability in time for the Federal Court to have considered the matter if the plaintiff felt that the construction was erroneous and left open the question of whether or not the statute was constitutionally deficient.

We think that in these circumstances, the Court should have abstained and that the matter should be returned to the Illinois Courts so that they might consider the statute rather than having to live with an interpretation by a Federal Court which is not used to dealing with vagaries of the Illinois Election Code.

The statute here is a part of an integrated scheme for carrying on elections and on numerous other aspects of the elections -- of the Election Code that are affected by a decision that Section 7-43 (d) of the Illinois Election Code is unconstitutional.

We have the matter of determining who will participate in the election as election judges, who can be canvassers?

Who can sign nominating petitions and that sort of thing with no provision for identifying these people, of course to be left open with no means of identifying them other than what they say and the Code does not provide for any affidavit or identity as some states seem to provide for.

Justice Potter Stewart: Mr. Mitchell you’re -- as I understand it, the Illinois Courts have held that this statute is applicable to somebody who has voted in a one party primary and a state primary and now wants to go in a different party primary in a municipal election that it is applicable but you used to tell us I think that the Illinois Courts have not decided the opposite side of the coin which is presented here.

Mr. Aldus S. Mitchell: That’s correct.

Justice Potter Stewart: And that at least arguably the Illinois Courts might decide that this statute is not applicable to this kind of a -- the situation that this plaintiff found or something.

Is that right?

Mr. Aldus S. Mitchell: Well, the Courts could decide that it was applicable on both on the statewide level, 23 months, on the municipal level for 23 months and there would be no cross effect between --

Justice Potter Stewart: Well, your Courts have already decided there is a cross effect when you go from state to municipal has it not?

Or did I misunderstand?

Mr. Aldus S. Mitchell: They have decided that, but I think that we --

Justice Potter Stewart: But they haven’t decided whether there is a cross effect when you go from municipal to state.

Mr. Aldus S. Mitchell: That’s correct, but we have also the problem I think that this statute and this case points out and that is that there are just a few areas in Illinois that would be affected by this statute and the Court looking at it today might well decide that if that the effect is not as -- you have raised the question that it might be because it would be a denial of equal protection to some of the citizens in the state of Illinois.

I don’t know that the Illinois -- what the Illinois Courts would do, but I think that it is a question that should be left to the Illinois Courts in view of the fact that Illinois is mandated by the Constitution to care on elections.

I think it is mandated to protect the rights of citizens who participate in that election and this Court is indicating that the Federal Courts have the -- have jurisdiction to consider whether the states of procedure for carrying on the elections passed constitutions must go.

I think to --

Unknown Speaker: What would be your position on the merits, in the State Courts or in this Court as to whether it is a denial of equal protection?

Mr. Aldus S. Mitchell: Well, I think that it raised a serious questions where some parts of the state of Illinois have to live with the effective statute like this and other areas don’t, just because the major political parties decide to put forth candidates in some cities and not in others.

Now I don’t -- I’m not sure that what my position would be.

It would depend on I think, to be quite candid, the side that I was on.

I would be an advocate of --

Unknown Speaker: Of the states position.

Mr. Aldus S. Mitchell: At this point, we would make an effort to defend the statute as it stands.

Unknown Speaker: As a statewide application?

Mr. Aldus S. Mitchell: No, as to the application in the various cities where the major parties present.

Unknown Speaker: Now there was unlimited application in the sections of the state, is that a position stated?

The statute is of limited application at particular sections of the state?

Mr. Aldus S. Mitchell: It is.

Unknown Speaker: And your argument then is that not being a statewide application.

It’s not a case for a three-judge court?

Mr. Aldus S. Mitchell: That is correct.

They only ten areas to Board of Elections Commissioners.

Unknown Speaker: It was served.

If in some manner, we reached the merits here or if it were referred to a State Court and you had to take the position on the merits.

Would you find it difficult, would the state find it difficult to defend the statute as a it is written or not?

Mr. Aldus S. Mitchell: I would find no difficulty in defending the statute.

I think that I would have to urge that the application is on two levels.

One on the statewide level and another on the municipal level because of the fact that all of the political parties don’t put forth candidates at both levels, at the municipal level --

Unknown Speaker: But would you try to defend it if in fact it’s to be read as having limited application, only the certain sections of the state.

This 23-months prior, would you try to defend that against an equal protection challenge?

Mr. Aldus S. Mitchell: No sir.

But I think that the court below has in considering the constitutionality of the statute has in effect just substituted its judgment for that of the legislators’ State of Illinois.

I think that is in violation of the Constitution particularly the Tenth Amendment which gives to the state the right to carry on its affairs in any fashion that it sees fit so long as it does not deny to the people, the rights guaranteed by the Federal Constitution.

The election process, I think on the basis of past cases, is suspect where there are classifications which this Court has described as being invidious.

And I think that most of these have been on racial basis or geographical basis or wealth or age or sex, I think most recently.

There is none of this that’s involved in this case.

The only question is whether or not if we get to the question of the constitutionality of the statute, is whether the 23 months that the state of Illinois feels is a proper time for persons to be identified with a political party before you are allowed to participate in the primary of that party is too long.

I think that the state of Illinois has decided that in their judgment, it’s necessary to have this length of time or some length of time and the 23 months becomes a convenient time in view of the fact that we only have elections approximately every 23 months as a usual matter at the state level.

But this is a reasonable length of time to protect the identity and integrity of these political parties.

I think that this Court in prior cases has determined that protection of political parties is a matter of legitimate state concern and has approved means of protecting those parties.

I think that there is nothing in the Constitution of the United States which would suggest that the 23 months is too long whether only effect of that 23 months would be that the participation in some by election might be affected by that 23-month rule.

It’s only in the case of a special election that that would be effective.

If the Court construes the statute as being a limitation on participation at separate levels of government, i.e. the municipal level and the state level of government.

Chief Justice Warren E. Burger: Would you care to say whether you think the interest of the state of Illinois could be served by let us say, a 12-month period and if 12 months isn’t enough, why not?

Mr. Aldus S. Mitchell: Well Mr. Chief Justice, the question of whether or not the interest of the state would be served by 12 months, I would say that yes, it could be.

But there is no reason for this Court to so limit the legislation of state of Illinois.

Chief Justice Warren E. Burger: I’m not suggesting if we were and I was just probing to see whether – what your reaction was to that time factor.

Mr. Aldus S. Mitchell: Well, we look at the time factor in terms of other sections of the Code, those sections that require it to be a candidate, that you must demonstrate your legions to a party for a period of 24 months prior to the filing date of your nominating papers, for periods of time to be election judges, for periods of time to be signatories on nominating petitions.

I think that all of this has to be considered in considering this section of the statute which only serves identification does not change the other sections of the statute which have these requirements, these other time requirements.

They’re just not involved in this case, but they are affected by and it leads the Election Code in Illinois somewhere up in the air and makes it quite difficult to protect the right of these people who cast votes and protect them the integrity of the vote and the integrity of the election process.

Unknown Speaker: Mr. Mitchell, does the fact that the statute could be more narrowly drawn, meaning that it is necessarily unconstitutional?

Mr. Aldus S. Mitchell: No Sir.

I think that this is a matter that unless the Court finds that it does deprive the citizen of some right, which is in some significant way, it should not interject its views into the judgment of the state legislature and determine this time that they feel are proper.

Unknown Speaker: What if in order to change parties it was essential.

The period was so long, the waiting period was so long that you would have to miss the primary?

Mr. Aldus S. Mitchell: I would have problems with that, but that is not the case that we have here.

Unknown Speaker: No, it is, it is that it applies -- that this applies to municipal elections.

Mr. Aldus S. Mitchell: I would agree.

If that would be the case, if it applies to municipal elections.

Unknown Speaker: Well, it reached that way on spaces.

Mr. Aldus S. Mitchell: But that fact is an accident, because it --

Unknown Speaker: And the three-judges didn’t -- didn’t this come from the three judge court?

Mr. Aldus S. Mitchell: That’s correct Your Honor.

Unknown Speaker: Then the three-judge court assume or hold that it applied this municipal election?

Mr. Aldus S. Mitchell: It assumed.

Unknown Speaker: But if it does, you concede you have a problem with equal protection?

Mr. Aldus S. Mitchell: In the case before the Court, it was an accident that this could be raised.

If the case had been filed in 1973, that fact could not have been stated as, could that have been alleged truthfully.

Unknown Speaker: Why?

Mr. Aldus S. Mitchell: Because -- well, we do not have a municipal election until 1975 so that if the case had been brought this year, she could not say that she would have been affected and I don’t think that she would have been entitled in your list.

Unknown Speaker: Municipal Primaries are every?

Mr. Aldus S. Mitchell: Four years.

Unknown Speaker: Every four years and the statewide primaries are every two years?

Mr. Aldus S. Mitchell: Every two years.

Unknown Speaker: But they don’t concur in the same year that is the problem?

Mr. Aldus S. Mitchell: That’s correct.

That is -- you think in the new election code that will be changed.

Unknown Speaker: But how is it going to be changed? Right now, the municipal elections are off year, that is after even numbered years for the statewide primaries.

It’s odd number years when you have a municipal primary.

Mr. Aldus S. Mitchell: That’s correct.

Unknown Speaker: And how is the new election code going to change that?

Mr. Aldus S. Mitchell: Well, number one, it will make all the elections at the same time, the same period, same days in the month.

Unknown Speaker: So in other words, they will all be in the same primaries whether municipal or statewide all be in the same year?

Mr. Aldus S. Mitchell: No sir.

That they will be in the same month of whatever year they are held.

Right now that even that is different so that the 23 --

Unknown Speaker: Will the new code change the 23 months requirement?

Mr. Aldus S. Mitchell: Is it difficult to change it.

Unknown Speaker: No does the new code change it?

Mr. Aldus S. Mitchell: It does not.

Chief Justice Warren E. Burger: Mr. Cohen.

Argument of Ray Jeffrey Cohen

Mr. Ray Jeffrey Cohen: Mr. Chief Justice and may it please the Court.

I would first like to cover the history and the chronology of the elections since this has been raised.

First of all, the new election code has not passed the general assembly yet.

Secondly, we have municipal elections in different municipalities, at the same time we have them in Chicago and they are Partisan elections where there is the Democratic Party and the Republican Party --

Unknown Speaker: Well, is that to say that municipal primaries are all on the same date throughout the state, wherever a municipality has a primary?

Mr. Ray Jeffrey Cohen: No, but many are of the same date.

Going back historically, in April of 1968, certain of the 102 counties in the state of Illinois had primaries where candidates were running in the Democratic and Republican Primary.

In June of 1968, there was a statewide primary that was before the time and that was not changed.

In October of 1969, there was a special congressional election which affected 124 of the voters of the state after Congressman Rumsfeld was appointed to the Federal position by President Nixon.

In March of 1970, there was statewide primary with the new change, changing it from June to March.

In February of 1971, City of Chicago, City of Waukegan which I believe is about the 5th or 6th largest municipality in the state and several other municipalities held their primary where Democratic and Republican parties filled with candidates.

March of 1972 was the state primary which was in question here.

In April of 1972, there were again county elections in certain -- county primaries excuse me, in certain of the counties in the state including DuPage county which is the second largest county in the state.

In April of 1972 -- excuse me, In June of 1973, there was a special congressional election in the city of Chicago which included the town of Berwyn which is a part of Chicago Board of Election Commissioners to fill the vacancy created by the death of Congressman Collin.

Unknown Speaker: Those were general elections?

Mr. Ray Jeffrey Cohen: No, sir.

In June of 1973 was the special Congressional election on June 5th.

Unknown Speaker: Oh I know but it wasn’t a primary.

Mr. Ray Jeffrey Cohen: It was a special primary, I am sorry, sir.

June 5th was the special primary. July 3rd was the special election.

And again, in March of 1974, the statewide primary was scheduled and on February of 1975 will be the municipal primary in Chicago and hundreds of other municipalities throughout the state.

So, the idea that this does not have statewide effect simply isn’t so.

As I read the Faherty case, what the Court was asked then was -- by the plaintiff, does this statute apply to me?

Will this bar me from changing party affiliation in the primary and the Court said yes.

Unknown Speaker: In the municipal primary.

Mr. Ray Jeffrey Cohen: In the municipal primary, yes sir.

Unknown Speaker: She had voted in the statewide.

Mr. Ray Jeffrey Cohen: Voted in the statewide primary in 1954 --

Unknown Speaker: As a Republican or whatever it was in the municipal and the Court said in Farherty, “No, you can’t because of the statute.”

Mr. Ray Jeffrey Cohen: Exactly, and even the dissent of Judge Marovitz where he disagreed with the finding that the statute was unconstitutional did not rest it on the fact that it is a municipal primary but simply rested it on the fact of compelling state interest which was raised at some link in the brief.

Chief Justice Warren E. Burger: What do you have to say about the statewide aspect of this particular case, well as it is applied here?

Mr. Ray Jeffrey Cohen: Well, it was applied statewide.

The Board of Election Commissioners issued a document which went out to every election judge in the 3500 precincts advising them that the 23-month rule was not in effect.

They had a banner which was about this long which was placed over the section of the poster which stated eligibility to vote, which changed that since the decision came so soon before the election.

It was given statewide effect.

As it’s pointed in page 13 of the appellees brief, the Board of Election Commissioners is charged with the responsibility for maintaining the election code within their jurisdiction.

There are 103 jurisdictions for elections under the current election code, two within Cook County, the Board of Election Commissioners and the county handles the rest of the area and then each of the other 101 counties handled their own election.

So, they each having election officer who handles it and they must handle it, of course, in the same way.

So, there is a statewide effect to it and I’m certain that no one would say that someone could have one right to vote in Chicago and another right somewhere else in the state based on the same statute.

I think --

Unknown Speaker: Well, let’s see, are you suggesting that no matter what differences there maybe in the dates on which municipal primaries are held, this statute would disqualify any one who voted in the statewide primary from voting in any municipal primary for 23 months.

Mr. Ray Jeffrey Cohen: In the opposite primary.

Unknown Speaker: In the opposite primary.

Mr. Ray Jeffrey Cohen: Absolutely.

Of course, and what I attempted to pointed out with the dates and I hope I didn’t confuse rather than eliminate was that there were almost always be two elections within a 23-month period.

So, very frequently rather than very rarely, well you have to forfeit your right to vote in one election to vote in another.

And think counsel's use of the term, “participate in a primary” is really a misnomer because you are voting in a primary.

I would probably exhaust the rest of my time if I recited the citations of the cases that this Court and the lower courts have held that your right to vote in the primary is a sacrosanct as your right to vote in a general election.

Chief Justice Warren E. Burger: Well is it a common thing of -- I will alter that, I was going to ask you whether it was common in Illinois but as matter of general understanding.

Isn’t it common that many people will vote in one party in their local elections and prefer the other party in statewide elections just because of the experience they have with the results.

Mr. Ray Jeffrey Cohen: It would not be my reading of Illinois electoral history that that would be so.

The city of Chicago has elected the Democratic American consistently since 1931.

There are less than five Republican candidates that ever carried the city in any election at any time on a state or national basis since then.

Likewise, there are other counties that have not -- that are traditionally Republican both at the local level and at the national level.

So, there is a great deal of consistency in the state of Illinois.

Now, I am not as familiar of course with other areas.

I think what we held when we get to the middle of this issue is a conflict in rights.

We recognized the right of a state to regulate elections, the right of the state to protect with limitations, party integrity.

But we also recognized the right to vote and it’s alleged in the complaint in paragraph 8 of the complaint which is found at page 4 of the appendix that plaintiff has been denied her right to vote by the application of this statute.

We say that this right, this right to vote must be held superior to the right to protect party integrity.

In a case, which to the untrained eye, it might seem controlling in this case.

I think the Court anticipated that in Rosario.

The Rosario decision which interestingly was decided one year to the date after the primary which was affected by our case stated that the New York registration statute was valid.

It was valid to require one, to register some 8 to 11 months prior to a primary in which primary he was going to vote but the majority said in that case that this was not “locking in” and that’s the language that’s used in that 93 Supreme Court page 1250, thus New York scheme does not lack a voter in to an unwanted preexisting party affiliation from one primary to the next.

All that the voter had to do in that case if he wished to vote in the primary of his choice was simply register 8 to 11 months beforehand.

There are many other states which has registration requirements.

California requirement which was by statute 56 days has just been reduced by Court to 30 days in the case of Gonass (ph) versus Young which I believed certiorari was denied on although I don’t have the citation with me.

In California, you register at the time you vote as either a Democrat or a Republican or you register as unaffiliated.

You cannot vote in a primary unless you are registered in that party but you can change your affiliation or you can register affiliation at any time up to now 30 days beforehand.

So, there you have the chance to formidably do something your self to enable you to vote.

In the Pontikes case, under Illinois law, the only way you can qualify to vote -- the Democratic primary at one point is if you did not vote in the Republican primary 23 months beforehand.

So, the exercise of the franchise will in effect disenfranchise you at any election in the succeeding 23 months or you might wish to vote for or against candidates in the other primary which is your right.

There was one case on a very similar statute which was decided before our case and there were two cases subsequent.

In the prior case, Gordon versus Executive Committee of Charleston which is cited in the brief, there was in a set -- a calendar year requirement.

You had to sign an affidavit that you have not voted in the opposite party primary within that year.

Unknown Speaker: What state was this?

Mr. Ray Jeffrey Cohen: This was in South Carolina.

Unknown Speaker: Three-judge court also?

Mr. Ray Jeffrey Cohen: Three-judge court and there the Court -- unfortunately, I am reading from a slipped opinion that I have been using for the last two years and it’s on page 5.

I can’t give you the citated page.

The Court said, “No sound or compelling purpose can possibly justify locking a citizen into a party and denying to him for a full year freedom to change parties.

Such an arbitrary restrained upon the voter is both unreasonable and unconstitutional.

Justice William H. Rehnquist: Is that entirely consistent with Rosario? Do you think that statement uses that?

Mr. Ray Jeffrey Cohen: Yes, I’m not asking the Court to disapprove or overrule Rosario.

I think that the majority of opinion almost anticipated these cases in Rosario when they went on to say that the reason the person was denied the right to vote was not the statute but his own forbearance for doing the simply act of registration.

He was not losing the right to vote because of the way he voted before.

Justice William H. Rehnquist: But of course, after the time for his registration at past, it was the statute and not the time left that prevented him from voting in Rosario.

Mr. Ray Jeffrey Cohen: Right.

Justice William H. Rehnquist: Only during the very limited part of the time involved during Rosario, was that his own failure that was responsible for his --

Mr. Ray Jeffrey Cohen: But in New York if he had voted in a primary in the Democrat party for example, in 1970 he could have up until 8 or 11 months or whatever the exact figure was prior to the next election, changes registration and register in the Liberal Party of the Conservative or the Republican and I think this was pointed out by the majority and I think that’s why the Rosario decision differs here and that’s why it is not inconsistent to hold, to affirm in this case despite Rosario.

Justice William H. Rehnquist: I can see that but I was pressured whether that statement when you were from the Charleston case is really inconsistent with the Rosario.

Mr. Ray Jeffrey Cohen: Well, here again, they’re talking about “locking in” and the locking in implies and it’s used in these cases and is used over and over again, that you lock yourself in, not by registration but by voting and that’s where the difference is.

Unknown Speaker: Let us see, you mean in South Carolina, are you suggesting it’s exactly like the Illinois statute except that the time stated is very short?

Mr. Ray Jeffrey Cohen: The time period is different.

It is a calendar year as suppose to 12 months or another period.

Justice William H. Rehnquist: What’s the difference between locking yourself in by registration and locking yourself in by voting?

Mr. Ray Jeffrey Cohen: Because I can see where registration serves a useful purpose.

In Illinois, I assume in other states, administrative bodies are pointed often by political affiliation.

You may have no more than two members from each political party or more than three members.

So, it’s important to know what political party somebody belongs to so you know if he is eligible to hold an office but voting should not be the determining factor in establishing a person’s affiliation because this is something that changes.

You can change registration.

In New York, you could have conceivably changed your registration since the last primary, an infinite number of times up until the deadline without losing your right to vote.

Unknown Speaker: Mr. Cohen, you are not here before us challenging the validity in any part of Section 7 43 (d).

Mr. Ray Jeffrey Cohen: That is correct, 43 (d) is the part which refers to a voter changing his affiliation and another case which is similar and where the implication is of our position is the Lipitt case in Ohio where this Court decided that a person was not entitled to change affiliation in order to be a candidate for office.

There is this very similar case in Illinois, the Bendinger versus Ogilvie case which is cited extensively in our brief, which was cited by a different three-judge panel of our Circuit which decided that the man who would vote in a Republican primary in 1971 could not run for office as a Democrat in the primary of 1972.

Again, they didn’t discuss the question of municipal, they just assumed that any primary would have the same effect.

Justice Potter Stewart: Of course, the Lipitt case is a decision of this Court on the merits?

And how do you distinguish that?

Mr. Ray Jeffrey Cohen: Well --

Justice Potter Stewart: The four-year, that was a four-year interval.

Mr. Ray Jeffrey Cohen: That was a four-year interval and as I recall the man wished to change from Republican party to the Independent party to run for Congress.

Justice Potter Stewart: Well, he wished.

Mr. Ray Jeffrey Cohen: It was a candidate’s case, not a voter’s case.

Justice Potter Stewart: Well, so how constitutionally is that different?

Mr. Ray Jeffrey Cohen: Well, in the Bendinger versus Ogilvie case, they pointed out and I’m sure I cited that section somewhere in my brief, it must be in the appendix in my brief before the three-judge panel, that if you can preserve party integrity because that is the balancing factor by preventing a person from running as Democrat this time and as a Republican the next time and then as a Conservative and then as a Liberal and jumping up and there --

Justice Potter Stewart: Well this man just wanted to change once.

Mr. Ray Jeffrey Cohen: Right.

Justice Potter Stewart: But he didn’t want to change back and forth and back and forth of course as far as we know is he -- had been a Republican now he wants to change to the American Independent party.

He voted there as a Republican in the 1970 Ohio Primary Election and now in 1972,he wants to run as a candidate of the American Independent party and there is an Ohio statutes that says he can’t do that for four years.

Mr. Ray Jeffrey Cohen: I think the question of Party Integrity versus Person’s Rights.

There are other cases which have been decided that almost say in effect that it is not a right to hold public office but a privilege so in the face of protecting party integrity, this right or privilege to be a candidate must fall.

What I am saying is that the right to vote is superior to the right to be a candidate.

Justice Potter Stewart: And where do you find that?

Mr. Ray Jeffrey Cohen: Where do I find that?

Justice Potter Stewart: Yes.

Mr. Ray Jeffrey Cohen: In this particular -- it is not mentioned any where in the Lipitt case.

Justice Potter Stewart: But how about in the constitution?

Mr. Ray Jeffrey Cohen: I think it is implicit in the Bendinger versus Ogilvie case which I did cite which was a Seventh Circuit case that there is a difference between the two rights.

Justice Potter Stewart: Obviously it’s a difference but what is the -- why does one have a superior constitutional position than the other?

Mr. Ray Jeffrey Cohen: Because I do not --

Justice Potter Stewart: Why does either have a constitution position at all.

Mr. Ray Jeffrey Cohen: Well I think you hit the knob, but I don’t think the right to be a candidate is constitutionally protected.

I do think the right to -- I’m certain the right to vote is --

Justice Potter Stewart: Where do you get that?

Mr. Ray Jeffrey Cohen: The right to vote?

Justice Potter Stewart: Yes.

Mr. Ray Jeffrey Cohen: Well, I believe there are several cases where this Court has determined that it will protect ones right to vote, it will protect one from being disenfranchised.

Justice Potter Stewart: It will protect that activity as any activity against the valid claim of denial of the equal protection of the law but that is something else again that will protect your right to cross the street against that kind of a valid claim.

That does not mean the right to cross the street is necessarily unconstitutional against the red light is constitutional?

Mr. Ray Jeffrey Cohen: Well, Article 2 provide -- Article 2 of the Constitution provides for the right for the people to vote for members of the House of Representatives and the right to vote for members in United States Senate was added by a later amendment.

Justice Potter Stewart: Are you familiar with the case called Minor against Happersett and that’s in this Court in which you can find the statement that there is no constitutional right to vote.

That’s the case in which women tried to save -- the Constitution gave her a right to vote she would accept her bid – fact of being a woman, she was equally well qualified in the state and to vote.

And in this court said there is no constitutional right to vote and that is of course but what led to the amendment of the Constitution that gave the women the right to vote.

So, now there is an equal right of women to vote with men but that decision still stands.

I suppose that there is not a constitution right to vote, that’s the case of Minor against Happersett.

Mr. Ray Jeffrey Cohen: I submit that if the suffrage amendment was passed somewhere around 1920 that means that that case would predate that and I would suggest -- respectfully suggest that that should not and is not the current state of the law.

Justice Potter Stewart: Well of course the Constitution predated even that.

Mr. Ray Jeffrey Cohen: Yes, sir.

Justice William H. Rehnquist: Well, the suffrage amendment doesn’t say women shall have the right to vote.

It says they chancefully denied the right to vote by reason of their sex.

It doesn’t confirm or affirm that the right to vote.

Mr. Ray Jeffrey Cohen: It will.

Justice Potter Stewart: It confirms just a specific equal protection right.

Justice William H. Rehnquist: Mr Cohen, it seems to me that one could make the argument -- with which for some reason exactly contrary to what was you are saying but if party raiding is a legitimate state interest that there is more to worry about in terms of party raiding, in terms of voter cross over than there is in terms of candidate cross over that you could have candidates crossing over without running any real risk of party raiding whereas if you have voters crossing over, you do have a risk of raiding.

Mr. Ray Jeffrey Cohen: Well, of course, party raiding is a theory that we have.

Nobody can determine exactly when it is having --

Justice William H. Rehnquist: No judgment that cites an article in The Tribune or The Daily news urging the Republicans to cross over and vote in the Democratic primary but he thought it was real.

Mr. Ray Jeffrey Cohen: I agree and there are political theorists who would suggest that the results of the election in 1972, the primary was affected by this but we are not here to argue political theory, we are here to argue a person’s right.

Unknown Speaker: But actual candidates had been concerned about this.

Is this not so, in your area of the country?

Mr. Ray Jeffrey Cohen: I have not --

Unknown Speaker: I recall Senator Humphrey making this statement every two years in primary as in states I am familiar with, Wisconsin and Minnesota.

Mr. Ray Jeffrey Cohen: Well, of course Wisconsin and Minnesota, I’m glad you pointed that out have no requirement that I could find.

There is no bar to voting by past registration.

Unknown Speaker: And that is what they were complaining about.

Mr. Ray Jeffrey Cohen: Perhaps, but Section 201 of the Minnesota code states the requirements for registration and it doesn’t require party affiliation of the --

Chief Justice Warren E. Burger: Those are the so-called open states not as Justice Blackmun said some political theorists and some practitioners think that open state opens the candidate and the party to very dangerous attack on the party system.

Mr. Ray Jeffrey Cohen: But if the argument of party raiding and party integrity is taken to its logical conclusion then if this case is affirmed, there will be a disastrous effect on the political party system in the state of Illinois and South Carolina, Rhode Island and New Jersey which have similar cases that have been decided.

Unknown Speaker: How long was the problem affected Illinois?

Mr. Ray Jeffrey Cohen: Many, many years.

Justice Potter Stewart: Well, I suppose there are those who say you have disaster area there for all that period but there might be others who would disagree.

Mr. Ray Jeffrey Cohen: Again, we are in the realm of political theory but my point is if Wisconsin and Minnesota and Michigan have been able to exist by having the open primary system and seem to be thriving and doing quite well, then the argument that this case is the only thing that protects the two party system from dissolving simply cannot hold water because these states are surviving without it.

Justice William H. Rehnquist: Of course, you’re talking about two states that have very notoriously weak party structures, Wisconsin and Minnesota where there have been the third party elements.

That may be permissible as a matter of political judgment on the part of the legislature but I would think that if the Illinois legislature decide it wants to strengthen the two-party system, it isn’t required to apply the practice that Wisconsin and Minnesota have applied perhaps to get different results.

Mr. Ray Jeffrey Cohen: But there is more at stake than strengthening the two-party system.

They have the right to do that if they so choose but not to the point where it disenfranchises voters.

That the right to protect the party system only go so far and one of the cases which I cited in my brief, the Chucklin decision which was interestingly decided by Judge Marovitz went to the question of what the party’s rights were with respect to patronage and recognized that a party can only go so far and then it encroaches on the rights of the individual citizens and thus it is -- that is not allowed to do.

Unknown Speaker: I am still not clear how you distinguished this Courts decision on Chipalone and that's the way it is pronounced.

Mr. Ray Jeffrey Cohen: Lipitt versus Chipalone.

Unknown Speaker: Yes.

1972.

Mr. Ray Jeffrey Cohen: On the basis that the right to vote is superior to the right to be a candidate and party integrity may outweigh one but not the other.

Justice Potter Stewart: How do you get this hierarchy of these two supposed rights?

Mr. Ray Jeffrey Cohen: The stratification.

Well, number one, I don’t think, again although Justice Rehnquist suggested that he disagrees or suggest that some may disagree.

Again, the question of which protects party integrity and I refer to the Bendinger versus Ogilvie case.

Justice Potter Stewart: No, that the right to vote is somehow the right as you call it to vote. One would argue about whether or not there is a right to vote but in any event, that voting is superior somehow or another--

Mr. Ray Jeffrey Cohen: That’s correct.

Justice Potter Stewart: --to being a candidate.

Mr. Ray Jeffrey Cohen: That is correct.

Unknown Speaker: Do you say it is a constitutional argument?

Justice Potter Stewart: Once you derive that.

Mr. Ray Jeffrey Cohen: Well I just try to answer both questions at once.

Justice Potter Stewart: I am sorry, excuse me, I did not know I was interrupting Justice.

Mr. Ray Jeffrey Cohen: I do believe despite the decision that you cite at the women’s suffrage case that the right to vote is implicit if not explicit in the Constitution because we are to elect the House of Representatives and we are to vote for them.

Somebody has to do the voting then we are to elect electors for the President.

Justice Potter Stewart: But it says more than that, doesn’t it?

Doesn’t it say the state shall set the qualifications for those who vote?

Mr. Ray Jeffrey Cohen: Right but we know that there are a long line of cases where the Federal Courts have said and this Court had said that certain requirements of the state has set forth are unreasonable and it gone too far.

Justice Potter Stewart: Right.

Mr. Ray Jeffrey Cohen: And I think that the Lipiit case, being a case involving a candidate, I think that is where the distinction lies and I think it is a valid one.

The Lipitt case was cited both in Nagler (ph) versus Yeomans which is the New Jersey case, where the New Jersey statute is in effect where the Court, three-judge panel held, that the fact that you had to report two successive primaries to be left before a voter can change its affiliation is patently over broad in scope.

Unknown Speaker: There is case such as Williams against Rhodes and Jenness against Fortson and so on dealt expressly with the so-called right to be a candidate and as I remember, it did not denigrate that right below that voting, didn’t it?

Mr. Ray Jeffrey Cohen: I do not think the question ever arose which is the superior right in that case.

What Williams stands for as I understand it is that the state cannot arbitrarily pick place, too heavy a burden on a candidate’s attempt to get on to belt.

By signature requirements, Lipiit said it is a valid thing to require that if he is to run as a candidate of a particular party that he be a member of that particular party.

Unknown Speaker: For four years?

Mr. Ray Jeffrey Cohen: For four years.

Unknown Speaker: And but he can’t run on a different party if he has voted on another party -- voted in another’s party primary within the last four-year period.

Mr. Ray Jeffrey Cohen: That is correct.

Unknown Speaker: And that was affirmed by this Court but that is two years ago.

Mr. Ray Jeffrey Cohen: Thank you.

Unknown Speaker: May I ask you some question.

Mr. Ray Jeffrey Cohen: Yes, sir.

Unknown Speaker: In your case would you find any different between the validity of the statute as it applies to state election and as it applies to federal?

Mr. Ray Jeffrey Cohen: Absolutely not, because state elections are held at the same time that federal elections are held in the quadrennial years.

Plus of course the Congressional elections are held at the state.

Unknown Speaker: Would you say that the state may no more qualify the person’s right to be in a state primary than in the federal primary?

Mr. Ray Jeffrey Cohen: Yes, I would.

I had been --

Unknown Speaker: The right to vote in state election, you wouldn’t argue it here to federal constitution?

Mr. Ray Jeffrey Cohen: It’s not stated specifically there and I suppose that a state could have a system of applying all of its officials, I supposed and that there would be no need to elect the general assembly or a governor or any officials?

Unknown Speaker: Well then in clearly going, are you saying that the federal of the state elections in this case, stand on the same footing as equal protection?

Mr. Ray Jeffrey Cohen: As far --

Unknown Speaker: --unaffected by the constitutionally guaranteed.

Mr. Ray Jeffrey Cohen: No, what I am saying is that the state of Illinois cannot limit your right to vote in a federal election or a state election in a different way.

In other words, they could not say that you would be allowed to change primaries to vote for federal officers but not changed parties to vote for state officers.

Thank you.

Chief Justice Warren E. Burger: Thank you, gentlemen.

The case is submitted.