STORER v. BROWN
Legal provision: Equal Protection
Argument of Paul N. Halvonik
Chief Justice Warren E. Burger: We'll hear arguments next in 72-812, 72-6050, Storer against Brown and Frommhagen against Brown.
Mr. Paul N. Halvonik: May it please the Court, Mr. Chief Justice.
My name is Paul Halvonik.
I’m one of the attorneys for the Appellants here.
The other attorney for Appellants is to my left here Mr. Remcho.
I will consume 20 of the allotted 30 minutes.
Mr. Remcho 10.
I would like to speak first for 15 minutes and then reserve 5 for rebuttal, if I may.
The Appellants in these cases are candidates for public office and their supporters.
All of the candidates are unaffiliated with political parties recognized by the State of California.
That is to say none belongs to any political party that has a place in the California ballot.
They brought suit to obtain ballots based last general election.
Chief Justice Warren E. Burger: You mean recognized in a way?
Mr. Paul N. Halvonik: That’s right.
There’s no line for them in the California ballot.
Two of the Appellants are members of the Communist Party, but the Communist Party is not a recognized party in California.
The other two Appellants, Storer and Frommhagen belong to no political party at all in any sense of the word.
In California, people who are not members of the political parties are deemed “Declines to State” and are independents in that sense.
And so, we have two sets of independents, genuine independents and people who are independents because their political party isn't recognized in the State.
They brought suit to obtain space on the ballot as independents and challenge the restrictive scheme of the California Election Law for regulating independent access.
The scheme in brief is this.
They have to obtain 5% of the registered voters, the signatures of registered voters in a 24-day period.
That period begins long after the primary elections on August 15 and ended on September 8.
No one could sign one of those petitions who voted in the primary.
Even though nonpartisans vote in California primary elections, they are given a nonpartisan ballot.
It doesn’t have such offices as Congress and Senator on it, but has ballot propositions in local offices, County and City which are nonpartisan offices in California.
You can’t have a party designation for those offices.
Justice Potter Stewart: What you’re getting into now is something I didn’t quite understand when I read the briefs.
A person can go into a Republican primary and vote say, say it is Republican primary equally true about the Democratic primary and vote, although he declines to state that he is a Republican in one case or Democrat in the other and what seems -- does he vote for it?
Mr. Paul N. Halvonik: No
Justice Potter Stewart: Well, what does he vote for?
Mr. Paul N. Halvonik: At the primary election, you have a Democratic primary or Republican primary, and two other primaries.
Additionally, there are ballot propositions.
The number used to be somewhere in the neighborhood of 20 these years, about 20 ballot propositions dealing with all kinds of legislation.
Justice Potter Stewart: That is to put issues onto the ballot at the general election?
Mr. Paul N. Halvonik: To decide legislation -- we decide legislation in California by ballot, voted by the people.
Justice Potter Stewart: Could you do that in the primary election, not the general election?
Mr. Paul N. Halvonik: Do it in both.
Justice Potter Stewart: Or --
Justice William O. Douglas: Either one?
Mr. Paul N. Halvonik: Yes.
They appear on both ballots.
They are different time periods and sometimes you make a June ballot and sometime November ballot.
And the June ballot comes out at the primary election, but a nonpartisan, a person who is not registered with any political party goes down to the place where he casts his ballot and is given what is called a nonpartisan ballot and on that will appear all the ballot propositions.
Partisan offices, what they called partisan offices in California, do not appear on that ballot.
That is he doesn’t vote for anybody for Congress or Senate or President.
Justice Potter Stewart: Uh-huh.
Mr. Paul N. Halvonik: But he votes if the election is coterminous for such Offices as City Councilmen and Supervisor on that date.
Justice Potter Stewart: Which are nonpartisan?
Mr. Paul N. Halvonik: Which are nonpartisan and so you have a person who go to the primary election and cast ballot and yet in the California Election scheme, although they haven’t participated in the partisan primary, they are not permitted to sign nominating petitions for independents.
Justice William J. Brennan: Because he voted at what is a primary election and held on the same day as a primary election, although it itself was not a primary election, is that right?
Mr. Paul N. Halvonik: It's not by most persons’ terms a primary election so called in California.
Justice William J. Brennan: Well, I’ve always understood a primary election to be one where there are candidates for the nomination of a particular party and I vote for one or the other candidate, but that’s not what you’re talking about?
Mr. Paul N. Halvonik: No, no.
California is a bit different.
There was a -- in the early part of the century, there was a great rebellion against the party system and California setup a cross-filing system so that people who belong one party can run in the other.
It removed any party designation from the ballots of local elections.
It setup the initiative from referendum so these ballot propositions appeared at that time.
Justice William J. Brennan: No, but at the time of the election --
Mr. Paul N. Halvonik: But they kept calling it a primary election.
Justice William J. Brennan: But at the election we’re talking about.
Mr. Paul N. Halvonik: Yes, ride-in candidate.
Justice William J. Brennan: There were candidates for nomination in the both Republican and the Democratic Parties or perhaps for other parties?
Mr. Paul N. Halvonik: Yes, this –-
Justice William J. Brennan: For some, and then in addition to that though these nonpartisan things that you –-
Mr. Paul N. Halvonik: Nonpartisan ballots, but Storer, one of the Appellants here can --
Justice William J. Brennan: But it is still called a primary election?
Mr. Paul N. Halvonik: Yes.
Justice William J. Brennan: And anyone who voted, if he voted only on the matter of those initiative or whatever those propositions where, that then disqualified him from signing one of these petitions after August 15, is that it?
Mr. Paul N. Halvonik: The Code Section so reads then that’s what the lower court held.
Justice William J. Brennan: Right.
Justice Potter Stewart: So voter on primary election day goes down to the polling place and he can say I am a Republican in which case he is given a ballot containing the various aspirants for to be nominated under Republican party plus the issues in nonpartisan candidates or in some a Democrat in which case he gets the Democratic ballot plus the issues, or he can say decline -- I decline to state in which he gets only the latter?
Mr. Paul N. Halvonik: That’s right.
That’s it exactly although, he made his declaration before Election Day, you have to be registered before then.
Justice Potter Stewart: I see.
Mr. Paul N. Halvonik: Well anyway, now, those people excluded from signing a petition and the Appellant Storer is also since he cast a nonpartisan ballot excluded by virtue of that from running for offices as an independent, and further he is not permitted to run as an independent because some ten months before the general election he was registered as a Democrat and California requires you if you been a member of a political party to wait 17 months before an election, before you can be an independent.
Justice Byron R. White: It just says 17 months, that’s --
Mr. Paul N. Halvonik: Well, it’s the period 12 months before the primary election and then you add the five months then --
Justice Byron R. White: Between primary and general?
Mr. Paul N. Halvonik: Right.
And it comes out about 17 months.
Justice Potter Stewart: And that is before you can be a candidate, not before you can vote in the primary, isn’t it?
Unknown Speaker: The Whole?
Mr. Paul N. Halvonik: Before you can run as an independent candidate –-
Justice Potter Stewart: Candidate?
Mr. Paul N. Halvonik: -- you have to purge yourself of any party affiliations some 17 months before the general election.
Justice Potter Stewart: Before you can be a candidate as an independent?
Mr. Paul N. Halvonik: Right.
As Storer here asked -- sought and there is an affidavit in there, he sought to get his nominating papers out and he told them he could not have them because he been registered as Democrat within the preceding 17 months.
Justice Potter Stewart: Right.
Mr. Paul N. Halvonik: Now, this --
Justice William J. Brennan: Let me ask, to what does the 5% in number apply?
Mr. Paul N. Halvonik: It’s the entire vote in the area.
So, if you are running for Congress, it is 5% in your congressional district, 5% of the people who voted at the last General Election.
If you’re running statewide, it is 5% of the entire vote in the State.
Justice William J. Brennan: Well now, for the purposes of the cases we have before us, what was the elimination from the 5% by virtue of having voted at the primary election -- in numbers?
Mr. Paul N. Halvonik: Well, it’s our estimate and it was the estimate of the Secretary of the State at the time the election was being held that about 70% of the people would vote for primary.
Justice William J. Brennan: So then you have to get 5% of the total out of the 30%?
Mr. Paul N. Halvonik: That is correct.
Justice William J. Brennan: I thought so.
Mr. Paul N. Halvonik: Although of course you can get additional registrations.
You can go out with the registration book and get additional people to register.
If you are in the district with very low registration, that’s one way where you can conceivably meet these requirements and in fact after we brought these suits, somebody did.
A man named Raul Ruiz in the 48th Assembly District of California which is the smallest Assembly District where all he needed was 1,800 signatures.
A large Chicano population, an average in Assembly District which is half the congressional district about is 4,500 signatures you need.
He needed about 1,800, very low registration went into Chicano communities and promoted himself as a La Raza candidate and was able to make the ballot.
The only one as far as we know whose ever made it under the current California independent provisions.
The system is justified by the State of the California on the grounds that makes for manageable ballot in size and that justification we contend is transparently untenable because the State also points out probably a few times, you can have 100 political parties in California.
They are four at the moment.
Actually, mathematically, it is possible to have more than 100.
And so, the interest in the manageable ballot only occurs when you do not want to be affiliated with a political party.
The old party stay on if they have 1/15 of 1% or the registry vote, and if they collected only 2% of the vote in the last election.
A new party needs to collect just 1% of the electorate as registered voters in its party and it gets a place in the ballot.
So the manageable ballot excuse would not go and the State then justifies the provision on the grounds that may legitimately promote political parties as distinguished from independents, and even keep independence off of the ballot if it wishes, and that is where we take issue with the State.
The First Amendment of the United States Constitution as we understated any way is supposed to promote a free marketplace of ideas and a statutory system, validly designed to restrain trading ideas does not seem to last -- to comport with the First Amendment but to affirm it.
We are dealing here with fundamental right, the right to vote and the ballot, well we are thinking of the right to vote on First Amendment terms is this Court referred to it Williams versus Rhodes is sort of a form and while the State, when it opens the form, in this case the ballot being form of its opening, even though it need no open the form, once it opens the form, it has to use neutral principles to decide who gets access to that form.
It can decide on the basis of preferred political content or preferred political associations who gets on the ballot, but that is what California does and that is what Californian claims is to –-
Justice Harry A. Blackmun: Mr. Halvonik, do I understand from what you’ve just said that your posing your case basically on the First Amendment principles and not at all on Equal Protection?
Mr. Paul N. Halvonik: Well, it’s an Equal Protection principle.
It is related to the First Amendment principle.
Under the equal protection ideas when one opens up a part for instance, City maybe does not have to build the part but once it does, it is going to issue permits for speakers in the part.
It has to issue them in a neutral manner, that's sort of a combination of Equal Protection in First Amendment values I should think.
But we are relying on Equal Protection of the laws.
That is the basic claim for this that the State once it provides ballots base has to do it in an even head in the matter and this is connected and interrelated with the First Amendment question of political neutrality in deciding what standards are used to get on the ballot.
Justice Harry A. Blackmun: You are claiming a denial of freedom of association here as I understand it?
Mr. Paul N. Halvonik: We're claiming that the State discriminates you against people who seek ballot positions because they do not have particular kinds of associations.
Justice Harry A. Blackmun: And the answer to that is not that he is merely asked to forgo the vote and he can associate all he wants to?
Mr. Paul N. Halvonik: He has to forgo getting on the ballot and yes, he can forgo all he wants to and the State merely penalizes him by removing him from the actual process, and the removing [Laughter Attempt] and their supporters are removed from the electoral process effectively and force to have on their ballots only those candidates which they do not wish to support.
Justice Harry A. Blackmun: All of these sounds to me more like Fourteenth Amendment than First I think but --
Mr. Paul N. Halvonik: Well, I think the First is helpful this way Mr. Justice Blackmun deciding what standard is then used to determine who is being irrationally discriminated against, and we maintain the First Amendment sort of standard applies here is the Close Scrutiny Standard and that what we’re involved in is the exercise of the fundamental right, cognate to First Amendment right as illuminated in this Court’s opinion in Williams versus Rhodes.
The discriminatory system against those unaffiliated political parties is reflected not just in the ballot direct access question, but on in the statute which prohibited Storer from being on the ballot.
We have already discussed his casting of a partisan -- a nonpartisan primary ballot excluding him from the party.
And I mentioned also that he was excluded because he had been a member of a political party within the preceding 17 months.
And we contend that there is no justification for the provision.
It's one thing that requires somebody to be a member of a party first for certain amount of time before he may run as that party’s candidate to establish his adherence to whatever general principles that party may have, but an independent by definition is saying he is not associated with any group of political ideas, associated with any particular political party.
The State of California says well when he goes, he is splintering the party, but splinters is just pejorative for independent, and I would think political parties who cannot withstand people this effect at leaving that party and cannot stand the competition at the ballot, when these people meet least of the qualifications to get on the ballot is political party perhaps does not have where does the people who want to buy and I do not see where the State has a legitimate interest in insulating that political party from what it would term splinters, I do not know who decides what to splinter –-
Justice William O. Douglas: If you are -- which is case to be in 72?
Mr. Paul N. Halvonik: Mr. Remcho argued it at that time Mr. Justice Douglas.
Justice William O. Douglas: For Mr. Storer?
Mr. Paul N. Halvonik: Yes, for Mr. Storer and Mr. Roche appeared for the State at that time.
Justice William O. Douglas: You thought that the case was – the law was well settled and I should (Inaudible) about Court rule?
Mr. Paul N. Halvonik: Well, we’d hope it was that way.
I do not know that whether our opening was well settled.
We feel that if followed fairly much from Williams versus Rhodes that they were entitled to a ballot decision, and we thought and furthered it, the State could not make the manageable ballot argument because if you pointed out that interest only arises when you are affiliated with the parties, the four-party State and we felt further that the State can’t maintain that it has a legitimate interest in promoting political parties, people affiliated within and the exclusions of those who have no political party affiliations.
Chief Justice Warren E. Burger: You are now under Mr. Remcho’s time.
Mr. Paul N. Halvonik: Thank you Mr. Chief Justice.
Chief Justice Warren E. Burger: Mr. Remcho.
Argument of Joseph Remcho
Mr. Joseph Remcho: Mr. Chief Justice and may it please the Court.
First, in response to Mr. Justice Douglas’ question --
Justice William O. Douglas: I was just refreshing my recollection.
Mr. Joseph Remcho: Oh, okay.
We have thought at the time at any rate the irreparable injury to the -- there was no injury to the State but there would be injury to Storer in that case.
I am addressing myself to the issue that independent candidates to get on the ballot may not have been a member of a political party for the preceding 17 months and may not have voted at the preceding primary.
In our view, that is qualifications by the California Legislature to those set forth in Article 1 Section 2.
In this Court, in Powell versus McCormack said that the National Legislature may not add to those qualifications of age, citizenship and inhabitancy.
As the National Legislature cannot and surely the State may not and in fact Appellees have conceded this point.
They argue however that person can be elected to Congress in two other ways besides meeting those additional qualifications.
That is they argue, he can be a party candidate or that it can succeed the ride-in -- on the ride-in at the -- in the California Election.
These possibilities, really in our view constitute merely alternative qualifications.
To restate the California scheme, a person to become a member of Congress must either first, be a member of recognized political party, that is the party group; second, must not have been a member of the party with preceding 17 months and further have not had voted; that’s this independent group we are challenging.
Or third, he must run as ride-in candidate with no chance to success in California.
I think the issue this Court want to address itself to is the viability of the ride-in as an option.
I think it can be viewed in one of two ways.
Either it’s that alternative qualification that a person must be so widely supported by people in California that he can gain election even when his supporters have to ride-in and the supporters of others by merely go down and check a mark on the voting machine.
Or secondly, we can say that the party group and independent group are the additional qualifications for the Congress and that the alternative which the State provides is really an unrealistic alternative.
It is impossible alternative under current California procedure.
The Appellees attempt I think to show that there is a ride-in alternative really shows quite the opposite.
The only example they can come up with is the case in which a person who is a Democratic incumbent and already on the ballot for the Democratic primary, won a Republican primary in by ride-in when no one was on a Republican ballot that is someone had to win by ride-in, there is no other way to do it.
Justice William H. Rehnquist: Mr. Remcho, if you are right on the point you are arguing here then was not Lippitt against Cipollone wrongly decided?
Mr. Joseph Remcho: I think the Court in Lippitt, that’s the lower case, Your Honor did not address fully that issue of Article 1 Section 2.
It was passed on, was not fully explored.
I think I am correct, it was wrongly -- maybe wrongly decided.
Secondly however, that’s distinguishable from this case in that in Lippitt, there was a fee and I suppose arguably, the candidate in Lippitt could have raised the fee.
In this case he can't --
Justice William H. Rehnquist: The Ohio rule was surely an added qualification which the State couldn't impose over and above those set by Article 1 just as much as the California qualification.
Mr. Joseph Remcho: I think that’s right Mr. Justice Rehnquist.
I would say number one, it was wrongly decided.
This Court dismissed on the grounds of lack of jurisdiction.
It did not –-
Justice William H. Rehnquist: No, I think (Voice Overlap)
Mr. Joseph Remcho: Excuse me, excuse me.
I am sorry.
I’m thinking of the other case.
But I think that can be distinguished here because there is no way that Storer can get away from California’s requirement, that is having voted, having exercise his franchise and having been a member of the party, he is now totally incapable of getting on the ballot in California whereas in Lippitt at least someone else could have come in and said here’s the money and you can go.
Again as to the ride-in alternative, this Court in Classic, United States versus Classic which extended what it considered to be a fundamental right to vote in congressional elections to primary elections did so on the grounds that the primary election so profoundly effected the general election –-
Justice William J. Brennan: Does that opinion use the term fundamental right or constitutional right?
Mr. Joseph Remcho: They use the term constitutional right, Mr. Justice Brennan.
Justice William J. Brennan: I wonder why you don’t.
Mr. Joseph Remcho: I will in the future.
Justice William J. Brennan: [Laughter]
Mr. Joseph Remcho: But I think that case which also spoke of Article 1, Section 2 not specifically to the qualifications, but as one of the basis for the constitutional right.
It fit so because it dismissed the ride-in because the ride-in procedure in the primary so profoundly effected the election.
Justice Thurgood Marshall: That was a right to have his vote counted?
Mr. Joseph Remcho: No, that was a case -- that is right to be counted and also to be a candidate Mr. Justice Marshall.
Justice Thurgood Marshall: The United States against Classic was a right of a voter as a primary to have it vote, can’t it?
Mr. Joseph Remcho: That is correct.
Justice Thurgood Marshall: That’s all it was about?
Mr. Joseph Remcho: Well, I think now Mr. Justice Marshall, the decision -- this was a case in which to decide whether or not the Defendants in that case violated a constitutional right.
The Court said it had to meet two issues.
First, whether or not a voter had a right to have his ballot counted and secondly, the Court did say that it had to meet the issue whether or not a person had a right to be a candidate.
One might say that there really was not necessarily in the case?
Justice Thurgood Marshall: Does the candidate (Inaudible)
Mr. Joseph Remcho: That is right.
To be a candidate and to have those accounted for -- I think further that -- I think the issue has been settled by Powell versus McCormack and that Mr. Justice -- excuse me, Mr. Chief Justice Warren in that case gave some guidelines we are looking at a case of this sort where qualifications are alleged and he said that even had the legislative history in that case not been as clear as it was and the constitutional history not been as clear as it was, the Court was nevertheless had been compelled to resolved any ambiguity in favor of a now construction as the scope of Congress’ power to exclude members because in Hamilton’s words the people should choose whom they please to govern them.
I think in this case, any ambiguity as to whether or not the ride-in is an effective alternative ought to be resolved in favor of the people’s right to elect the Congress those people whom they choose and not whom the California legislature chooses.
If there are no questions, I will reserve the remainder of my time for Mr. Halvonik’s rebuttal.
Chief Justice Warren E. Burger: Thank you.
Argument of Clayton P. Roche
Mr. Clayton P. Roche: Mr. Chief Justice and may it please the Court.
Our basic position is completely different of course than the Appellants.
The Appellants have very studiously avoided this Court’s decision in Jenness versus Fortson and it is our position that we look to Jenness versus Fortson for the guidelines as to how California’s law and its constitutionality should be decided.
It is clear when we look at California’s Law that California has preserved the fluidity of political life and has not frozen the status quo.
That was the key to Jenness versus Fortson.
As alluded to by Appellants very rapidly as we -- in their argument, California has not two parties, but has four qualified parties presently.
Besides the Democratic and Republicans, we have the American Independent Party and the Peace and Freedom Party.
So obviously, we are not a Williams versus Rhodes situation where the political life of California has been a frozen for the Democrats and Republicans.
Also, there’s been little said about Section 6430 of the California Elections Code.
We feel that Section 6430 of Elections Code in and of itself without even reference to the independent nomination procedure satisfies all the constitutional rights of the Appellants and other electors in California.
Under said provisions as has been explained an old party can remain on the ballot if it gets 2% of the previous vote.
Secondly, if they have 1% registration as of 135 days before the election, they also become a qualified party.
Additionally, they can become a qualified party by getting a petition with 10% of the number of voters at the last gubernatorial election.
We also have the ride-in process in all elections: Primary, General, State and Local offices, Federal office and the Presidential Elections.
So, we haven’t even gotten into the independent nomination procedure so obviously, if any group of electors wishes to organize and exercise their First Amendment rights under the provisions of Section 6430 of the Elections Code, they may do so as did the American Independent Party and the Peace and Freedom Party in 1948.
Also in the past, we have had other qualified parties as alluded to in our brief.
We have had the -- in the 50’s we had -- and into the 60’s, the progressive, excuse me, the Prohibition Party was a qualified party and also for a while we had the, I believe was the progressive independent party in the 50’s.
Justice Potter Stewart: And how many voters just to take to organize a new party Mr. Clayton P. Roche? 1/15 of 1%?
Mr. Clayton P. Roche: 1% of the registration.
Now the 1/15 is an additional qualification to stay on the ballot.
There is a provision in Section 6430 that says “and if at any time that the registration falls within 1/15 of 1%, then they are automatically off no matter what they got the last time.”
Now, that’s interesting from the point of view that in Georgia -- in looking at Georgia’s 5% of the vote, last vote requirement, they could have had zero because they do not have that added qualification and the Court still upheld Georgia’s 5% requirement in Jenness versus Fortson.
Justice Potter Stewart: I don't follow that?
Mr. Clayton P. Roche: Oh, well in other words –-
Justice Potter Stewart: I mean Georgia was more liberal.
Party still stays on the –-
Mr. Clayton P. Roche: Well, a party can stay -- that is right, it is -- no, they could have zero.
It would be more restrictive in that even if they have zero registration, even if the had 20%, excuse me, not the 5%, the 20% of the vote requirement for an old party of the stay on.
Their registration could go down to zero and they would still have been a qualified party.
Justice William H. Rehnquist: They are more liberal and less fluid?
Justice Potter Stewart: That’s about it.
Mr. Clayton P. Roche: So basically what I’m saying is that without reference to the independent nomination procedure itself, the fluidity of political life is taking care of in California.
Now, insofar as the –-
Chief Justice Warren E. Burger: We will resume there right after lunch Mr. Roche.
[Lunch Recess]You may proceed Mr. Roche.
Mr. Clayton P. Roche: Thank you, Your Honor.
As I was saying before lunch, I was outlining how under the provisions of Section 6430 of the California Elections Code, the fluidity of political life is preserved without even reference to the independent nomination procedure which is solely attack in this particular lawsuit.
Additionally of course, we have the ride-in process in all elections.
So therefore, we get to the question what scope of review should be used here and it is our position that in view of the fact that Section 6430 takes in addition and in conjunction with the ride-in process already preserves the constitutional rights of electors in California.
That the independent nomination procedure really essentially has its existence or now has very little impact upon the voters in California.
Therefore, under the test set forth by this Court in Bullock versus Carter, the rational basis test should be used in examining its provisions instead of the close scrutiny test and in this regard it would seem that we are essentially talking about a case which involves barriers to candidacy as opposed to the right to vote per se as found in such cases is Carrington versus Rash and the Kramer case, the Cipriano case and so forth which were direct infringements upon and that direct disenfranchisements.
However, despite the fact that we feel that only the rational basis test need be used, we feel that even should we examine the California Independent nomination procedure in a vacuum so to speak that each of its substantive provisions are necessary to further compelling state interests of the State.
Now taking these elements individually, we first of all have the 5% signature requirement of Section 6831.
Well, of course, this Court has recognized unqualifiedly that in Jenness versus Fortson that a significant modicum of support is proper to prevent proliferation of the ballot and to also prevent confusion, deception and even frustration of our electoral system.
Three-judge District Courts have elevated this in itself to a compelling state interest.
For example, Beniger versus Ogilvie which is cited in our brief and the Beller versus Kirk which was affirmed sub nom Beller versus Askew by this Court.
In fact, when you examine California’s 5% requirement vis-à-vis Georgia’s 5% requirements, you will find that California’s 5% requirement is really about a 3-1/2% requirement, because Georgia uses a different test.
Georgia used a test of all of the electors who were qualified to vote at the last election whereas California uses the test all those people who actually voted for that office then using the 70% test that the Appellant’s use all the time, that would come out to about a 3-1/2% requirement on Georgia’s scale instead of a 5% requirement.
Additionally, we point out that Appellants apparently do not seriously even contest the 5% requirement in and of itself and we presume the difficult for them to do because of Jenness versus Fortson and cases as such as -- excuse me, not Beniger versus Ogilvie, it was Jackson versus Ogilvie and Beller versus Kirk.
Now, moving on to the 6830 (c) of the California Elections Code wherein it restricts the signatories to those who have not voted at the primary election.
Now, there was much of discussion as to what is a primary election in California.
Now our position below at the District Court level was that in California, the primary election held in June is in reality, a series of primary elections.
It’s essentially a consolidation of a group of primary elections, one for each parties.
Therefore in 1972, we would have had a primary election for four parties and a separate primary election, basically for “declines to state.”
Now, we have cited a case, a California case –-
Chief Justice Warren E. Burger: When you say it is series, all on the same day or –-
Mr. Clayton P. Roche: Oh!
It’s all at the same time and –-
Chief Justice Warren E. Burger: They all go to the same polling place, don’t they?
Mr. Clayton P. Roche: Yes sir.
But there are separate ballots for each party and each party essentially holds its primary election, then the “declines to State” also nominates nonpartisan officers such as County Supervisors and then as was explained there are usually a proliferation of ballot propositions that we all struggle with at least twice a year.
Justice Harry A. Blackmun: Mr. Roche, do I not detect the disagreement between your position and that of your opponent's so far as participation in the nonpartisan primary leads to disqualification?
Mr. Clayton P. Roche: That was our position below Your Honor that I feel that –-
Justice Harry A. Blackmun: Is it your position here?
Mr. Clayton P. Roche: If required to sustain the constitutionality, that would be my position, yes sir.
Justice Harry A. Blackmun: Did I correctly detect your opponent’s position to be the contrary of this?
That is only in --
Mr. Clayton P. Roche: I understand it that -- unfortunately, the District Court considered the primary as single election.
Well, it is difficult to argue any purpose which would be served by excluding those who have voted a nonpartisan ballot at the primary from signing an independent candidate’s nomination papers.
It’s difficult to discern any particularly legitimate state interest or compelling state interest in that regard.
But when you get to those who voted at a partisan primary, well certainly, that is when we have the legitimate and compelling State interests that are being serve by excluding them from signing independent nomination papers.
These are basically the related to the maintenance of party integrity and party organization which has been recognized as compelling state interests.
The validity of this type of revision has been upheld in two cases, both of which had been affirmed by this Court that is Jackson versus Ogilvie from Illinois and the Socialist Workers Party versus Rockefeller.
The Court desires some examples of -- this is not exactly a party rating statute, it is somewhat analogous thereto.
For example, if we didn’t have this restriction, a voter could -- will belong to a particular political party.
If he could go in and vote against the party’s best candidate in the primary and then go and attempt to further his own candidate at the independent nominations.
Justice Thurgood Marshall: Mr. Roche, am I correct that you have five ballots at this primary?
Mr. Clayton P. Roche: That is correct Your Honor.
Justice Thurgood Marshall: And four ballots at party ballots?
Mr. Clayton P. Roche: Yes, Your Honor.
Justice Thurgood Marshall: And assuming there’s a valid reason to prevent the persons that participate in the party part of the primary, what then put restriction on the person that does not vote for party?
Mr. Clayton P. Roche: I know of know reason to restrict it, Your Honor.
I mean I have to be candid on that point and I wish that (Voice Overlap) but firstly, I wish the District Court had made that distinction.
Justice Thurgood Marshall: But would you want us to strike that down, that part of it?
Mr. Clayton P. Roche: I would be happy if nothing were struck down, Your Honor but [Laughter Attempt]
Chief Justice Warren E. Burger: I suppose your interest is in sustaining the judgment that brought you up here.
But pursuing Justice Marshall’s question a little bit further, is it possible to readily identify the people who have just voted as Justice Marshall suggested on some of the other issues but not on any part –-
Mr. Clayton P. Roche: Oh!
Yes, Your Honor.
Chief Justice Warren E. Burger: Easy to identify?
Mr. Clayton P. Roche: There are registration list posted right outside of the polls and also the registration books have the registration or whether they are declining –-
Chief Justice Warren E. Burger: That would mean checking the petitions against those lists for verification, is that done routinely anyway or only –-
Mr. Clayton P. Roche: I would, I would, yes, I would presume so and actually, I talked to the Registrar at voters at Los Angeles County and this is not in the record, just off the record, we were talking about how they did it and as I understand it, their position was that they counted people who voted a nonpartisan ballot at the primary.
In other words, they permitted them to sign independent nomination papers and it is a matter of construction I believe and it is a matter of law.
I do not think it would be necessary -- you would not have to over turn the lower court’s decision because it is a pure matter of law and it is sustainable under existing California law.
We have this one case cited in our briefs by Shashteg versus Cater I believe was the name of the case where the Court explained that what we called the primary is essentially a series or a group of primaries all at the same time held by the same election officers at the same place.
Justice Potter Stewart: So, you are telling us -- do I understand you correctly, you are telling us what despite what the Federal District Court seemed to hold on this case, the California law may be to the contrary?
Mr. Clayton P. Roche: That is right, Your Honor.
Justice Potter Stewart: Well then would not this, if there is an ambiguity would this have been appropriate case for the District Court to have abstained to get the California law construed by the only Court’s qualified to do it and is the California Court?
Mr. Clayton P. Roche: Well, Your Honor, I made the argument.
It was rejected and we already have a construction at least --
Justice Potter Stewart: But by a Federal Court that you can qualify?
Mr. Clayton P. Roche: No, we have it and we also have an older construction by the California Supreme Court that the primary is essentially a number of primaries held at the same time.
Justice Potter Stewart: You mean a construction then contrary to the holding of the District Court in this case?
Mr. Clayton P. Roche: I think basically.
Justice Potter Stewart: But not really on the point, not on this precise issue, is it?
Mr. Clayton P. Roche: Not now if it is regard –-
Justice Potter Stewart: I mean that the holding here was by the District Court as I understand it at least that because, one of these people had voted as an independent, has to refused to state -- client to state voter at a so called primary which he didn’t vote in the party primary?
For that by that very reason, he is disabled to run as an independent candidate within the 17-months period.
And you say that is not the California law and how we to know, we have no power to construe the California statutes, not at all?
Mr. Clayton P. Roche: Well, let me put it this way, if the Court feels it necessary to uphold the constitutionality of the independent nomination procedure, I would go for the construction that it is a series of primaries and not --
Justice Potter Stewart: But I am suggesting to you that we, this Court has no power whatsoever to construe the meaning of a California statute.
If it is clear, that is one thing and we accept it but you and your adversary seemed to disagree as to what the California law is and that say disagreement that this Court has absolutely no power to resolve?
Mr. Clayton P. Roche: Well, I --
Justice Potter Stewart: It’s up to the California Courts.
Mr. Clayton P. Roche: Well, it seems to me that the California Courts, though not in this context, has sufficiently construed it so that this Court could follow the California law.
Justice Potter Stewart: But this, but the three-judge District Court in this case did not so understand it?
It said very, very clearly on III of the Jurisdictional Statement of the Appendix, Storer will be barred from independent candidacy if he carried out his stated intention of voting on nonpartisan matters in the June primary?
Mr. Clayton P. Roche: Well, that’s how they construed it, yes sir.
Justice Potter Stewart: Was there any of point made to the Three-Judge District Court in this case that it should not defer, should abstain from reaching the constitutional issues here ending a determination of what the California law is by the California Courts?
Mr. Clayton P. Roche: No, Your Honor.
But this is a normal situation we find ourselves in.
We always find ourselves for a good portion the time in the Federal District Courts and the courts may at this juncture be more prone to abstention but in the past, it is seems to me they haven’t been.
Justice William H. Rehnquist: Well it's about three weeks before the election t too, isn't it?
Mr. Clayton P. Roche: [Laughter Attempt] Well, that’s right Your Honor.
I mean if they have to get a decision awfully fast.
Justice Thurgood Marshall: If I may back up, I am intrigued about these five ballots.
The four-party ones and the independent one.
How can that independent when we call the primary?
Mr. Clayton P. Roche: Pardon?
Justice Thurgood Marshall: The independent ballot at the “primary election?”
Mr. Clayton P. Roche: We also have nominations for nonpartisan officers and if a nonpartisan -- a number of people will file nomination papers, for example for County Supervisor or District Attorney or other County offices, and if they receive a majority of the votes cast at the primary, they will be elected that the primary is then transmuted into the general election and they are declared elected.
Justice Thurgood Marshall: That’s no problem, that is -- become a primary?
Mr. Clayton P. Roche: But because if they do -- if nobody receives a majority of the votes cast, then there will be a run off election at the general election.
So, it is not also a nominating election for –-
Justice Thurgood Marshall: Do you have any primary ballots of independents that don’t have any candidates on but just have propositions on it?
Mr. Clayton P. Roche: Not that I -- did not have but we would normally consider the primary election because at least you say in General Law Counties if the County –-
Justice Thurgood Marshall: Well would you think it would be valid for the State of California to say that anybody votes in the bond election cannot run for office?
Mr. Clayton P. Roche: No.
Justice Thurgood Marshall: How much difference is it?
Mr. Clayton P. Roche: No, not much difference Your Honor.
Justice Harry A. Blackmun: Mr. Roche, let me ask you a question while they are going on.
I am having some conceptual difficulty.
As I remember Williams against Rhodes, this Court approached it on a standard of totality of the circumstances.
Mr. Clayton P. Roche: Yes Sir.
Justice Harry A. Blackmun: As I remember the Jenness case, we didn’t know such thing.
We approached it on provision by provision separately.
Do you think those cases are reconcilable in theory and if not, which path we should follow here?
I asked this because you have been taking provision by provision as you are going along.
Mr. Clayton P. Roche: Oh, well my basic position is that we should examine California law in its totality as was done in Williams versus Rhodes and Jenness versus Fortson and that –-
Justice Harry A. Blackmun: I think it wasn’t done in Jenness against Fortson?
Mr. Clayton P. Roche: As I read it, it was because as I recalled it --
Justice Harry A. Blackmun: Well, it doesn’t make any difference.
In any event here, you are arguing the totality (Voice Overlap)
Mr. Clayton P. Roche: My recollection was that the Court examined all the totality of the Georgia Election Laws and then showed that all these various alternatives routes to the ballot.
The same and as we say in California, we have all these various alternative routes to the ballot also.
So that we just don’t isolate one and say, well, that one is unconstitutional.
What we do is we look at California’s law in its totality and determine whether or not the law totally as a package satisfies an individual’s constitutional rights to run for office and voter’s rights to vote for it.
Justice Harry A. Blackmun: But if we do that, then why is it necessary to argue as you are arguing now to take up each provisions separately?
Mr. Clayton P. Roche: Because if any of these particular provisions should be considered onerous.
We feel that we should be able to isolate the unconstitutional from the constitutional and sever whatever provision the Court might feel is unconstitutional as of the California legislature would want under the Severability Clause of our Elections Code.
For example, the Court has clearly approved 5% requirements or less but may be the Court might feel that the time requirement was a little too stringent or they might not agree with another provision with regard to who may or may not sign the petitions.
But what I’m doing is showing that even assuming we have to look at the independent nominee procedure in the vacuum that it's provisions further compelling state interests.
But as to Section 6830 (c) and (d) as they apply to the candidates themselves and that’s the one where a candidate cannot run for -- as an independent candidate if he has voted or if he has been affiliated with a qualified party for one year, the basic thrust of these requirements are also to preserve the integrity of our party system.
Now, they are part of our package in California which ensures at the primary stage that the party rating does not occur.
There is a similar one year provision as to candidates changing between parties in Section 6401 and if you add that up, it turns out to be more than a 17-month provision for them to switch parties and run in another party.
And that is -- and so by a parity of reasoning, we are not arguing that these provisions are to prevent party rating, but they are analogous there too.
We feel that these party rating statutes are, for example, in Lippitt versus Cipollone, there was a four-year restriction as to a candidate.
Well, that is basically an objective test and what we are saying here is we have basically a one-year objective test to show that the person is truly an independent and isn't striking off on his own as a disgruntled member of a party to splinter the party at the general election stage, or you could have the whole series of people striking out on their own and the party system would just disintegrated if that were permitted and the cases such as those who relied upon by the Appellants are not point because they -- such as Yale versus Curve and they were cases involving restrictions as to voters.
Justice William H. Rehnquist: But it is there really a problem Mr. Roche of Republicans and Democrats desiring to vote as independents in order to nominate the weakest independent candidate so that the Republican or Democrat, a candidate might triumph at the general election?
Isn’t that how the analogy would go if you talk in terms of party rating?
Mr. Clayton P. Roche: That that would be how the analogy would be, yes Your Honor.
But then, there would be as I said the possibility of the large segment of a party being disappointed with the nominee and say, okay, well, let’s get candidate “X” and we will run him as an independent and we will show them.
Justice William H. Rehnquist: Now, that is good argument as to the prohibition against those who have voted in a party primary, not nominating any independent.
I take it that this is not a very good argument as to those who have voted nonpartisan analogy?
Mr. Clayton P. Roche: No, it isn’t [Laughter Attempt] unfortunately.
Unknown Speaker: Mr. Roche.
Chief Justice Warren E. Burger: (Voice Overlap) party primary and then seeks to sign a petition for an independent candidate, have they something like the equivalent of two votes in the process?
Mr. Clayton P. Roche: Well, that is correct Your Honor and that is the cases I’ve pointed out the idea is that if they could do that, they virtually have to two choices for office.
Chief Justice Warren E. Burger: They see no reason why not to let a man vote in Republican primary first and Democratic primary at the same time?
Is that the analogy?
Mr. Clayton P. Roche: Yes, Your Honor, that isn’t very analogous.
Now with regard to the 24-day requirement, this serves the compelling state interest of letting the people know who the party candidates are beforehand.
It insures that current attitudes as the voters who reflected in the petition and it permits voters to know ahead of time what the party platforms are because the party platforms in California are not put together until sometime in August.
Now as was pointed out, an independent did actually run in 1972 for assembly in Los Angeles and my time is up.(Laughter Attempt)
Chief Justice Warren E. Burger: Alright.
Mr. Halvonik, what about that proposition, my hypothetical question that you demand; a man is gone and voted in the Republican primary let us say and then he is dissatisfied with the results of that primary.
On your theory, he should be permitted to vote, to sign a petition for an independent?
Rebuttal of Paul N. Halvonik
Mr. Paul N. Halvonik: Well, there are two things going on here though.
The independent can’t start circulating his petition until late August while the primary occurred in June.
So that in order to get 5% of the electorate to hang around, you’ve got to convince them not to get involved back in that process at all if California had a system which gave the independents an equal crack at the same time.
Chief Justice Warren E. Burger: But do you think they -- my question is do you think they should have to bites at it; to vote in the primary of the Democrats or the Republicans and then in effect get a “vote” by having his signature on the petition function the same as to vote in the primary?
Mr. Paul N. Halvonik: Well, I don’t think it’s unconstitutional as to such system Indeed Georgia has that system, but I do not think it is unconstitutional to acquire them to make a choice.
I think it is unconstitutional to give the parties the advantage.
Chief Justice Warren E. Burger: You are suggesting it is unconstitutional, are you not to fail to allow that?
That if they do not -- if California does not allow a man to vote in the Republican primary and then when he does not like the results, sign a petition for an independent candidate, you are saying that is a violation of some constitutional --
Mr. Paul N. Halvonik: It is violation because they won’t let the independent compete at the time of the primary.
If they’re not going to let the independent compete at that time for that vote, and they can’t say well he’s getting two bites at the apple.
Now, if they want to let him -- the independent compete at the same time.
Chief Justice Warren E. Burger: Is there anything that prevents the independents from saying that we are going to have a convention of independence on the day of the primary?
Mr. Paul N. Halvonik: Well --
Chief Justice Warren E. Burger: And don’t go to the Republican, don’t go to the general primary but come to our convention and sign a pledge card that you will sign a petition, anything?
Mr. Paul N. Halvonik: That’s all very well if independents were in fact like a political party, but they’re not.
They are different kinds of people who are independents.
Mr. Frommhagen does not get along with Mr. Hall at all, and he is not going to get together with him at any convention.
The idea of independence is that they are not organized.
If somebody wants to be an independent candidate, the supporters have an equal opportunity to canvas and solicit people to sign nominating petitions.
At the time when these other people have the opportunity to have them go to the polls in the primaries, then I would say you can make a distinction so you got to make your choice.
Chief Justice Warren E. Burger: I’m not sure –-
Mr. Paul N. Halvonik: Now, what happens to the California is the man can’t even circulate the petitions until two months after the primary.
So, he is completely taken out of that arena at the time when the voters are most thinking about the issues.
That the parties are getting this tremendous advantage and it is argued that that gives people or make sure that they reflect current attitudes.
Well, the parties do not reflect any current attitudes.
It is been two years since the election in which they relying on to stay on the ballot and yet, an independent can’t appear in January or February and start soliciting signatures for his candidacy.
By then, an independent fairly well knows what the main issues you are going to be in the following year, and that independent does not care with the candidates are.
Maybe that independent like Tom Storer just doesn’t feel the political parties at the moment are properly representing the people if they are too much grounded by interests who he thinks are inimical to the benefit of the people of Marion County.
He doesn’t want to form a political party, he doesn’t care what happens in Orange County, or he doesn’t care anymore than he cares with that in Klamoth County up in Oregon.
He is interested in Marion County, that is where he wants to run.
We have a Congressman in the District below him, a McClaskey who would like to run as an independent, his a member of Congress, who could win as independent, most political experts think but may be you cannot get through a Republican primary.
Justice Thurgood Marshall: Do I understand you that this man doesn’t want a party, doesn’t want any backing?
Mr. Paul N. Halvonik: He doesn’t want any backing of an organized political party.
Justice Thurgood Marshall: Does he want to get elected?
Mr. Paul N. Halvonik: Pardon?
Justice Thurgood Marshall: Does he want to get elected?
Mr. Paul N. Halvonik: Yes, he wants to get elected.
Justice Thurgood Marshall: Without any backing?
Mr. Paul N. Halvonik: Well, without a political party’s backing.
Justice Thurgood Marshall: Well, if he gets backing, they’d be a part?
Mr. Paul N. Halvonik: Well, it won’t be a party under the terms that he conceives of a party.
If he gets group of people behind him to support him who are not connected with the ongoing institutional group tied to particular interests.
He feels he can win.
He does not want to be tied to those interests, he rather loose, but it is not a just a candidacy, he is a genuine candidate as McClaskey would be running as an independent and McClaskey would probably win.
For sure, it is very likely he’d win in his District because it's a Democratic District in which he has won as a Republican constantly.
I wonder if I could just briskly on the couple of other points.
Mr. Justice Rehnquist asked whether Lippitt was not inconsistent with our position that with requiring, you not to have been a member of a party for a year an a half violated Article 1, Section 2.
Issue was never raised in Lippitt.
There is another distinction in Lippitt in that we were talking here about a party primary, so we don’t know in Lippitt from what at least occurs in the lower court opinion whether that person was absolutely foreclosed from appearing on the general election ballot or just foreclosed from appearing as a Democratic nominee.
But here, we have somebody absolutely foreclosed because it belongs to a class from which he can’t escape.
Justice William H. Rehnquist: But of course, your argument under Article 1, Section 2 isn't absolute foreclosure, it’s burdening or increasing.
And it is seems to me they are the same on that point whether you might reach a different result because the foreclosure argument or not?
Mr. Paul N. Halvonik: Well, what I am saying in Lippitt, the issue was raised essentially as an Equal Protection one and you can go into all kinds of balances at that point, but Article 1, Section 2 does not allow for balance.
If it is a qualification, then the States can't add it and that issue was not raised in Lippitt and cases do not stand for propositions that weren’t raised.
I think that goes for Lippitt.
It goes for Minor versus Happersett which is sort of the Dred Scott of Women’s Liberation [Laughter Attempt].
That that did not involve the Equal Protection Clause which is the principal clause we were relying on.
It is privileges and immunities case and so at that case seems to be the only one that suggest that voting is not a constitution right protected at least in Congressional Elections.
That case does not go to the principal issue.
On that point, Mr. Justice Marshall raised a question about whether a Classic involve the right of a candidate to run for office.
It is on page 308 -- 313 U.S. says they were charged with interfering, with the free exercise of the right of candidates to run for the office of Congressman, and they have --
Justice Thurgood Marshall: (Inaudible).
Mr. Paul N. Halvonik: Right.
Justice Thurgood Marshall: There's no man running for office in that state?
Mr. Paul N. Halvonik: No, it was group of -- it was Section 19 and 20 case that was a criminal prosecution for people for interfering with the right of those candidates to run for office.
Justice Thurgood Marshall: That is, you suppose (Inaudible).
Mr. Paul N. Halvonik: Well, I’d say Your Honor at page 308, this is the right of the candidates to run for office.
Justice Thurgood Marshall: National (Inaudible).
Mr. Paul N. Halvonik: Oh, let me move to abstention just for a moment.
It was not raised below.
There responses filed on August 18, not three months -- not three weeks before the election.
In August, they filed a response to not raise the abstention issue.
Justice William H. Rehnquist: But that was after the election, wasn’t it?
Mr. Paul N. Halvonik: No, no, it was August 18, 1972.
Justice William H. Rehnquist: Well then, what –-
Justice Potter Stewart: The election was in November?
Mr. Paul N. Halvonik: Yes.
Justice Potter Stewart: Alright.
Justice William H. Rehnquist: So this was directed not to the primary, but not to the getting on the ballot in the primary but to get out in general?
Justice Potter Stewart: Yes.
Mr. Paul N. Halvonik: It was filed before the primary election.
The answer was filed on August.
We have the preliminary -- hearing and preliminary injunction on August 31.
Justice Potter Stewart: Mr. Halvonik, regardless of whether or not abstention was raised below, doesn’t it appear here as was exposed by my brother Blackmun that there is an argument between you and your brothers on the other side as to what the California law is, at least with respect to the man who voted down as a refuse to what do you call him, “Declines to State?”
Mr. Paul N. Halvonik: “Declines to State,” no matter how much you want to stay.
Justice Potter Stewart: “Declines to State” and the primary as to his eligibility to run as a candidate?
Mr. Paul N. Halvonik: I do not know we’ve really handled this –-
Justice Potter Stewart: You seem to disagree as to what the California law is and as we all know that is a question we could not resolve, we have no power to.
Mr. Paul N. Halvonik: When I brought the case, I had to assume that the language in the Code Section meant what it said, and I had to attack that Section.
Then Mr. Roche came in and found that he could not come up with any justification with that Section so it does not mean that, and I said that is fine with me.
Let us not argue about that.
However, the District Court ignored the concession, so here we are.
Justice Potter Stewart: I know.
Mr. Paul N. Halvonik: Now, it seems to me that if you interpret it anyway other -- if you interpret the way the District Court interprets it, it is clearly unconstitutional.
Nobody could come up with a justification for it.
It seems to me if the State tells you that it ought to be interpreted the other way that you do not have any real problem of –-
Justice Potter Stewart: But the -- I do not know what your California law is in this respect, but I would guess maybe that Mr. Roche is hardly authorized to tell us that his statute means something other than what it appears to say?
Mr. Paul N. Halvonik: Well, I would suppose it and the only answer is that if as I contend it, it is clearly facially unconstitutional is to hold an unconstitutional and if the State Court wants to say you made an error the way you read it, they can do that and revive –-
Justice Potter Stewart: Well, that’s not the only alternative.
Another alternative would be to remand the case to get an authoritative construction from the California Courts.
Mr. Paul N. Halvonik: Well, one difficulty was that is though we did not file that suit three weeks before the election.
The fact of the matter is we get another election coming up in 1974.
Now, if we go back and you abstain them we got to go for the Superior Court of California and appeal at the Court of Appeal.
Effectively, we’re talking about a couple of more years of litigation, and we are talking about a very fundamental right here.
And I do not know that when you are talking in the selection context about the very fundamental rights that States come up with ambiguity.
I do not agree that it’s an ambiguity, but the State wants to create an ambiguity by saying it is not we meant.
I don’t think they can by that ploy force us to pass another election without knowing whether we can run on the grounds somewhat equivalent with the parties.
You know some sort of parity, people who are not affiliated with the political party so that they are invidiously discriminated against.
Chief Justice Warren E. Burger: I think your time is up for now Mr. Halvonik.
Mr. Paul N. Halvonik: It is indeed.
Thank you, Mr. Chief Justice.
Chief Justice Warren E. Burger: Thank you gentlemen.
The case is submitted.