AMERICAN PARTY OF TEXAS v. WHITE
Legal provision: Equal Protection
Argument of Gloria Tanner Svanas
Chief Justice Warren E. Burger: We’ll hear arguments next in Number 72-887, American Party of Texas against White and 72-942, Hainsworth against White.
Mrs. Svanas you may proceed whenever you’re ready.
You may lower that lectern if you would find it more convenient.
Ms Gloria Tanner Svanas: Mr. Chief Justice and members of the Court.
I am Gloria Svanas representing the appellants in this case, the Minority Parties from Texas, the American Party of Texas, the Socialist Workers Party of Texas, and the Texas new Party.
Also, representing the independent candidate Laurel Dunn, who was a candidate for the United States Congress.
This is direct appeal from a three-judge Federal Court in the Western District of Texas finding certain sections of the Texas Election Code to be constitutional.
It is the contention of the appellants, these minority parties that the Texas Election Code is precisely drawn to accomplish the goal that -- what is intended to accomplish.
That is the purposeful and invidious discriminate against -- pardon me, discrimination against minor parties and independent candidates.
The legislature in Texas arbitrarily and capriciously controls elections in Texas.
It has been said that there are four alternative routes to ballot position in Texas.
It is urged by the appellants that they’re rather -- there are four exclusionary routes from the ballot in Texas.
The first exclusion is based on a difference of opinion with political philosophy.
You either join up with the republican and democrat parties in Texas or you are actually excluded, practically excluded from the ballot.
You either adopt the political philosophy of the two major parties or you surrender your first amendment freedoms which allow you to practice the philosophy which you believe and to associate and organize political parties for that purpose.
Once you have participated in the party primary, you are locked in to that particular party.
Actually, voting in a party primary constitutes registration in the State of Texas.
Not only from the standpoint of our continuous registration which we now have but also from party affiliation.
Only through participation in the major political parties are you allowed the privilege of absentee voting.
Otherwise, you are completely excluded from absentee voting and if you should desire to go fishing on election day or should you by any other reason be prevented from participating at the ballot box, you will go to the County Clerks Office in Texas and be compelled to either vote republican or democrat of forfeit your right to vote.
Unknown Speaker: Do you know of any other State that has such a provision as to absentee ballots being restricted to one of the ballot?
Ms Gloria Tanner Svanas: No, sir.
I have not found one.
I found one particular case this Court had decided in McDonald from the Illinois case but that -- in that one, the absentee privilege is restricted to those who were confined in institutions even though they might just have been under charges and have not been convicted.
I find it little bit harsh to compare the minority parties in Texas to the inmates of penal institutions in other States.
The added bonus which we have in Texas since the 1971 McKool-Stroud Primary Financing Law which is also part of this appeal is the fact that if you participate in the Republican and the Democrat Primary, you get the bonus of having a tax paid for a primary.
If on contrast if you should determine to participate with one of the minority parties, then you are compelled to pay all of these expenses out of the minority party account.
There are no write-ins in the primaries in Texas since the original time of the rise of the Republican Party in Texas which used to nominate by write-ins in the primary so they exclude the write-ins from primaries when that party started growing up.
Actually, the nomination for local offices in Texas by the Democrat Primary as a practical exercise is determity participation because nomination for most offices in Texas by the Democrat Primary is tantamount to election.
The second exclusion from the ballot in Texas is by the numbers of the votes for Governor which were cast for the candidate of that particular political party in the last gubernatorial or general election.
For instance the American Party on 1968 hold 584,000 votes for its nominee for United States President but because the American Party did not have a nominee on the ballot for Governor, it was automatically excluded from the ballot from that time.
The question is, is the numbers of vote gained insofar as the gubernatorial candidate concern, a fairer competition and thus, that fairer competition constitute a compelling state interest.
We need not speculate what might have happened to our requirement for votes because of what actually did happen in Texas after the La Raza Unida candidate secured the necessary signatures and attained ballot position in the 1972 Primary.
They polled more than 2% of their vote for their gubernatorial candidate in 1972 and consequently they -- the Texas legislature in meeting in its next biennial session raised the quota from 2% to 20% for automatic ballot position from this date.
And so the numbers gained does prevail in Texas and if one minority party happens to fulfill the requirements of that then law, then they’ll change the law again.
And actually, that was the difference that was made in the law in this 1345 subdivision (2) after the 1968 campaign.
When the American Party started to where it said there is a competitive factor in Texas and so the law was changed and so we got this Honors petitions which we are now required to circulate.
This is the basis of the third exclusion from the ballot in Texas.
If the gubernatorial candidate did not receive 2% of the vote which is now been raised to 20% of the vote in the last general election, you have to go out and start the petition route again.
Of course, this presumes that you had a gubernatorial candidate, it would also include new parties like the Texas New Party and the Texas Socialist Workers Party which did not have a candidate on the ballot of any kind in 1970 and was not organized on a statewide basis.
We have a statutorily dictated statewide organization in Texas for new, the Minority Political Parties.
Early as November preceding the general election, we are required to file a notice of intent to nominate by a convention.
In January, all candidates must file for office on that ballot.
By March, the state rules must be filed.
In May, the county precinct conventions must be held at the same time as the party primary conventions are being held and suddenly the whole Texas totalitarian idea takes on the very reflections of Williams versus Rhodes.
The petitions which are required in Texas are statutorily dictated and exacting in wording.
The wording must be exactly as it is dictated by statute or they are not accepted and filed by the Secretary of State.
The form is dictated, the form of the signature.
Prior to the holding of the precinct conventions through out the 254 counties in Texas in May, there must be printed and circulated these petitions.
This is the first step for qualification for ballot position by the numbers gained in Texas.
They must be circulated, they must be in the hands of this precinct chairman in each of the precincts so they will be available for signature on that day because beginning as of that day, you have a total of 54 days as in 1972, it might be 55 days next year to secure 1% of the total vote for Governor in the proceeding general election to sign this petitions to indicate the support for some candidate who might be running on this minority party ticket.
This number in 1972 with some 22,000 plus signatures in 1974 will be 36,000 plus signatures.
But these petitions is not only must be in this exact form but they must be signed before a notary public and they carry a criminal penalty that you must have -- you must swear that you have not participated in any of the other party primaries in anyway whatsoever.
You have already been excluded from the absentee balloting and it is the contention of the minority parties hereon appeal that certainly if you are to put out a petition after the primary, we should also be accorded the right to compete for those absentee votes and there are many thousands of absentee votes cast in Texas in each election.
Unknown Speaker: Mrs. Svanas, you referred to a candidate for the presidency of the United States on what you’re calling minority party, was that the American Party?
Ms Gloria Tanner Svanas: Yes, sir.
Unknown Speaker: And that was in 1968?
Ms Gloria Tanner Svanas: Yes, sir.
Unknown Speaker: Was that party on the ballot as such?
Ms Gloria Tanner Svanas: He -- we were on the ballot from the standpoint only of the presidential candidate.
But see, after the 1968 election when the American party did hold 584,000 votes --
Unknown Speaker: For your presidential candidate?
Ms Gloria Tanner Svanas: Yes sir, for the presidential candidate.
Unknown Speaker: You have no gubernatorial candidate.
Ms Gloria Tanner Svanas: That’s right.
But not only at that time it was a very simple matter, 1345 subdivision (2) was changed in 1969 to meet that competitive threat of 1968 to assure that it would be very difficult to make the ballot in 1970 and 1972 and that’s where we came up with our petition requirement in Texas.
But in 1968, it was a simple matter by comparison for a minority party to get on the ballot and that was the method that was followed by the American Party to secure ballot’s position.
Unknown Speaker: But since that time the law has been --
Ms Gloria Tanner Svanas: Yes sir, it has been changed.
Unknown Speaker: Changed and made more -- making it more difficult for (Voice Overlap).
Ms Gloria Tanner Svanas: Much more difficult sir and actually the legislature in Texas meets every two years and it seems that the election code changes every two years to meet the threat of the minority party or the independent or the competing party just as the changes been made.
Now the 1972 McKool-Stroud Act for the purpose of state financing of party primaries was a one year statute and it was thought that the 1972 legislature would change the elections laws to provide for the whole new primary elections procedure but since they did not do so, they did have to pass another financing bill which is the Senate Bill 11 which has been filed by the American parties in supplemental appendix and they provided in that apparently to pay for the major party primaries in 1974.
But it just happened to incidentally changed 1345 subdivision (2) again to require that to maintain ballot position after 1974 that the party would have to poll 20% of the votes for Governor.
Of course it’s foreseeable that this could result in active campaigning by those who are now on the ballot to the point that some one of the three might even be excluded.
The fourth exclusion from the ballot is probably what is recognized in Texas as the least competition to the major parties and that is the exclusion of the independence and the nonpartisan candidates.
It is the contention of Mr. Laurel Dunn who was the candidate for United States Congress that the requirement of the petition in addition to the United States constitutional specified qualifications for United States Congress is actually the super added idea.
The petitions are super added to the qualifications as was distinguished by the candidate's commentaries on constitutional law.
This of course is the Powell versus McCormack suit which earlier had been decided as to Powell’s additional qualifications or the attempt to exclude him from the House of Representatives.
It is the contention of the appellants that the statutory exclusions from the ballot in Texas result in constitutional unjustifiable equity -- inequities.
We don’t believe that there is anything in the record whatsoever by which the State of Texas even attempts to justify these exclusions.
Whereas the compelling state interest for the deviation from these constitutional guarantees that any voter can effectively participate in the election for the candidate of it -- his choice as compared to being compelled to participate in either the -- of the two major parties.
The size of the ballot falls on their fears when we realize the numbers of the candidates who each year file in the Republican and Democrat primaries for the office of the Governor and the other controlling offices in Texas.
This is particularly true since this Court has overturned the filing fees requirement in the State of Texas.
Unknown Speaker: Mrs. Svanas, we come back a minute to the party conventions which you mentioned.
I think as I recall at Article 1547 states that party convention shall be held in Precincts County and the State.
Ms Gloria Tanner Svanas: Yes, sir.
Unknown Speaker: Now, did that construed literally to require that a precinct convention be held in every precinct in the State of Texas?
Ms Gloria Tanner Svanas: Yes, sir.
It is not required to be held but if we are to secure the signatures as are required then the ballots -- the petitions, pardon me, must be distributed to each of these precincts and be going at that level.
They -- the requirement becomes more obvious if one desires to participate in the primary and that the attendance at the county convention is limited to those who attended the precinct convention not to those who have signed the petition and then the appendance of the state convention which nominates on the statewide level is limited to those who attended the county convention which of course has been limited by the precinct.
So actually, to have any voice in the minor political party in Texas, it is necessary that you attend the precinct convention and make your voice heard there so you can attend on up the role.
And it’s these continuous requirements by a statute of what we must do that makes it practically impossible to attain ballot position in Texas.
Unknown Speaker: If conventions are not held in every precinct or in every county, does that disqualify the individual or the party?
Ms Gloria Tanner Svanas: It does not disqualify the party but it does disqualify the individual because if his lack of participation, there is no way for him to go back and become a participant that is in the nomination for the county and the statewide offices.
It is to be noted from the record that the Republican Party did not even hold party primaries in every county in Texas since we do have so many counties and some of them don’t indicate any interest in the Republican Party.
So those particular persons, if they did not participate in the Democrat primary and there was no offering of a precinct convention by the American Party, then they were totally without a vote in Texas in 1972.
Unknown Speaker: Mrs. Svanas, let me ask you one more question.
Explain to me this 5% bonus for the county clerk under the Financing Law?
Ms Gloria Tanner Svanas: That’s the county -- that’s the party county chairman, Mr. Justice.
The State Law in Texas provides under the McKool-Stroud Act and under the new recently passed primary financing law that the county chairman of the major political parties which this year will include Raza Unida because they did qualify by the 2% vote in 1972.
They will determine how much it is going to cost them to hold a primary in each county in Texas and they will report that amount to the Secretary of State then they -- after the primary has been held in the runoff primary then they will report the actual amount spent and based on the actual amount spent, each county chairman in Texas is liable -- is allowed to claim a 5% bonus for himself for his participation in the major party primary.
Chief Justice Warren E. Burger: Very well, Mrs. Svanas.
Argument of Robert W. Hainsworth
Mr. Robert W. Hainsworth: Mr. Chief Justice and may it please the Court.
I am here today to speak in behalf of the appellant Hainsworth and also in behalf of those others we have endeavored to become independent candidates in the State of Texas over the years and have not quite been able to make it.
To become an independent candidate in Texas, one has to meet the requirements of Article 13.50 of the Texas Election Code which provides among other things that the candidate must obtain a certain percentage of the votes of a certain number of the people who cast the ballot for governors both Democratic and Republican at the last preceding general election.
In addition to that, if the candidate is from a one county district, he has to get 5%.
If the candidate is from a district composed of one or more counties, then the candidate is only required to get 3% of the vote.
So there is some variance even with respect to candidates depending upon the number of counties in the district.
In addition, the independent candidate has to obtain notarized signatures from each sign or of his application.
And in addition to that, the independent candidate is proscribed in making his efforts to canvass for signatures in that those who have participated in the first primary, either Democratic or Republican and those who have voted in the second primary, a row of primary but not eligible to be canvassed by the independent candidate for that particular office.
Provided, anybody has been a candidate in those primaries, there were two primaries.
That in effect limits the independent candidate to about 50% of the voters in his district.
Now the appellant in this case was a candidate for state representative in District 24 -- District 2886 and this particular county is a single number district and they are approximately 23 to 24 single member district in Harris County, Texas.
Now, approximately 74,000 75,000 people in each state representative district and it is difficult to beat those requirements of the state statute, Article 13.50 in order to qualify as an independent candidate.
In addition, another difficulty is the requirement that you must get those signatures within 30 days.
Thirty days after the close of second primary day which usually comes about 3rd of July dated 1972.
The three-judge District Court in deciding the consolidated cases stated in its opinion that this consolidated cases fell in between Williams versus Rhodes and Jenness versus Fortson.
In that the Supreme Court in the Williams case was working on one end of the spectrum and in the Fortson case they’re working on the other and that the facts in these consolidated cases now before the Court fell exactly in between.
However, it seem to me that the Jenness case was the one that the three-judge District Court should have applied in making its decision because in that particular case are laid down some rules and possibly it may be stated that the State of Georgia had set forth the requirements they did consider appropriate for independent candidates and it may be that they were very, very liberal but it seems to me that they were very, very fair and I would like to submit to the Court that they should give considerations here as consideration to following the Jenness case in its requirements insofar as independent candidates are concerned.
In that particular case, no notary public was required in that particular state insofar as an independent candidate was concerned in getting on the ballot.
Unknown Speaker: But what’s involved in getting a notarized signature?
Mr. Robert W. Hainsworth: The matter is one of expense for one thing and another is a matter of getting --
Unknown Speaker: How much, how much it cost?
Mr. Robert W. Hainsworth: Well, the notary public fee by state statute in Texas is 50 cents for each notarization.
However, when you have to go out -- whenever a notary public goes out of his office to notarize something, it always cost more and of course if you are an independent candidate or you’re trying to become an independent candidate, you got to get a notary public, he will go around with you and walk and walk and notarized as necessary whenever you can get somebody who is willing to sign your application and [Interruption] for a dollar for a signature.
It may want even more, in those you get may be kind of feeble and not able to keep up so you kind of hump it.
It puts a burden upon independent candidate --
Unknown Speaker: And what formality does the notary public have to follow?
Mr. Robert W. Hainsworth: Well, there is an old proscribed by state statute which says something like this, “I solemnly swear that I have not participated in any primary first or second held this year to nominate a candidate for the office for which I desire, John Jones, an independent candidate to be a candidate for and so on.”
That is in substance what’s in the oath.
Unknown Speaker: Does notary have to execute any formal return?
Mr. Robert W. Hainsworth: Well, this is what the application is going up so that he can be for each individual sign up or it can be drawn up so that 10, 15 to 20 persons can sign the same application.
But if each answers that notary public has to appear, the person ask you a fee before the notary public can have him to swear that he is stating the truth and of course that kind of limits some people because people somewhat don’t like to make an oath.
They are kind of reluctant.
So that kind of detours some individuals from taking the -- for taking the oath and that takes away from the applicant in getting signatures.
Chief Justice Warren E. Burger: As a practical matter, don’t they usually get petitions by sending a notary public out to get them or at least have the notary public go out with the party order?
Mr. Robert W. Hainsworth: Well, now of course we are dealing with an independent candidate and use an independent candidate is working alone.
And he is trying to get somebody to help him and he is not able to get anybody to go out for him and pay them too.
Chief Justice Warren E. Burger: Most independent candidates have some friends or they aren’t like to get many votes, isn’t that a practical reality?
Mr. Robert W. Hainsworth: Well, I think this Your Honor the friendship comes when the independent candidate himself goes and speaks to the individual and the individual will readily sign.
I think that is the kind of friendship --
Chief Justice Warren E. Burger: If you carry that through its longitude conclusions then you would object to the requirements of getting any signatures at all because that takes work?
Mr. Robert W. Hainsworth: Well, no sir.
I wouldn’t object to that.
Chief Justice Warren E. Burger: Your objection then just goes to the degree?
Mr. Robert W. Hainsworth: Well, it goes to the notarization and of course not for the one, for the notarization.
I could go out myself and get 500 signatures without any hesitancy but we have to take a new republic along involving more press than notary public not have to wait until he catches up.
And I’ve got to go to those and let it know that these won’t sign about the keep going, keep going.
Well, I can work all day and I make it 15 and that is the way it goes with it.
Now that in his after notarization would be all right if you had say 90 days or 60 days but you only have 30 days so they cut you both ways.
If the notarization provision is there and if I could wait for any independent candidate could wait 60 days, you get the 500 signatures but when you have to have it notarized, you only limited to 30 days and then you exclude it from those who voted democratic and republican primaries or you cut so far down and you don’t know who to go to, you have to go from house to house and may have voted.
They say, “I would sign but I voted already.”
So it’s lots of handicaps and avoidance that you have to undergo in order to try and qualify.
Of course it is not even impossible, that if I have been able to have foreseen the many months of work that I’ll have to undergo to get here.
I believe I will wait for 90 days to have made it.
And I think I will say, “You should die.”[Laughter]
However, I am hoping that my appearance here will serve to make the Court aware of the problems of an independent candidate in that -- an independent candidate is striving to help to make -- help make the county stronger and -- well, an independent candidate goes out for a smaller office.
He does not expect the real great influence.
It’s just the matter of trying the champion somehow the government that he has and if he admits with the approval of the people, and he is able to get elected, fine.
Of course, an independent candidate gets on the joint election ballot.
He still has the Democratic Party and the Republican Party to defeat and he is strictly underdog.
He’s got a hard fight on his hands and he gets no funding and no financing like the Democratic Party does.
It’s all coming out of his pocket.
In latter times, the Democratic Party candidate or Republican Party candidate don’t have any opposition.
Once they get good nomination, which in many cases tantamount to election, where they are in.
You don’t have any joint election opposition.
So all they have to do is struggle to get on the primary ballot as the nominee and then they are just about in.
But lots of times the -- they may have an opposition candidate in the primary and none in the joint election and then they may not have even a opposing candidate in the primary.
Sometimes it’s just a show hand and of course it all depends upon what the office is that the candidate is running for.
Now I hope to reserve five minutes for a rebuttal if I may.
I don’t know what I’ve gone over it or not.
Chief Justice Warren E. Burger: Very well, Mr. Hainsworth.
Argument of John L. Hill
Mr. John L. Hill: Mr. Chief Justice and may it please the Court.
I want to first thank Mrs. Svanas for filing an appendix with this Honorable Court in which she very promisingly asked that the governor signs Senate Bill 11.
I filed that as an appendix with the Court saving us the trouble of doing this.
I think it speaks very clearly for itself and we have not elaborated by any additional brief but with reference to it.
Second thing, I would like to say that particularly, after listening to him although I have known him in Houston that our Texas admires independent candidates and we want people like Mr. Hainsworth to stand if they desire as independent candidates and I think our laws have accordingly allowed that.
I need to speak if I might for a moment factually to the American Party situation.
This party of course with a very valuable political force in 1968 in our state with over 91,000 signed up members and they cast 584,269 votes for George Wallace for President.
Now since the American Party elect did not, for reasons of their own, to fill a governor nominee in the 1968 General Election.
That party in 1970 was required under our statute to nominate candidates for state and local offices for the general election by conventions and when the party did not file with -- more required and my represent I set the state sufficient certification to indicate the minimum support that our statutes covering these matters contemplate something in the neighborhood as 22,000 conventioneers or if that many people don’t get to the convention, we permit supplementation by petition which we regard as a helping hand not as a deterrent and add on in addition.
For reasons that I frankly don’t know and I understand and the record is sailing on it.
They just simply had 6,828 names.
Whether they were -- that was because of their tremendous and the Court can take judicial knowledge of their great participation in the Democratic Party are not, I did not know, but those are the facts.
Now the new party, on the other hand, represents truly just what it is, a new party at Texas New Party we don’t know very much about it, we’re not told very much about it.
This Court is not told much about it.
Made no effort at all under this record to have any compliance and that’s where that matter stand.
The Socialist Workers Party did comply with our laws and they were on the ballot and they’re -- while filing a brief here, are not here at least verbalizing that.
And I don’t know of any substantial complaint that they raised.
Well, as for Unida who took no appeal from this matter and we are part -- we are state of many minority parties today, just a proof for the putting.
We have a very fine gentleman for a governor, he received a very good vote and they qualified under the 2% and I’ll discuss how our procedure works in a little more detail in a moment.
And then Mr. Ronald Dunn who was an independent candidate for the United States House of Representatives and represents himself and before the independent candidate made absolutely no attempt to meet the requirements of our statute with reference to independent candidates and simply filed suit shortly after the primary elections.
Of course he has a perfect right to do.
Mr. Hainsworth did try.
Had he not obtained for reasons that I am sure the Court has heard here and whether that represent inability of what we can’t judge, it’s a peculiarly within probably in his mind but nonetheless his 328 fell short of the 500 which we believe is not an owner’s burden and one that many has met.
He filed a suit attacking the constitutionality of these provisions in a very candid and open way that he had displayed here before the Court.
Now, we were faced in Texas, of the last session of the legislature.
With this situation we will face with Williams as we could read it and understand it.
And we will face with Jenness as best we could read it and understand what this Honorable Court, we are saying to the state in this area.
We had read Rosario versus Rockefeller.
But we had here three cases in which this Court, the majority of this Court had been heavily involved.
In addition to that, you had written Bullock versus Carter arising from our state involving our financing situation of our filing fees.
If I might, in that text -- in that context, discuss with you for a moment Senate Bill 11 that’s here as in the appendix which was passed and signed by our Governor in June, the 15th of this year, it provides, one, a schedule of filing fees that we believe are in keeping with the rules of reasonableness permitted at Bullock versus Carter much less than before, much legislative.
Not here under attack and permitting the filing of a candidate of a nominating petition in lieu of the payment of filing fees which we believe is very progressive in keeping with Carter versus Bullock and not here under attack provides perspectives --
Justice Thurgood Marshall: (Voice Overlap) that petition required notarized signatures?
Mr. John L. Hill: Yes, sir 5,000 in the statewide case, yes sir.
And the notarization Mr. Chief Justice Marshall as far as I am aware is not been under attack in any decision of which I am familiar and the only decision in which the matter has been discussed was not thought to be a constitutional burden.
Unknown Speaker: (Voice Overlap)
Mr. John L. Hill: And moreover from my -- pardon me.
Chief Justice Warren E. Burger: It’s not -- that’s less than Jenness against Georgia requirement, isn’t it?
Mr. John L. Hill: Oh!
Much, much you see under Jenness versus Georgia if we use Jenness and in this -- this can be considered by state.
The time to speak by a legislature but 5% of our total electorate in Texas and that is Jenness.
It’s not 5% of a gubernatorial candidate; it’s 5% of the electorate.
I don’t know what Mrs. Svanas and others would say that constitutes as of the time relevant to this case something over 200,000 signatures.
And we would be passed in clearer constitutional muster.
Under Jenness we just walked in, off our hats, and walk out.
We have elected not in any effort to hold down minority parties but we have elected in our state in an effort to have a totally fair system in one that we believe is much preferable to Georgia and much fairer to Georgia to have 1%, 1% --
Justice Byron R. White: How many is there?
Mr. John L. Hill: Of gubernatorial, it would be about 22,000 under our -- in other words we lack a lot of other states Mr. Chief -- Mr. Justice White, don’t vote our folks.
Justice Thurgood Marshall: But that 22,000 means 11,000 dollars, doesn’t it?
Mr. John L. Hill: No, sir.
Mr. Justice Marshall on the note --
Justice Thurgood Marshall: You know that it’s not 50 -- it’s not 50 cents per signature?
Mr. John L. Hill: Well sir, the practical answer to that and I realized that we have a current problem here as far as when you get into question as well and cost, I am not unmindful of that.
But the facts are that notarization is allowed and not have the statute opened here is allowed in bulk on certification for one thing.
It says, that the certifying officer may certify the petition.
I might just -- one certificate of the officer with whom before whom the oath is taken may be still made to supply all to whom it was administered.
The candidate can be a notary.
I am not suggesting that there can’t be some cost here but it’s an exaggerated point in my own judgment.
Unknown Speaker: How long does he get it?
Mr. John L. Hill: He has -- you mean in terms of the independent candidate?
Justice Byron R. White: Well, how long does he have to have it to get the (Inaudible)?
Mr. John L. Hill: Well, sir, this is the basic way we work Mr. Justice White is two conventions on minority party.
We presume that the convention will be held on the same day that we as democrats vote and as republicans vote and all other parties that the conventions will be held and as a result to the convention the 22,000 people will attend and certify their names.
You don’t even get into petitions.
The only way we get into petitions that all in Texas is we alight as a supplement to the convention process.
Unknown Speaker: Or its substitutes?
Mr. John L. Hill: No -- well it could be a total substitute but our tax is frankly are written to where it is implied in the statute that you will try to have convention.
Now for example the Socialist Worker Party in qualifying --
Unknown Speaker: I thought your points of argue there were -- they were strictly limited in time?
Mr. John L. Hill: They have 55 days --
Unknown Speaker: To do it.
Mr. John L. Hill: If -- well let me get -- it has to get this exactly because the Socialist Worker Party for example got all of their petitions by conventions in Harris County.
You don’t have to have precinct conventions all over our state.
In fact it would be kind of ridiculous to try.
You’re not required by law to do it.
You can have the conventions wherever you elect to have those conventions.
When you go to your conventions, our minority party and only one in our state there are minority party or those who didn’t pull over 2% of the gubernatorial vote in the preceding general election.
So we don’t have a very harsh rule of threshold to begin with but when they go under that rule and they come to this convention processes, it’s anticipated.
They can go out all of the time our elections are going on and say, “don’t vote in that democratic primary, I want you to come to our convention” we are going to have it the same day.
Unknown Speaker: Or if you can supply the names by certifying that those who attend your --
Mr. John L. Hill: Yes, sir.
Unknown Speaker: Or 55 days between them and the election?
Mr. John L. Hill: No, sir.
It works this way.
In early May, we have our first democratic primary, our first primary.
On that same day, minority parties who are under the 2%, our last rule, have their conventions anytime from seven to seven.
When they go into those conventions, if they produce and they can have them in one county, 50 counties, 30 counties, wherever they want to have them where they think they have support.
They can bring this -- the voters in -- their people into those conventions.
They could have all ready told them and had it planned ahead of time that that’s what we are going to do.
Then when I get there, if they have 22,000 roughly --
Unknown Speaker: Well, you’ve said that.
Now go on, let’s assume they don’t.
Mr. John L. Hill: All right then they have an extra period of time up until the latter part of June --
Unknown Speaker: How long is that?
Mr. John L. Hill: Which is 55 days.
Unknown Speaker: alright, 55 days.
Mr. John L. Hill: To supplement the convention signatures if they don’t have quite enough.
Unknown Speaker: But also if they don’t have any or they got 55 days to get 22 more?
Mr. John L. Hill: Yes, sir.
If nobody shows up at all.
Unknown Speaker: How about the independent candidate, what does he have to do?
Mr. John L. Hill: Independent candidate, he of course files along the time that everyone else does.
He has -- he can start getting his petitions signed after the primary which would be in May and he must turn a man 30 days after the second -- after the runoff.
I guess adding that up if you could help me I would say it is something if you started right after May you are looking at the better part of two months.
Unknown Speaker: I beg your pardon, about 24 to 25 days, not known once done?
Mr. John L. Hill: Well, if you would, if you start it only after the second runoff, the second runoff.
In other word if you started after the June runoff to get the independent candidate signatures you would be restricted if you want to exclude somebody to something in the neighborhood in 25 days.
It’s my thought about it that there is nothing in that statute.
Once, the May primary is held to prevent the independent candidate from securing signatures.
Unknown Speaker: (Voice Overlap)
Mr. John L. Hill: I’m sorry.
Justice Thurgood Marshall: When can they get the petition?
Mr. John L. Hill: I beg your pardon?
Justice Thurgood Marshall: When may they get the petitions?
Mr. John L. Hill: They can get the petition anytime after they filed for their -- announcing their candidacy, they file like every other candidate does back in February.
Justice Thurgood Marshall: And they can get the petitions in February?
Mr. John L. Hill: They could get the petition and I don’t -- but the last thing I want to do is a make a misstatement, I don’t -- first I don’t know for certain.
I believe the facts --
Justice Thurgood Marshall: I just handled petition not available for after the primary.
Mr. John L. Hill: I don’t believe that’s correct Mr. Justice Marshall, I don’t believe that’s correct.
I’m not sure though that that -- I wouldn’t think the case would in anyways depend on the accuracy of –-
Unknown Speaker: You’re not sure.
Mr. John L. Hill: I’m not sure sir.
But it seems to me that whether he had the petition in his hand in February, March or April would be relatively immaterial because he can’t get anyone to sign that petition until after the primary is over.
Unless someone wanted to say categorically ahead of time, I’m not going to vote in the democratic or republican primary, so I will sign your petition but we do have a rule.
In our state that we think is very legitimate and very necessary that does prevent those who sign this supplemental petition or who signed the petition of an independent candidate not to vote in the democratic republican La Raza or any other party primary that we’re holding in our state.
Unknown Speaker: How many signatures Mr. Attorney General does an independent candidate have?
Mr. John L. Hill: The same, 1% of the vote of the gubernatorial candidates and the preceding general election.
But there is a limitation on the district like Mr. Hainsworth, I believe his was down to 500 maximum, 500 maximum, we don’t -- we don’t impose that.
Unknown Speaker: Is this to say it depends upon what office he candidates would?
Mr. John L. Hill: If it’s a statewide office, it’s more.
But the ones before this Court are all one for congress and one for representative, they both -- we put a 500 which is minimal.
If you’re going to have a system of elections in government and the state where you have any manner or way to not discourage the independent candidates, not to discourage the minority party but there has some stability to have some ability not to have rating.
Some ability not to have candidates come in to your primaries, whatever the primary is and try to vote for the weakest candidate to hurt your party and all of the other reasons that the Courts have approved in connection with anti-rating provisions or provisions to show minimal support so that you don’t have total chaos, you don’t have total vote of confusion.
Why is Texas here to defend a system with 500 votes, 500 signatures?
I’d be the last to want to just defend it because of the Texas statute but I do say candidly that the Court, this is -- this we have 500 in connection with independent candidate, we have 22,000 but supplementary petitions, supplementary petitions in our state.
We have two minority parties that made the ballot.
We have the other party here complaining that all 548,000 votes in our state four years ago and can turn it on anytime they want to turn it on.
And we have one new party that we would welcome into the arena of good ideas and new ideas because they do that.
They contribute that to our process.
Clearly they do and that is why we have a constitutional mandate that we’re not to burden them.
That we’re not to deprive them of their associational rights, we’re not to burden their free speech and we’re to accord them equal protection.
But nonetheless the Courts recognize that we have some compelling state interest and when we show that there is a necessity for what we do and that it’s reasonable and it is not invidiously discriminatory and not intended to be.
In fact in one, I honestly say, now Mrs. Svanas in all fairness describes an awful lot of motives to an awful lot of thing saying but those are words and she is free to express them but constitutional issues can’t be decided on that type of unsupported rhetoric.
We have done nothing in our state to injure her party, not to injure other parties.
We don’t meet in the Texas legislature just to revise laws for that purpose.
We change the laws in our state in 1973 solely because we were trying to get in line with the United States Supreme Court decisions written by the majority of the just to cede before I am now appearing and speaking on behalf of my state.
We wanted to comply with Bullock versus Carter.
That’s precisely why Justice Burger you told us, in Bullock versus Carter that you saw when we suggest it that if we went to a state financing system in Texas we might run in to some problems of equal protection and you said in Bullock versus Carter pointing to Jenness, pointing to Jenness but have the cutoff line at 20% for parties who “should take on the burdens of primaries and under 20% that didn’t.”
So we changed our law and we said, alright, everyone that pose 20% can come in under state primaries.
We weren’t trying to throttle La Raza Unida.
As a matter of fact, we made an exception for it, an exception for them, in a S.P. 11 so they could have an option this year as to whether they wanted to go primary or convention because we respect it, the fact that they’d earned that right and it was maintained.
But now we are faced with the very thing that we were trying to avoid and following Bullock versus Carter and Jenness to change to the 20% and allow those parties to have state financing supplement their filing fees.
We have a convention system through.
If Georgia to be accorded constitutionality because she elects solely to valid the petition system which has five -- ten times the required number of people that must be mustered.
For gentleman like Mr. Hainsworth to gain the ballot as opposed to the Texas system which says simply conduct conventions on Election Day, you don’t have to have a great big apparatus like was required in Ohio.
You don’t have to have primary elections.
You don’t have to send delegates to the nation of convention as they did in Williams versus Rhodes.
All we ask you to do or require you to do is simply to have conventions in counties and precincts where you think you can muster some support.
Justice Byron R. White: But you go to -- but in any event, you either got to get to conventions or get signatures the total 22,000?
Mr. John L. Hill: Yes, sir Mr. Justice White and if we were to have, yes sir --
Unknown Speaker: I just want to --
Mr. John L. Hill: And I honestly how can we say under constitutional principles that we have indeed in Williams and Jenness and Rosario of the majority opinions in those cases and the compelling state interest doctrine a necessity that that, that we are to second guess that kind of a system but why?
22,000 signatures gathered together to convention process are supplemented if -- if you had a minimal -- we are to require some minimal degree of support before people can.
Unknown Speaker: Yes.
But now, how did you certify the names of the people who attended your convention?
Mr. John L. Hill: Well, simply have their name and address as they come in the door.
They sign up and tell who they are and where they live.
Unknown Speaker: And does those all have to be notarized?
Mr. John L. Hill: It says certified and delivered to the Secretary State.
I assume that the state chairman or county chairman or precinct chairman would certify and probably notarize them but it doesn’t matter, it doesn’t matter, it’s not a very relevant point in my opinion.
It is that they are there and they signed up and the -- after it, he can certify the whole list on one petition under one notarization.
You say they’re presumably on run like the Socialist Worker Party has one big meeting, they were their.
They turned out, they signed the list and put down their address and we didn’t challenge one of them.
Not one of them, they were sent in, they had enough numbers I got on the ballot.(Voice Overlap)
Unknown Speaker: (Voice Overlap) but if people attending independent parties or minority parties’ convention and yet disqualified or unqualified from -- to sign this petitions?
Mr. John L. Hill: Well, certainly.
The theory only is -- only disqualification is that if you have attended the democratic or republican primary and voted.
But we did, so we don’t have party -- in May, first Saturday in May.
We don’t have party registration in Texas.
When you go in to a party primary in Texas you are simply to take your pole, that you’re -- excuse me, your poll tax, your registration certificate.
And, and you -- it’s stamped that you voted in the democratic primary, we say in Texas that put some moral obligation on you.
There is no legal result of it other than you cannot go over, for example and participate in the republican convention that night, that’s against the law.
Republicans can’t come over into ours.
We have that much law in sanctity to our processes.
Nor can I go and help an independent candidate get his petition.
Nor can I go participate in any convention of La Raza, the Socialist Workers, the new party and of others but when it comes to November, I can vote for whomever I please.
We have write-ins.
What’s wrong with our election system?
Justice Thurgood Marshall: How about the absentee ballots?
Mr. John L. Hill: Absentee balloting is a remedial piece of legislature.
A very great thing for this country and serves a very, very wonderful purpose.
But it’s never been held by any court that that remedial legislature which is frankly intended for those who must have or should have for reasons of frailty or absence.
A problem that’s beyond their control but we contemplate in this country as I understand our election procedures that people take the time and trouble to go vote.
That’s not the purpose of absentee.
Voting is to -- say I want to go fishing and it’s never been thought nor held that absentee voting must be opened up to every one under whatever circumstances they may be operating at that particular time in their political development.
It’s never been held not only improper, certainly never been raised for the (Voice Overlap)
Justice Thurgood Marshall: Do you think Texas to pass a law that absentee ballots are -- will be accepted providing they are either democratic or republican?
Mr. John L. Hill: I don’t believe Mr. Chief Justice -- I mean --
Justice Thurgood Marshall: It’s not that wide open.
It’s not (Voice Overlap) open, isn't it?
Mr. John L. Hill: I know it’s easy to criticize and if this did may be --
Justice Thurgood Marshall: No, I mean it’s not as wide open, you mean we have -- there’s nothing we can say about absentee ballots outside the jurisdiction of this Court?
Mr. John L. Hill: I don’t say it’s outside the jurisdiction of this Court, I say it outside the appeal of the United States constitution to protect the rights of those to it.
You and I and others may agree or disagree about what our law should be on absentee.
Justice Thurgood Marshall: Why then -- we don’t restrict it to constitution so you do say it’s our beyond that jurisdiction?
Mr. John L. Hill: I say it’s beyond the scope of overturning the lower courts decision in this case.
There would be no basis in my humble judgment for this Court to say because Texas has not seen fit to plan on its absentee ballot.
In our state, the names of every party and that’s what it fall down to what happen when you vote absentee in Texas today if you go down the County Court House and you’re taken to a voting machine or a printed ballot and the people on the ballot are democrats and republican.
It’s not designed though it’s a discriminatory matter.
It’s not done in our state for that reason.
It’s simply that the absentee ballot very frankly, Justice Marshall, it would be obtained today by the Texas new party in an absentee situation.
It’s not a great problem.
Now there are some things that we shouldn’t have --
Justice Thurgood Marshall: It’s not a great problem to whom?
Mr. John L. Hill: Well sir.
It’s not a great problem to them.
Where is the hue and cry from the Texas New Party for absentee voting?
Who are they going to vote absentee today?
Is this an imaginary problem or we use to deal hopefully with real problem.
Now you reach your point, yes.
If La Raza may have reach that point.
I don’t foreclose and I don’t foreclose a circumstance arising while another party was sufficiently strong that a deprivation of absentee balloting really would dilute down.
Bear in mind what we are talking about, their right to get on the ballot, that’s involved in the absentee voting so far as the minority party is concern.
It doesn’t have anything to do of who gets elected.
It has to do with whether they get enough people to get on the ballot.
Justice Thurgood Marshall: Well, I had assumed -- you also said it doesn’t matter who gets elected as to whether to get on the ballot or not as long as they stay in minority party, that is you’re position, isn't it?
Mr. John L. Hill: No, sir.
Justice Thurgood Marshall: Isn’t that true?
Mr. John L. Hill: No sir.
Not at all.
Unknown Speaker: (Inaudible)
Mr. John L. Hill: Well, yes sir.
I like to think that I am but my party is that the absentee balloting is not in my own judgment.
First, a severe matter as far as numbers are concerned and secondly it’s been held by the Court that it does not rise to the dignity that would overthrow an election law or an election process from a constitutional standpoint.
And If I might very quickly just look over the -- we did, we discussed the 5% county bonus that was -- that is just simply a manner and way in which under our state financing law, we compensate the chairman and the staff of those who are charged with the responsibility of conducting the election.
It’s not a bonus.
It’s just a method that we have selected to accomplish that purpose.
So we do respectfully submit that pursuant to the law pronounced for this Court in Williams versus Rhodes respecting at all times the right of the vote or right of the ballot to all citizens respecting the equal protection requirements of that case.
Knowing that you require us to show compelling state interest and a necessity for the type of regulations that we have, we do submit that we have here a reasonable system and one that is not meant and is not invidiously discriminatory.
And one which has served not hindered the growth of minority party in our state and one which we feel is reasonably related to the state principles that we feel under the law, we have a right to carry out.
That is to further the notion of requiring before you are on a ballot that you have a minimal degree of support and that you not raid other parties to obtain that support.
Then in other word it’s not wrong to require a different type of support for a candidate or for a party.
So that he can have some semblance of a reasonable base to enter the process and appear on the ballot.
I think if you did not have at least those minimal requirements you would have, simply a confused and cluttered chaotic situation.
Justice William H. Rehnquist: Mr. Hill.
Mr. John L. Hill: Yes, sir.
Justice William H. Rehnquist: With respect to the absentee balloting provisions, we’re talking now about absentee ballots in the primary election?
Mr. John L. Hill: Absolutely.
Justice William H. Rehnquist: Anybody I take it I entitled to get an absentee ballot?
Mr. John L. Hill: Absolutely.
I hope I had made that clear and that’s why I referred, I am afraid I was -- perhaps I apologize greatly about if I offend it -- Justice Marshall I simply meant to state that the use of absentee voting in the primary posture when this other parties are having conventions.
They’re not having primary.
Does not really get at, the same problem you would be getting at is if after they have gained ballot status through that convention process then of course they should be accorded and they are accorded the right to absentee balloting.
Thank you very much.
Chief Justice Warren E. Burger: Thank you Mr. Attorney General.
Rebuttal of Robert W. Hainsworth
Mr. Robert W. Hainsworth: Mr. Chief Justice and may it please the Court.
There are a few points that I would like to attempt to call the attention of the Court.
One, after the case of Bullock versus Carter that party primary filing fees were lowered in the case of state representative to the sum of $200.00.
The ultimate nominating petition provided that 2% of the vote cast for Governor of the party in the last preceding general election would be sufficient in that area for the person to get on the party primary balloting.
And it should be at least 25 signatures but not to exceed 300.
I would like to make this distinction that the 5% of the persons who voted in the area applies in the Article 13.50 to all who cast a vote for governor in the last preceding general election.
You may have a democratic and republican running or some other candidate under another name but you add all of those in together to get the 5% in that particular area or district whereas the party -- primary nominee only has to get 5% of the -- no not 5%, only 2% of the total number of votes cast for the governor of his party.
So it’s maybe down the 25 and it maybe but it’s not to exceed 300.
And if the major party back to Republican Court in Texas, if that candidate for governor in this District only gets 1000 votes, 2% of that would be about 20 and that would put him in the primary.
Now, with respect to notarization under the old law with respect to party primary candidates, that was nothing said in it about notarization.
So I presume that they could have that petition signed without having it notarized.
Is all -- they also provide it that they had 90 days to get those signatures to party primary candidate but the independent candidate on Article 13.50 only has 30 days.
Now, the Honorable Attorney General Mr. Hill was talking about both minor party -- minor parties and independent candidates and there is some distinction between those two.
Now an independent candidate in order to get on the ballot has to have 5% of the votes cast in that area or district for that particular office whereas the minor party candidate only has to get 1% only 1% of a vote cast either for a general -- for governors throughout the state or for whatever.
But he is only has to get 1%.
Now the independent candidate only had to get 1%, that would be just fine but they have made it 5% and when you add in 30 days limitation and notarization.
I submit to the Court that there is too large of burden placed upon the independent candidate.
Unknown Speaker: I thought they only had to get 500?
Mr. Robert W. Hainsworth: The independent candidate has to get 500.
Unknown Speaker: You said 5%?
Mr. Robert W. Hainsworth: Well now, it’s likely as you suppose to get either 5% --
Unknown Speaker: Or 500?
Mr. Robert W. Hainsworth: Or 500 then you can take the less --
Unknown Speaker: So you never have to get more than 500?
Mr. Robert W. Hainsworth: I beg your pardon, sir?
Unknown Speaker: You never have to get more than 500?
Mr. Robert W. Hainsworth: Never have to get more than 500.
However, the 5% may be more than 500.
Unknown Speaker: Yes.
So you really don’t have to get 5% in every case?
Mr. Robert W. Hainsworth: Not in every case, yes sir.
Equal protection of the laws for independent candidates, I respectfully submit to the Court that the opinion of a three-judge District Court in Hainsworth versus Bullock and Hainsworth versus White before this Court be reversed on the grounds that the requirements under Article 13.50 are so strict and burdensome that there is violation of the Fourteenth Amendment, Section 1 of United States constitution of Equal Protection of the laws and that there is no compelling state interest involved in this situation or in this case which requires the State of Texas to have this particular Article 13.50 with respect to an independent candidate getting on the ballot.
Chief Justice Warren E. Burger: Thank you, Mr. Hainsworth.
Thank you, Mrs. Svanas.
Thank you, Mr. Attorney General.
The case is submitted.