MANDEL v. BRADLEY

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Argument of George A. Nilson

Chief Justice Warren E. Burger: We will hear arguments next in 76-128, Mandel, Governor of Maryland against Bradley.

Mr. Nilson, you may proceed when you are ready.

Mr. George A. Nilson: Mr. Chief Justice and may it please the Court.

My name is George Nilson; I am a Deputy Attorney General for the State of Maryland and I am here on behalf of the appellants to argue in favor of the constitutionality of Maryland’s filing deadline for independent candidates seeking a place on Maryland’s general election ballot.

Appellee, Bruce Bradley, an unsuccessful independent candidate for the United States Senate and his supporters, contend that the deadline is so far ahead of the election that it infringes on their rights under the First and Fourteenth Amendments of the United States Constitution.

The Three-Judge Court below agreed feeling bound by this Court’s summary affirmance of the Three-Judge Court decision in Salera versus Tucker out of Pennsylvania.

As in most other states, the bulk of the candidates who appear on Maryland’s general election ballot, do so as a consequence of their success in the party primary elections.

Primary elections are held by each political party with which 10% or more of the state's registered voters are affiliated.

Other candidates who wish to have their names appear on the general election ballot must file nominating petitions in accordance with the requirements set fourth in Section 7-1 of Article 33 of the Maryland Code.

Those requirements can be summarized as follows: First, the petitions must be signed by 3% of the registered voters eligible to vote for the office in question, determined as four months prior to the primary election.

Second, and this is the element upon which the court below focused, the nominating petitions must be filed by the same date on which party primary candidates must file their certificates of candidacy.

That is 70 days before the primary election.

This results in an early March deadline in presidential election years when the primaries are held in May, and in early July deadline in other years when the primaries are held in September.

Next, the nominating petitions maybe circulated and signed at any time prior to the deadline.

There is no gathering period restriction like those which have been present in other cases in this area previously considered by this Court, nor is there a gathering period restriction similar to the one that was present in the Salera case.

Next, persons who wish to vote in the primary election or not prohibited from doing so are having signed a nominating petition on behalf of an independent candidate, and petitions signers need not state their intention to vote for the candidate whose petition they signed.

And finally, unlike the case and the situation in some other states petitions maybe circulated by non-residence and person is not registered in Maryland and the individual voters signatures need not be no notarized.

The challenge in this case and the opinion of lower court which we seek to reverse, focused entirely on a filling deadline of 70 days before the primary election, and particularly on that deadline as it operates in a presidential election year where it occurs in early March.

In this case on the March 8, 1976 deadline established by the Maryland statute, Mr. Bradley filed a number of signatures which, if they had all been valid signatures of registered voters, would have been sufficient to satisfy Maryland’s 3% requirement within the statutory deadline.

However more than 20% of those signatures proved to be invalid and when Mr. Bradley was left in outer place on the Maryland ballot, he filed suit in the United States District Court.

He argued below and he argues to this Court that Maryland’s early filing deadline, as he characterizes it, denies an equal protection of the laws and unreasonably infringes upon his First Amendment rights and those of the voters who would support him.

He succeeded in persuading the Three-Judge Court below that Maryland’s deadline falls too far in advance of the general election and lacks sufficient supporting state interest, and therefore infringes upon his constitutional rights.

In essence, he persuaded the lower court that its decision in this case was controlled, absolutely controlled by the decision of the Three-Judge Court in the Pennsylvania case of Salera versus Tucker which was similarly affirmed by this Court earlier this year.

Based upon its reading of the summary affirmance in Salera v. Tucker the Three-Judge Court below granted Mr. Bradley injunctive and declaratory relief.

With the benefit of the additional time allowed him by the lower court he went on to become a candidate albeit an unsuccessful one in the general election of 1976.

This appeal followed the granting of relief by the lower court and this Court noted probable jurisdiction in October.

While the case is now before the Court for plenary consideration on its merits and while this Court thus need not concern itself with the significance of its prior summary affirmances to quite the degree as lower courts must.

We have argued in our briefs that the lower court here substantially must apply the teachings of Hicks versus Miranda and its progeny with respect to the significance of prior summary dispositions by the Supreme Court.

Unknown Speaker: Hicks against Miranda dealt with the significance of prior dismissals for one of the substantial federal question, didn’t it?

Mr. George A. Nilson: That is correct it did, but I believe the Tully case subsequent to Hicks versus Miranda strongly indicate, if not clearly holds, that summary affirmances from Three-Judge Court decision would be treated the same way and accorded the same weight that --

Unknown Speaker: Or at least as much weight.

Mr. George A. Nilson: At least as much.

Unknown Speaker: There is nothing new about it.

Mr. George A. Nilson: That is correct.

Unknown Speaker: It was not with respect to summary affirmance, wasn’t it?

When Hicks against Miranda, the new ground it broke, if it was new ground, had to do with dismissals for one of his substantial federal question, wasn’t it?

Mr. George A. Nilson: That is correct, but I do not believe prior to Hicks versus Miranda, it had been clearly established just what the import of summary affirmances was either, and I think even after Hicks versus Miranda there were some commentators who argued that there was still a distinction and that perhaps summary affirmances were not entitled quite as much weight as the Hicks kind of summary disposition, but I think that the Tully decision of this Court places the two equal footing.

The lower court, we submit, the error that it made was to adopt a particular reading of the lower court’s decision in Salera v. Tucker, and assume that this Court summarily affirm the decision in that case, in the Salera case on precisely the same analytical grounds which the court below thought what had been applied by the lower court in Salera.

The Pennsylvania statutory scheme death within Salera, required independent candidates to gather their nominating petition signatures within a three week period ending 49 days before the primary election and either 218 or 244 days before the general election depending upon whether it was a presidential election year or not.

The Salera Court felt ban to uphold the three week gathering period in light of the opinion of this Court in Storer versus Brown, upholding on its face, a 24-day gathering period in California.

I would submit that the Salera court was wrong in that respect, particularly and so far as it examined the gathering period by itself.

Having thus upheld, that short gathering period, feeling compelled to do so.

The Salera court then went on to invalidate the Pennsylvania requirement with signature gathering staff and all petitions be filed 49 days before the primary election.

The lower court here chose to read Salera as treating these two requirements gathering period and deadline as separate and distinct from one another, and assumed that this Court likewise view them a separate and distinct in summarily affirming.

We would submit that such a reading of Salera is not correct and would be clearly contrary the analytical approach established for these kinds of constitutional questions by this Court’s written opinions in Williams versus Rhodes, Jenness versus Fortson, American Party of Texas versus white and Storer versus Brown.

We believe that the jurisdictional statement in Salera then as it was properly presented to this Court, the question of whether a three week signature gathering period in conjunction with an early deadline was unconstitutional.

We further submit that the proper way to read this Court’s summary affirmance in Salera is as a holding of the combination of such a limited signature gathering period and an early filing deadline is unconstitutional.

Chief Justice Warren E. Burger: We will resume there at 1 o’clock.

Mr. George A. Nilson: Right sir.

Chief Justice Warren E. Burger: Mr. Nilson you may resume.

Mr. George A. Nilson: Prior to the lunch and break I was discussing Salera versus Tucker in the summary affirmance, and had noted that the jurisdictional statement in that case then as it was had properly presented to this Court, the question of whether a three week signature gathering period taken in conjunction with an early deadline was unconstitutional.

We further submit that the proper way to read this Court’s summary affirmance in Salera is as a holding that the combination of such a limited signature gathering period and an early filing deadline is unconstitutional.

We have no quarrel with this result.

We believe that it is consistent with the prior written opinions of this Court to which I referred prior to the break.

However, such a result in no way compels or even suggests a conclusion of Maryland’s filing deadline unaccompanied as it is by any limitation on the period during which signatures might be gathered or by any other significant restriction is unconstitutional.

Unknown Speaker: Mr. Nilson let me interrupt you, has Mr. Bradley made any noises about running again?

Mr. George A. Nilson: About running again?

To the extent that he continues to desire to seek the United States Senate, there are no present election campaigns.

I do not believe he has made any statement that I am aware of is certainly not on the record in this case as to whether he will or will not.

I believe he did indicate during a campaign that he was… this was not just a one shot foray within the politics.

Unknown Speaker: You do not think what there is moot?

Mr. George A. Nilson: Pardon me.

Unknown Speaker: You do not think the case is moot?

Mr. George A. Nilson: I do not believe the case is moot.

I think this Court’s opinions on mootness, especially in the context of election cases, make it clear that the case is not moot.

We have a statute that has been declared unconstitutional, admittedly the election is over but Mr. Bradley, as far as we know and the record indicates nothing to the contrary.

He is in politics to stay and will again be an independent candidate or if he is candidate again he would be an independent one.

I think as I say Storer versus Brown discusses the mootness question.

The mootness principles are also discussed in the lower court opinion in Salera and I think all of these cases.

Unknown Speaker: Why it is noted that (Inaudible), do you think it is just likely to -- it is difficult to --

Mr. George A. Nilson: It is the kind of situation which is likely to recur again with the filing deadline and yet will be susceptible of the waiting review.

I think the opinion in Storer indicates clearly the reasons why in these kinds of cases they should not be considered moot.

It will resolve the challenges and question prior to next selection so that we do not have last minute cases brought up again on the eve of the election as was the case here and I think --

Unknown Speaker: They all bizarre.

Mr. George A. Nilson: Pardon me.

Unknown Speaker: I said they all bizarre without a doubt.

Mr. George A. Nilson: That is correct.

Unknown Speaker: Whatever you do, whatever we do with this case, simply is --

Mr. George A. Nilson: There would be another case, I am sure.

Unknown Speaker: There would be many of them in the next election year.

Mr. George A. Nilson: But I think al least it is important to resolve the constitutional status by this Court now that we are here with respect to the filing deadline under Maryland law.

I might add that the lower court’s opinion added an element of uncertainly even beyond the particular holding in that case by indicating or suggesting that perhaps Mr. Bradley was entitled to even more relief than effectively a primary deadline in addition to the analysis of the lower court that was applied to our statute, raises serious questions even about the modification of the statute that Mr. Bradley has suggested in his brief.

An examination of the primary written opinions of this Court which control the outcome of this case, Williams versus Rhodes, Jenness versus Fortson, American party of Texas v. White and Storer v. Brown enable us to identify certain basic principles which were to be applied.

First, generally speaking where state ballot access laws are challenge they should be considered in their totality, and individual provisions at least where they interact with one another and relate to one another should not be singled out and treated in isolation.

The exception for an individual or single factor which does not interact as discussed in this Court’s opinion in Storer versus Brown and clearly is not applicable in the present situation.

Secondly, the First Amendment and equal protection analysis merged and in the context of requirements imposed upon independent candidates boil down to two related tests.

First, do ballot access requirements constitute -- and I am quoting from this Court’s prior opinions, “insurmountable obstacles” or “suffocating restrictions” which make it impossible or impractical for an independent to gain a place on the ballot or do they provide a feasible opportunity for reasonably diligent independents to run?

Secondly, do they promote a substantial imbalance in the relative difficulty for independents and primary candidates?

In other words are they inherently or invidiously more burdensome as to independents.

In resolving the issue of the substantiality or discriminatory nature of the ballot access requirements, this Court’s opinions instruct us to examine actual experience in the State in question as a principle guide.

Substantial burdens and discriminations maybe justified even if they exists if they serve compelling state interest.

If they are -- and again I am quoting form American party of Texas v. White, “reasonably imposed in pursuit of vital state objectives that can not be served equally well in significantly less burdensome ways.”

With respect to compelling interest this Court has established that the states have a compelling interest in preserving the integrity of the electoral process and regulating the number of candidates on the ballot to avoid undo voter confusion.

They are free to assure themselves that a candidate is a serious contender with a significant level of community support.

This Court’s opinions also established that it is a legitimate and compelling interest on party of the state to provide parody of treatment and fix identical deadlines for primary and independent candidates respectively.

And finally, it is clearly permissible to provide different routes to the printed ballot, so long as they are not substantially unequal in their difficultly.

In applying these principles this Court has only once invalidated a state ballot access regulatory scheme in a written opinion and that was Williams versus Rhodes where this Court invalidated the Ohio scheme calling for 15% of the voters to sign petitions on behalf of the parties by February 7th in the election year and required these parties, these lesser parties, to develop an extensive party organization and engage in other organizational activities prior to this February 7th deadline.

Conversely in Storer versus Brown a 24-day gathering period was facially upheld, coupled with a 5% signature requirement.

Although the case was remanded for reconsideration in light of the number of voters, the question involving the number of voters who would be disqualified from signing nominating petitions by their participation in primary elections.

In the American Party case a deadline of 120 days before general election was upheld, coupled with a 55-day gathering period and requirements as high as 5% depending on the office, together with a disqualification of primary voters from signing nominating petitions.

And finally and perhaps most importantly, in Jenness versus Fortson a deadline of 69 days before the primary and 150 days before the general election was upheld, even though coupled with a 6-month gathering period and a 5% requirement.

The Georgia Law, upheld in Jenness, was either the same as or more stringent than the Maryland Law here at issue in every single respect except that here the deadline occurs approximately three months earlier in a presidential election year, three months more prior to the general election.

This Court’s summary affirmances of lower court decisions upholding ballot access restrictions are entirely consistent with these written opinions.

In Socialist Labor Party versus Rhodes which was summarily affirmed by this Court is Sweetenham versus Gilligan.

The issue was squarely presented to this Court as to the validity of what was then Ohio’s 9-month deadline, nine months before the general, 90 days before the primary.

That case was summarily affirmed.

In Pratt v. Begley, another summary affirmance where this Court was squarely presented with the issue of weather, of the validity of a 55-day pre-primary, 7-month pre-general deadline.

Again Pratt v. Begley was summarily affirmed.

Jackson versus Ogilvie, also involving a pre-primary deadline and a 5% requirement, again similarly affirmed.

Auerbach versus Mandel, Maryland’s People Party versus Mandel and Wood v. Putterman, all dealing to one degree to another with the precise nominating requirements now before this Court with all three lower court opinions upholding the law in the early 70’s and being summarily affirmed by this Court.

Notwithstanding the lower court’s dismissal here of these three summary affirmances involving the precise same statute we are now presented with, we submit that those cases did raise the constitutional question now presented.

They were clearly posed in the jurisdictional statements, at least in Auerbach and Peoples Party, and Auerbach was later cited in Storer versus Brown at Footnote 10 as constituting a prior approval by this Court of Maryland’s 3% nominating requirement.

Against disarray of authority the sole liberation is Salera versus Tucker as construed by the lower court here and the opinion of the lower court here.

While we have no quarrel with the result in Salera, as I have indicated earlier, we believe its reasoning as perceived by the lower court was clearly wrong and inconsistent with the analytical framework previously established by this Court.

Never before has a filing deadline been stricken in isolation and standing by itself.

Unknown Speaker: In general Auerbach was written also by Judge Winter (ph), wasn’t it?

Mr. George A. Nilson: That is correct, the lower court’s opinion --

Unknown Speaker: So, he was familiar with it.

Mr. George A. Nilson: He was indeed familiar with it.

If he was not of course familiar with precisely, except in terms of reading the jurisdictional statement, with precisely what was presented to this Court and that the deliberations of this Court involved in dealing with Auerbach.

But I think in examination of the opinion, even thought it may have been authored by Judge Winter, of the opinion in Auerbach and the papers presented to this Court reflect a clear presentation of the constitutional issue to this Court in Auerbach.

I think our view of that is enhanced or supported by the citation of Auerbach as a case on the merits upholding the 3% requirement, and such a citation was made in Storer versus Brown in the written opinion of this Court in storer.

In so far as Salera was relevant to the lower court here and is relevant to this Court now it should be viewed only a standing for the proposition that the combination of a limited 3-week gathering period and a relatively early filing deadline pose too substantial barrier to independent candidacies, and that this combination is not sufficiently supported by the state interest which were discussed in Salera, which were more limited than the ones presented here and discussed in this case.

Regardless of the alternative way in which one could read the lower court’s opinions in Salera, the view just described of the consequence of this Court’s summary affirmance here is the only way to avoid a fundamental conflict between the Salera case and this Court’s prior written opinions and summary affirmances.

This Court’s opinion in Fusari versus Steinberg, as well as the Chief Justice’s concurring opinion in that case, dissenting opinion of Mr. Justice Brennan in Colorado Springs Amusements, and the dissenting opinions of Mr. Justices Brennan and Marshall in Sidle versus Majors clearly indicate that the lower courts have an obligation to construe some re-affirmances in way in which to the extent possible day or consistent with one another and not contrary to this Court’s prior written decisions.

That obligation was not fulfilled by the court below.

View it as a whole, the Maryland petition nominating system is substantially more liberal than that of many states and does not place insurmountable restrictions in the way of an independent candidate.

I summarized the feature of our law at the beginning of our argument.

It is summarized at Pages 23-24 of our brief, and I think does not merit further comment, again reemphasize that there is no limitation on the gathering period and there are no significant disqualification in terms of who may sing the petitions.

We also submit that when viewed in relative terms, the record below indicates that there is no substantial imbalance as between the route available in Maryland to independent candidates and the route available to party primary candidates.

When we turn to actual experience in Maryland as we are told by this Court’s decision we should, we find that independent candidates have qualified for a place on the ballot with sufficient regularity to indicate that the obstacles are not insurmountable.

In 1974 the record demonstrates that eight candidates qualified for state legislative contest and in 1976 two candidates qualified for congressional contest by the March 8th deadline, and Mr. Bradley himself would have qualified but for the invalidation.

Even if this Court should determine that the obstacles imposed are substantial either in absolute or relative terms and that the actual experience is not sufficient to indicate the feasibility of a reasonably diligent candidate’s qualifying, the statute must be upheld if it is based upon compelling state interest which can not be served equally well in significantly less burdensome ways.

There are significant and compelling state interests at stake here and they go beyond as I have indicated above those discussed in Salera.

The prevention of frivolous and fraudulent independent candidacies, maturing only after the conclusion of the primary elections, has been recognized as a substantial interest, and I would submit it is furthered and enhanced by the filing deadline established under Maryland Law.

Related interest is the elimination of voter confusion caused by late-blooming candidacies, a consideration which maybe especially important in the presidential year when political activity is both, more intense and more long-lasting.

The need to insure that both party primary candidates and independent candidates including those who obtained general election ballot access after all of the validation and primary election procedures are over, to insure that they are afforded relatively comparable treatment and that neither has given an unfair advantage.

By establishing the same filing deadline and providing for a system at about the time of the primary election, the voters and all candidates will know who is going to be on the general election ballot.

A system not requiring the filings to take place into on or after the primary election would leave up in the air, the status of independent candidates in terms of their position on the general election ballot.

The fostering of public discussion of campaign issues among all candidates, when voter interest is at its peak during the primary election rather than allowing independent candidacies to remain embryonic or dormant until the primaries have ended.

The prevention or alleviation of the administrative problems that might surface at the petition verification process and likely challenges, such as this one, where telescoped into a shorter and later period time.

And finally, the promotion of all of these interests while still preserving the right of Maryland voters to express themselves early in a presidential election year as to there choice for presidential nominees.

The testimony of Professor Smucker (ph) which is summarized at Page 8-9 and 28-29 of our brief, indicate, I believe, and illustrate the fairness of the system and highlight the fact that independent candidates are not treated unfairly relative to primary candidates with respect to the earliness of the deadline and the contention that it hampers the independent candidate.

I think it is well know of course to take the presidential primary elections as an example that the presidential primary has held in New Hampshire in February of the election year.

If the decision below stands and if this kind of analysis stands, it is entirely conceivable that the next time around in a presidential election year someone will be arguing that it is unconstitutional to provide such an early primary in New Hampshire, which in fact even forces the candidates to be actively campaigning in the year prior to the election.

I think right now Mr. Bradley has contented in his brief in an argument below that it is unfair to make him sort before the period immediately preceding the primary on the theory, on the grounds that the primary election candidates are not required to start so early but only have to begin during those last 70 days before the primary.

That is not the way politics run, that is not the way elections are run.

In the State of Maryland now we have almost one article a day on the Gubernatorial Candidates for the 1978 election and we are at 1977 and early 1977, campaigns must start early.

Unknown Speaker: Mr. Nilson, do I understand you to agree that as to what standard is applicable to this case?

Mr. George A. Nilson: Well, going through the standards, I believe, they fairly clearly emerged from the Court’s opinions, and I believe that they were not properly applied by the lower court.

Unknown Speaker: Not properly applied.

Do you think it is a compelling interest?

Mr. George A. Nilson: That is only, if you only reach the compelling interest question and you only look at this Court’s opinions identifying what are compelling interests.

If you find that the relative access routes for the independents and the primary candidates are so desperate as to give a severe advantage to the primary candidate or that they impose such a heavy burden.

Unknown Speaker: You mean that you do not reach that problem unless you find the discrimination?

Mr. George A. Nilson: That is correct, or for the excessively heavy nature of the burden placed on independents, and only if you find those you get to the compelling interest.

Unknown Speaker: Well assume we did, and then the question might become whether you could serve your ends by some other less burdensome way, what is the State’s reason for having the particular early filing date?

Mr. George A. Nilson: It establishes a filing deadline -- there are number of interest which I have outlined, but basically it establishes a filing deadline which is the same for primary candidates and independent candidates.

Unknown Speaker: Well what is so good about that?

Mr. George A. Nilson: It brings all of the candidates out at the same time, so that everybody knows who its potential opposition is.

It turns --

Unknown Speaker: No, but the party people are just running in the primary.

Mr. George A. Nilson: Well, they are not just running in the primary.

Nobody can run a primary election without having an eye to the general election.

Unknown Speaker: Well, I understand that, but you do not know who is -- but until, as the primary held, you do not know who is going to be on the ballot?

Mr. George A. Nilson: That is true, but --

Unknown Speaker: And so the fellow, who asked to circulate his petitions before the primary is really in a different kind of a campaign, isn’t he?

Mr. George A. Nilson: Well, he is in the different kind of campaign with the same objective, but what the law requires is that he do what he is required to do to establish the substantiality of his support by the same filing deadline as everyone else, and that enables the state election officials to use the next 35 days to validate those petitions and determine whether he will truly be on the ballot.

So that you then come down to the period in time immediately prior to the primary election when it is basically known that you have a set of primary candidates for one party another set of primary candidates for another.

Unknown Speaker: Do they only need 35 days to determine whether these signatures are alike?

Mr. George A. Nilson: That is as long as the process stays within the election.

Unknown Speaker: And that 35 -- that is a lot longer than 35 days till election?

Mr. George A. Nilson: Pardon me.

Unknown Speaker: It is a lot longer than 35 days until election?

Mr. George A. Nilson: Till the general election, that is true.

Unknown Speaker: Well, in terms of being able to check the filing date to be much like --

Mr. George A. Nilson: In terms of the administrative problem of validation, that is correct, certainly as long as the validation stops.

Unknown Speaker: But what would the state lose, what interest the state would be substantially hampered, if the filing date were the primary election date?

Mr. George A. Nilson: If it were the primary election date you would lose -- the candidates in the primary elections would not know who there potential opposition was going to be in the general election, I would say potential opposition.

Unknown Speaker: Well, they were the ones who were chosen at the primary election would --

Mr. George A. Nilson: The ones who are ultimately chosen.

Unknown Speaker: Because then if the independent candidates file on the date on the primary election and if their signatures are good they will then be on the ballot.

Mr. George A. Nilson: That is correct, but you take the voters of a major parties who were trying to consider who they want their party to nominate.

One very important factor in their making that decision at the primary election is who is the opposition going to be?

What kind of chance in the general election is our party’s candidate going to have?

If there is a strong independent who is going to be on that general election ballot, the presence of that kind of it can be a very important factor to voters who are voting in a primary election, because a primary voter, let us say, the democratic or the republican party may say, what we know that candidate access is going to be on that ballot as an independent, he has a very strong appeal of this type that needs the --

Unknown Speaker: But, Mr. Nilson not you are saying that the members of the major parties are entitled to this information, but those who are considering whether to sign a petition for an independent are not entitled to this information?

Mr. George A. Nilson: But you see the people who are asked to sign a petition for an independent are not having to make choices among people.

They are presented with the petition --

Unknown Speaker: I know, but it is sort of a commitment in a sense.

Mr. George A. Nilson: They can sign one petition, they can sign seven petitions.

They are not being asked to make a choice among a group; they are simply being asked by a particular candidate, will you support me for a place on the ballot.

Justice Thurgood Marshall: You have mentioned that there is lot of press concerning who is going to run for Governor next year, does there any of the press involve independent candidate?

Mr. George A. Nilson: The press simply involves candidates.

Justice Thurgood Marshall: Not independent candidate?

Mr. George A. Nilson: I think it is fair to say that the principle discussion now is about the major party candidate, that is correct.

Justice Thurgood Marshall: And the only time you get to talking about the independent candidate is after the primary, am I right?

Mr. George A. Nilson: No, the time that they get to talking about independent candidates is when they begin conducting a serious campaign.

Justice Thurgood Marshall: And that is after the primary?

Mr. George A. Nilson: No.

Justice Thurgood Marshall: Well, does the media do anything before the primary?

Mr. George A. Nilson: Media certainly does, they cover the campaigning activity.

Justice Thurgood Marshall: I thought the record said no.

Mr. George A. Nilson: Well, the record indicates that Mr. Bradley was having difficulty getting media coverage prior to the campaign season, but that is not because necessarily --

Justice Thurgood Marshall: Is that contradicted?

Mr. George A. Nilson: I do not believe that is contradicted.

Justice Thurgood Marshall: Well, isn’t that a handicap to him.

Mr. George A. Nilson: It is a handicap to him but I do not -- he is not constitutionally --

Justice Thurgood Marshall: But don’t you think that is as important as the ordinary voter in a primary knowing something?

Mr. George A. Nilson: I do not see anything as a matter of constitutional law entitles him to the kind of fall out attention that he would get from the press as a result of their paying attention to primary campaigns.

Justice Thurgood Marshall: He said to question your rights of the state, the reason of state did this, and the only reason you gave is that the primary voters of the major parties will know who the independent is.

Mr. George A. Nilson: Well I do not believe that is the only reason I have given.

I have also mentioned to the Court the prevention of the late-blooming or frivolous candidacies.

We have had situations in Maryland, for example, where a same name candidate has developed, where other candidates have emerged when they have been allowed to emerged late in process, those have a particular political appeal so striking off those.

Justice Thurgood Marshall: So without reason Mr. Bradley can you go on?

Mr. George A. Nilson: The early deadline prevents that from happening and that is a legitimate interest of the State.

Justice Thurgood Marshall: But yet it showed that with the little time that court gave Mr. Bradley, did get it?

Mr. George A. Nilson: Well, the court ended up giving Mr. Bradley until July, and he did, with that extra time, secure sufficient signatures.

Justice Thurgood Marshall: Why has not the state made any move to change it to comply with that?

Mr. George A. Nilson: There is pending before the General Assembly a bill now which would all through the present scheme.

It is pending and it has not been acted upon.

That bill would require a portion of the 3% signatures to be filed on the present filing date with the remainder, I think it is 1% at the first time, 2% at the second time, the remainder to be filed on the primary date in presidential election years and 30 days after the original filing in other election years.

But I would strongly urge this Court that there is nothing in this Court’s written opinions that establish that such a change is constitutionally necessary. We had candidates get on the ballot with some regularity in the last two elections under the present scheme.

That demonstrates that it is reasonable and possible and feasible ballot access method.

Justice Thurgood Marshall: For statewide office?

Mr. George A. Nilson: We have not had candidates others than Mr. Bradley make a serious effort of statewide office as an independent that I know of in the two, in the elections that I am dealing with.

Pardon me.

Justice Thurgood Marshall: I think it is on the amendment of Congress and local candidates do not have too much.

Mr. George A. Nilson: Well, I think the local candidate figures out that is the same 3% requirement, and I think this Court made it very clear in Storer, for example, the higher up the office is, it is a harder job and you got to spend more effort.

I think in the Storer the Court indicated --

Justice Thurgood Marshall: (Inaudible) through the whole state?

Mr. George A. Nilson: No, no of his area, but he is running a lower level campaign.

Justice Thurgood Marshall: Well, that (Inaudible).

Mr. George A. Nilson: That is correct, but he is running different level of campaign.

This Court indicated in Storer that for a presidential candidate in California that it was not unreasonable to require him to gather 14,000 signatures a day, and the Court essentially said, when you are running for a big office in a big area you got to have the campaign organization that is going to be necessary and that is going to allow you to undertake that kind of effort.

He was running for a statewide office or for a statewide nomination or ballot position, Mr. Bradley was running for an important position here.

I think he is required to undertake a significant effort to comply with the law.

Now, I do not think the law imposes unreasonable requirement on him.

Thank you very much.

Chief Justice Warren E. Burger: Mr. Brown.

Argument of Jon T. Brown

Mr. Jon T. Brown: Mr. Chief Justice and may it please the Court.

My name is Jon T. Brown; I am representing the Appellee, Bruce Bradley in these proceedings.

Just as a brief preliminary matter, with respect to the jurisdictional statement to which Mr. Nilson referred during the case of Auerbach versus Mandel, and that reference to what was in the jurisdictional statement, I think it might be helpful for the record to point out that it was not indeed the State’s position that a constitutional issue was raised in Auerbach versus Mandel.

Quite to the contrary, it was the State’s position in their motion to affirm that no constitutional issue was raised in Auerbach versus Mandel.

They indicated quite specifically in their motion to affirm that the entire matter was decided as a matter of statutory construction and that of course is precisely what Judge Winter determined initially in Auerbach versus Mandel and determined once again in the decision of the Three-Judge District Court in these proceedings.

With respect to the matter of the substantiality of the burden and the parity among the various candidates, both independent and primary party candidates or principle party candidates, I believe that there is another matter which has probated these proceeding and that is the question of parity.

The question of whether or not indeed independent candidates are treated the same in the State of Maryland as are partisan party candidates.

It was a matter which was raised before the Three-Judge District Court and it is a matter which has been raised here today.

I think the conclusion is inescapable that there is no parity, there is no fairness between the way the parties, the various candidates are treated.

In effect the independent candidates’ primary election ends 70 days prior to the partisan party candidates.

Unknown Speaker: He is a sure winner.

Mr. Jon T. Brown: I beg a pardon Your Honor.

Unknown Speaker: He is a sure winner, he is not on a primary contest then, it is not on a primary election, he is on the ballot.

Mr. Jon T. Brown: He is on the ballot providing that he has had, he has been able to obtain the 3% which at 1976 was 51,000 voters, that is correct.

Unknown Speaker: My current point to the, if somebody goes into a primary election he is competing for both against one or more other people in the party primary he might get 40% of the votes and still lose --

Mr. Jon T. Brown: That is correct Your Honor, and he is competing, I might suggest, in a climate in which the political aspects of the campaign are very much heightened, the media attention is heightened, and he is competing in an arena which he has chosen to compete in.

Unknown Speaker: I thought that Fortson against Jenness, if it stood for anything, it stood for the proposition that the Constitution does not require a state to treat independent candidates and those who enter a primary election, the same.

That is what it said that some times nothing can be more unfair than treating things that are not the same as though they were the same.

Mr. Jon T. Brown: I think that is correct Your Honor.

However, in this instance there is a question that goes far beyond the question parity among the candidates but rather in addition to the question of the substantially of the burden upon the independent candidate, and which goes precisely to that synergistic effect between amount of signatures which are required to be obtained by the independent candidate and remoteness from both the primary filing deadline and the general election deadline which an independent candidate must reach contrary to situation in Jenness.

Unknown Speaker: (Inaudible)

Mr. Jon T. Brown: The situation in the State of Maryland provides that as it was indicated in the record below a primary filing deadline which -- pardon me -- an independent candidate filing deadline which is March 8th, provides very, very substantial burdens for a party seeking access to the ballot via the independent process route.

The record was replete with uncontradicted testimony that the independent candidate faced insurmountable difficulties at that stage of the process in getting his name upon the ballot.

Under such a circumstance this Court has held on numerous occasions, Buckley versus Valeo, in Storer versus Brown that the exacting scrutiny test is that test which must be applied, and under those circumstances the exacting scrutiny test being applied.

If that is applied in these instances then the question of compelling state interest becomes immediately before the Court.

Compelling state interest here have been found by the court below to be insubstantial of those which have been raised subsequent to the decision of the court below.

We have treated with on brief, and while they indeed are raised by the State as compelling state interest, there does not appear to be anything in those which have been raised which are compelling in true sense of the word that they could not be dealt with in less restrictive means which this Court has mandated in Dunn versus Blumstein and similar cases.

For example, as this Court recognized, the plan which we have submitted or which we have suggested to the Court and which was, in effect, adopted by the court below, deals, we believe, with all of the issues which the State has raised in raising the issue of compelling state interests, and also provides a parity of access for independent candidates and removes the substantiality of the burdens which independent candidates face particularly in presidential election years.

It was adopted essentially by simply providing that on the filing date, that mutual filing date which all the candidates have which in this instance was March 8th, that all of the candidates file their petitions, and our suggestion was and as adopted by the Court that with a nominal but not insubstantial number of petitions, petition signatures, and that between the time of the filing date and the primary date that all of the party candidates and all the independent candidates engage in the same kind of open discussion of the issues which this State has suggested are necessary in order to provide each with access to the ballot in a comparable fashion.

So that during that period when the immediate interest is heightened when weather conditions are far substantially improved in most instances, when the issues of the campaign are begging to crystallize, and when voter interest is reaching its peak that each of the candidates both partisan candidates and independent candidates will have an opportunity of excess to the ballot.

We believe this is a way or perhaps the best way in this instance in which the Court can create, can alleviate the substantial barriers which exist in the State of Maryland because of the remoteness of the filing deadline, and still maintain and protect whatever compelling state interests truly exist in these situations.

Unknown Speaker: You are not suggesting that the State has an obligation to do it the best way, are you?

Mr. Jon T. Brown: No Your Honor, I am not.

I am suggesting that in this instance the burden is placed upon independent candidate because of the remoteness of the deadline as found in Salera and as summarily affirmed by this Court or found to be so substantial that they were found to be contrary to the First and Fourteenth Amendments and I would not suggest that --

Unknown Speaker: What part of the First and Fourteenth Amendments?

Mr. Jon T. Brown: I beg a pardon your honor.

Unknown Speaker: What part of the First and the Fourteenth Amendments?

Each of those amendments contains a good many subjects?

Mr. Jon T. Brown: Yes, First Amendment, Your Honor, with respect primarily to the issue of freedom of association, the question of and the right to vote as that is maintained and encompassed within the freedom of association which is guaranteed by the First Amendment.

The Fourteenth Amendment that of equal protection which to some extent focuses more directly upon the candidate rather than upon his supporters but the right of equal protection the law that he not be discriminated against as far as access to the ballot is considered.

Unknown Speaker: These are may be those who are under the party primaries?

Mr. Jon T. Brown: Vis-a-vis those who are under the party primaries, yes Your Honor.

Unknown Speaker: And the association or the First Amendment’s associational right is the right of his supporters to effectively associate in order to try to elect him, isn’t it?

Mr. Jon T. Brown: Yes Your Honor, effectively associate at a time which is meaningful at a time which they can become aware of the fact that he is a candidate that they can become aware and participate in the process of getting additional supporters to support that candidate.

At a time which does not discriminate against their ability to permit him access to the ballot just as a primary candidate is not discriminated against by during the time that the heavy media coverage is occurring during a primary campaign.

With respect to the matter of Hicks versus Miranda we would strongly disagree with the State that the court below misapplied Hicks versus Miranda, indeed quite the contrary, we think that the court below has applied Hicks, Miranda in precisely the way which this Court has mandated in the decision and in Tully.

Unknown Speaker: Well, whether the court did or did not give too much weight to the summary affirmance in the Pennsylvania case, there is a brittle moment now that this case is here, isn’t it?

Mr. Jon T. Brown: That is correct your honor but --

Unknown Speaker: It is here to be decided on the merits.

Mr. Jon T. Brown: Yes it is Your Honor, that is correct, and we would certainly concede that it is here to be decided on the merits.

However, with respect -- if the court has concerns with the respect to, to look Hicks at this point.

We would suggest that the court below property applied Hicks, and indeed that as an adjunct to that proposition the court below made the extensive findings of fact which were necessary in order to determine that the burdensome nature of an independent candidate’s race or process to the ballot in Maryland, and also made without -- it indicated without extensive findings of the fact, it made the finding independent of Hicks, independent of Salera that those substantial burdens were sufficient in and out themselves to be violated with the First and the Fourteenth Amendments.

Unknown Speaker: Well, in any event, the Three-Judge Court in this case held that the summary affirmance in the Salera case was a controlling authority and whether it was right or wrong, as now to be decided here, as an independent matter.

Mr. Jon T. Brown: It is an independent matter Your Honor, yes that is correct.

However, there are conflicting statements in the statement of the court below.

At one point it indicates that legally they felt down by Salera, at another point it indicates that they had made an independent finding independent of Salera, but regardless of Hicks, as Your Honor has pointed out, the case is here to be decided upon the merits, and as a part of consequence and as a part of those factual matters which must be taken in the consideration are the findings that we believe that the court below with respect to the uncontradicted testimony of the individuals who participated in the process of attempting to get Mr. Bradley on the ballot.

As Mr. Nilson has indicated those findings were uncontradicted that with respect to the burdens which were faced by the campaign organization at that time of remoteness from the general election deadline and primary deadline.

Standing by themselves, they have, the court below has indicated that provide the substantially of burden which then makes it incumbent upon the State to determine whether or not it has a compelling state interest and of course incumbent upon this Court to determine whether that compelling state interest is sufficient.

With respect to the question of whether or not as one of the compelling state interests which were raised by the State was the matter of validation and the matter that all primary candidates or all candidates should be known at the same time.

The state statute, the State of Maryland has a statute which requires that that be determined within 35 days.

However, the experience is quite the contrary in particular instances that in some instances for example in Baltimore City that determination of the validation of signatures can be made as rapidly as five days, and was in fact made as rapidly as five days.

Certainly, when it comes to the constitutional rights of an individual and of his supporters for association, whatever burden the State may face with respect to its administrative burdens for validating signatures, is no greater than whatever administrative burdens it may face for counting election ballots, certainly election ballots in a contested election.

In summary, we would suggest that the court below was absolutely correct in its finding of the substantiality of the burden to the ballot faced by the independent candidate in Maryland, that the history of that balloting, of that polling in the State of the Maryland has determined precisely that it is very difficult indeed for a statewide candidate to achieve access to the ballot, and that in order for -- if there are compelling state interests in order for those compelling state interests to be given whatever recognition they must be given in the least possible restrictive way.

The plan which was suggested by Mr. Bradley to the court below and which was adapted by the court below is precisely that plan which best effects the compelling state interests.

The test of experience is perhaps is as important as any. Mr. Bradley was afforded access to the ballot.

He was defeated in the general elections, but nevertheless none of the nine proffered state compelling interests were in any way threatened or impinged upon by the process which was devised by the court below and the process by which Mr. Bradley was afforded access to the ballot and participated in the general election process.

Unknown Speaker: Are you suggesting that is a test?

Mr. Jon T. Brown: I would not Your Honor suggest the test of experience but we have, in this case, the unique opportunity of hindsight to determine whether or not the compelling state interest which are proffered by the state are indeed compelling state interests or whether or not they are interests which can be accommodated by less restrictive means.

Chief Justice Warren E. Burger: Well, Thank you gentleman.

The case is submitted.