ANDERSON v. CELEBREZZE
Legal provision: Association
ORAL ARGUMENT OF GEORGE T. FRAMPTON, JR., ESQ., ON BEHALF OF THE PETITIONERS
Chief Justice Burger: We will hear arguments first this morning in Anderson against Celebrezze.
Mr. Frampton, you may proceed whenever you are ready.
Mr. Frampton: Mr. Chief Justice, and may it please the Court, this case involves the constitutionality of Ohio's early filing deadline for independent candidates as that provision is applied to independent Presidential candidates.
The statute requires all independent candidates seeking ballot access in November to file a declaration of candidacy and 5,000 petition signatures of Ohio registered voters at least 75 days before Ohio's early June primary, which in 1980 was March 20th.
Primary partisan candidates seeking to run in the primaries, party primaries, also must file by this same date, but partisan Presidential candidates need not file for or run in Ohio's Presidential primaries in order to get on the ballot in November.
Under Ohio law, both minor party and major party candidates, if selected by their parties some time before late August, will appear on Ohio's ballot regardless of whether those candidates were declared candidates in March or April or May, regardless of whether they ran in Ohio's primary or any other primary, regardless of whether they came into Ohio or did anything in Ohio prior to August.
Now, in the winter and spring of 1980, Congressman John Anderson was a Republican candidate for the nomination of the Republican Party as President of the United States.
When it became clear that his support was coming not so much from Republican Party regulars as from more or less equally Republicans, Democrats, and independents, on April 24, 1980, he announced that he was abandoning his Republican quest and would seek to become an independent candidate nationwide.
Unidentified Justice: This was about 30 days or so after the filing deadline?
Mr. Frampton: That's correct, Mr. Chief Justice.
That same day, April 24, he also notified the Respondent in this case, the Secretary of State, that he was timely withdrawing from the Republican primary in Ohio, in which he was entered, and the state has stipulated and conceded from the beginning of this lawsuit that Anderson's timely withdrawal from the Republican primary in Ohio means that he was not barred from getting on the general election ballot by Ohio's so-called sore loser statute.
Unidentified Justice: Do you think it makes any difference that he had filed once under a party designation and then sought to file later as a third party candidate?
Mr. Frampton: In this case, Mr. Chief Justice, I don't think it makes any difference, because the Ohio legislature has already made a judgment about whether that would disqualify a person in Mr. Anderson's position from getting on the general election ballot.
That judgment is reflected in its sore loser statute, 3513.04, which provides in substance that someone who loses the primary, party primary, cannot thereafter run as an independent, and in a specific withdrawal statute providing... that applies specifically to Presidential primary candidates, that holds that a Presidential candidate who withdraws from a Presidential primary is entitled to do that within 30 days of the party primary, which would be early May, and the state has stipulated that by virtue of that timely withdrawal, the sore loser ban didn't apply to him.
After this notification on April--
Unidentified Justice: Yes, but that person would have had to have filed or made his intentions to run in the primary known before his withdrawal.
He couldn't withdraw if he wasn't running.
Mr. Frampton: --That's correct, Justice White.
I think the point is that the sore loser statute, that is, the statute that directs itself to the question of whether a candidate has previously sought to gain the party nomination is... expresses a very different state interest than the filing deadline, and the filing deadline is a much more burdensome provision, because it bars all independent candidates and all independent-minded voters after March 20 from putting forward an independent candidate, whereas the sore loser provision applies only to individual candidates, and doesn't bar the voters from putting forward another independent until some time very late in the summer.
Unidentified Justice: Mr. Frampton, exactly what is the First Amendment right being asserted here?
Mr. Frampton: Justice--
Unidentified Justice: How would you articulate it?
Mr. Frampton: --Justice O'Connor, I think it is directly the First Amendment right of the... principally being asserted in this case is the right of the voters and citizens, including those petitioners who are Ohio registered voters who are seeking to support Congressman Anderson by putting forward his name and having him on the ballot, their right to associate for the purpose of putting their candidate before whatever body the state designates to select its electors in November.
And in addition, I think what this Court has recognized in many cases as an intertwined but somewhat separate right to vote which is not found as such in the Constitution, but I think this Court has recognized is fundamental to the democratic process, and is important if any of the rights in the Constitution--
Unidentified Justice: Does Ohio permit write-in candidates?
Mr. Frampton: --Yes, it does, and there is a specific provision in the Ohio code for Presidential candidates.
You can qualify as a write-in candidate if, prior to, I believe it is 40 days prior to the general election, you file a slate of electors with state officials.
Unidentified Justice: Well, then, how is the right to vote infringed?
Mr. Frampton: Justice O'Connor, I think the Court has recognized in the past, for example, in Lubin and Panish, that the write-in... and in Williams and Rhodes, that the write-in alternative is not an equivalent, a practical equivalent either for voters or for candidates to having a candidate's name on the ballot, and I would contend that that is particularly so for someone seeking as important an office as President of the United States.
I think the reason for that is that the write-in alternative and the ballot access alternative serve very different purposes.
The state is saying to a candidate and to his or her supporters, if you can demonstrate substantial community support, you are entitled to have your name printed on the ballot.
Perhaps the major party candidates get some ballot preference, but the independent's or third party candidate's name will be on the ballot.
The state is also saying by the write-in alternative, we are not going to totally bar everyone else.
In other words, regardless of whether you have any community support, we will allow people to write your name in if you simply go through some administrative... jump through some administrative hoops near to the election.
So they are two very different things.
Unidentified Justice: Well, you are not relying really on some right to be a candidate, then.
Mr. Frampton: Justice O'Connor, I think we are certainly asserting the right of Petitioner John Anderson to be on the ballot and to represent these people.
Unidentified Justice: Do you think that Clements versus Fashing bears on that, where the Court indicated there wasn't such a right?
Mr. Frampton: --Justice O'Connor, I think the Court treated that case as principally a case asserting the candidate's rights, and although we do have a candidate here asserting his rights, I think that the principal rights being asserted here are those of the other petitioners and voters and citizens like them.
Unidentified Justice: Well, if we have said there isn't a right under the First Amendment to be a candidate, then can the voters have some right that hinges on some right to be a candidate?
Mr. Frampton: I think it does, but I think the voters also have an independent right.
The voters' rights that are being infringed here are the rights of independents and other voters to have the opportunity during this five-month period when party supporters have an opportunity to react to political events and other candidates' choices, and in late August to be able to choose that candidate who is going to have the best chance to win.
It is the discrimination between the rights of those voters to put forward a candidate, the party and the independents.
Now, the state says that is really very theoretical, but I think that you can take any of the examples that we have cited in our brief from political history and demonstrate that the same thing could happen in 1984, that would discriminate against the independent voters.
For example, in 1968, Lyndon Johnson shocked the country by announcing in late March that he was not going to run for re-election, and indeed his principal opponent at that time, Senator Robert Kennedy, who had only declared two weeks earlier, was assassinated in early June.
Those events totally changed the political calculus.
Now, given our present economic situation and the age of our incumbent President, it would be no more shocking if President Reagan were to announce on April 24, 1984, that he had decided not to run for re-election.
If that happened, party voters and party supporters would have months to react and still choose in late August the best candidate based on that set of political circumstances, but what about voters who elected President Reagan in 1980 because of, say, his views on supply side economics, his conservative political ideology?
Those people who assumed on March 20, 1984, that their interests would be represented in the general election, because they would vote for President Reagan for re-election, now, if the Republican Party were not going to nominate someone who met their political views, they would be forever frozen.
Unidentified Justice: Well, what business would those people have for assuming in your hypothetical situation that President Reagan would run again.
If he simply had remained silent, and there had been no party conventions.
Those are the ones that nominate.
They are simply waiting like everybody else to see what happens.
Mr. Frampton: I think that is precisely the point that we are trying to make in our case.
They have no right to assume that.
It is not possible to tell prior to early summer in many election years who the most likely candidates are going to be.
Therefore, there is no meaningful or realistic incentive for voters to organize behind an independent candidate very early in the year and find somebody who is going to expend the necessary energy to go out there in January and February and March with volunteers in 50 states and get on the ballot.
Unidentified Justice: Yes, but the logic of your position suggests that if the major party conventions were held in late August and September, and the candidates nominated only then, and although that isn't the tradition, there is certainly nothing in the law that prevents it, your people would still have a right after that happens, however late or however few days left before election, your people would still have a right to act after the major parties in order to put their candidate up, and I don't see where you get that out of our cases.
Mr. Frampton: Justice Rehnquist, I don't think that is at all the necessary logic of our position.
Our position is only that the state should not be permitted to very substantially burden and discriminate against independents by making them qualify much earlier than the party candidates absent some state interest that the legislature, state legislature has considered and made a determined judgment it is really necessary to impose this burden.
For example, administrative interests of the state of Ohio on the face of its statute might well sustain a filing deadline here in early June, several months in advance of the party conventions, and indeed this Court has sustained mid-June deadlines.
So we are not arguing that independents have to be given the right to come after the party selections.
What we are saying is that when you have a process that lasts, let's say, from January to August, throughout the country, in 50 states, in which the voters, party and independent voters, are engaged in selecting the nominees to appear on the ballot, one state should not be permitted discriminatorily to say to independents alone that if you don't get into the race at the beginning of this process, you are not going to be able to get in at all.
I would like to point out that the court of appeals here which reversed the district court appears to have held that a very lenient standard of review is appropriate.
Although it is our position that the decisions of this Court mandate strict scrutiny in this case, we think that even with the most lenient standard of review, that the statute doesn't pass constitutional muster.
Unidentified Justice: Well, in that regard, Mr. Frampton, are you suggesting that without regard to how this statute was applied to Mr. Anderson and his supporters, the statute is unconstitutional on its face?
Is that your position?
Mr. Frampton: It is our position that it is unconstitutional on its face as applied to the Presidential race.
Unidentified Justice: Well, how about as it is applied to Congressman Anderson, in the particular circumstances of his case, and if you say that... if you... let's just assume that as applied in this case, it was constitutionally applied.
Just assume that.
I take it your position is nevertheless the statute should be declared unconstitutional on its face because it might be applied unconstitutionally in other circumstances.
Mr. Frampton: The assumption that the statute... that... the assumption would be that Congressman Anderson could constitutionally be barred from Ohio's general election.
Unidentified Justice: Yes, yes, the very case that the statute was not unconstitutionally applied to him.
Mr. Frampton: But it seems... sorry.
It seems to me that assumption would be that the state could have passed some other law, such as a disaffiliation provision, that would have barred it.
Unidentified Justice: Well, that may be so, but what about this law?
It would nevertheless be unconstitutional on its face?
Mr. Frampton: Well, our position, I think, then... my answer has to be twofold.
One, this isn't a disaffiliation provision.
It is not a political stability device.
And second, that the state isn't entitled to make it into something that it isn't.
And then, third, that--
Unidentified Justice: Yes, but why would you... why would you... why would you think you were entitled to have it declared unconstitutional on its face, just because it might be applied to others in an unconstitutional way?
Mr. Frampton: --Well, I don't... Mr. Justice, I don't think that is the real thrust of the Court's overbreadth opinions--
Unidentified Justice: Well, I want to know what the thrust of your position is.
Mr. Frampton: --If Congressman Anderson, for example, were contesting... had been faced with an 850,000 petition signature requirement in June, which he had challenged because he couldn't get the correct number of signatures, I don't think that it would be right to say that he wasn't entitled to challenge that requirement because the state could have barred him with some kind of political stability device--
Unidentified Justice: I still... I still want to know whether we should judge this case... we should ask ourselves whether this statute was constitutionally applied to Anderson in the circumstances of this case, or whether we must also ask, well, that is sort of irrelevant, is the statute unconstitutional on its face, because it is overbroad, or because of something else.
Mr. Frampton: --That is correct.
Our position has always been that it has to be considered in terms of its impact on its face--
Unidentified Justice: Well, not if the test is just mere rationality.
And you seem to... I know you say it is strict scrutiny, but--
Mr. Frampton: --Well, our position is that even if a rational relationship test is applied, the statute falls, because it isn't... it doesn't in fact rationally further political stability goals.
It doesn't, for example, prevent a party candidate from running as an independent.
It doesn't... the state doesn't prevent by the filing deadline or any other provision a person who has been a long-time independent from running in a party primary, or a party member from running in another party's primary, or a candidate from filing as an independent in the Presidential race and going on and continuing to run as a party candidate in every other state in the country.
So it doesn't in fact serve any of the political stability purposes that this Court outlined in upholding a one-year disaffiliation clause for state races in Storer.
So it is just not that kind of device.
It seems to me that argument has to be premised on the state's position that this isn't really a filing deadline.
It is something other than what it looks like.
It is a sheep in wolf's clothing, or a wolf in sheep's clothing.
And our position is, it is not.
It is just a filing deadline.
If you look at the legislative history, or how the statute operates, or other ways in which you look at a statute that looks like one thing which somebody says is really something else, all of those show you that it isn't something else in disguise, it is just a filing deadline.
Just a date by which a candidate must demonstrate his community support.
In fact, the legislative history shows here, if we have to go to that, that at best the statute is an accident.
It is something designed for statewide races where the state can legitimately say everybody who wants to get on the ballot has got to start out at the same time, and nobody gave much thought to the fact that in the Presidential context it is irrational.
At worst, it is a leftover part of an exclusionary scheme that this Court recognized in Williams and Rhodes.
I think that although a large part of our case does turn on discrimination, that we would have an equally strong case, and do have an equally strong case simply flowing from the burden that the statute imposes on independent candidates even absent the discrimination.
The burden that we argue is tied with the discrimination, because it is a burden on the competitive exercise of rights.
You can't just look at 229 days or 209 days.
You have to look at what independent voters can do vis-a-vis what everybody else is permitted to do.
Unidentified Justice: --Mr. Frampton, is there any evidence here that indicates how many late blooming third force candidates like the Petitioner Anderson have sought and been denied access to Ohio's general election ballot?
Mr. Frampton: There is evidence that a number of independent Presidential candidates have gotten on the ballot, but it is--
Unidentified Justice: Is there any evidence as to how many have been denied access?
Mr. Frampton: --No, Your Honor, there is not.
It is stipulated in the record, I don't remember the paragraph of the stipulation, that there was insufficient information available from either the state government's offices or from any other source that we had available in the district court to make a determination about that.
Even if Ohio had a non-discriminatory statute, that is, even if we were facing a statute that applied equally to--
Unidentified Justice: When you say discriminatory, it does, of course, it treats party people and independents differently.
Is that what you mean by discrimination?
Mr. Frampton: --Yes.
Unidentified Justice: Just that it... you are not suggesting that just because they are treated differently, that the law is unconstitutional?
Mr. Frampton: No, we are suggesting that because independent candidates and voters who may wish to put forward some candidates are deprived of the opportunity during most of the time everybody else chooses their nominees from doing the same thing, that that is both an invidious discrimination and a burden.
But even if the difference in treatment... I am sorry... were absent from the case, I think we'd have a strong case.
It would be a different case to analyze, because then the question would be, in the context of a 50-state process, where other states, voters in other states are choosing the nominees, could Ohio alone take the position that no candidate who had not thrown his name into the ring as of March 20th was going to get on Ohio's ballot regardless of who nominated him.
Now, I think if you look at it from that context, that that would be a very, very substantial burden, a substantial interference by Ohio in the political process nationwide.
Unidentified Justice: Of course, I think it is also true that the Ohio... it is inconceivable that the Ohio legislature, with Republicans and Democrats making up 98 percent of it, would pass the statute.
Mr. Frampton: Absolutely.
I am quite sure that if they did, that I wouldn't be here alone today, that the Republican and Democratic Party lawyers would be here urging on you the proposition that this was a massive infringement on their rights under Cousins and Wigoda, but we all know that the states aren't going to do that.
They are not going to do it because they are not going to buck the power of the two major political parties, and all we are saying in this case is, fine, but then the states should not be permitted, having made that choice, to go ahead and just buck the independents who simply because their supporters have chosen not to affiliate with an ongoing political institution between elections don't have the political organization to go to the state legislature and say, don't do this to us.
Unidentified Justice: But, of course, you... in a sense, for seem to be arguing that independents are a sort of political party all their own, and of course if that were true, I think there would be no difficulty about Ohio saying that if you want the independent nomination, you have got to file by a certain date, and the independents choose their candidate at the independent convention, and such and such.
But that really isn't what the independent is.
It isn't a third political party.
It is just people who don't affiliate with the two major parties, and who kind of go in and out from one campaign to the next.
Mr. Frampton: Justice Rehnquist, I think I have to give a three-part answer to that question.
I am sorry.
Unidentified Justice: I didn't realize I was bringing that on.
Mr. Frampton: It seems to me that the Court, although it is not a separate party, of course, the Court has recognized in previous decisions that independent-minded voters, those people who for whatever reason don't want to affiliate themselves with an organized ongoing political faction, do have different and independent type of rights that are entitled to the same recognition under the First Amendment as party members.
Now, it is true here John Anderson certainly was not running as the candidate of an independent party.
Indeed, his... the information in the record in this case indicates, and the district court found that he was an unusual situation.
He was drawing support from the major parties and from this large group of independent-minded voters whose size has increased over the last decade or two.
But I think that their rights, the rights of the independent voters, whether they are... the rights of those who want to put forward some alternative to the major parties, be they independents or party members, are the same if they are barred after March 20 in, for example, putting forward a candidate should President Reagan withdraw in '84.
Unidentified Justice: But your argument necessarily requires you to say, doesn't it, that even though the major parties have their conventions in August, that nonetheless if someone like Congressman Anderson wishes to announce in September on the basis of choices made by the major parties in August, Ohio has got to allow them to do it, however it may foul up their balloting.
Mr. Frampton: No, our position still is that the burden or difference in treatment, if it is substantial, has... simply saying that it has to be supported by some state interest.
Now, the state obviously... states obviously do have interests in having filing deadlines earlier than the national conventions.
Of course, most states do have filing deadlines in September--
Unidentified Justice: Would a filing deadline in June for independents have done away with your constitutional objections, do you think?
Because the same sort of thing that Congressman Anderson relied on in April could have occurred as a result of the two major party conventions in August.
Mr. Frampton: --I think it would be a very different case, because Ohio does have legitimate administrative interests that might support a June deadline.
There would still be some burden and some difference in treatment, albeit a lesser... lesser degree, and the state would have a real strong state interest.
For example, it is stipulated here that even independent Presidential petitions that are filed by March 20 sit in somebody's in-box, or hopefully a safe, gathering dust for three months, until mid-June.
In mid-June, the state does begin this process of exposing them to public scrutiny, verifying them, and entertaining challenges.
Now, I think if this were a June 12th deadline, supported by a facially valid state interest, then the only question... the only kind of challenge we could make really was to try to prove as a matter of fact that the state really didn't need two and a half months.
Most states don't.
Larger states than Ohio don't.
But that would be a pretty heavy burden on us.
Chief Justice Burger: Very well.
Mr. Frampton: Unless there are any further questions, I would like to save the rest of my time.
Chief Justice Burger: Mr. Taylor.
ORAL ARGUMENT OF JOEL S. TAYLOR, ESQ., ON BEHALF OF THE RESPONDENTS
Mr. Taylor: Mr. Chief Justice, and may it please the Court, the Ohio filing deadline at issue in this case has a burden, if it has one at all, of an entirely different character than the election regulations that have been struck down in the past by this Court.
It does not result in a prohibition of all independent candidacies from the Ohio ballot, nor does it make it virtually impossible for third party candidacies, as was the case in Williams v. Rhodes, nor does this filing deadline result in any class of voters being totally prohibited from voting at all, as was the case in Dunn against Blumstein, the Tennessee one-year residency case, and Kramer against Union Free School District, where classes of voters were prohibited from voting at all in a particular election.
The burden of this statute is indeed even less than the burden posed by statutes which have been upheld by this Court.
For example, this filing deadline does not require the voter to make up his mind as long as eleven months before an election how he wishes to participate in that election, as was the case in Rosario against Rockefeller, in which a party enrollment statute in New York was upheld that required enrollment as long as eleven months before a primary election.
Nor does this statute require the candidate to make up his mind as to how he wishes to participate in an election as long as one year before that election, as was the case in Storer v. Rhodes, in which a one-year disaffiliation requirement was upheld.
Indeed, all this statute requires is that a person seeking the office of President, an office for which the campaigns frequently begin as long as two years before the election, make up his mind seven and a half months before that election that he wishes to seek the office as an independent candidate.
This, I would submit, is not much of a burden.
I would like to stress three areas in my argument.
Number one, that there is no invidious discrimination in this case between independent candidates and the candidates of political parties.
Number two, the statute does not pose a substantial burden upon any constitutional rights for the class of independent candidates, and therefore strict scrutiny is not appropriate.
And Number three, it is in fact supported by important state interests.
Unidentified Justice: On your second point, do you say the same thing about not only the candidate but about his supporters?
Mr. Taylor: Yes, I do, Your Honor.
Of course, any candidate restriction is going to have some kind of an effect on voters, and I think--
Unidentified Justice: I take it your opposition stresses the associational right rather than the candidate's right.
Mr. Taylor: --Right.
The... Any restriction on a candidacy is going to have an effect on voters to the extent that if the candidate does not comply with that restriction, whatever it is, then his supporters will have one less candidate available to vote for.
In other words, any candidate restriction is going to narrow the field to some extent that the voter has available to him.
The Court has never held that that simple narrowing of the field all by itself is enough to establish an infringement of rights.
Indeed, in Bullock v. Carter which... in which the issue was discussed extensively, the Court in that case relied upon a factual determination that indeed many, many candidates had been kept off the ballot by the high filing fees in the state of Texas that were not sustained in that case.
Unidentified Justice: Well, then, you do recognize that there is a right of political association that may be affected, but you are just saying it isn't much of an effect.
Mr. Taylor: That's correct, Justice O'Connor.
Unidentified Justice: So there is some First Amendment right here at stake which you would recognize, apparently, as well.
Mr. Taylor: --There is no question but that the Court in voting rights and candidate cases has recognized the implication for First and Fourteenth Amendment rights of any regulation.
The simple fact, though, that the regulation may affect such rights does not, I would submit, result in an immediate leap to the conclusion that the regulation must be justified by a compelling state interest.
Unidentified Justice: Well, there may be a threshold inquiry of whether it is an undue burden or something of that kind.
Mr. Taylor: Indeed, I think that is the case, Justice O'Connor, and in several cases the Court has done exactly that.
In Mandel against Bradley, for example, in Storer v. Brown, both of which involved a numerical petition requirement, in both cases there was actually a remand made to the lower courts for the express purpose of determining as a factual matter whether that regulation was indeed burdensome.
Unidentified Justice: Does any other state have a filing deadline as early as Ohio's?
Mr. Taylor: One state currently has a filing deadline earlier than Ohio.
Unidentified Justice: What is that?
Mr. Taylor: I believe that is Indiana.
Unidentified Justice: Indiana?
Mr. Taylor: New Jersey, I believe, has one in April, and there were, of course, at one time filing deadlines in four other states at or about the same time as Ohio's that were struck down as a result of Anderson litigation in other cases.
So that it would appear that at least seven states are desirous of having a filing deadline at or about this time.
There are, of course, many other filing deadlines in June and July that would come much earlier than the second of the two national conventions.
And I think indeed that Petitioners' position does... would in fact require, if sustained, the invalidating of filing deadlines that came in advance of the national conventions, because as I understand his argument, it is clearly that the voters have a right to coalesce around an independent candidate after the issues have been determined at the convention, and after the identities of the major parties' nominees are known.
So that I think the impact of this case would be much, much broader than simply a filing deadline that occurs in the spring.
Turning to the question of whether there is invidious discrimination in this case, the Petitioner argues that the discrimination to exist simply because the independent candidate must file his petitions in March, whereas the political parties remain free to select their nominee up until as late as the conventions in August.
There is a fundamental fallacy in making this argument.
There is an assumption that is not merited that it is possible to compare political... it is possible to compare the candidates seeking the nomination of a political party with independent candidates.
In Ohio, there are two entities that have a right of access to the ballot, set by Ohio Revised Code Section 3505.10.
One of those is a political party.
The other is the independent candidate.
It is not the person seeking the political party nomination that has that right of access to the ballot.
It is the party that has that right of access.
And both the independent candidate and the political party must take steps no later than March to qualify for the ballot.
In the case of the political party, it qualifies either by attracting a certain level of support in the preceding election or by submitting petitions with the signatures of 1 percent of the people who voted in the last election.
In the case of the independent candidate, he qualifies simply by submitting the nominating petition.
At that point in time, in March, then, when both those entities have qualified, the only difference--
Unidentified Justice: When you say both those entities, Mr. Taylor, what do you mean?
Mr. Taylor: --The two entities being the independent candidate and the political party.
Unidentified Justice: I suppose... are there customarily more than two political party candidates for President on the ballot in Ohio?
Mr. Taylor: There... I believe the last time we had a third party on the Presidential ballot was in 1972.
We have had, however, five independent candidates for President on the ballot in both 1976 and 1980.
Unidentified Justice: Mr. Taylor, it is still not clear to me what the Petitioner in this case could have done in March and complied with your law.
Could he have said that I am a candidate on the Republican convention, and if I don't make that, I want to be an independent?
Mr. Taylor: No, he could not, Justice Marshall.
He had to make his election in March as to which of the two routes he wished to take to the ballot.
Unidentified Justice: Which would deny him the right to run in the convention.
Mr. Taylor: I don't believe he is denied any right to run in the convention.
He is simply asked to make an election.
Unidentified Justice: Well, isn't the state of Ohio telling him that he can't run in the convention?
Mr. Taylor: The state of Ohio is not telling him... There was nothing in this case to prevent Congressman Anderson from having obtained the nomination of the Republican Party at its convention, had he been able to do so.
Unidentified Justice: Even after he had... Even after he had taken these other steps?
Mr. Taylor: That's correct.
I mean, the person who is put on the ballot as the candidate of the political party is whoever that political party selects.
Unidentified Justice: Can you imagine a political party nominating a man that is an independent candidate in 50 states?
Mr. Taylor: I would think it highly unlikely.
Unidentified Justice: Highly unlikely.
Well, it did happen in California, did it not?
On some occasions?
Or aren't you familiar with that?
Mr. Taylor: I am not familiar if it did happen in California.
Unidentified Justice: I am talking about a convention, not a state.
Mr. Taylor: At the point in time in March then when those two entities have qualified for the ballot, the difference between the independent candidate and the political party is simply that the political party has not yet named the person who is going to carry its banner, and the reason for that goes to the fundamental nature of the differences between political parties and independent candidacies.
The independent candidacy is a candidacy by definition built around a single individual who is running on his ideas, his principles, and his beliefs.
The political party obviously has a much broader existence.
It has principles beyond those of the individual person.
It has a continuing program of electing officials that extends beyond a particular election, and it is because of these organizational differences between the political party and the independent candidate that the process for selecting the person who is going to carry the political party banner is more complicated than it is for the independent candidate.
By definition, the party must pick and choose its candidate, and it does that through the system of primaries and conventions.
This Court considered whether or not the differences, those kinds of differences between political parties and independent candidates might violate the equal protection clause in Jeness against Fortson, in which a claim was in fact made by an independent candidate that there was invidious discrimination because he did in fact have to file his petitions and qualify for the ballot that way, whereas the political party candidate could qualify by winning the primary at some later point in time.
The Court in rejecting that claim indicated that these were simply two different types of procedures, and that it is not possible to compare political parties and independent candidates for all purposes, and indeed, that the grossest discrimination can sometimes lie in treating things that are different as though they were the same.
And with respect to the Fourteenth Amendment issue in this case, Ohio's position is that it is simply not appropriate to compare those two very different routes to the ballot.
However, even accepting the premise offered by Petitioner for the moment, and assuming that one can make an attempt to compare the individuals who seek political party nomination with the independent candidates, we still believe no invidious discrimination can be shown, and that is for this reason.
The independent candidates are required to file for the ballot on the same date in March as those party candidates who are seeking delegates to the national conventions.
The burden posed on each is the same or arguably even more burdensome for the party candidate, and I should add here that it is indeed clear in Ohio that it is the party candidate who is seeking these delegates.
It is the party candidate's name who goes on the ballot.
He must give his written consent to all the delegates that file petitions on his behalf, and indeed, he even has the right to determine the order in which delegates are selected.
So that it is indeed a case--
Unidentified Justice: May I interrupt you for just a second here?
It seems to me there is some inconsistency between your two arguments.
Your first argument that there is no... you are comparing different things says that the process in the party process is more complicated, and there are special problems associated, which would seem to justify a longer period to... for party candidates.
But once you said they are different.
Now you are saying, well, there is no discrimination because they are the same.
But if the reason for the length of time required for the party process doesn't apply to the independents, why do you have it?
Mr. Taylor: --Well--
Unidentified Justice: Maybe I don't make my question clear.
Mr. Taylor: --The arguments... the argument is an alternative argument, I think, Your Honor.
Unidentified Justice: And they are sort of inconsistent with one another.
Mr. Taylor: It is an argument that says we don't think that it's possible to make this comparison, but even assuming--
Unidentified Justice: But the reason you say that is, you say you need more time to process the party candidates.
That is the heart of your argument, as I understood it.
Mr. Taylor: --Yes, sir.
Unidentified Justice: And how can then that justify treating them equally?
Mr. Taylor: The burden... I think it is appropriate to look to the burden that each type of candidate faces in March.
The burden in March is, if anything, even at that point in time, forgetting everything that comes after March, if anything, more severe on the party candidate.
The party candidate has to file--
Unidentified Justice: I think by hypothesis you have settled with her... Justice O'Connor brought up, we are not interested in the burden on the candidate.
We are interested in the burden on... I don't know how many, 6 percent of the electorate was that wanted to vote for Mr. Anderson.
We are talking about the burden on those people, as to whether they can vote for the person they want to vote for.
And it seems to me your job is to explain to us that that is a reasonable... it is reasonable to say to that 6 percent of the electorate, no, you cannot vote for Mr. Anderson, for these reasons.
You are talking about, you know, the burden on Mr. Anderson, which is not what we are interested in.
Mr. Taylor: --Well, there are indeed reasons, and we have advanced, I think, three of them in our brief, for that different treatment between the two candidates.
Unidentified Justice: Does Ohio permit a write-in candidate in the election for President or not?
Mr. Taylor: Yes, it does.
And as Mr. Frampton indicated, it would require filing, I believe, 40 days before the election a notice of intention.
Unidentified Justice: On whose part?
Mr. Taylor: On the part of the write-in candidate.
Unidentified Justice: Well, may people just walk into the voting place and vote for a person for President who has never indicated any interest in the position?
In some states, that can be done.
Mr. Taylor: Well, it can be done in Ohio, Mr. Chief Justice, in a physical sense, in the sense that we have it happen all the time, too, that people do that, but I think the consequence is, if you haven't filed a notice of intention, that the ballots may not be counted.
Unidentified Justice: You can vote for them, but they won't be counted.
I was just wondering if anybody had ever gotten elected.
Has any third party candidate ever been elected, since we have had parties?
Mr. Taylor: No, I don't believe any third party candidate has ever been elected.
Returning to the question of whether we are treating the political party candidates and the independent candidates equally, the burden at the point in time in March on the independent candidate is to file 5,000 petition signatures.
The burden on the political party candidate through his delegates is to file something in excess of 4,000 signatures, slightly less, on behalf of his delegate slate, but on the other hand, those signatures can come only from persons who are members of that political party, unlike with respect to the independent candidate, and there is a geographical distribution requirement with respect to some of those signatures.
So that if anything, the burden on the party candidate is more at that point in time.
At that point in time, the independent candidate has done everything he needs to do to qualify for the ballot.
It is after that point in time that the parties have the more difficult process.
So that the... we are not requiring anything more from the two types of candidates in March of any year.
Indeed, the situation is that they are required to do about the same, but after that date it is a much more lengthy and burdensome process for the party to select its candidate.
Unidentified Justice: Well, if we focus, Mr. Taylor, on the right of the voter, and then make the inquiry whether it is an undue burden, how do you respond to the argument that it is a severe burden because they simply aren't entitled to vote at all for Mr. Anderson?
Mr. Taylor: --Well, in several ways, Justice O'Connor.
As a factual matter, we have in fact had many candidates qualify as independent candidates for President on our ballot, so that there is a choice and has been a choice under our system.
Indeed, five candidates in each of the last two elections for the independent voters--
Unidentified Justice: Yes, but of course those weren't the late blooming people out of a political party, like Mr. Anderson says that his situation represents.
So it would be interesting to know if there were other people like Mr. Anderson who came late out of a political party structure who were denied access to the ballot in Ohio.
Mr. Taylor: --There is no evidence in the record of this case, and the Petitioner produced none, to show that we have ever had that kind of a problem with the Ohio filing deadline, and we would indeed submit, and the Sixth Circuit, I think, found that the most likely impact of this filing deadline is with respect to a candidate such as Anderson, who had no trouble at all making up his mind that he wanted to seek the Presidency, but simply wished to switch horses in the middle of the stream.
As a factual matter, there is simply no evidence of any burden on independent candidates in this case, and I would submit the hypothetical--
Unidentified Justice: You only need one case, don't you, and it did keep him off the ballot, didn't it?
Mr. Taylor: --That's correct.
But of course any time, any time you have a ballot regulation, the plaintiff is going to be somebody who didn't comply with it.
If in fact that were the only criteria for determining whether we have enough of a burden so that we have to meet tests like strict scrutiny, we would have it in every case--
Unidentified Justice: Yes.
Mr. Taylor: --because the plaintiff is invariably somebody who hasn't met the requirement, whatever it is.
Unidentified Justice: But the difference is that here we can see the burden.
We know how many people voted for him.
And there were quite a few.
We don't have any other case like this?
Your five minor party candidates that you say got on the ballot, you had all of them up together, and I bet they didn't get as many votes as he did.
Mr. Taylor: That's correct, Justice Stevens, but I think if we look at the situation that the political party voter finds himself in in August, at the time of his conventions, we find it is not really any different than the voter for the independent candidate.
Let's assume, for example, at the time of the convention that a substantial block of persons within a major political party is dissatisfied with all the candidates that have been produced through the primaries and the conventions, and would like... they don't want to bolt the party, but they would like to coalesce around a different candidate within the party.
Well, they are under the same kind of disability that the independent candidate is.
The field of candidates is narrowed in the spring.
Unidentified Justice: That is not a big disability imposed by your state statute.
That is a disability imposed by party problems.
Mr. Taylor: But I think it is fair to view our statute in the context of the way the Presidential election occurs in this country, and indeed, that is critical to an understanding of this alternative equal protection argument, because there has been a fundamental change in the method of selection of the Presidential candidates that occurred just prior to the time that Ohio adopted this filing deadline.
The political commentators who have written on this subject in the last two or three years, and we cite six of them on Page 28 of our brief, are unanimous in their declaration that a fundamental change occurred after the 1968 Presidential election such that we switched from basically a brokered convention system to a system that results in the nominees of the parties being selected through the primaries.
And those commentators are unanimous in their view that any party candidate who wishes to seek the nomination, if he is serious about it at all, has to go after it in this day and age in the primary, and that means in turn that the candidate has to be seeking delegates to the convention through the primary election system, so that the party candidates in Ohio are going to be in there filing their petitions and making their decision to go for office at the same time as the independent candidate.
I think it is a myth to talk about candidates arising as late as August with one possible exception, and that is if you've got an extreme situation like the death of a candidate or a sudden withdrawal, but most of the time, indeed probably more than 90 percent of the time, we are going to have a situation where the people that want this... the office of President are in there at the same time in Ohio fighting for it.
Unidentified Justice: Well, really, all you are arguing is that this doesn't happen very often, but the question is, when it happens, what is the state interest in justifying refusing to let this large group of people vote for the person they want to vote for?
Mr. Taylor: We have... We are asserting basically three interests in having what we view as a simultaneous filing deadline for party candidates and independent candidates.
The first is that we think it promotes the equal treatment of those candidates.
The interest that the Sixth Circuit in this case discussed most extensively was the interest in what it called voter education, and the... having those joint filing deadlines serves that interest in this way.
The Presidential campaigns have begun earlier and earlier, if anything, in recent years, and we find the voters buffeted by exploratory committees, and rumors, and it is a confused situation.
The requirement that those persons who are serious about pursuing that nomination in Ohio file something at the same time in March that says who they are really serves, I think, a couple of different voter education interests.
It enables those people... It basically puts the voter in the position of understanding what his options are in the spring.
I mean, if, for example, he wants to commit a certain amount of money to political campaigns, he knows that his alternative is this group of independents or these people within the political party.
If he wants to decide to work for a candidate, he has got all his options in front of him.
He knows who is going to be--
Unidentified Justice: Mr. Taylor, are you urging that the problem with this case is to adjust constitutional rights to political theorists and theories?
Mr. Taylor: --What I am urging--
Unidentified Justice: I mean, these six people or whatever it is, I don't even know what you are talking about.
I mean, we can't adjust constitutional theories to what they predict that a voter will do, can we?
Mr. Taylor: --I think, Your Honor, that it is fair to adjudge the constitutionality of this statute in light of the way the Presidential election system works.
I am not talking simply about political theory.
I am talking about laws that have been changed--
Unidentified Justice: What do you have that is unanimously agreed is how the political theory works?
I mean, I for one can mention at least one occasion when all the political theorists in the world were wrong.
And I bet you could, too.
Mr. Taylor: --Well, without inquiring as to what that situation is, the argument is--
Unidentified Justice: I don't know which one I want to give you.
Mr. Taylor: --The argument is simply that as a practical matter, the candidates who are seeking--
Unidentified Justice: The Constitution should be measured by a practical matter?
Mr. Taylor: --Well, the... Your Honor, as long ago as Pullman v. Knott, Justice Holmes indicated that an equal protection issue should not be decided upon a hypothetical state of facts, and I think that the situation that is being posed by the Petitioner in this case is largely a hypothetical state of facts.
He does not represent one of these late emerging candidacies at the time of the conventions in August.
He represents someone who had no trouble at all making up his mind that he wanted to run for President, but simply chose what he later decided to be the wrong method.
Unidentified Justice: Do you mean by that that having filed as a Republican, he had decided to change horses, or maybe change from riding a horse to walking.
Mr. Taylor: What I am saying is that he decided, I think, in this case as early as June, 1979, that he wished the Republican... or that he wished to become President.
Having made that decision, in Ohio he had to decide by March 20th whether he wished to seek it on an independent... as an independent or through the political party system.
He chose the political party system, decided it was a mistake, and tried to switch.
Unidentified Justice: Now, when a candidate misses that deadline, an independent candidate, do I understand correctly from what you said that if he gives 40 days' notice, then he may have a write-in campaign, and his... any written in ballots will be counted?
Mr. Taylor: That's correct, Your Honor.
Unidentified Justice: So the door is not completely closed to him.
Mr. Taylor: That's correct, Your Honor.
The door is not completely closed.
Unidentified Justice: How many write-in ballots were cast in the last election in the whole state of Ohio?
Mr. Taylor: I don't know that figure, Justice Marshall.
Unidentified Justice: Does anybody?
You know they weren't even counted, were they?
Mr. Taylor: I am sure that if anyone filed with a 40-day notice, they were counted, but I can't tell you off the top of my head.
It is undoubtedly not a large number.
I mean, no one is going to contend that it is.
I would like to turn quickly in the remaining minute or two to one of the things that was raised by the Petitioner in his statement, and that is the effect of the withdrawal from the ballot, from Ohio's Republican ballot made by Congressman Anderson in this case.
He withdrew from the ballot under a Section 3513.30 that specifically allows Presidential candidates to withdraw from the ballot up to 30 days before the deadline.
We had contended in our answering brief in this case that the purpose of that statute was simply to avoid voter confusion on election day.
In the reply brief, Petitioner indicates that, no, that was not the reason for it at all.
The reason for it was to avoid what would otherwise be the applicability of Ohio's so-called sore loser statute.
The Petitioner is simply incorrect in this contention.
If we look at the legislative history for Section 3513.30, which was enacted in House Bill 1245 in 1976, a bill that dealt only with this subject, we find that that bill became effective in April, right before the primary date.
It was enacted as an emergency measure to get it immediately effective under Ohio law, which requires a higher vote than a normal bill.
The reason stated for the bill in that emergency clause was to spare the voters of Ohio the confusion of having on the ballot the names of persons who no longer wished to be candidates, and the expense of counting ballots for such persons.
So, indeed, that statute did not have anything to do with avoiding the sore loser provision.
The sore loser provision has been stipulated to be inapplicable in this case.
It may or may not be inapplicable because of the fact that there was a withdrawal.
It is clearly inapplicable because by the terms of the statute itself, it does not apply in the Presidential election, as the Sixth Circuit noted in Footnote 3 of its opinion.
Unidentified Justice: Mr. Taylor, before you sit down, let me just ask you one question.
You started to identify three different state interests that were at stake here.
One was the equal treatment of candidates.
The second was voter education.
You never got to the third.
What was the third?
Mr. Taylor: The third is the political stability interest that I have just touched upon.
Unidentified Justice: Thank you.
I just wanted to be sure I had it.
Mr. Taylor: Thank you.
Chief Justice Burger: Do you have anything further, Mr. Frampton?
You have four minutes remaining.
ORAL ARGUMENT OF GEORGE T. FRAMPTON, JR., ESQ., ON BEHALF OF THE PETITIONERS -- REBUTTAL
Mr. Frampton: Thank you, Mr. Chief Justice, and may it please the Court, I would just like to respond to one question asked by Justice Stevens, and one by the Chief Justice of Mr. Taylor.
I don't think it's just the 6 percent of the electorate that voted for Congressman Anderson in the November election whose rights are burdened here.
The record shows and the district court found that as of the time this lawsuit was brought, the poll data, for whatever that is worth, showed that Congressman Anderson was the first choice of some place between 23 and 44 percent of the electorate.
I think that is a very significant burden.
Unidentified Justice: In Ohio?
Mr. Frampton: Nationwide.
Unidentified Justice: What about Ohio?
Mr. Frampton: We did not have any particular statistics from Ohio, but I believe those polls showed that his strongest support came from eight northeastern states, one of which included Ohio.
It didn't break it out beyond that, to my recollection.
The burden isn't just a burden that narrows the range of candidates.
It would have not only disqualified these people from voting for Congressman Anderson, but from putting forward any independent candidate after March 20.
The Chief Justice asked whether any third force candidate had ever been elected President.
I believe the answer to that is no.
Since 1948, however, three former Presidents, a former Vice President, at least two former Senators, a former Governor, a former Congressman have run for President as third party candidates or independent candidates.
They have played an important role in American political history, but it has mainly been a role in the marketplace of ideas and in their impacts on the major parties.
They haven't won, and I think that demonstrates that the practical and political barriers to independent candidates are very significant by themselves, and they include the efforts that an independent has to go through to get on the ballot in 50 different states under 50 different sets of laws which customarily have exhausted that candidate in ballot access activities rather than campaigning.
The proposition of our case is, those burdens are high enough.
The state should not be permitted discriminatorily, without a considered state interest, from adding additional handicaps to the independent or the third party candidate without the legislative judgment that that burden--
Unidentified Justice: You say that is a considered state interest.
Do you mean compelling?
Mr. Frampton: --I use the phrase, Justice Brennan, v. Oklahoma case, which pertained to different kinds of First Amendment rights.
Unidentified Justice: But basically, as I understand your argument, if, as you, in your colloquy with Justice White, you fail on the argument that there is an overbreadth about this statute that requires that it be struck down under the First Amendment, that alternatively in any event the state can't justify this statute without establishing a compelling state interest, which it has not done.
Am I right?
Mr. Frampton: You are right, Justice Brennan.
In addition to those arguments, we also contend that there is not even a rational relationship, because the voters--
Unidentified Justice: I know, but you do... you do suggest, do you not, that the standard of review ought to be strict scrutiny?
Mr. Frampton: --That is correct.
Chief Justice Burger: Thank you, gentlemen.
The case is submitted.