Cases by Issue - Ballot Access

Cook v. Gralike - Oral Argument

Fri, 09 Jan 2009 14:50:29 +0000

Case:

Cook v. Gralike

Media File:

99-929_20001106-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Mr. James R. McAdams

Chief Justice Rehnquist: We'll hear argument next in number 99-929, Rebecca Cook v Don Gralike.

Mr. McAdams.

Mr. McAdams: Mr. Chief Justice, and may it please the Court: There are three Democratic principles at stake in this case

First, the people may instruct their legislators.

Second, the people may request information and receive information on the ballot about candidate behavior.

And third, the people may put the information called for by Article 8 on the ballot.

None of these activities violate any provision of the United States Constitution.

With regard to the instruct provision first, this is the issue that divided the panel opinion from the dissent.

The instructional provisions are contained in Sections 15, 16, and 17, paragraph one, of Missouri's Article 8.

The Eighth Circuit said these instructions violated Article 5 because the voters were third parties to the amendment process.

Article 5 doesn't say that.

Article 5 provides a specific mechanism by which the Constitution can be amended, and it allocates functions in Article 5 for certain branches of the government to perform.

The exclusion of the people from any specific one of those functions does not exclude the people from the right to communicate to their representatives that they want the Constitution amended.

Chief Justice Rehnquist: Mr. McAdams, precisely what is the instruction provision?

You say this is the first of the three you are talking about?

Mr. McAdams: Yes.

This is the first of the three principles that I'm talking about, Your Honor.

Justice Kennedy: Okay.

Mr. McAdams: And the instruction is physically contained in Section 17, paragraph one of the proposed amendment, and it relates to Sections 15 and 16 of the amendment, Your Honor, Section 15 stating the intention of the Missouri voters, and Section 16 specifically stating the proposed constitutional amendment that the voters support.

Justice Kennedy: Well, are you arguing to us now on the assumption that the instruction standing alone has no teeth, no enforcement part, and you are going to get to the enforcement part, the teeth part later?

Mr. McAdams: That is correct, Your Honor.

Standing alone, the instructions provisions, these three sections, have no teeth.

They are a nonbinding instruction.

And as we were instructed by then-Justice Rehnquist's opinion in Kimble, the nonbinding instructions and advice by the voters to a legislature does not violate Article 5.

Chief Justice Rehnquist: And this is the provision that Judge Hansen voted to uphold?

Mr. McAdams: That is correct.

Chief Justice Rehnquist: In doing his dissent?

Mr. McAdams: That is correct, Your Honor.

Although I should say, he did not specifically mention Section 17.1.

He only specifically mentioned 15 and 16.

The instruction provision of 17.1 would be included in his logic.

Justice O'Connor: But part 2 of the Missouri constitutional Article 8, Section 17, is severable, is it?

Mr. McAdams: Yes, Your Honor.

Justice O'Connor: The ballot proposition?

Mr. McAdams: Yes, Your Honor.

Pursuant to Section 22 of Article 8, any provision the Court would find unconstitutional in Article 8 is severable from the remainder.

Justice O'Connor: And your point is just that disregarding for the moment the provision that has to appear on the ballot by a candidate's name, that the rest of it doesn't violate Article 5?

Mr. McAdams: That would be correct, Your Honor.

Moving on to the second principle, Missourians may request information and may receive information on the ballot about congressional candidate behavior.

This Court has indicated and respondents do not contest that states may provide information on the ballot.

Justice Souter: I think their argument is that it goes beyond information to the point of putting the thumb on the scale, because essentially it uses pejorative language.

It's doing more than informing.

It's saying, you know, these people have, or this person has violated a trust.

And that's more than information.

That's a kind of conclusion of fault.

That seems to be one of the points of their objection.

How do you respond to that?

Mr. McAdams: Well, Your Honor, there is nothing that really goes to point three that I made in my opening, that it goes to the specific ballot information and I respond to that by saying, there is nothing that provides voters valuable information that couldn't be used by those voters as the basis for a decision to vote against a candidate.

There is no indication in this case, no evidence in this case, that voters will be so overwhelmed by the information contained in the ballot information that they will have the will...

Justice Souter: Well, it's not... I don't know that they have to make the case that the voters are going to be overwhelmed.

The case that they are making is simply that the voters are being given something more than information.

The voters are being given in effect a judgment by the state that the particular candidates have referred to, have done something wrong, and that is more than information.

Mr. McAdams: I simply disagree with that, Your Honor.

The voters are not being given any more than information.

The State of Missouri...

Justice Ginsburg: Mr. McAdams, can you point to any other example?

There have been examples in briefs certainly of instructions that were given at the time of the constitutional convention, but this has been labelled a Scarlet Letter label.

It's not the same as Democrat and Republican.

It says, disregarded voters' instruction.

It says, declined to pledge to support.

Are there any other such labels that go on a ballot at a time when the candidate has no opportunity to answer back?

Mr. McAdams: Well, I would say that party labels go on the ballot at a time when voters have, I mean candidates have no opportunity to respond back.

The history of the country is such that party labels were outcome determinative in numerous congressional districts, Your Honor.

Justice Ginsburg: Well, I asked you, you gave the party labels example.

Is there anything comparable to disregarded voters' instruction on issue X, declined to pledge?

Mr. McAdams: Yes, Your Honor.

Justice Ginsburg: I don't know of anything comparable to that.

Mr. McAdams: There is something comparable, Your Honor.

In the State of Nebraska, in the early 1900s as the people became disaffected with Congress' unwillingness to amend the Constitution to provide for the direct election of senators, they placed labels on the ballot about whether state legislative candidates...

Justice Ginsburg: Oh, but that's state legislative candidates, and that's different.

There is no federal Constitutional control, except perhaps there might be a First Amendment argument, but we are talking about here... whatever the state wants to do vis-a-vis state legislatures is different from what they can do, vis-a-vis people who are in a national body and when they are there, they are representing all the people.

Mr. McAdams: Well, First Amendment is one of the claims that they make, Your Honor, and the First Amendment claim would equally be evadable to a situation like the State of Nebraska did.

We would not have, for example, a qualifications clause analysis that would apply to the state.

Justice Ginsburg: Well, do you have any other example of someone running for federal office, the House or the Senate, where there is such a label?

Mr. McAdams: I believe there... not exactly like this label, Your Honor.

There are situations where federal candidates have, for example, their address disclosed.

Chief Justice Rehnquist: I think in Arizona, at least at one time, candidates for the Senate and the House of Representatives had to say they were pledged to recall, which meant that if the state legislature recalled them, they would have to resign.

Of course they all pledged, and of course, it never happened, so...

Mr. McAdams: I was not aware of that example, Your Honor.

Justice Scalia: Excuse me.

And that was shown on the ballot in Arizona as well?

Mr. McAdams: I'm not aware of that, Your Honor.

The rules would seem to provide states, the election clause would seem to provide states an opportunity to place information on the ballot.

Justice Breyer: Well, doesn't the information, given the courts' cases here anyway, have to be generally applicable and evenhanded, like all the regulation because if it's not, that's... I mean, that phrase comes from a case called Anderson, but there are many of like tenor, it seems to me, that if it's not generally applicable and evenhanded, the state, for no legitimate regulatory interest, is biasing the election, which, which hurts the First Amendment rights of all those who happen to think that term limits is not the most important issue in the election, that would prefer the election were decided on the basis of other issues.

Mr. McAdams: Well...

Justice Breyer: Whatever.

The economy.

The environment.

Whatever.

Mr. McAdams: There is nothing about providing information that dictates that it is the basis upon which voters will choose.

Justice Breyer: Well, of course, that's generally true, and it's for that reason that when we get down to the ballot itself, which normally, regulation of the ballot is not for information providing purposes.

It is for fair vote purposes.

And that's why it seems to me that these cases have held when we come down to ballot regulation, what we are interested in is whether the state's regulation is generally applicable and evenhanded.

Mr. McAdams: Well, I think Timmons used the phrase reasonable.

The state could enact reasonable regulations.

Justice Breyer: Yes.

Reasonable in terms of such purposes as the integrity of the electoral process, preventing voter confusion, ensuring orderliness, and ensuring fairness.

Now, not, I haven't seen anything that says reasonable in terms of providing information about one issue but not other issues.

Mr. McAdams: Well, Your Honor, right now, we have a situation where the state only provides information about party affiliation.

Justice Breyer: Party affiliation is not... the candidate, I take it, voluntarily associates himself with that and wants that on the ballot.

Mr. McAdams: Some do and some don't.

In the history...

Justice Breyer: Well, are there instances where the affiliation was put on the ballot over the objection of the candidate?

Mr. McAdams: There are no cases in that regard, Your Honor.

Justice Scalia: I suppose in most of the south, until maybe 25 years ago, I'm sure the Republican would not have wanted his name on the ballot.

Mr. McAdams: I'm quite certain in the south.

Justice Scalia: For his party affiliation on it.

Mr. McAdams: I'm quite certain that is true, Your Honor, and I think that's true for third party candidates today as well.

In the example that the respondents give about the one time this was done in California, they give an example where a state legislative candidate who had won a plurality in the party primary came back in the run-off election and lost to someone who did not have a label.

It seems that what respondents are offended by there is that the party label designation was not the piece of information that controlled the electoral result.

Justice Breyer: You can argue about whether a party label is generally applicable and evenhanded.

So my question is, are you accepting the principle, but saying that this label is just as evenhanded as a party label, or are you denying the principle?

Mr. McAdams: I'm not denying the principle that the state cannot mislead voters.

Justice Breyer: That wasn't the principle.

The principle I'm reading from the cases, which I have said a lot of times, I just want to see if you accept it, generally applicable and evenhanded.

Mr. McAdams: And I believe this is generally applicable.

Justice Breyer: You accept the principle and the issue of whether this is evenhanded?

Mr. McAdams: I am not aware of any basis for disputing that principle, Your Honor.

Justice Kennedy: Do you say that it's evenhanded?

Mr. McAdams: I do, Your Honor.

Justice Kennedy: Could you call it the Scarlet Letter?

Mr. McAdams: I don't call it the Scarlet Letter, Your Honor.

People who apply a pejorative label to this enactment call it a Scarlet Letter.

Justice Souter: Could a Republican state label a Democrat dirty Democrats?

Mr. McAdams: No, Your Honor.

Justice Souter: No?

Well, isn't that about what they are doing here.

Disregarded.

Refused to pledge or declined to pledge.

That's why we get into the Scarlet Letter analysis.

We would be in a Scarlet Letter analysis if the Republicans said dirty Democrats.

I don't see where you are going to draw the line.

Mr. McAdams: Well, in that situation the state is expressing a judgment on the candidate that actually invades the province of the voter.

Here we are not doing that.

There are eight specific behaviors that are being evaluated.

Justice Souter: How does that invade the province of the voter in a way that is not true here?

I mean, what's the distinction?

Mr. McAdams: Well, the distinction is that that amounts to, in my mind, a recommendation to vote against the candidate.

It would be as if in this case we instead of using the label disregarded voters' instructions concerning term limits for this same behavior, we use the phrase traitor.

That is misleading.

It would essentially take away, I believe, and overbear the will of the voter if they believe they were voting for a candidate who was a traitor.

Justice Kennedy: Well, if you are trying to tell us that this does not disadvantage the candidate in any way, I just find that very difficult to accept.

Mr. McAdams: And that is not what I'm saying, Your Honor.

This may disadvantage some candidates with some voters.

Justice O'Connor: But on your theory, I suppose...

Justice Kennedy: But then it's not neutral.

Mr. McAdams: Well, it's just as neutral as party labels, because party labels disadvantage candidates.

It is the equivalent...

Justice Scalia: Do you know any state that requires you to put your party affiliation on the ballot when your party affiliation is not the reason you are on the ballot?

Mr. McAdams: I do not know of any state that does that, Your Honor.

Justice Scalia: In other words, you can get on the ballot without a party affiliation, if you acquire enough signatures, right?

Mr. McAdams: Yes.

That's correct, Your Honor.

Justice Scalia: But the state ballots have lines for the major parties that in the last election got enough votes, so the reason they show that is they are showing you why you are on the ballot, and if you are on the ballot for some other reason, you think they could make somebody who got on the ballot by popular referendum or signatures, you think they could make him declare a party affiliation shown next to his name?

Mr. McAdams: No, Your Honor.

I don't believe I could.

Justice Kennedy: That's right.

Justice O'Connor: I'd like to ask you whether if we were to uphold this kind of a provision, whether it wouldn't then be possible for a state to have by initiative or referendum a similar provision saying that we instruct our members of Congress that they are to support a constitutional amendment allowing prayer in schools, or a constitutional amendment reversing an abortion decision, or any other hot button issue where the voters of the state decide they are going to instruct members of Congress, and then under your theory, I suppose, a provision could be inserted on the ballot opposite the name of any candidate who refuses to express a position or disavow that position that...

Mr. McAdams: That is...

Justice O'Connor: informs the voters; is that right?

Mr. McAdams: I'm sorry, Your Honor.

Yes.

That is correct, if they did it through this mechanism, they set forth the specific Constitutional provision that they wanted enacted and the behaviors that they wanted to be evaluated, so that there was no...

Justice O'Connor: It certainly would change the election process as we have known it, wouldn't it?

Mr. McAdams: Well, in footnote four of Foster versus Love, this Court left open the question of whether or not states must use conventional means to hold elections.

But I submit to you that we already know the answer to that question.

And we know it because the way in which ballots have been distributed has changed throughout history.

Initially, we started out with nothing but write-in ballots.

Then parties were actually around printing up ballots for people to cast and using that mechanism to control and buy elections, and the states came up with a mechanism which allowed the states to prepare the ballot.

So there is nothing that requires us to use the conventional method.

Justice Ginsburg: But Mr. McAdams, the point has been made very forcefully that this is a national legislature.

And you are saying you could freight down someone from a state with all kinds of policies that may be preferred by that state and that person would be laden with those obligations, even though he or she is now a member of a national, as opposed to a state body.

Mr. McAdams: Well, Your Honor, first of all, I don't think they are obligations.

I think they are instructions, and they are nonbinding instructions.

Justice Ginsburg: But the list of things that the person is supposed to do if you are going to be faithful to that pledge, you have to do all those things.

You have to sponsor these measures, and you have to urge other people to join you, and you have to take a very active role.

Mr. McAdams: Your Honor, you only have to propose if it's not otherwise been proposed.

You only have to sponsor if it's not otherwise been sponsored.

And there is nothing in the instructions that require you to speak in favor of this proposed amendment.

Justice Kennedy: But that interferes with the basic point, that the relation between the congressmen and the people is one that's direct and does not involve intervention by the state.

We have two sets of relations in the federal system, each with its own duties and responsibilities.

One is between the Federal Government and the citizen without the intervention of the state.

The other is between the state and the citizen without the intervention of the Federal Government, except in certain instances where an accommodation has to be made like regulation of time, place and manner of elections, but those are neutral.

Mr. McAdams: But this doesn't interfere with that relationship, Your Honor.

The only thing this does is allows voters...

Justice Kennedy: But it seeks to alter and to regulate it.

Mr. McAdams: I disagree, Your Honor.

This only allows the people to evaluate candidate behavior.

We have in our country a tradition now where legislative candidates obfuscate their record to the point where it is difficult for the electorate to determine what they have done.

Justice Kennedy: But the purpose of doing this is to control the conduct of the Congressman in office, and I submit to you, there is simply no authority for the state to do that.

The voters can certainly do that.

Mr. McAdams: The last sentence of Section 16, we, the people of the State of Missouri, have chosen to amend the state Constitution to inform the voters regarding incumbent and nonincumbent federal candidate support for the proposed amendment.

This is an informational provision to the voters, so that they can evaluate candidate behavior, and this is information they have asked for.

This is the kind of information that could seriously improve the ability of the citizens to engage in an educated electoral decision, and could combat, I think rather effectively, voter disillusionment with the system.

Justice Ginsburg: What about, there are a number of districts within Missouri where the people were not in favor of this proposition.

And if the person is supposed to represent, disregard voters' instruction, he might not have disregarded the voters' instructions from his district.

His district may have been overwhelmingly against this proposal.

Mr. McAdams: This proposal passed in every congressional district in the State of Missouri.

Now there are 28 counties that it did not pass in.

Justice Ginsburg: All right.

Someone is from one of those counties.

Mr. McAdams: Well, the Federal Government through the elections clause tells the states that the state regulates the ballot.

It is not inappropriate, then, for the state to have consistent regulations across the state regarding that proposal, Your Honor.

Justice Kennedy: But I... Justice Ginsburg posed a hypothetical that I'm interested in.

Suppose that, hypothetical case, in a congressional district, the voters are overwhelmingly against a certain proposition and a state Constitution has this label providing they be notified that they have voted to the contrary.

What result?

Mr. McAdams: The same result would apply because the elections...

Justice Kennedy: So you are, you are allowing the state as an entity to interfere with the relations between the Congressman, the Congresswoman, and those people in the district.

Mr. McAdams: That's not true, Your Honor.

Because if the people in that district voted against term limits, they will take a look at this ballot information and they will not use it as a rational basis to vote against a candidate unless their opinion has changed.

If their opinion has changed, then they will use this information.

But it does not interfere with the relationship.

Chief Justice Rehnquist: Certainly state legislatures before the 17th amendment, if that was the one that provided for direct election of senators, communicated a great deal with their senators.

Mr. McAdams: Absolutely, Your Honor.

There is a lot of historical evidence that state legislators instructed the state senators.

In fact, the first...

Chief Justice Rehnquist: You mean federal senators, well, senators from the state.

Mr. McAdams: Yes.

Senators from the state impacted federal senators, and in fact, that is the mechanism in large part which propelled the first 10 amendments and the 11th amendment to passage.

After the enactment of Article 5, the states directed that those be passed.

Eight of the original 13 colonies issued such instructions for one of those 11 amendments.

Justice Stevens: This just applies to Congress persons, though, doesn't it?

It doesn't apply to senators.

Mr. McAdams: No.

It applies to both, Your Honor.

Chief Justice Rehnquist: Oh, it does.

Justice Ginsburg: There is something about this, the perception, say, of a voter.

We very carefully limit the speech that's possible as you are approaching the poll.

No electioneering by the polls.

And this Court has upheld that against First Amendment challenge, and yet when they get into the voting booth, this thing juts out at them in capital letters, and that somehow seems inconsistent with our notion that the voters should not be bombarded with slogans for or against whatever issue when they go into that ballot.

Mr. McAdams: Well, we have... we have... the Court has held that elections... pardon me... people cannot politic within so many feet of the polling place, Your Honor.

That is true.

But the Court has never held that the people cannot have the information in the voting booth with them that they want.

Justice Breyer: We haven't held that people can't politic.

Justice Scalia: We have held that if a state doesn't want people to politic, it's okay.

Mr. McAdams: That is true, Your Honor.

Justice Stevens: In your view, could they, in addition to what's in the capital letters, could they add in the following respects, and then quote the paragraphs that were the failures, the basis for it?

Mr. McAdams: Yes.

I believe they could, Your Honor.

Justice Kennedy: Does, in Missouri, do congressmen take an oath to uphold the state Constitution?

Mr. McAdams: Do federal congressmen take such an oath?

Justice Kennedy: No.

Do congressmen and senators in Missouri take an oath to uphold the state Constitution?

Mr. McAdams: I'm not aware that federal representatives and senators do that, Your Honor.

Justice Kennedy: I would be very surprised if the state could impose that requirement.

Mr. McAdams: I think that is true.

Justice Kennedy: Well, doesn't that prove the point here?

That the state simply cannot interfere with the relation between the congressmen and the voters directly?

Mr. McAdams: Absolutely not, Your Honor.

There is nothing that would suggest that the state couldn't ask federal congressmen to take such a pledge, and if they failed to do so, report that they declined to take such a pledge.

The federal candidates...

Justice Kennedy: You think that the, that the state can require congressmen and senators to support the state Constitution by an oath?

Mr. McAdams: I think they can ask them if they will.

If I could reserve the remainder of my time.

Argument of Mr. Jonathan S. Franklin

Chief Justice Rehnquist: Very well, Mr. McAdams.

Mr. Franklin, we will hear from you.

Mr. Franklin: Mr. Chief Justice, and may it please the Court.

The State of Missouri has attempted to use its control over the ballot to determine the issues upon which federal elections will be decided and to influence voters to vote against candidates who do not support a state preferred political viewpoint.

Chief Justice Rehnquist: I don't know that that's true about simply the 17-1 provision that Judge Hansen thought was permissible, where it's simply the legislature instructs members of Congress to try to push for a term limits amendment.

Nothing appears on the ballot at all.

Mr. Franklin: Two points, Your Honor.

First, clarification.

Judge Hansen did not find that to be constitutional.

Chief Justice Rehnquist: Oh, I thought he did.

Mr. Franklin: No.

On page A-23 of the appendix to the petition, Judge Hansen clearly stated that he agreed with the majority that Sections 17, 18, and 19 were unconstitutional.

He differed as to whether 15 and 16, which is essentially the preamble, could be severed.

The severance question, Your Honor, is not before the Court.

It was addressed by the Court of Appeals.

It has been waived.

The petitioner could have chosen if it had wanted to present that issue in its petition or its brief.

It did not, and perhaps the reason it did not is the question of severability is predominantly one of state law as to whether under Missouri state law various provisions would be severable from one another, whether the voters would have voted for a preamble that didn't do anything.

That is a question of state law.

It was not presented in the petition.

It was not presented in the brief.

If the Court had been presented with it, it's likely the Court would decline to consider a question of state law such as that one.

Chief Justice Rehnquist: Well let me ask you this, then.

Do you think that the provision that instructs members of Missouri's congressional delegation to use their powers to pass an amendment is, stands on the same footing as the ones that are, that are printed on the ballot?

Mr. Franklin: We believe first that it stands together with this law.

If, in a hypothetical...

Chief Justice Rehnquist: I mean constitutionally.

Mr. Franklin: The answer is if there were a, just instruction, nothing else, which is not what this case is about, if there were, we would argue in such a case that it would be in that case an impermissible chilling effect on speech.

Chief Justice Rehnquist: Well, but why can't that provision be severed from the other two?

Mr. Franklin: The principal reason is because the severance question is not before the Court.

If...

Chief Justice Rehnquist: Well, but the Petitioner argues here that the Court of Appeals was wrong right across the board in throwing these out.

Now, if we were to conclude that the Court of Appeals was wrong on one, but right on the other two, that certainly is fairly raised by the petition.

Mr. Franklin: I would say not, Your Honor, and for the reason that the severability issue is one of state law.

However, if...

Justice Ginsburg: Well, why couldn't we say the dissenter was right on that point.

He said Article 15 and 16.

Not 17.1, as you pointed out.

But why wouldn't it be open to us to say the dissenter was right on that point?

Mr. Franklin: I think it would be open to the Court, had the issue been raised and briefed and we had briefed the question under Missouri state law as to what, what is or is not severable.

However, one also needs to look at the remedy in this case.

The remedy is not that certain provisions are excised from the Constitution.

What the remedy says is the State of Missouri is enjoined from implementing or enforcing the provisions of the Constitution, including Section 17, which contains both the instructions and the labels through which they are enforced.

This Court need only affirm that judgment.

Justice Scalia: But if we agree with some of the reasons they gave, that is, that some of the provisions are bad, but we think that some of the other ones are good, why... we don't necessarily have to reach the severability point ourselves.

Why couldn't we remand and leave it to the lower court to decide the severability question in light of our disagreement with them that all of the provisions they said were unconstitutional were?

Mr. Franklin: Because the Court would be reaching the severability issue in that case and remanding it to...

Justice Scalia: No, we wouldn't.

Justice Kennedy: We would be saying that we find that this is a difficult case.

Some of these provisions withstand constitutional attack.

Others don't.

Let me remand it for you and then can you figure out the state law.

Mr. Franklin: But the Court of Appeals did address the severability question.

In the last footnote of its appeal, it held...

Chief Justice Rehnquist: But I think several of us feel that it isn't really an issue of severability at all that we would decide here.

We would simply say we disagree with one phase of the Court of Appeals opinion on the constitutional issue, we agree on two others or three others, and send it back to the Court of Appeals.

You affirm in part and reverse in part without necessarily getting to severability here.

Mr. Franklin: Well, let me then get into why the Court, if the Court were just to consider the instruction provision standing alone, which I understand is the issue that was raised, we would argue, for the first time today, if the Court were to, just to consider that, it would have to hold that contrary to Judge Bartlett's decision in this case, the instructions provisions can be implemented or enforced, which is the injunction that this Court, we are asking the Court to affirm.

Justice O'Connor: No.

Justice Kennedy: Would you tell us whether in your view...

Mr. Franklin: Yes.

Justice Kennedy: In a hypothetical case.

Mr. Franklin: Yes.

Justice Kennedy: A state can simply instruct its federal representatives, congressmen and senators, that it wants them to work for a particular objective.

That's all it says.

It seems to me that's a classic right of petition on the part of the people.

Mr. Franklin: No, it is not.

And it would be in our view a violation of the Constitution.

It would be unprecedented and we have uncovered no historical evidence to show that any, it has ever been tried before that an instruction to a representative to vote and take other legislative activities in a particular manner...

Chief Justice Rehnquist: But certainly there was much instruction to the senators at one time.

Mr. Franklin: The difference here, and it's an important difference, is this instruction is codified as law, is given the force of legal command, it is in the Missouri Constitution.

Every person in this...

Justice Kennedy: Let's say they use the word advice.

We wish, we, the legislature of the State of Missouri, wish our representatives to know that we think they should work for the following objectives, term limits, whatever.

Mr. Franklin: It would be different, Your Honor.

And we have a quote from George Washington in our brief in which...

Justice Kennedy: So the difference is between instruction and advice?

Mr. Franklin: Yes, Your Honor.

And George Washington said, and it's quoted at page 29 of our brief, he said the sense... with regard to instructions specifically, he said the sense, but not the law of the district may be given.

It is different to say we advise that you do this.

Chief Justice Rehnquist: In what capacity was George Washington speaking?

Mr. Franklin: He was in that case writing a letter to his nephew who was a future justice of this Supreme Court, Bushrod Washington.

But he said that, and we are not saying that that is a principle of law, but the reasoning applies here and it applies for the following reason.

People take seriously their obligations to follow the law.

And I think that applies perhaps even more strongly to members of Congress.

A member of Congress who is faced with a law that says we hereby instruct you as a matter of Missouri constitutional law, codified as a provision of law, given the force of legal command to do this act in Congress.

Justice Scalia: But it's not a legal command.

I mean, if you are... you don't have to say it's binding.

If it's a nonbinding instruction, it's not an instruction.

I mean, you can call it an instruction.

Is that the vice of this thing, misusing the word instruct, as opposed to advise, even though everybody knows and they acknowledge here that there is no enforceable mechanism on the instruct?

Mr. Franklin: And all we are asking this Court to do is to, as Judge Bartlett did, say that the state may not implement or enforce the provision.

Justice Souter: May I get... the only implementation or enforcement that I'm aware of is the implementation or enforcement in the form of the ballot statements; is that correct?

Mr. Franklin: That is correct.

And they are...

Justice Souter: So that our case boils down to whether in the whole context, all the provisions in the Constitution, may the state include these, as you put it, ballot disparagements.

That's the only issue before us?

Mr. Franklin: Yes.

No.

The issue, the issue before the Court is whether as the Court of Appeals held, Article 8 of the Constitution may not be implemented or enforced.

Again, the Court held that.

Chief Justice Rehnquist: Right.

Justice Souter: The only implementation or enforcement that we are dealing with, and that the court below dealt with, was the ballot statements?

Mr. Franklin: That is correct.

And Judge Bartlett was correct when he said that the remedy is, we hereby enjoin the state from implementing or enforcing Article 7, Section 17, which contains both the instructions and the enforcement.

To take a hypothetical, if a law came before this Court where at Section whatever of the statute and Section... subsection A said no person may criticize the president, subsection B said anyone who violates subsection A will be given a $1,000 fine.

The remedy of such a case would be, as the remedy was here, to enjoin or enforce, to enjoin the enforcement or implementation of such a statute.

That is all we are asking the Court to affirm in this case.

Chief Justice Rehnquist: Let me get this straight because apparently, something may turn up that I don't fully understand.

Was there an injunction against... was the part that simply we have been talking about, instructs or advise, was that declared invalid?

Mr. Franklin: There was no declaratory judgment in this case.

There was simply an injunction.

Chief Justice Rehnquist: Well then, does the injunction have any consequence with respect to that provision of the Missouri Constitution?

Mr. Franklin: Which provision, Your Honor?

I'm sorry.

Chief Justice Rehnquist: The provision that simply says the legislature instructs.

Mr. Franklin: Yes.

It is a consequence that they may not implement or enforce that provision.

The way they do it, as Justice Souter mentioned, was... is through the instructions, through the labels.

And the labels we believe are unconstitutional for the principal reason that they exceed the state's limited delegated authority under the elections clause to regulate only the times, places and manners of holding federal elections.

Justice Kennedy: And I suppose you would say that the injunction has importance and continuing significance in the event the legislature attempts some other means of enforcement?

Mr. Franklin: Certainly, Your Honor.

A decision by this Court that an instruction to a sitting member of Congress to vote in a certain way may be implemented or enforced, we believe would be contrary to the Constitution.

It would violate the First Amendment.

It would be a chilling effect on speech.

Chief Justice Rehnquist: But what if Missouri had done nothing but pass that part which said we instruct senators and... there is no known prospect of enforcement at all.

Mr. Franklin: We would argue in such a case that it would contravene the First Amendment because it would be a chilling effect on speech for the reasons essentially that George Washington stated, which is that the sense, but not the law of the district, may be given.

This is unprecedented.

We are not aware of any...

Justice Scalia: But it wouldn't be the law.

There is no enforcement mechanism.

Mr. Franklin: It would still be the law, Your Honor.

Justice Breyer: It seems to me, though, we get a lot, we used to get a lot of things that we call upon our delegation in Congress to declare this National Pork Week.

I mean, there are a lot of those.

They are always passing things like that in state legislatures.

Are all those unconstitutional?

Mr. Franklin: No.

But they do not as...

Justice Breyer: But if they said we insist that you call this National Pork Week, I don't know if it's National Pork Week or National Port Week, but regardless, a lot of them come in.

Now you're saying if they use the word insist, that it's unconstitutional?

Mr. Franklin: We are saying if they use the word instruct.

But the word, the instructions are just, are not...

Justice Breyer: You don't have to reach that in this case?

Mr. Franklin: No.

No.

We do not.

And the reason is because the instructions are part and parcel of the law which the Court of Appeals has said stand or falls on its own, and the principal reason that the law as a whole falls is because it does exceed the state's neutral power to serve as a, an administrator of federal elections and instead has the state putting its thumb on the electoral scale.

Justice Kennedy: Tell us about party labels, Democrat and Republican?

Mr. Franklin: Yes.

The reason that party labels would be permissible generally speaking is because they are integrally related to the conduct, the orderly conduct of an election which itself is organized around party lines.

In Missouri, as in elsewhere, one does not come to be on the ballot strictly as an individual, but rather as the nominee in most instances of a party.

It would be a different case if the state, and I understand it to be conceded here, if the state said to an individual who had achieved a ballot spot as an independent, that nevertheless, that person must disclose that they are, for example, a member of the communist party or the socialist party.

That would not be related to the orderly conduct of an election organized around party lines because that would not have anything to do with how the person got on the ballot.

Second, a party label unlike the labels in this case, a neutral requirement that all party labels be listed is not related to the content of any individual's views on an issue.

Any connotation that the voters draw between parties and viewpoints is imperfect at best, but more important, it's a connotation that the party and the candidate voluntarily associate themselves with in the process of running in an election which itself is organized around party lines.

Here, by contrast, the labels are both content and viewpoint based.

They are content based because they single out only one issue, term limits, and say to the voters, that is the issue that we deem to be most important of your consideration, most worthy of your consideration.

And second, even worse, they are viewpoint discriminatory.

They are viewpoint discriminatory because the state is singling out one side of the issue and is labeling only one side and it is doing it in such a way that it is telling the voters that this person has disregarded or failed, pledged to follow a policy which the state deems to be the correct one.

And...

Justice Kennedy: I take it your First Amendment argument is an alternative argument to the first argument that the state simply lacks the power to do this?

Mr. Franklin: Yes.

The first argument is the state lacks the power.

It is an alternative argument under the First Amendment.

It relies on many of the same principles, however.

The elections clause is a limited delegation of authority to regulate only the times, the places, the manners of holding federal elections.

Justice Ginsburg: That particular argument wasn't put before Judge Bartlett.

It was before the Eighth Circuit.

Am I right about that?

Mr. Franklin: No, Your Honor.

It was put before Judge...

Justice Ginsburg: The election clause was put before...

Mr. Franklin: Yes.

Yes.

Justice Ginsburg: He didn't rule... Bartlett didn't rule on that?

Mr. Franklin: Yes, he did, Your Honor.

One can find the ruling at pages A-42 and 43 of the appendix of the petition, and A-45 and 46.

Justice Souter: Was an issue ever... just a technical point.

Was an issue ever made of the fact that the, what was objected to here was done by a constitutional amendment rather than by the legislature which the clause itself refers to?

Mr. Franklin: No, Your Honor.

That was not raised below, but it has been raised by all parties in this Court and has been briefed by all parties in this Court, but it was not raised below.

Justice Ginsburg: May I ask before you are finished, is a threshold standing question with respect to the initial Plaintiff here.

In short, he said in the end, I'm getting out because of Gephardt, I don't want to be a competitor of Gephardt, so this is beside the point as to Gralike?

Mr. Franklin: Gralike.

Yes.

The Court, we believe that that case would still be capable of repetition, yet evading review under this Court's precedents.

However, Mr. Harman did intervene as a respondent on appeal.

Mr. Harman has the same interests as Mr. Gralike.

Justice Kennedy: I noticed in his affidavit that he is running for the election in 2000.

I assume that's tomorrow.

He doesn't... or am I wrong?

But he doesn't say that he, as in Golden versus Wickler, that he intends to run again and it's likely that he will run again.

Mr. Franklin: Two points.

First, Your Honor, he did run.

He was not successful in the primary.

He does intend to run again.

He has run in the past.

He intends to run again.

But the Court's...

Justice Kennedy: But is that in the affidavit before the Court?

That's your representation to us now?

Mr. Franklin: It's my representation, but the Court's elections cases make clear that that is not a requirement in the Court's elections cases, and those are the cases that we have cited in our brief at footnote one, I believe in this context.

But in any event, I will represent to you that he does intend to run again.

The state, as this Court has held, has the authority under the elections clause to enact procedural or mechanical regulations that are nondiscriminatory, evenhanded and politically neutral.

It does not have the delegated power to single out one issue which it deems more worthy of voter consideration than others or to disadvantage candidates who hold disfavored views on that issue.

The State of Missouri, purportedly to maintain the integrity and the neutrality and the sanctity of the electoral process, prohibits candidates and their supporters from expressing any views to the voters within 25 feet of the polling place.

Yet the state itself now seeks to be inside the voting booth to inject its own preferred views and viewpoints on the ballot.

Such a manipulation of the ballot would in our view, if upheld, seriously undermine the system of free and fair Democratic elections that sets this nation apart from so many others in the world.

Thank you.

Argument of Ms. Barbara D. Underwood

Chief Justice Rehnquist: Thank you, Mr. Franklin.

Ms. Underwood, we'll hear from you.

Ms. Underwood, Section 1 of Section 17 says we the voters of Missouri hereby instruct each member of our congressional delegation to use all of his or her delegated powers to pass the congressional term limits amendment set forth above.

If that stood by itself, would that have any constitutional flaw?

Mr. Underwood: Mr. Chief Justice, that would depend on the meaning of instruct.

If it were binding law and unlawful for a Congressman to disobey it, then it would have many of the same flaws as this statute.

If it were advisory, then it would not, but we know...

Justice Scalia: How do you determine whether it...

Mr. Underwood: Well, one of the problems...

Justice Scalia: I mean, suppose there is just no sanction for it.

We instruct you to do it, but there is no sanction whatever.

Mr. Underwood: Well, the question would be whether it was meant to have binding effect, and whether, for instance, the legislature might, somebody might seek mandamus to enforce it, whether it was seen as enforceable or not.

Chief Justice Rehnquist: Not enforceable.

Justice Scalia: It's not enforceable.

Mr. Underwood: Well, if it's completely unenforceable, I think you are saying it is advisory, in which case...

Justice Scalia: Well, but it says instruct.

Mr. Underwood: Instruct is a word that can have many meanings and if it means advisory, then I think it would not be objectionable, but we...

Justice Scalia: It doesn't mean advisory.

I mean, we really mean it.

We instruct you, but you know, if you don't do it, there is nothing we can do about it.

Mr. Underwood: Well, if you can say that the legislator was a lawbreaker, violated the law, did something unlawful, if that's the meaning of instruct...

Justice Scalia: Well, you can say he didn't take the instructions, if you consider that to be a violation of the law.

Mr. Underwood: That's a different point.

In Prince, this Court looked at instructions to sheriffs, for which there was no enforcement, and treated those as binding.

I think the question would be what that hypothetical statute, which we don't have before us, means.

This statute we know Missouri meant to make enforceable.

We know that because it created an enforcement mechanism, and so the difficult question that you put, which would require determining what that hypothetical statute meant, isn't here.

Justice Scalia: Is it accurate to call it an enforcement mechanism?

I mean, usually you enforce laws by punishing people who break them.

Justice Souter: You send them to jail.

Justice Scalia: You do this or that.

Here, the punishment is simply telling people that you ignored the instruction.

Is that a punishment?

I mean, leaving aside the, you know, the pejorative manner in which the announcement is made, if all you are doing is telling the people he chose not to take on instructions.

Mr. Underwood: Well, it's still the case that it's, that it's an enforcement, one, because of the pejorative language, which you have asked me to set aside, but is present here.

Two, because it is a decision by the state legislature to focus the attention of the voters and judge candidates on a single issue.

And three, because it is done in the voting booth and not in a public forum where there is an opportunity to respond and to debate, so it is an effort, it has the intended purpose and the effect of disadvantaging a class of candidates, and that's something this court said in term limits that the state cannot use its elections clause authority to do.

It interferes with, as Justice Kennedy said, the direct relationship between the national government and its citizens.

There is no other example of an effort to enforce an instruction with ballot labels in the case of a federal senator or representative, except for the... the only one we have been able to find is the Arizona recall pledge.

That went off the ballot in 1973.

There is still a request to pledge, but it is no longer enforced by a ballot instruction.

And of course, it doesn't involve a position on an issue.

It doesn't involve a commitment to take a position on a particular issue in the legislature.

Justice Kennedy: No.

Chief Justice Rehnquist: But it involves a commission to simply give up your job if the legislature recalls it.

Mr. Underwood: It does.

It's unique, as far as we have been able to tell, in the, in the history and the laws of this country, and it has never come before the Court.

Justice Breyer: Mr. McAdams' point was that the First Amendment arguments would apply equally to any state election.

So then if, if that's important, the distinction you just drew, then I guess we are left with a time, place and manner clause.

Mr. Underwood: Yes, I think the principal, the principal concern of the United States in this case is that the state has a limited authority under the elections clause and has improperly or either abused, misused its authority or exceeded its authority.

Justice Breyer: Then how would you draw the word manner?

How would you explicate that?

Which I take it what you would want to do is eliminate this, but then not reach the First Amendment question.

Justice Scalia: You see?

Mr. Underwood: It's not necessary to reach the First Amendment...

Justice Souter: Yes.

Justice Breyer: But how do you explicate the word manner?

Mr. Underwood: The word manner, in the context of the time, place and manner clause, means the mechanics, the procedures of an election, neutral, evenhanded regulations that enable the orderly election process to occur, and what it particularly doesn't mean is putting a thumb on the scale to influence the result.

Justice Stevens: Of course that refers to the legislature, too, and not to this, not to this process, the state legislature?

Mr. Underwood: Yes.

There is a question as you have noted, about whether the time, place and manner authority that the Constitution gives to the state legislatures goes to any entity that the state gives legislative authority to, or whether it actually only goes to legislatures.

We haven't... in either case, even assuming that it isn't restricted to the legislature as such, it's our position that the power has simply been exceeded, doesn't go, doesn't authorize the making of nonneutral regulations that are designed to and have the effect of attempting to influence the outcome.

With respect to other labels that do sometimes appear on ballots, party labels and incumbency designations, those have, those are all understood as helping the voter identify the candidates.

They are objective, identifying information.

They don't, for one thing, involve a state official in assessing whether the label should apply or not, as this regulation does here.

The secretary of state, subject to a state review process, has to determine whether the label applies, and the label is a judgmental label, not simply an identifying piece of information.

The other thing about parties, of course, is that party labels recognize the role political parties play in the electoral process, provide candidates with a reasonable level of community support, provide voters with a means of exercising their First Amendment right of political association, and the party label therefore reflects that the party is the mechanism that put the candidate on, on the ballot.

It's quite different from a label that is designed to influence the election and also to constrain the behavior of the legislator after having been elected as this, as this provision does.

I think, if there are no further questions...

Justice Stevens: May I ask, if you have a minute, the Court of Appeals gave us a whole bunch of reasons to come out the way they did.

Which one do you think is the strongest?

Mr. Underwood: The elections clause.

The Court of Appeals actually didn't... well, the elections clause has been in the case from the beginning because it is the provision that the state has used to defend its authority against all other attack.

That is the argument, when the argument is made that this is a qualification, or this is an improper this or that, the state has said it's a proper exercise of its authority under the elections clause, and we say it is not.

I think that's the simplest way to decide this case, even though there are a number of other issues that could also be reached.

Rebuttal of Mr. James R. McAdams

Chief Justice Rehnquist: Thank you, Ms. Underwood.

Mr. McAdams, you have five minutes remaining.

Mr. McAdams: Thank you, Your Honor.

It Tashjian, this Court said, any claim that we enhance the ability of the citizenry to make wise decisions by restricting the flow of information to them must be viewed with some skepticism.

This is precisely respondent's claim, and it should be viewed with considerable skepticism.

As to the elections clause claim made by the respondent, the Court said in Smiley that the time, place and manner language are comprehensive words that embrace authority to provide a complete code for congressional elections.

And in Tashjian they said state control over the election process for state officers is co-extensive with that grant to the states under the elections clause.

It is a broad power.

The alleged damage done to congressional candidates because of the ballot label is something that needs to be analyzed under a punishment analysis.

There is no evidence in the record that suggests this language is punishing, and that was respondent's burden.

Under the qualifications clause, it was Respondent's burden to show that the sole basis for putting this on was to add a qualification indirectly.

The language of the amendment itself indicates that it is not the sole basis to add a qualification indirectly.

It is the sole purpose to one, inform the voters, and two, to amend the Constitution.

It was argued that the severance issue was waived.

This is not so.

This is contained in the response to the, or pardon me, to the reply to the cert. In point four, we say specifically because we use the word or in the first question, we preserve the severance question and we have already dealt with that in the reply suggestions.

If there are no further questions?

Chief Justice Rehnquist: Thank you, Mr. McAdams.

The case is submitted.

Attribution:

The Oyez Project

Featured:

California Democratic Party v. Jones - Oral Argument

Fri, 09 Jan 2009 14:50:21 +0000

Case:

California Democratic Party v. Jones

Media File:

99-401_20000424-argument.mp3

Related Transcript:

1999_99_401_argument.xml

Transcript:

Argument of George Waters

Chief Justice Rehnquist: We'll hear argument next in Number 99-401, California Democratic Party v. Bill Jones.

Mr. Waters.

Mr. Waters: Mr. Chief Justice, and may it please the Court:

This case presents the question of whether the State of California can force political parties to choose their nominees for public office through a blanket primary system which is expressly designed to produce more moderate nominees than those that are favored by the parties themselves.

Under California law, the only means by which a party can nominate his candidates for the ballot is through the blanket primary system.

The blanket primary makes the issue of party affiliation and ideology irrelevant.

It allows any voter to cross party lines and to vote in several different party primaries at the very same election.

It is a wholesale assault on the party... political parties' First Amendment right to choose the standard-bearer who best represents the party's ideology.

This case is a direct descendent of this Court's decision in Tashjian, which held that Connecticut could not enforce a closed primary law on a party that sought to open its primary to Independent voters.

Justice O'Connor: Now, open primaries differ from the blanket primary system imposed here?

Mr. Waters: They differ significantly, Your Honor.

In California... to begin with the open primary, the generic open primary exists in a State where there is no party registration.

Voters come to the polling place, if they're registered they go into the polling place, and in a classic open primary State I believe that they are given the ballots of any political party and they make a choice of which party that they vote in.

Justice O'Connor: Well...

Mr. Waters: But they vote within a party, Your Honor.

Justice O'Connor: if we agreed with you here on the blanket primary thing, wouldn't we be casting some doubt on the open primary system as well?

Mr. Waters: I don't think so, Your Honor, and I think that there are quantitative and qualitative decision differences here between an open primary and a blanket primary, and if I could go into that, I think the qualitative difference is that suggested by Justice Powell in his dissent in the LaFollette case, which involved another issue, but in which Justice Powell discussed at some length the issue of the validity or the constitutionality of open and closed primaries.

And Justice Powell's position there was that what the First Amendment guarantees to the parties is the right to have... to limit their nominating process to voters who affiliate with the party.

He said the question presented in that case, which dealt with Wisconsin, an open primary State, was whether there was an act of affiliation.

What Justice Powell said is, when a Wisconsin voter chooses the ballot of a Democratic or Republican Party, that in itself is an act of affiliation because that voter is choosing to limit him... hisself or herself to the nominees of one party.

Justice Souter: But isn't that just a matter of degree, because... simply because the decision can be made on the spur of the moment when the voter gets to the polls?

The only right that the voter has in the open primary State that the voter does not have in the blanket primary State is the kind of mix-and-match right.

If the voter who has traditionally been either not registered, or registered as a Republican, takes a Democratic ballot in the open primary State, there's no more affiliation between that voter and the party than there is the voter who under the blanket system chooses to vote for... in the Democratic primary for Governor and the Republican primary for State Treasurer.

Mr. Waters: Well, I disagree with that, Your Honor.

Justice Souter: Why?

Mr. Waters: I think that the history of the American regulation of political parties is distinct, and what we have is a history where the Government in virtually every State has operated to try and make it easy for people to affiliate with a party, but in States that have party systems, and California has a party system, Proposition 198 itself, when you register to vote, it's in Proposition 198 you actually state that you affiliate with a political party.

The fact that...

Justice Souter: Isn't that a pretty empty formality?

Mr. Waters: I think it is not.

I think it is not.

I think the Constitution means something, and I think that the Constitution means that a party has a right to limit its nominating process to people who affiliate with it in some sense.

Justice Souter: Okay.

Let's take the...

Mr. Waters: I would prefer to have a higher hurdle.

Justice Souter: Let's take the example of the party that says, we want our affiliates to be real affiliates, and therefore we want them to have registered as such at least 6 months before the primary, or 2 months before the primary, leaving aside the question of late voter registration for reasons of transience.

And in a case in a State in which the State law is, well, you can't require a 30-day affiliation, you can't require anything more than the instantaneous affiliation, isn't the sense of affiliation just as ephemeral there as is the sense of affiliation between in a blanket primary State the fellow who walks in and says, I guess I'll vote for a Democrat for Governor and a Republican in the Treasurer's race?

Mr. Waters: Well, no.

I mean... I just disagree with that, Your Honor.

I think that there is a difference between affiliating... first of all, I think one has to assume that in the American system that most voters operate in good faith, that when they are making... when they choose a party ballot, that they are choosing that for a reason, that the Republican ballot means something to them, a Democratic or a Libertarian ballot means something to them.

Justice Souter: Well, you may be right on that, in which case I take it your argument is, look, we're going to operate on the premise that an affiliation, even a last-minute one, is at least a bona fide affiliation and good enough.

Mr. Waters: I think we have to do that.

Justice Souter: And that's different from no affiliation.

Mr. Waters: I think we have to do that to distinguish a blanket primary from the open primary.

I mean, personally I would much prefer, as would the parties before you in this case, prefer to have a more significant gesture of affiliation, and California...

Justice Ginsburg: Suppose California had a nonpartisan blanket primary.

Suppose it said, we're not going to try to choose a party's candidate.

There isn't... there's not going to be that kind of primary.

It's going to be a nonpartisan primary.

Would you have any constitutional objection that you could make if Proposition 198 had been for a nonpartisan primary instead of a partisan primary?

Mr. Waters: I believe the constitutional issue which we're bringing to you today would not exist there, because I think in that case the State would not be commandeering the parties as a vehicle for... to blend the political ideologies together.

California indeed has a nonpartisan nominating system for the vast majority of races, those that are not for Congress, Senate, the Assembly, and State-wide, and there is, indeed, one State-wide office, the Superintendent of Public Construction, that is elected through a nonpartisan primary.

Justice Ginsburg: Does any State other than, we're told, Louisiana, have such a nonpartisan system for State-wide offices?

Mr. Waters: Not that I know of.

I believe the answer to that is no, although I will say that the evidence at trial did not explore that perhaps in great depth.

I mean, as petitioners... as plaintiffs we did not go into great depth in other States.

One thing about Louisiana, because Your Honor just brought it up, which I think is distinctive, I think Louisiana is a blend.

It presents yet another issue here, in that it is a nonpartisan primary there in the sense that only two... the two highest vote-getters go on to the general election.

However, party labels are used on the ballot there.

The candidates have their names followed by Democrat, Republican, or whatever.

I think that Louisiana might present a different issue, and that is the use of a party label in their race, but not the issue that is presented here.

Justice Souter: Are you... is it a consequence of your answer to Justice Ginsburg that a State really can do by way of ballot access, if it's clever enough, what it cannot do by way of a blanket primary scheme?

Mr. Waters: I don't understand the question, Your Honor.

Justice Souter: Let's assume that in a ballot access... that it had a ballot access law saying, we will let the top four vote-getters in the primary, without reference to party affiliation we'll let the top four vote-getters in the primary be on the ballot in the general election.

I take it your answer to Justice Ginsburg is that a State may do that.

Mr. Waters: It is indeed, sir.

Justice Souter: Okay.

Wouldn't the result in practice come out in effect to a series of choices which are more or less the equivalent of what the voters can do under the blanket primary scheme?

Mr. Waters: I think the result may or may not be similar to that.

I think that in the situation you're describing the difference... if California were to go toward a nonpartisan primary system there would be at first a significant difference.

First of all it's very... it's not... there would have to be some relatively easy means for people to get on the primary ballot, which is indeed the case now for California nonpartisan... or... yes, for California nonpartisan races.

I mean, there'd have to be some loosening up.

I mean, it's very hard for an Independent candidate in California to get on the general election ballot.

The whole system is designed to force people into the party system.

If they went nonpartisan, I assume that it would be... a result of that would also, there would have to be relatively easy access to getting on the primary ballot, and at that point I think each party would have the access... I think there might be access questions, but they'd have to have a way to get on there somehow.

Candidates have to get on the primary ballot.

What happens after that might present a whole range of issues, but the point is that those people, California would not in a sense be renting the parties, to use their names to promote false candidates.

I mean, that is not...

Justice Souter: So you... it boils down to two things.

The State cannot in effect allow a person to say, I am a Democrat, when there has been no act of affiliation and, number 2, we will assume that acts of affiliation are basically acts in good faith.

Mr. Waters: Yes, and on the first one it's not just that there's been no act of affiliation, that indeed, under Proposition 198 itself, when people register to vote they are invited to make an affiliation with another party.

It's just not no act of affiliation, but as the evidence in this case suggested, where Mervyn Field, the leading pollster in California testified before trial that his polls at that point suggested 30 percent of registered Republicans would cross over.

It's just that... it's not just the lack of affiliation.

These are actually voters who have signed the registration in another party.

Justice Ginsburg: Mr. Waters, maybe I misunderstood the Tashjian case, but I thought that the Republican position there was, we are not claiming that these Independents that we want to open our primary to are affiliating with our party.

We just want to appeal to them and extend our audience to people that we know consider themselves Independent.

I thought that was the argument that was made, not that they were in effect making an affiliation with the Republican Party.

Mr. Waters: Well, that's exactly right, Justice Ginsburg, and I think that's what makes Tashjian a much more difficult case from my side of the aisle than this case.

I mean, Tashjian was a right-of-association case, that it was indeed a case where the Republican Party wanted to open up and invite Independents to join in.

Justice Souter: But I... as I understand your position to be, the party can make its own decision about what affiliation is sufficient, or whether it requires an affiliation, and the party in Tashjian made one decision.

The parties here want to make a different one and, under the First Amendment, they have that choice.

Mr. Waters: That's correct.

Tashjian...

Justice Souter: Do I misunderstand you?

Mr. Waters: Tashjian... Tashjian is a slightly... I think there's two theories here.

Tashjian, if I could just speak colloquially, I think represents to people who practice in this field as a party sovereignty case.

It essentially... what it's distilled down to is that Tashjian stands for the proposition that parties have at least some rights to structure their own rules.

Justice O'Connor: Well, do you agree with that?

Mr. Waters: I do, indeed.

I do, indeed, but what I'm saying... I agree.

Yes, I do agree with Tashjian, and I think that what we're dealing with here is a weighing test, that... and... under Timmons, as this Court said, but under a weighing test the political association rights of parties have to be tested by what the real consequences are.

Justice Kennedy: So if the State required the Tashjian result, you would say that's unconstitutional?

Mr. Waters: I think one could very easily say that that's unconstitutional, Your Honor...

Justice Kennedy: I mean...

Mr. Waters: and then this Court would have to, or a court would have to go through the weighing process, but I mean, my point with Tashjian is, I think that the... one... the first element I think that under this Court's test that you have to measure is, is there a severe burden on the party's associational rights?

Whatever one can say about Tashjian, I think here, where every California voter, 15 million of them are invited to vote in every party's primary in each race with absolutely no right of affiliation, that is a very significant and, in fact, severe infringement on party rights.

Justice O'Connor: Mr. Waters, are you... suppose the Court were to agree with your position, are you seeking any kind of retroactive relief here?

Presumably the recent elections were conducted under this scheme that you're challenging.

Mr. Waters: We're... the answer's no, we're not seeking any kind of retroactive relief here, and we haven't asked for any in the complaint.

This was filed almost within 5 months after the election where this... where Proposition 198 was adopted.

There have been a number of races under this, and it is now clear that in a handful of them, and actually we don't know how many, that the blanket primary has changed the results of elections, but...

Justice Kennedy: Did...

Mr. Waters: this case itself will have no direct effect on those cases.

Justice Kennedy: Did you make any argument that this is so confusing that it's detrimental to the party?

Let me ask you this: there were some 22 or 23 different names listed in the presidential column in the recent primary

Mr. Waters: I think the argument we made is just... one of the arguments we made was the dilution of the ballot label, which might slough over to that, but I have to admit, Justice Kennedy, is that it did not dawn on me when I did the trial that there would be 23 names on the presidential primary ballot.

There were 23 contestants...

Justice Kennedy: How is the order of the names selected?

Mr. Waters: It's randomized.

Under California statute it's not by party, not by alphabetical order.

There's a randomization...

Justice Kennedy: So you can find a Libertarian, a Democrat, a Republican, and 10 spaces further down you can find another Republican, and 15 spaces further down you can find a...

Mr. Waters: Any conceivable pattern is possible, because it's totally random under statute.

Justice Kennedy: But you haven't argued that this confusion dilutes the party effectiveness?

Mr. Waters: Well, I would focus on the dilution more than the confusion, but I think that obviously one deliberate aspect of Proposition 198 was to invite people to cross over in each race and vote in other parties' primaries.

The record here is...

Justice Ginsburg: May I ask something that I don't understand as a matter of fact?

Say I'm looking under U.S. Representative on the 2000 ballot and it lists two Republicans, how are those candidates selected, the ones that do appear?

Mr. Waters: The ones who are on the...

Justice Ginsburg: Yes.

Mr. Waters: 2000 ballot for a partisan office?

Justice Ginsburg: Yes.

Mr. Waters: They are... they're self-selected.

The parties have no ability in California to vet the candidates who choose to run their primaries.

What happens is, let's take a Republican example.

If... let's just assume that I'm registered Republican.

I want to run for Congress as a Republican.

I have to be a registered Republican, and I have to not have been registered in any other party 12 months... well, actually, 24 months before the general election.

Then I take out nomination papers, and the number that comes to mind is... I pay a fee, and I have get, I believe 40 to 60 signatures.

I could be wrong about that, and then I will appear...

Justice Ginsburg: Must those signatures be all Republicans?

Mr. Waters: They would be...

Justice Ginsburg: In other words, when you petition to get on the ballot as a Republican, do the people that have to support you, could they be Democrats?

Could they be Independents?

Mr. Waters: I believe the answer to that is that they have to be members of the party whose nomination you are seeking.

Justice Breyer: If that's the case, then, do you... you agree, I take it, that given in the West there is a tradition of nonpartisan elections, so I guess the State could say, we're going to have a nonpartisan gubernatorial election.

Anybody can run, top two run-off.

You agree with that?

Mr. Waters: I do not see any constitutional limitation...

Justice Breyer: All right.

If that's so, then, picking up with what Justice Ginsburg said, why couldn't they say, that's the system we want, with one qualification.

We want the run-off to be between whoever calls himself a Republican and gets the most votes, versus whoever calls himself a Democrat and gets the most votes.

That's our system.

Now, we're not trying to strengthen the parties or weaken them.

They're out of it.

That's our system for selecting the Governor.

Mr. Waters: I think the use of the party label in that situation creates constitutional issues.

I think that...

Justice Breyer: Because?

Mr. Waters: Because... I think the question there... and I guess you're hypothesizing a Louisiana situation, as...

Justice Breyer: Well, I'm hypothesizing what could be California.

I mean, we're going to have the top person who calls himself a Republican run off against the top person who calls himself a Democrat.

Mr. Waters: I think if the system is structured so that the public perceives them as nominees of the parties whose labels they are using, I think there is a constitutional issue there.

Justice Breyer: So wouldn't the public begin to understand it after it was used once?

Mr. Waters: I think...

Justice Breyer: And then you all said, you know, this isn't really a Republican.

It's just somebody out there who calls himself one, or a Democrat.

Mr. Waters: I think... I think that's an empirical question and I can't answer it right now, but I really think... I guess my general answer to that line of questioning is that I have no doubt that California, although none of the parties before you prefer it, I don't think there's any constitutional problem with California or any State adopting nonpartisan primary elections.

I mean, I just don't see it.

But having said that, once the party names come into the mix it changes things, and I think in California it is clearly true that the public didn't want to adopt a nonpartisan system.

It wasn't presented to them, and I think as a reality, and this is an empirical question, the people actually take very seriously voting for a Democrat or a Republican, or somebody else.

Chief Justice Rehnquist: What about a nonpartisan general election?

Could the State say, you know, we're just going to have a... we don't want any party identifications for the candidates for the general election?

Mr. Waters: I believe a State could constitutionally do that, Your Honor, and I believe... I'm not sure... I mean, there's 50 States, and one thing I've learned through this, that there are essentially 50 different variations of systems.

But I believe that Nebraska... I'm not sure that Nebraska uses labels on the general election ballot for its legislative offices, but in any event I believe that that would be constitutional, Your Honor, and it would be constitutional from our way of looking at it because the parties would not be in a position of having their name used by people who are in fact not supported by the members of the individual parties.

In that system, I'm sure that the parties would get their favorite candidates on somehow, and they would run outside of the system.

Chief Justice Rehnquist: Your case should be brought under the Lanham Act, then.

Unidentified Justice: [Laughter]

Justice Kennedy: Well, why isn't that true in this case?

Can't the parties, by pre-election endorsements, or pre-election criticism or disavowals, make their party position known?

Mr. Waters: Well, two answers to that.

First, the most significant endorsement is the nomination itself.

I mean, the parties are coerced here to put the nomination on candidates who will appear on the ballot as Libertarian.

It is indeed true that, due to a constitutional decision coming out of this Court, that parties can endorse whomever they like, but it would put the Libertarian in the party in the situation of having their own candidate, a Libertarian-anointed candidate on the ballot held out to the public as their representative, and then trying to get somebody else on.

Now, trying to get somebody else on, let me just say that the parties cannot get nominees on the ballot any other way.

I mean, there is no...

Justice Kennedy: Well, it would be their choice.

If there were two people that were qualified Libertarian, then the Libertarian Party wouldn't have to choose, but if there were one that really did not, in the party's view, represent the values and the programs of the party, then the party could say so.

Mr. Waters: The party... in the...

Justice Kennedy: In advance.

Could say, we...

Mr. Waters: During the primary elections, certainly, the party could say that, yes.

Justice Kennedy: Why doesn't that cure the problem that you're concerned with?

Mr. Waters: Because the problem with that is the universe of voters who are going to choose that nominee are not the Libertarian electorate.

It's the entire... it is 15 million voters in the State of California.

Justice Kennedy: But at least you can make known to the voters that you, the Libertarian Party in the hypothetical case, prefer this particular candidate.

Mr. Waters: That is indeed true.

I do not deny that, but I don't think that conforms with the Constitution, which this Court has said allows parties to choose standard-bearers of their own choice.

I mean, despite... even though the endorsement process could go on there, the candidate, the winner of that race would not be chosen by members of the Libertarian Party, and the Libertarian Party I think is a very good example to discuss here, because they are a very small party.

They... I mean, they do not have the wherewithal... I mean, if there's some kind of empirical justification required here, the Libertarian Party does not have the wherewithal to go out to 15 million voters in California and buy air time and say, Joe's a good Libertarian and Ed isn't.

Justice Breyer: You think that interest is so strong that it warrants throwing out... I mean, if it's valid as to the Republicans and Democrats, is it invalid as a whole because of the Libertarians?

Is there some way of splitting it?

I didn't see how.

Mr. Waters: No, I... I'm not aware of a way to split it, Your Honor.

I think it is... I think the Libertarians are a particularly dramatic example of what can happen, but I think each party in California is in the same position with Proposition 198.

Justice Stevens: Does the record show whether there's significant cross-over voting, or voting by members of a different party, for the minor parties like Libertarians?

I would assume most people who vote for a Libertarian candidate would be Libertarians.

I mean, do the Democrats try and jimmy up the libertarian nominee?

Mr. Waters: Before this case, I would have made the same assumption, Justice Stevens, and what the record shows is that there was an expert report provided by Richard Winger who, on the basis of historical voting patterns in California, he... at trial he testified that he believed in minor party primaries that the number of voters from outside the party would out-number the number of voters from inside the party.

Now, there are two lodgings before this Court which are not in the record, let me make that clear, but there are results from the 1998-2000 election, and in the 1998 election, an incident, three incidents which are in our opening brief, there are three incidents where... and in Libertarian primaries I think their Assembly races, the number of voters voting in those races was actually about two-and-a-half times the number of registered Libertarians in those districts.

Now, I don't know how many of the Libertarians actually voted, but my point is that the ratio is actually two-and-a-half to one, at the very least two and a half... the two-and-a-half being people who are not registered Libertarians nominating those Libertarian voters.

So I mean, one question Your Honor might ask is, why does that happen?

I mean, we could all speculate about it, but there's...

Justice Stevens: Does it indicate, for example, the particularly well-known Libertarian... I mean, Michael Jordan running on the Libertarian ticket, or something like that?

Mr. Waters: I think... none of them were particularly well-known, Your Honor, but I think the fact of the matter... what the Libertarians testified about at trial is, if they have the only female nominee in a race where there are eight males, some percentage of the electorate will vote for the female.

If they have the only Hispanic nominee with an Hispanic name in a race where they're the only Hispanic, then there will be this flooding effect, so...

Justice Ginsburg: Mr. Waters...

Mr. Waters: Yes, ma'am.

Justice Ginsburg: Does the party have the choice of opting out of this whole system, picking its candidate whatever way it likes, and then petitioning to put that candidate on the ballot for the general election?

Mr. Waters: No, it does not, Your Honor.

California law dating back from 19... well, before 1908, the whole goal of California law was to bring the parties within the system to democratize them.

The only way that a party could go off the ballot, it would be to... take the Democratic Party.

The only way it would get off the ballot is if no State-wide candidate got more than 2 percent of the vote at the previous election, and their registration fell below 1 percent of the total registration in the State, but there's absolutely no way that a political party itself, volitionally, can check out of the primary process.

Justice Ginsburg: So it has to be...

Mr. Waters: The whole process is there to bring them in.

I mean, that's the whole structure.

I'd like to...

Justice O'Connor: I guess we upheld the right of a State to direct that primary... parties have to have a primary election rather than a caucus to select candidates.

I mean, that's a concept we've accepted, apparently.

Mr. Waters: I believe, reading this Court's opinions, that yes, indeed, you have.

Justice O'Connor: And yet that's a tremendously intrusive burden on a political party's rights as well, isn't it?

Mr. Waters: We agree with that, Your Honor.

We agree that in the... California, the United States is distinctive, and that there are many significant intrusions on party associational rights.

We think this case presents the question whether there is any limit to what the State can do vis-a-vis associational rights.

If I could, I would like to reserve any time I have left.

Chief Justice Rehnquist: Very well, Mr. Waters.

Mr. Waters: Thank you.

Argument of Thomas F. Gede

Chief Justice Rehnquist: Mr. Gede, we'll hear from you.

Mr. Gede: Mr. Chief Justice, and may it please the Court:

After 30 years of declining voter turn-out in primary elections, California voters have acted to allow millions of additional voters to fully participate in the primary election, and the results have been dramatic, with the highest voter turn-out in 16 years in the last gubernatorial primary, the highest in 20 years in this year's presidential primary.

The voters acted in their own interest to increase that voter participation and turn-out, give them...

Justice Kennedy: Is the fundamental assumption of the amendment that it's for the voters to tell the Republican Party or the Democratic Party what those parties should stand for?

Mr. Gede: No.

The fundamental assumption is, the election belongs to the voters.

It belongs to the individuals who...

Justice Kennedy: Well, I'm not sure how that's different from the postulate I suggested.

Mr. Gede: I'm not sure I understand the question, your Honor...

Justice Kennedy: Why isn't the theory of this law that it's for the voters to tell the Republican Party what it should stand for in the State of California?

Mr. Gede: Well, that is precisely what the open primary does.

It allows the voters to decide in the primary election...

Justice O'Connor: To decide the message of the particular party.

Mr. Gede: Well, Prop 198 is...

Justice O'Connor: And I just wonder whether that's valid.

I mean, the very essence of the party's First Amendment right is to define its own message and send out its own candidate.

It doesn't have to be more representative if it doesn't want to be, does it?

I mean, this is a remarkable proposition you're putting forward.

Mr. Gede: No, Your Honor.

Justice O'Connor, what's remarkable here is that the voters decided to treat the primary election as an election.

It is where they decide to vote on the candidates that go to office and represent them in the Statehouse, or the Governor...

Justice Scalia: Well, you could, have an open nonpartisan primary and decide that only the first five people on that nine... nonpartisan primary will automatically go on the general election ballot, but that's not what you've done.

You haven't let the people select who are going to be the candidates among whom they will choose.

You've let the people select who the Republican Party nominee is going to be and who the Democratic Party nominee is going to be, rather than letting Republicans select it and Democrats select it.

Mr. Gede: That's correct.

Justice Scalia: That's quite different.

Mr. Gede: That's correct, Justice Scalia.

What we're allowing voters to do is select their candidates for office.

The nominees belong...

Justice Scalia: No, not select their candidates.

You're allowing them to select the Republican Party's candidates, whether they're Republicans or not.

Mr. Gede: The candidates carry...

Justice Scalia: You could achieve what you're after if you're saying what we want to do is let the people select who the candidates for office should be.

You could achieve that, not by forcing the Republicans to accept the candidate that the Republicans don't want.

You could achieve it by simply having a nonpartisan primary.

Let the voters select who the five most popular people are and they'll get on the ballot.

Wouldn't that achieve the same thing as you're doing here?

Mr. Gede: Certainly, Justice Scalia.

If you have a nonpartisan ballot, it is a lesser burden on the parties than any other form of primary here, but in answering both Justice O'Connor and Justice Ginsburg, or Justice Ginsburg's questions about whether an open primary is any different than a blanket primary here, in reality what you're talking about is 23 States of the Union don't even have a requirement of voter affiliation.

An individual voter can walk into the poll and say, I think I'll be a Republican today, or I think I'll be a Democrat today.

There's no requirement, in most of these States that have open primaries, any differently than a blanket primary State to affiliate right on the spot and have some sort of act that says, I'm a Republican.

The candidate carries the ballot.

Justice Scalia: Well, you have to be a Republican that day anyway, and you cannot vote for non-Republican candidates.

By making that commitment, at least you're excluding yourself from voting for candidates for other parties, right, which is not the case in California.

Mr. Gede: That is correct.

Justice Scalia: You can determine the Republican Party nominee for one office and the Democratic Party nominee for another office.

Mr. Gede: That's correct, because it's as if each race is a separate...

Justice Scalia: Yes.

Mr. Gede: individual ballot.

Justice Scalia: So there is absolutely no commitment to a particular party, not even for the day.

Mr. Gede: That's correct, but...

Justice Scalia: Which there is in the other primaries.

Mr. Gede: Not in any open primary in which they don't even have to indicate what their preference is or what their affiliation is.

Justice Kennedy: What is the State's interest in allowing an ever-changing galaxy of voters in a particular election to tell the party who its representatives must be, quite without respect to the voter's own party affiliation?

What's the State's interest?

Mr. Gede: The State's interest is what the voters themselves expressed they wanted.

A majority of voters, including the rank and file of the Republicans and Democrats, impressive majorities of Republicans and Democrats, and probably minor party voters as well, all said, we want greater choice on the ballot.

We want greater turn-out.

1.5 million Independent voters now have the opportunity to vote in the primary election.

It's... it necessarily increases the base and the appeal...

Justice Kennedy: Well, that seems to me almost circular.

You're saying that it's constitutional because the voters want it, but that's not usually an adequate description of a State interest when the State is regulating or interfering or restricting associational rights.

Mr. Gede: I'm sorry if I misstated...

Justice Kennedy: Just because all the people want to restrict associational rights, that seems to me an insufficient State interest.

Mr. Gede: The interest is, indeed, compelling.

the interest is to provide a broader base for the candidates to appeal to.

The voters get greater choice.

They bring in 1.5 million additional, independent voters.

They get more competitive elections as a result.

There's a greater representativeness among those candidates in the elected officials and, in answering Justice O'Connor's question, that is not saying on any basis of ideology or viewpoint.

It's simply... it's just civics.

The more people you have voting, the more representative the candidates are going to be.

Justice Souter: Although your criterion may not be an ideological criterion, my understanding, and you tell me if I'm wrong, is that the virtues that you extol are inseparable from a feature that seems to go with the system, and that is, more centrist candidates, so that it seems to me inseparable from what you claim are its virtues, that there is a change in content of the political message of the people who are being selected.

Mr. Gede: No, Justice Souter, I don't believe that's correct.

The voters knew instinctively that bringing in more voters, including all of the Independents in California, the fastest-growing bloc of voters, was that they were going to get candidates that were more representative of their points of view.

That doesn't necessarily mean that it pulls it to the middle.

What's...

Justice Souter: That's...

Mr. Gede: What's...

Justice Souter: Regardless of where it pulls it, it pulls it in the direction of, in effect, an imposed content modification.

Mr. Gede: No, Your Honor, I disagree.

There's no content to this at all.

What's representative in San Francisco is not going to be what's representative in Orange County.

It simply means that more voters that get to...

Justice Souter: Well, I'm not suggesting that there's anything in the statute that determines what the content will be.

Mr. Gede: That's right.

Justice Souter: But the statute, it seems to me, is inseparable from a regime in which the popular choice of voters will determine the content of the message attributed to a given political party.

Mr. Gede: I don't think that's right, Justice Souter.

I think all the more that's happening is Independent voters, and voters are stepping forward and indicating their choice for the office.

The political parties are not private, autonomous organizations.

Justice Scalia: Well, why not?

I mean, what about the party that does not want to be representative?

It thinks the country's going in the wrong direction.

It knows the majority wants to go that way, but it wants to send out a message, a clarion call to call the country back to the right road, and it wants to select a candidate who will do that, and your system says, ah no, we'll have massive participation, so the majority will come in and say, ah, we like the road we're going on.

Is that what the democratic system is supposed to produce?

Mr. Gede: Justice Scalia, there is nothing constitutionally suspect about the majority... majoritarian rule here.

The greater number of voters...

Justice Scalia: I don't mind majoritarian rule at the point of election, but at the point of campaigning, and of trying to persuade the people, you're saying you cannot even have a party candidate who wants to go in the wrong direction.

The majority will decide what's the right direction.

Mr. Gede: That's right.

This is an election...

Justice Scalia: We won't even debate about going in the other direction, because we'll be sure to select candidates who agree with the majority.

Mr. Gede: Well, Justice Scalia, this is the election that belongs to the voters in which the first cut, when candidates are narrowed, these candidates will be their elected representatives in the Statehouse, or for Governor.

Justice O'Connor: Well, this is the precise time when the party ought to be able to make its own selection for the spokesperson to run in the general election, to articulate the stand and the views that the party wants the voters to have a chance to hear.

That's precisely the point at which the associational interest of the party is at its zenith, and for the State to come in and say no, you have to be more representative here, is simply to change the message, and I think if the... do you acknowledge that the party has any associational right?

Mr. Gede: Absolutely.

Justice O'Connor: You do?

Mr. Gede: Yes, Justice...

Justice O'Connor: Protected by the First Amendment?

Mr. Gede: Yes, Justice O'Connor.

Justice O'Connor: What's left, if this can stand?

Mr. Gede: What this Court has done in Timmons is established a balancing test that looks at those important and legitimate First Amendment interests of the political parties and balances them against the legitimate interests of the State.

In this case, it's the voters, the voters themselves.

This isn't a classic case of the State trenching on...

Justice O'Connor: Well, tell me what would remain after your so-called balancing test of a party's right at all.

Mr. Gede: It has the right to do just what Justice Kennedy suggested, call for and endorse before the primary or at any point whatsoever, an endorsement of the central committee, or whatever the current party leadership chooses to do, but the voters are themselves participating in the election process.

Justice O'Connor: You mean you say the answer is to let the party tell the voters before the primary election which candidate they support?

Mr. Gede: Certainly.

Under you... this Court has already said the party is free to...

Justice O'Connor: Oh, but normally parties use primary elections to let the registered voters in that party tell the party what candidate the party members select.

Mr. Gede: Well, in this case you have the voters themselves, many of whom are party members, many of whom are Independents who want the opportunity to participate in that narrowing process.

The election in their view belongs to them.

When they voted on Prop 198 they knew that closed primaries were not working in California.

They were contributing to lower voter turnout, alienation, gridlock.

They knew instinctively that...

Justice Scalia: Acne, oh, all sorts of things.

Unidentified Justice: [Laughter]

Mr. Gede: Well, it was...

Justice Scalia: Gridlock?

I mean, God, the traffic problems in L.A. are attributable to this thing, too?

Unidentified Justice: [Laughter]

Mr. Gede: What they knew... what they knew, Justice Scalia, was that it was contributing to excessive partisanship, and partisan strife, and that has contributed to alienation and has... and it has resulted in 30 years of decreased participation in voter turn-out.

Chief Justice Rehnquist: But what if a party takes the position that we think legislative gridlock is good, because there are too many laws on the books already?

Isn't that party going to be at least partially deterred by this system?

Mr. Gede: I think this... I think Prop 198, by making the elected representatives more representative of the voters in their district will mean that the... that those who do go to the Statehouse are going to be clearly more accountable to the voters.

The voters want their elected officials to be accountable.

Justice Scalia: I don't want to be representative, says this party.

I do not want to be representative.

They're all going in the wrong direction.

What is that party supposed to do?

Mr. Gede: Well, if it's...

Justice Scalia: The State is saying, you will be representative, but I don't want to be representative.

I want to get off in a new direction.

You can't do it?

Mr. Gede: Justice Scalia, I don't understand what is undemocratic about...

Justice Scalia: It's very democratic.

It's wonderfully democratic, but usually we let parties put up candidates, and we exercise the democratic rights in the election, but you're saying parties can't even put up candidates.

We're going to extend democracy one step earlier and not even let any parties put up people whom the majority doesn't like.

That doesn't... you know, that's...

Mr. Gede: Well...

Justice Scalia: democracy carried to an extreme, to the tyranny of the majority.

Mr. Gede: Justice Scalia, just... Judge Levy below balanced the interest and looked at what kind of burdens are put on the political parties by any cross-over voting and found those burdens not to be severe.

He had expert testimony based on the solid experience in the State of Washington and the State of Alaska, political scientists and experts who came to the court and said, well, this is what the burden is, and the burden was found to be minor.

The burden was found not to be significant to the degree that it was severe.

Chief Justice Rehnquist: What... how... what did they say the burden was, albeit they said it was minor?

Mr. Gede: The principal burden that I think Judge Levy found was significant was that it would have a dampening effect on the disciplining by the party, the party officials, the party leadership, on those legislators who go off with a charter, with a more representative charter to, say, the Statehouse, and he said that that is a burden.

It is significant.

This is a balancing that this court has applied, but it is not a severe burden.

It has a dampening effect.

Justice Ginsburg: Well, is there any indication that the nominees that have emerged from this blanket primary are different from the nominees that would emerge if you had a closed party primary?

Mr. Gede: I'm not sure I...

Justice Ginsburg: The people who appear on this ballot...

Mr. Gede: Right.

Justice Ginsburg: Let's say, Republican, Democrat, is there any indication that they would have been... that the winners would have been different if California still had the closed primary?

Mr. Gede: I don't know the answer to that question.

There will be races that will be determined by cross-over vote, whether cross-over...

Justice Kennedy: Wasn't the objective of having different candidates prevail in the primary the precise justification for this statute...

Mr. Gede: Yes.

Justice Kennedy: for this constitutional amendment?

Mr. Gede: Yes.

The voters expected and anticipated cross-over votes would make a difference.

Independents and even people from the other party voting for a candidate at their first choice, they're voting for the candidate that they want.

Justice Kennedy: The whole purpose was... of the constitutional amendment is to nominate different people than would have been nominated otherwise.

Mr. Gede: Potentially.

The court found that generally it only affected the margin of outcome, and not the outcome itself, but that shouldn't make any constitutional difference, because the voters are voting for the candidates they want to go on to office, and the burden on the parties was not severe, and the interests here were compelling, getting more people to the polls.

Those ballots also have nonpartisan races, judicial confirmations, bond issues, all kinds of things on them.

We have a solid and important and compelling interest in bringing more...

Justice Breyer: What is your response to what I'm now thinking of as the Lanham Act problem?

That is, when they come to the final election they're labeled Republican, and Democrat, and that suggests that they're the candidates that the parties might support, and they aren't.

They're just someone who happens to call himself a Republican who gets more votes than anyone else who calls himself a Republican, et cetera.

Mr. Gede: Justice Breyer, that's no different in a closed primary in California than under a blanket or an open.

It's a self-selecting system.

Anybody can run for office and say I'm a Republican and get their name on the ballot, and then it's up to the party, if the party...

Justice Breyer: All right.

I see.

Mr. Gede: organization doesn't like that candidate...

Justice Breyer: I have one other question, a slightly different topic.

I'd like to hear what you have to say about what I think of as the Libertarian Party problem.

Mr. Gede: Sure.

Justice Breyer: I mean, perhaps it's just a side issue, but on the other hand it's important to them, so what... they're saying that they, as I take it, can find themselves with a candidate for Governor who may just reflect random factors, nothing to do with the Libertarian philosophy.

Do you know...

Mr. Gede: Certainly.

Justice Breyer: Have I said enough to point you...

Mr. Gede: Certainly.

Justice Breyer: at what I'm worried about?

What are we supposed to do about that, because none of your compelling interests, et cetera, deal with the burden that it imposes upon them.

Mr. Gede: The burden is no different for them than it is for a major party.

If their interest is in getting somebody elected to office, what burden is it for them... this is an opportunity for them.

They get more support.

They have a platform for greater visibility.

They have the opportunity to appeal to a broader constituency.

Justice Breyer: But as they see it, rather than, say, as you see it... as they see it, as I understand it, they say, here we have a party that's committed to an ideal, and if we can stay committed to it, we will, in fact, eventually persuade people.

But we cannot stay committed to that ideal when, because of random considerations, basically, we find ourselves saddled with a gubernatorial candidate who may not even share that ideal, and all of the compelling reasons you've given really have nothing to do with us, say the small parties.

Mr. Gede: Justice Breyer, the small parties are getting the votes of people who sincerely want that candidate.

If that candidate wins in the election as a nominee of the Libertarian Party, that candidate won precisely because that candidate attracted the votes to it, people who now, whether it's a marginal affiliation or not, decide, you know, I'm really a Libertarian when it comes to that office, and I want that candidate for office.

And so what's the burden there?

It's neither a burden on their desire to expand their base and become... and eventually win, which is one of their goals, nor is it even a burden on their expressive rights, their willingness to... their desire to get their message across.

If they're solely there for an expressive purpose, then why are they doing that at public expense on a public ballot?

The elections are not solely for expression.

Ballots aren't fora for expression.

They're to get people elected to office.

Justice Scalia: Right.

We should just drive out all those parties that don't stand much of a chance.

I mean, I don't know why you even let the 2-percent parties in.

They're just there to try to disseminate their ideas.

Mr. Gede: Well, Justice Scalia, there's nothing wrong with that, either.

I mean, clearly on both campaigns and in elections there are elements of expression and there are elements of, importantly, getting officials elected to office, but ballots...

Justice Scalia: Mr. Gede...

Mr. Gede: Yes, sir.

Justice Scalia: what do you do with Tashjian?

Bear in mind, I dissented in Tashjian because I thought the State could tell a party, without affecting its associational interests, you have to have a closed primary, but if that is unconstitutional, as we said, because that somehow interferes too much with a party's associational rights, how could it possibly not interfere even more with a party's associational rights to say, you cannot have a closed primary?

Mr. Gede: Because, Justice Scalia, this case is not like Tashjian.

There, one party was in power and actually ganged up on another power, and your powerful dissent went to the State's power to protect the party in that particular situation.

This isn't that.

This is where this... the voters have decided they want to open up all of the... this is all of the parties, all of the voters, every demographic subgroup, majorities all across the board say, we want the chance to vote in our primary election, in the first cut of the election, for those who are going to go off and represent us, and...

Justice Breyer: And this case would be different if, in fact, a Democratic legislature had imposed exactly the same requirement over the objection of the Republicans but not the Democrats?

Mr. Gede: I think that would fall squarely under Tashjian and would be unconstitutional.

Justice Breyer: Tashjian doesn't say it looks to factors like that.

Mr. Gede: Well, it doesn't say it expressly, but if you look at Tashjian I think it... it's... what it's doing is, it's employing the same test...

Justice Scalia: You were so persuaded by my dissent you say that's the only conceivable explanation of the...

Unidentified Justice: [Laughter]

Justice Scalia: is that right?

Mr. Gede: It is a slightly different situation, Justice Scalia, and this Court basically used the test that eventually emerged in Timmons.

It derived from Burdick, it derived from Anderson v. Celebrezze, and you look to those burdens and see whether those burdens could be justified or outweighed by any State interest.

Justice Kennedy: I want to make sure I understand.

The First Amendment operates differently if the statute is imposed by a legislature than by a referendum?

Mr. Gede: No, I don't think that makes any difference here, but what is different here is that, where the voters acted in their own First Amendment interest you don't have the classic case of the State trenching upon the First Amendment rights of the party.

You have the First Amendment interests of the voters competing with the First Amendment interests of the political parties, and when those two sets of First Amendment interests are in equipoise, as the NYU Brennan Center amicus brief put it, they really shouldn't be disturbed.

They are First Amendment interests that are shared by all, and...

Justice Breyer: Well, I had thought perhaps that Tashjian was a case where the justification fell in the legislature saying, we will tell you who really is the Republican Party, while here the legislature is saying, we're not so interested, frankly.

We concede that this is weakening the parties, and we're doing it for other reasons.

Mr. Gede: Yes, Justice...

Justice Breyer: You haven't accepted that, so I'm prepared to jettison my...

Unidentified Justice: [Laughter]

Mr. Gede: The voters here spoke to it, and the... and...

Justice Kennedy: So you say the legislature doesn't represent the will of the people.

Mr. Gede: No.

The legislature...

Justice Kennedy: You say that as the Attorney General of the State of California, the legislature can't represent the will of the people?

Mr. Gede: No.

The legislature clearly can represent the will of the people, particularly when it is representative of their views.

Justice Kennedy: Yes, but you're telling me that the results should be different, depending on whether there's a legislative... whether there's a statutory or constitutional amendment.

Mr. Gede: No.

I'm sorry if it came out wrong, but I believe that it should not make any constitutional difference whether this was passed by initiative or by the legis...

Justice Kennedy: So, then, all of the arguments in the briefs that the people of the State of California selected this are irrelevant?

Mr. Gede: No, Your Honor.

I thought the hypothetical was, if one party in power imposed a restriction on the other party...

Justice Scalia: There's always one party in power.

I don't know any legislature that isn't...

Mr. Gede: Right.

Justice Scalia: a majority of one party or majority of the other party, so if it gets to a legislature it's always going to have to be imposed by one party, I assume.

Mr. Gede: Yes, Your Honor, but the hypothetical from Justice Breyer, if I understood it correctly, was that the restriction would be on just one party.

In this case, it opens up and expands and permits all parties, all voters to participate in the primary election.

It's not a burden on one party or the other.

It is nondiscriminatory.

Justice Scalia: Well, Tashjian was nondiscriminatory.

It was imposed on all sides, right?

Mr. Gede: Well, yes, Your Honor...

Justice Scalia: But there you say it was imposed by one party, namely the party that controlled the legislature, right?

Mr. Gede: Justice Scalia, the effect of the legislative decision in Tashjian was to hobble the other party.

The other party wanted to expand its base of membership, it wanted to attract the Independents, and the party in power in the legislature was saying, you can't do that.

Justice Scalia: Couldn't the party that wants to expand, as you think these parties do, couldn't it conduct a public opinion poll?

Is there any reason why the majority of citizens has to use the primary for that purpose?

Mr. Gede: Well, the primary, Justice Scalia, is, as this Court has said, an important first cut, integral part of the electoral process in which people elect their candidates to office, and they become Governor, and they become their legislative representatives, and they become their Members of Congress.

Why are we allowing the party tail to wag the dog?

This is about elections, and this is about the voters having the right to elect the candidates for office.

Chief Justice Rehnquist: But suppose the voters, or the legislature says, there are some parties that are so far out we're just going to outlaw them?

I mean, surely they couldn't do that.

Mr. Gede: Again, this Court has provided a... provided a construct in which to examine that in the test that it has in Timmons, and it may be that the State won't have compelling enough interests to overcome whatever burdens would be placed on parties in the...

Chief Justice Rehnquist: Well, it's certainly a rather severe burden to be outlawed, I would think.

Mr. Gede: It may well be, and...

Chief Justice Rehnquist: A fatal burden.

Unidentified Justice: [Laughter]

Mr. Gede: A court would look...

Justice Stevens: May I ask...

Mr. Gede: A court would look at that under the test that this Court has provided.

Justice Stevens: May I ask a stupid question?

I'm trying to find out the source of the Constitution, you know, both sides, and Article I section 4 says that the times and places and manners of holding elections and so forth shall be prescribed in each State by the legislature thereof.

Is it permissible for a ballot initiative like that to replace the legislature?

Mr. Gede: Yes.

In California the initiative is... the initiative power is a legislative power, and...

Justice Stevens: But the people who wanted...

Mr. Gede: the courts of...

Justice Stevens: are not the legislature, are they, within the meaning of that provision?

Mr. Gede: Well, I don't know the full answer to that question, if the legislature means the legislative power, or if it means the body in which the elected representatives sit.

I don't have an answer beyond that.

Justice Stevens: Were the Framers aware of initiative and referenda?

Mr. Gede: No, of course, not, to my knowledge.

I don't know that they were...

Justice Stevens: They weren't aware of political parties, either, I don't suppose.

Mr. Gede: That's correct, also.

I mean, there were no political parties, and people came to the polls and elected the candidates they wanted for office.

In sum, if I may, if this Court were to accept the petitioner's argument that just allowing outsiders in were to severely burden the party to the degree that it's unconstitutional, this total party autonomy approach, it would in California, as Professor Eugene Lee has pointed out, decrease voter turn-out again, it would increase alienation with the parties and the party leadership, something that's already there, it would increase the Independents getting a larger registration, and it frankly would weaken the two-party system.

More importantly, as Justice O'Connor asked earlier, it would jeopardize all of the open primaries across the country, and primaries that allow same-day registration and States that don't even require recordation, or allow people to maintain their party affiliation in private.

Ultimately, the thrust of that argument is down the slippery slope that even primaries themselves could not stand up against that argument of total party autonomy.

Thank you, Your Honor.

Rebuttal of George Waters

Chief Justice Rehnquist: Thank you, Mr. Gede.

Mr. Waters, you have 2 minutes remaining.

Mr. Waters: Mr. Chief Justice, I have nothing to add to my previous argument.

I'd be delighted to answer any questions from the Court.

Chief Justice Rehnquist: The case is submitted.

Mr. Waters: Thank you, Your Honor.

Attribution:

The Oyez Project

Featured:

Timmons v. Twin Cities Area New Party - Oral Argument

Fri, 09 Jan 2009 14:50:07 +0000

Case:

Timmons v. Twin Cities Area New Party

Media File:

95-1608_19961204-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Richard S. Slowes

Chief Justice Rehnquist: We'll hear argument next in Number 95-1608, Michele Timmons v. The Twin Cities Area New Party.

Mr. Slowes, you may proceed whenever you're ready.

Mr. Slowes: Mr. Chief Justice, and may it please the Court:

This case is here on a writ of certiorari from the Eighth Circuit Court of Appeals.

The issue is whether the laws of Minnesota and those of some 40 other States that limit each candidate to one party designation on the election ballot should be overridden by the desire of a party to place on that ballot as its candidate someone who is already on the ballot as a candidate of another party.

In this case, Minnesota's law preventing multiple party nominations prevented the respondent New Party from placing on the Minnesota election ballot as its candidate Representative Andy Dawkins, a Democratic-Farmer-Labor legislator who was already on the ballot as the DFL candidate.

The case involves a narrow aspect of political party activity.

It is not about the ability of a party to generally select its candidates.

It is not about the ability of a party to generally get its candidates on the ballot.

It is about the narrower issue of a political party that wishes to put on the ballot somebody else's candidate who is already there.

Minnesota's law that precludes that activity does not freeze the status quo.

In fact, in Minnesota in the 1994 election a third party qualified as a major party.

Justice Scalia: Somebody else's candidate that is already there.

Who gets the first peck?

I mean--

Mr. Slowes: In this instance what happens is, and what really controls here, Justice Scalia, is that the candidate must file an affidavit of candidacy, and on the affidavit of candidacy he must indicate his political party.

Justice Scalia: --Yes.

Mr. Slowes: In this instance, Representative Dawkins had filed an affidavit of candidacy for the Democratic-Farmer-Labor primary.

That affidavit of candidacy was already on file when the New Party attempted to file another affidavit.

Justice Scalia: What if the New Party had filed... well, the same thing would happen if the New Party had... what if the New Party had put up Dawkins first?

Does that mean the Democratic-Farmer-Labor Party wouldn't have been able to run Dawkins?

Mr. Slowes: If Representative Dawkins had said yes--

Justice Scalia: To the New Party?

Mr. Slowes: --I'll file this affidavit of candidacy listing the New Party as my party, filed it with the county officials--

Chief Justice Rehnquist: I presume he would not have done that if he wanted to be elected.

[Laughter]

I mean that if he was going to get the DFL nomination, he would... he could only get one.

He would have settled for the DFL.

Mr. Slowes: --I would presume that's so, Mr. Chief Justice.

In fact, in his affidavit which he submitted in this case he indicated he is a lifelong DFL member, that he believes in the DFL party, and if elected to the legis--

Justice Stevens: What if he sent both in at the same time?

What would you do?

Mr. Slowes: --Your Honor, that would not be permitted by the law.

First of all, the law--

Justice Stevens: What is the State interest in preventing that from happening?

Mr. Slowes: --The State interests are multiple, Justice Stevens, and what they have to do with, a number of issues that this Court has recognized as compelling State interests, although we don't believe that the Court has to conclude that they're compelling in this instance.

One of them is the concern that multiple party candidacies can lead to voter confusion about how to effectively cast your ballot.

When the name appears on the ballot numerous times... in fact, this recently happened in Connecticut in one of their elections where fusion was used.

Some of the voters thought that they had to fill in every line where the name appeared for the vote to count.

Justice O'Connor: I guess you could have instructions on the ballot telling people what to do in that event.

Mr. Slowes: Justice O'Connor, in fact that's kind of the narrow tailoring that the Eighth Circuit suggested for that.

We think--

Justice O'Connor: But that would be possible, I guess, to have instructions along with a ballot that did permit parties to name the same person as their candidate.

Mr. Slowes: --Yes, Your Honor, it would be possible.

Justice Stevens: Or, indeed, I suppose you could count the vote whether you voted on one line, two lines, or either, or both.

Mr. Slowes: Your Honor, that would--

Justice Stevens: I... it seems to me you have to be pretty dense to be confused on this one.

[Laughter]

Mr. Slowes: --Well, apparently some voters in Connecticut were, Your Honor, and one of the issues in the recount was how do you deal with the ballots where there are multiple markings.

Justice Ginsburg: Yes, but are we supposed to erase from our mind that there is at least one State that has had a lot of experience with fusion candidates, and there's no large confusion.

It's not a major problem.

So whatever one might speculate about the lack of intelligence of the voters, we do have the State of New York, where this has gone on without huge confusion.

Mr. Slowes: That's indeed the case, Your Honor.

Justice Scalia: New Yorkers are smarter, I think.

That's probably the answer.

[Laughter]

Mr. Slowes: I think that I have to be careful, if I'm going back to Minnesota, about making that argument, Your Honor.

[Laughter]

But I think a State can make a judgment.

Indeed, there is that record in New York.

But it's a singular record.

There is no indication from other States on what will happen.

There's not a broad range of empirical experience with this.

Justice O'Connor: How many States have these antifusion laws like your State?

Mr. Slowes: There are approximately 40, Your Honor.

It's difficult to get a precise count, because some of the statutes are ambiguous, and there aren't rulings about them.

Justice O'Connor: And most of them have been in effect how many years?

Mr. Slowes: Roughly since the turn of the century, Your Honor, so there's not a broad range of empirical evidence, but there's also--

Justice Souter: What's your answer to the suggestion that someone made here that, assuming somebody gets confused and votes twice, all the State has to do is count it once?

Why isn't that the answer, the simple answer to the voter confusion point?

Mr. Slowes: --Because we can't be certain that the ballot is going to be easily understandable in terms of what they really intended to do.

Justice Souter: Well, if they marked... if Joe Doaks is running on two lines and they mark Joe Doaks on each line, isn't it a fair inference that they want Doaks?

[Laughter]

Justice Scalia: Don't you have to know what party they voted for Doaks on in order to determine who gets on the ballot without having to go through a petition process the next time around, or not?

Mr. Slowes: Justice Scalia--

Justice Scalia: Is there any minimum party size?

Mr. Slowes: --In the circumstances of this case, which was a legislative election for a legislative seat--

Justice Scalia: Right.

Mr. Slowes: --the vote count has no effect on the future party status.

Justice Scalia: Okay.

Mr. Slowes: Those... only Statewide elections count in Minnesota for major party status, so that's really not an issue here.

Justice Kennedy: Well, but I take it the argument--

Justice Scalia: --But that argument would be a valid argument in other elections, although not in this one?

Mr. Slowes: If it were a Statewide election there would be that issue, and then the State would have the question of how are we going to appropriately deal with this issue.

Justice Kennedy: But I take it the respondent's argument would address a Statewide election if the respondent prevails, would it not?

Mr. Slowes: It... they claim that it does not, Your Honor, because there are three statutes that are... affect fusion in Minnesota.

One of them specifically addresses that issue, but in terms of a Statewide election, the statutes that are at issue here would apply to Statewide elections as well, so if they are struck down then it would strike down fusion for Statewide elections and you--

Justice Kennedy: And then there would be a problem with determining the amount of votes garnered for each party, or a potential problem.

Mr. Slowes: --The State would have to retune its system, figure out how it is going to deal with the issue of how you count the votes for a major party, along with the issues such as are we going to have an aggregated or a disaggregated ballot.

That is, does the candidate get a separate line for each party that nominates him.

Justice Souter: But why are these such difficult issues for the State to deal with?

Why, for example, can't the State simply decide that in the case in which there is a question of party qualification based on the vote, that one... that the major party will be deemed to have preeminence, and the vote will count for that purpose, that a minor party will not be allowed in an ambiguous case to count the vote.

Why can't the State come up with some kind of a tie-breaker rule which would be easier or less restrictive on voter choice than the antifusion rule?

Mr. Slowes: Your Honor, I'm not suggesting that the State's ability or inability to figure out how it wants to count these votes toward major party status is the preeminent interest that justifies the fusion ban, but I think it illustrates a slightly different point, and that is, what goes into creating a fair and orderly and efficient electoral process involves a lot of judgments, essentially a lot of political engineering about how the pieces of the system will work together.

This is just one of those pieces, and what we are suggesting is that where the States--

Justice Stevens: If that's not the preeminent interest, what is the preeminent interest?

If voter confusion isn't your justification, what are your stronger justifications?

Mr. Slowes: --The justifications... I think voter confusion is an interest, Your Honor, and that's a side point of it.

Justice Ginsburg: May I ask with respect to voter confusion if that is not offset by voter information?

That is, it's one thing to have a candidate only on the line of major party.

It's quite another thing to have that same candidate on the line of minor party that has certain goals and objectives.

So when the public sees someone not only in the line of major party but also of minor party, whether it's to the left or right of the political spectrum, that is telling the voters more about that candidate, so isn't... is that irrelevant, that informing function of being, say, on the liberal party line or on the conservative party line in the State of New York, to take that as an example?

Mr. Slowes: Justice Ginsburg, our position is not that it's irrelevant.

Our position is that that kind of communicative use of the ballot is not constitutionally compelled.

In fact, we don't elect parties at the elections, we elect candidates.

We use the ballot to decide which of these candidates is going to hold the official office that the election is for.

In fact, if Mr. Dawkins were elected on the DFL ballot, or as a DFLer, there's nothing that prevents him from the next day turning around and becoming a Republican.

Justice Kennedy: I'm interested in Justice Stevens' question.

Where we are so far is, it was suggested first by Justice Scalia that it might be important for the State to determine which party garners the most votes, and then you were asked a question, well, couldn't we presume that the preemininent party gets the votes.

I very much doubt that minor parties would agree with such a presumption.

And then you said, well, that's not really our interest.

That's a side thing.

We're talking about, really, the whole election dynamic.

And then Justice Stevens said, well, what is your particular interest, and I never did get the answer to that.

Mr. Slowes: I'm sorry, Justice Kennedy, I--

Justice Kennedy: Well, you've had a number of questions, but--

Mr. Slowes: --And I... let me try to address that.

Other interests that are involved: one of the concerns, and this relates to the confusion as well, is that confusion sets up a situation that is ripe for ballot manipulation.

It creates a situation where candidates can, in a sense, create bogus minor parties so that they can get their name on the ballot more than one time to give them an advantage, or perhaps taking it even a step further--

Justice Stevens: --But that bogus minor party would have to meet all the State statutory requirements for becoming a party eligible to get on the ballot.

Mr. Slowes: --That's correct, Justice Stevens, and--

Justice Stevens: And so they would be splintering their own strength by going out of the way to create another party, wouldn't they, and has this ever happened?

Mr. Slowes: --Let me go back to the first question, Your Honor.

In Minnesota we make it very easy for minor parties--

Justice Stevens: Right.

Mr. Slowes: --to get on the ballot.

In this district it would take 500 signatures on a nominating petition--

Justice Stevens: Right.

Mr. Slowes: --to get someone on the ballot.

That's all there is to it.

It doesn't require party organization.

It doesn't require a lot of things that other States require, so--

Justice Stevens: And you're saying a major party would do that why?

Mr. Slowes: --Because major party candidates might very well, if they're, for example... this wasn't the case with Mr. Dawkins, but if they're in a case, an election where they do have a tough contest with an opposing major party, they might decide that it's to their advantage either to have their name on the ballot more than one time, or they might even prefer to have their name on the ballot not only as a Democratic candidate, but also as the no-new-taxes candidate, and the tough-on-crime candidate, and the fusion system, especially in a State like Minnesota that is friendly to minor parties getting on the ballot and makes it easy to do it, opens the door for that kind of ballot manipulation.

Justice O'Connor: Would you explain how the Minnesota system works?

When you say get on the ballot, are you referring to get on the ballot for the primary election?

Mr. Slowes: There are--

Justice O'Connor: Or getting on the general election ballot?

I thought there was some special provision in your State for minor parties to put a candidate on the general election ballot.

Mr. Slowes: --Justice O'Connor, there are two ways to get on the ballot in Minnesota.

For major parties, which we now have three of, those candidates have to go through a primary election, and--

Justice O'Connor: But this... this party, the Twin Cities Area New Party, did not have to go on the primary election ballot, is that right?

Mr. Slowes: --That's correct, Your Honor.

They're in the second category.

We only have two categories.

Either you are a major party, or you're just everything else--

Justice O'Connor: And if you're everything else, how do you get past the primary and on the general election ballot?

Mr. Slowes: --To get on the ballot you're required to file a nominating petition.

Justice O'Connor: You mean on the general election ballot?

Mr. Slowes: On the general election ballot.

All you have to do is file a nominating petition that has the requisite number of signatures.

Justice O'Connor: But the major parties can't do that.

Mr. Slowes: Major--

Justice O'Connor: They go through a primary.

Mr. Slowes: --Yes, Your Honor.

Major party candidates have to go through a primary.

Everybody else can get on by filing a nominating petition with... the number of signatures differs per... for office, but for this office it was--

Justice O'Connor: So all we're talking about here is access to the general election ballot, in effect.

Mr. Slowes: --That's correct, Your Honor.

Justice O'Connor: And whether the minor party can nominate the same candidate as some other party--

Mr. Slowes: That's--

Justice O'Connor: --who's gotten there by primary election.

Mr. Slowes: --That's all we're talking about, Your Honor, that's correct.

And as I was saying, because it is so easy to get on that general election ballot for nonmajor party candidates, it opens the door for this kind of ballot manipulation.

The Eighth Circuit and the respondent suggest that we can take care of that by simply raising our signature threshold, make it tougher to get on the ballot.

Justice Stevens: May I put another question to you that... what concerns me in the background?

I remember when General Eisenhower ran for President there was a real possibility both major parties might have nominated him, and it would seem to me that each of those parties would have had a strong associational interest in picking the nominee of its choice.

Now, why is it that they shouldn't be allowed to both nominate General Eisenhower if they wanted to?

What is the powerful interest that would prevent each party from picking its own nominee?

Mr. Slowes: Your Honor, their interests again are as I've started... tried to be telling you.

Justice Scalia: Excuse me.

I thought they could pick their own nominee.

Mr. Slowes: They--

Justice Scalia: Not in Minnesota--

--No, they can.

They just can't have it shown on the ballot as a nominee of that party.

Isn't that the case?

Mr. Slowes: --It all depends on the nomenclature you're using.

If you're talking about nominating a candidate as meaning, we're going to name this candidate and he will be on the ballot as our candidate, then that's what's prevented by fusion.

What is not prevented is endorsement of a candidate.

Unknown Speaker: Right.

Mr. Slowes: Supporting the candidate--

Chief Justice Rehnquist: California for many years had cross-filing.

That was how Earl Warren got elected in the primaries without ever even going through a general election.

Could a State ban that?

Mr. Slowes: --Yes.

In fact, California has.

California was unhappy with that.

Chief Justice Rehnquist: Yes.

They didn't like it.

Mr. Slowes: There was a criticism about--

Chief Justice Rehnquist: And changed it.

Mr. Slowes: --what happened.

It reduced party responsibility, or reduced responsibility for governing, and there's... actually there's criticism of the New York system, that it does the same thing by allowing major parties to cross-nominate, it can prevent problems.

Everybody doesn't see this as a universal panacea.

And Justice Stevens, the answer to your question is, again, what this Court has looked at in the past in evaluating election statutes is, is the State setting up formidable barriers to participation, and when it's looked at the rights of parties to nominate the candidates, it really hasn't gone so far as to say that a party has a right to select a particular candidate.

It has to have the door open to--

Justice Stevens: It just can't select the one it wants and also get it on the ballot.

I understand.

Of course, you can say you can nominate anybody but you can't have your nominee's name appear on the ballot.

That's all.

I understand that.

Mr. Slowes: --Well, that's correct, Your Honor, and the members of the... and the members of that party have the kinds of associational rights that this Court has found are most important.

That is, they retain the right to work collectively to advance a candidate that they support, and they can vote for that candidate.

The Minnesota... the law of Minnesota keeps nobody off the ballot.

It's unlike all of the statutes that this Court has struck down in this area.

It doesn't keep anybody--

Justice O'Connor: What case of ours is closest to supporting your view, do you think?

Mr. Slowes: --Your Honor, we think that--

Justice O'Connor: Is it Storer, or what?

Mr. Slowes: --Yes, Your Honor.

We think that Storer is... supports us.

In Storer, the Court upheld California disaffiliation statutes that prevented two independent... two former Democratic Party members from running for Congress as independent candidates.

The suit was brought not just by those potential candidates, but by some of their supporters.

The disaffiliation statute upheld in Storer was far more restrictive of supporters' rights, of parties' rights, because it eliminated a much huger pool of candidates than does a fusion ban, and yet the Court upheld it.

And in fact, Your Honor, in Anderson--

Justice Ginsburg: But for a limited amount of time.

I remember you had to... when you change, disaffiliate from one, it's a waiting period.

It's a time period, the disqualification.

You can become qualified again.

This is a rule that operates forever, no more than one party per candidate.

Mr. Slowes: --The disaffiliation requirement in California was 12 months before the primary, so somebody had to disaffiliate, I believe it was, something like 17 months before the general election.

It was quite a long time.

But there's another difference that makes the Storer case even more of a restriction than this, in that it not only had a much broader range of candidates who were excluded, but they were totally excluded from the ballot.

Justice Stevens: But it had a quite different justification, too.

Mr. Slowes: It had a justification of preserving the stability of the party system and the electoral system, and that's some of the justification for this statute.

I kind of haven't been able to get through them, but that's certainly one of the interests that Minnesota is interested in, and that is avoiding the excessive factionalism that the Court found was problematic in a case like Storer.

Justice Ginsburg: Why isn't the answer to that, or at least part of the way to an answer, that the major party consents to this, so you don't have the factionalism that you have when... in the... what has been called the sore loser statute that was involved in Storer.

Here, if the major party says no go, then there's nothing... nothing the minor party can do.

Mr. Slowes: Justice Ginsburg, in Storer, where the same answer could have been that if we just do a consent requirement then that will avoid splintering, the Court, facing a statute that was much more restrictive than Minnesota's, didn't require narrow tailoring.

The dissent by Justice Brennan suggested that there were things that could have been done to the California statute to tailor it more narrowly.

Shorten the disaffiliation period.

Apply it only to sore losers.

Chief Justice Rehnquist: The Minnesota statute doesn't presently require the consent of the DFL party for this.

It just requires the consent of the candidate?

Mr. Slowes: Well, the Minnesota statute doesn't permit it, Your Honor, even with the--

Chief Justice Rehnquist: That's right, yes.

Yes, okay.

Mr. Slowes: --While the disaffiliation statute in Storer also didn't permit a candidate to run, there was obviously candidate consent because the candidate--

Chief Justice Rehnquist: Did the respondent in this case obtain the permission of the DFL party?

Mr. Slowes: --No, Your Honor, and there's nothing in the record to suggest that they attempted to obtain that permission.

They did obtain the permission--

Chief Justice Rehnquist: Of the candidate.

Mr. Slowes: --of Candidate Dawkins, and that is in the record.

There's nothing in the record about any attempts to get DFL permission, or whether the DFL gave permission and, indeed, there has been much made about the fact that the DFL did not object, but, of course, the law prohibited this, so there was no reason for the DFL to object.

Again, getting back to the interests of the State, what we have here is we have issues of confusion, and while the Eighth Circuit... and Justice O'Connor, you suggest that they can use instructions, but we think that part of the reality of voting is that first of all not all voters are as comfortable as everybody might be with a lengthy written ballot with detailed instructions.

That's just the reality of it.

I don't want to get into Justice Scalia's debate about whether New Yorkers are smarter than Minnesotans--

Justice Scalia: For the record, I was being facetious.

[Laughter]

--running for election anywhere, but even so--

Mr. Slowes: --But that is the reality.

The other thing about it is that voters, a lot of voters don't have a lot of time to spend in the voting booth.

They may be voting on their way to work, trying to get to work on time.

They may be voting on the way home, trying to pick up the kids at day care, and they can't be standing there with a long ballot reading the instructions.

Justice Souter: --Mr. Slowes, may I ask you a general question, I think that goes to the weight that we should give, or at least the weight that I should give to all of the justifications that the State is raising here?

If we were deciding this case, I guess without the benefit of history, I could listen to your arguments and I would say, there's something plausible about them, and the people who write election laws probably know a lot more about voter behavior than I do, and I may not think these are overwhelming justifications, perhaps.

I mean, they don't just hit me that hard, but I probably ought to defer to people who know more about this subject than I do.

The trouble that I have in giving any kind of deference that way, however, is the history, and if I understand the history correctly, the reason we've got these antifusion laws in so many States was basically a very widespread effort sometime ago simply to maintain the relative hegemony of the two parties, the Republicans and the Democrats.

They weren't worried about voter confusion.

They didn't want other parties, and is it unfair... do you think it's wrong for me in assessing the weight that I should give to your justifications to bear that history in mind, and perhaps to be skeptical that the reasons that you very ably give are really the reasons that the legislatures in these many States either gave in the first place or maintain to this day for keeping their laws on the books?

Mr. Slowes: Justice Souter, there are a number of responses to that question.

First of all, with respect, yes, I think it is unfair for you to look back that many years, particularly because this Court has said in United States v. O'Brien and other cases that a legitimate constitutional State statute will not be struck down merely because there's some allegation of improper motive.

And here, to compound that, the allegation of improper motive is a) indirect... there's nothing in the record to suggest what the Minnesota legislature was thinking or said about this statute.

There's nothing in the record that reflects what the Minnesota legislature--

Justice Scalia: Well, you wouldn't concede the major point, would you, that there is something wrong about the State establishing its electoral machinery in such fashion as to facilitate and encourage a two-party system as opposed to the kind of systems... proportional voting, for example.

That alone favors a two-party system.

Is there anything wrong with that, so long as you don't ban third parties?

Mr. Slowes: --There is a balancing that has to be done, Justice Scalia.

We believe, and this Court has recognized in some cases that, indeed, and that's part of what was animating Storer in some sense, that the State does have an interest, a generalized interest in preserving, in a sense, political stability, and that--

Justice Souter: Well, are you... maybe I misunderstood your argument.

I didn't understand you to be putting any weight on the, in effect the preservation of a major two-party system as such, so I just didn't think... I mean, Justice Scalia has raised a good point, but I didn't think it was the point that you were making.

Mr. Slowes: --Your Honor, I didn't make that point, and in honesty I don't make that point strongly.

I think that is... I think that is--

Justice Scalia: I was just saying if that were the value, it would not necessarily be unconstitutional, as I thought you were conceding.

Mr. Slowes: --Well, I'm sorry, Your Honor, I would agree.

I think that--

Justice Breyer: What am I supposed to do legally if I think that's the whole point?

That is, if I think, which I'll... if I think that the whole point to justify these things is a two-party system and the democratic advantages that that entails, weighed against a multiparty system and the democratic advantages and disadvantages that that entails, all right.

Suppose I think that this represents a judgment of the legislature to go in the two-party direction as opposed to proportional representation.

But as you say, you're not putting any weight on that, so should I simply say forget it and move on to the arguments... what am I supposed to do?

Mr. Slowes: --I would say, Your Honor, that States do have a permissible choice to be made there, as long as they don't go so far as to close the door to minor party--

Justice Breyer: How do I measure so far?

I take it the single member district is constitutional.

I take it.

Maybe.

I don't know.

Is... what about the first past the post?

What about the reforms Italy wants to make in order to move in the two-party direction?

Or just winner take all.

What is the test?

I mean, winner take all.

Mr. Slowes: --Our position is that the disproportionate burden argument that the respondents are making would really take you into all of those areas, because they suggest that if there is an aspect of the system that would be more beneficial to minor parties... they say fusion is more beneficial to minor parties.

Therefore, by not permitting it you are impermissibly burdening minor parties, and the same could certainly be said for an absence of multimember districts or proportional representation--

Unknown Speaker: Of course.

Mr. Slowes: --which would certainly help minor parties.

The same might be said about nonpartisan ballots, which are had in many States.

Minor parties--

Justice Scalia: So why don't you just say, so what?

Mr. Slowes: --What it comes down to, Your Honors, is that these are issues of political engineering.

The Court has not established a bright line test, Justice Breyer, to say that we can tell where is so far.

What it has is the balancing test from Anderson.

But if you look at the landscape of the cases, where it has found that States have gone too far, they have gone far beyond anything that the Minnesota statute does.

Justice Breyer: But then why isn't the argument, well, New York is not Italy, nor is it Fourth Republic France, and this goes... is not really a problem, and therefore there really isn't a justification.

Here it goes too far.

Mr. Slowes: Because, Your Honor, it gets back to the argument you just made a few minutes ago.

New York can make that judgment, that we think in our State this kind of system can work, and we can have a workable, stable political system.

That should not dictate to the other States that they adopt that same system as long as the systems that they adopt do not establish formidable barriers to minor party--

Justice Stevens: Yes, but if the justification's strong enough, I don't know why they couldn't exclude third parties altogether.

It seems to me that's the logical position to take, but the Court has said you can't.

Mr. Slowes: --The Court has said you can't, and there may be--

Justice Stevens: Yes.

Maybe that line of cases is just wrong.

Mr. Slowes: --There is a line that this Court... again, it's not a bright line, but there is a line beyond which the States cannot go in terms of preserving the stability of the system.

Williams v. Rhodes, and Anderson v. Celebrezze.

When... thank you.

Argument of Laurence H. Tribe

Chief Justice Rehnquist: Thank you, Mr. Slowes.

Mr. Tribe, we'll hear from you.

Mr. Tribe: Thank you, Mr. Chief Justice, and may it please the Court:

I don't think this case is about political engineering.

I suppose if we really had a case in which it was demonstrated that we would become Italy or Fourth Republic France unless we compromise the First Amendment we would have a very much more apocalyptic picture, but I think what's interesting is that in the argument that you heard this morning you didn't hear very much about what the State's brief says are the real reasons.

I think in answer to Justice Stevens' question, if confusion isn't that big a problem... and it doesn't seem New Yorkers are all that confused and, with respect, I guess they're not that much smarter than Minnesotans... if confusion isn't the problem--

Justice Scalia: Maybe New Yorkers like confusion.

[Laughter]

Mr. Tribe: --Well, that may be.

That may be.

Either--

Unknown Speaker: Just because--

Mr. Tribe: --Just because--

Chief Justice Rehnquist: --New Yorkers like it, it doesn't mean Minnesotans have to like it.

Mr. Tribe: --That's right.

Minnesotans might like things to be more orderly.

What their brief does is talk about all kinds of somewhat fuzzier values, values, values, they say, that are really more important than the literal rights of association and speech in the First Amendment.

They're basically saying... and they say it in their brief at pages 9, 12, 14, 16 to 18, 24, 44.

The repeated theme is that even if the ban on consensual fusion literally abridges the right of people to get together in a party and pick their standard bearer and get him on the ballot even if he's already on the ballot, and even if that's one of the rights that you would normally have under the First Amendment, we have to ask whether protecting those rights here would, in their language, serve First Amendment values, and they say it wouldn't, because... here again I quote from their brief... it really wouldn't enrich political discussion with different ideas unless new parties, and I quote, presented candidates overlooked by the major parties.

In other words, new faces.

That's what third parties are good for, the subtext being that the major parties really have covered the ideological waterfront between them, and unless you're ready to come up with a new face... if it's just Dwight Eisenhower, or Earl Warren, or here... not to put him in the same company... Andy Dawkins all over again, then what else is new?

We really think that we should orchestrate the consensual alliances of citizens in political association in such a way as to move things away from... and again, their brief complains about single issue campaigns.

They say there would be a tendency, and again I guess I heard this again in the argument this morning, a tendency to end up with various groups that would, heaven forbid, say they were in favor of lower taxes, or some other single issue.

Well, you can have a view one way or the other on whether that's--

Chief Justice Rehnquist: There's some sense to that, isn't there, Mr. Tribe?

If a candidate is both DFL and then gets behind small, third party, lower taxes party, tough on crime, it makes the ballot into a form of really communication, which in Burdick we said the State didn't have to do.

Mr. Tribe: --Well, Mr. Chief Justice, I think that as a theoretical proposition, if there were a demonstrable danger that the ballot would become a laundry list of slogans, and if you could prove that that was at all likely to happen, that it was more than some kind of theoretical possibility, that that would be different.

But in Williams v. Rhodes the Court said that theoretically imaginable dangers of multitudinous fragmentary groups getting on the ballot aren't enough, and that you can deal with that by making it less easy to get on the ballot.

To deal with it in a slanted way, not by neutrally raising the requirement but by saying you can get on the ballot, it doesn't matter whether you do or do not pass the threshold numerical limit, but what we don't want you to do is be on the ballot if the person you favor is the same one someone else has--

Justice Ginsburg: We've always--

Chief Justice Rehnquist: --How about California's prohibition against cross-filing?

If we rule for you here, does that strike that down, too?

Mr. Tribe: --Cross-filing by major parties?

Chief Justice Rehnquist: Well, cross-filing by candidates.

A candidate filing in both the Republican, or seeking the nomination of both the Republican and the Democratic Parties.

Mr. Tribe: Well, it would depend, Mr. Chief Justice, on whether you had a sore loser situation.

That is, I do think that the Court's decisions make it quite clear that a State has the power, as in Storer, to protect the integrity of both political parties and of various routes to the ballot, and to do that--

Justice Kennedy: But there's no sore loser at the beginning of the primary.

Chief Justice Rehnquist: Yes.

There's no sore loser... the primary begins, he's on both ballots, and he wins both ballots.

Mr. Tribe: --Well, I think it would be a different case, certainly, because the Court has said among other things that you can limit individuals to a single nominating act.

It's a little like an extrapolation from the one-person-one-vote rule.

It's not clear that people should be able to get lots of bites at the same sort of preliminary apple.

That is, it may well be that as one of the rules of the road a State could say that at the primary stage if you're running for office through that particular avenue you have to pick one primary or the other.

Chief Justice Rehnquist: Why would that be justified and Minnesota's rule here not be justified?

Mr. Tribe: Well, to be honest, Mr. Chief Justice, I'm not sure that even that would be justified, but if that would be, it would not be justified unless you gave a veto power.

That is, if you said that when both parties are perfectly happy to have this happen, when neither of them vetoes the simultaneous entry of a candidate into both primaries, then the idea that the State would simply be protecting parties from fragmentation wouldn't justify it.

Chief Justice Rehnquist: In an open primary system a party can't veto a candidate.

I mean, in most States if I want to run for the nomination of the Socialist Party and they have an open primary ballot the Socialist Party can't get together and say, well, we don't want him.

I have a right to run, and if a majority favor me, I get nominated.

Mr. Tribe: Well, I think, Mr. Chief Justice, that the State does not have an interest that would suffice to prevent that.

Where it's possible... I mean, if one said that what this does is pose the problem that Storer involved, that is, a problem in which a political party with its primary loses integrity and finality because those who don't win can pick up their marbles and go elsewhere, that problem can be solved.

But unless there's a general system whereby the State can say only certain people are eligible to run in our primary, and it might well be permissible for the State to allow a party to have those rules, to have a rule of this kind is not at all a neutral, politically neutral regulation.

That is, it's one thing to have--

Justice Scalia: It's not possible to draw a politically neutral electoral system, it seems to me.

You're always making judgments that are either going to favor larger parties, are going to disfavor larger parties, favor smaller, disfavor smaller... I mean, the mere decision whether to have party affiliation shown on the ballot, for example, that's going to make a big difference.

How can you... why is it necessary for the State to draw up a balloting system that does not disfavor small parties?

I think they can do it.

Mr. Tribe: --Well, they certainly don't have... Justice Scalia, I think they certainly don't have to go out of their way affirmatively to handicap things to benefit small parties, but what Minnesota has done is to say that on the ballot not only may you but you must put your party affiliation.

Justice O'Connor: Well, Minnesota and probably 39 other States.

Mr. Tribe: A great many say that.

Justice O'Connor: Yes, so we're talking about a major effect here.

Mr. Tribe: Well, there's no--

Justice O'Connor: A ruling in your favor.

Mr. Tribe: --That's right.

There's no question, Justice O'Connor, that there are a great many States that, at the turn of the century, made this move, the political historians seem to agree, in order to marginalize the growing power of the minor parties, and in order to do that--

Justice O'Connor: Well, or some say to keep the Republicans in office historically.

Mr. Tribe: --Well, that would hardly be a better justification constitutionally--

Unknown Speaker: But that's--

Mr. Tribe: --whatever one's politics.

But the main point is, no one has said, studying the situation, that the reason was one of these plain vanilla reasons like, some people like confusion and others don't, and they should have a right not to be confused, or they can't figure out how to use these ballots.

Justice Scalia: --I think it's pretty plain vanilla to say, I like a two-party system, and this fosters the two-party system.

Mr. Tribe: Well, I think the Court has said that you can't deliberately disadvantage some minor parties.

Justice Breyer: That's exactly the point that's bothering me, and I'm putting this a little more strongly than I think, but I want to get your response to this.

There are a lot of rules deliberately disadvantaging third and fourth and fifth parties... first past the post, single member districts.

There are good arguments for and against such things.

Proportional representation in many parties allows parties to grow more quickly and is a better representation of people's views.

On the other hand, two parties, which is a much worse representation, and interferes with people's ability to choose what they want, has the advantage that we know whom to hold responsible for good or bad government.

Now, you, like I, have read both those positions argued at depth, so where the Constitution is at stake, how can we say that a State doesn't have the right to choose between those two different views of democratic representation?

And I know it's a matter of degree, but what I keep coming back to is thinking this was a fairly marginal method of giving the Republicans, if you like, or Republicans and Democrats, an advantage as to the swing voters who were somewhat indifferent, who would go and look at the columns on the ballot and they'd see DFL here, or they'd see New Party here, and if they saw New Party with a popular candidate, they'd vote New Party all the way down the line.

You see, that would help that party, and it might better reflect views, but it would undermine the kind of responsibility that the classic argument for a two-party system democratically holds is important, so how am I to judge that?

How can I say that the State has no right in these kinds of things to decide either of those two models that it believes is the more... better democracy?

Mr. Tribe: Well, Justice Breyer, I think that I would urge a distinction between the basic architecture of the system, that is, the decision to have single member rather than multimember districts, and having decided that, therefore ruling out proportional representation within the single member districts.

The decision of the basic design, when you said that that was intended to have an effect on minor parties, I think the evidence is that it was, as with most of these things, multifarious in its intentions.

There are some people who think that the choice of a single rather then multimember districts has a number of positive effects on avoiding the submergence of certain minority groups.

When all of those incommensurables are balanced at the threshold designing the system in general, deciding, for example, whether primaries or petitions are to be used as a way of getting on the ballot, deciding where co draw district lines, at that point, as I think Justice O'Connor said in Vandemer, it would be very hard to have justiciable standards for assessing what the State is doing.

Once the building has been designed, once the basic architecture is set, once you have the time, place, and manner regulations, the fundamental architecture, then, if you take aim at the content of political alliances, when you tell two parties within this system you can get together about other things, you can have a mutual nonaggression pact, neither of you will run against the other, you could pool your resources... in 1944--

Justice Scalia: Why does that make any difference?

It's sort of like saying you can paint the whole building green but you can't paint the window frets green.

It's okay in the most fundamental design of the system, in those aspects that have the most impact, to act out of two-party system motivation, but it's... in the details of it, oh, no, you cannot act out of a two-party system moti... that makes no sense at all.

Mr. Tribe: --I think, Justice Scalia, with all respect it's less a matter of, you could paint the big picture, we won't touch you, but you can't paint the little dots.

It's more a matter of, you can design the overall framework, and we're not going to second-guess the kind of republican form of government you create.

But then, when you have essentially content-based rules, when you tell people you can nominate anybody unless the person is popular enough that he might appeal to another party, when you do that--

Justice Scalia: They haven't said that.

They have not said that.

They can nominate whomever they want.

They have just said, look, if we are running the electoral system, we decide whether parties will be shown or not.

You're using our advertising in the system.

You may nominate anybody you like and you may advertise it in the paper.

The New Party backs so-and-so.

Mr. Tribe: --In--

Justice Scalia: But on the ballot, he will not be shown under your party.

You can still support--

Mr. Tribe: --But look, Justice--

Justice Scalia: --whoever you want.

Mr. Tribe: --Justice Scalia, look what that does.

It tells the voters, the members of the New Party, that when they go into the voting booth... let's suppose the New Party decides Mr. Dawkins is the one they want to endorse.

They spend money on him, and under the laws of the State they can... within 100 feet of the polls they can put up signs saying, we believe in Andy Dawkins.

But they don't want to give up the right to have someone on the ballot, so they nominate John Smith, and John Smith is on the ballot, and the voters of the New Party have essentially the choice that members of minor parties have been relegated to in 40 States since the 19... the early 1900's.

They go into the ballot box, and they can either waive their right to vote altogether and give it up, or they can vote for John Smith, whom they and their party doesn't really believe in, or they can vote for Dawkins, and they're told that that would be a good thing to do, but then... then the other party gets credit.

Justice Scalia: And it has very successfully preserved the two-party system in those States that have it, whereas in States like New York it has become a three-party system.

Now, must a State decide that it wants the one rather than the other?

Mr. Tribe: Well, I think that it's clear a State cannot simply forced herd everybody onto the left or right side of the road in terms of political association, and Minnesota doesn't.

It says, you can join together in this party, but at the price of either wasting your vote, waiving--

Justice O'Connor: Well, at bottom the key First Amendment interest is being able to vote for who you want to on a general election ballot.

There is a right in Minnesota very easily to get someone on the general ballot if you're a minor party.

That's not difficult, and at the general election ballot at least all the members of this party can vote for the candidate they truly support.

Mr. Tribe: --Only at this price, Justice O'Connor.

If they vote for Dawkins, and assume for the moment as in many of the cases it's a Statewide candidacy, when they vote for Dawkins they strengthen a party they strongly, or perhaps somewhat disagree with.

They also entitle it to public funds because those votes are counted on the DFL line.

Justice O'Connor: That's right.

Mr. Tribe: And it seems to me that given what this Court said in Burdick, precisely that voting is not simply an exercise in blowing off steam, to be told that the power--

Justice O'Connor: Well, but we've also said there is no right to express something--

Mr. Tribe: --That's--

Justice O'Connor: --in the ballot.

Mr. Tribe: --And I'm not urging that right.

Justice O'Connor: And there's no right of expression there, and this verges closely on that.

We want to show we have nominated this same person.

Mr. Tribe: Look, Justice O'Connor, first--

Justice O'Connor: Yes.

Mr. Tribe: --it is only... it would only be a holding as broad as that of the Eighth Circuit, which we do urge but which we would not require for an affirmance of the judgment, that would lead to that conclusion, because that would be a holding that says, not only do you have a right to consensual fusion, but a right to a separate ballot line or column for the party--

Justice Kennedy: --Well, but unless you have that, a large part of your argument vanishes.

Mr. Tribe: --Well, part.

I don't think--

Justice Kennedy: Because that's the whole point of allowing each party to have a specific issue.

That's completely lost if you aggregate.

Mr. Tribe: --Well, no.

Justice Kennedy, what isn't lost is the point you made in dissent in Burdick, I think, but it is really a point that the whole Court, I suspect, agreed with in that context, and that is, you're not at least required... even if you don't have disaggregation you're not required in casting a vote to help exercise power, not just expression, in a direction that's opposed to your views.

That is, the votes that members of the New Party are permitted to cast for someone on the DFL party line are votes that increase the money, the public money that goes to the DFL later and that helps earn and retain major party status for it.

There's a write-in provision, and this is quite intriguing, I think.

There is a write-in provision in the--

Justice Scalia: Doesn't that just boil down... what you just said, does that not merely boil down to the fact that the New Party can... is entitled to have a candidate but is not entitled to have any particular candidate?

Mr. Tribe: --Well, if the candidate were somehow unqualified, which is not argued here, were it not objectively eligible--

Justice Scalia: This is one of the qualifications, that you not be the candidate of another party.

Mr. Tribe: --But that--

Justice Scalia: Pick a party.

You can be a candidate of any party.

If you're a candidate of some other party, the New Party can pick all the rest of the candidates in the world, but not you.

Mr. Tribe: --Well, I suppose when you're dealing with someone who from this Court's perspective might be rather anonymous, Dawkins, it might not seem like such a terrible thing.

I don't know Mr. Dawkins.

But if it were Earl Warren, or Dwight Eisenhower, or Colin Powell, to tell someone, oh, you can pick anyone, just not that one, why, because the other party--

Justice Breyer: They can vote for him.

But they all can vote for him.

We know why they want Mr. Dawkins.

I suppose the reason the smaller party wants him is he'll attract support.

He'll attract money.

He'll attract a lot of things that help the party.

Mr. Tribe: --And he shares many of their values.

Justice Breyer: Of course.

Oh, yes... oh, that's certainly true.

So of course to stop that is to interfere with the ability of these people to build their party.

And then what bothers me is the other side saying, of course.

You're right.

That's the reason we want this law.

Mr. Tribe: Of course, they haven't--

Justice Breyer: And now, of course, they can't go--

Mr. Tribe: --They haven't said that.

Justice Breyer: --Well, all right.

That's a separate--

Mr. Tribe: Well, it does matter, doesn't it--

Justice Breyer: --That's what I imagine that... and of course this isn't going so far, anywhere near as far as to ban a third party.

It doesn't go nearly as far as the single member district.

It doesn't go nearly as far as first past the post.

There are many greater inhibitions than this one.

So what I'm looking for is, what's the touchstone to decide here whether this interference goes too far in light of the objective?

Mr. Tribe: --I think the touchstone, Justice Breyer, is that this tells people what the substance of their consensual political alliance may be.

The substance.

It may be that it doesn't matter a great deal that somebody that the substance focuses on one person, but it says, you can't organize your associational interests across party lines around an individual.

It would be very much like saying you can't have... you can have a party--

Chief Justice Rehnquist: You can do that.

You just can't get on a separate ballot line.

You can organize your interests all you want to until you get to the voting booth.

Mr. Tribe: --Well, just... Mr. Chief Justice, I think your question and Justice Scalia's suggest to me a considerable difference between a State that says, all we care about is who gets elected.

We're not going to have a party identification.

In that case, the difference between the ability to endorse and the ability to nominate vanishes.

You're all on the same playing field arguing about who you want.

But that is not this case, and it's very important to draw a distinction.

In this case, the State says in its ballot laws that next to each candidate's name must be either the word independent, or a party name or principle of three words or less, and that people can write in for someone but they cannot write in the name of someone who's already there.

So that there is a specific rule that says even though we've designed our ballot in such a way that you can indicate who you want even if that person hasn't been nominated, you can't indicate who you want if it happens to be the nominee of another party.

It is a targeted way, not of saying the purpose of our ballots is not to serve as billboards.

It's to exercise power.

That the Court said in Burdick is fine.

It's a way of saying, we are designing the system, we're engineering it in such a way as to preclude agreement among people of a certain kind expressed not through some use of the ballot that the State hasn't already legitimated, but through the standard use of the ballot so that it in effect is a targeted way of shaping the kinds of consensual alliances people can have.

If someone said--

Justice Scalia: I presume that your argument would also extend to the write-in prohibition, that if we found for you in this case we would also say that the State could not prevent you from writing in the Democratic candidate.

Mr. Tribe: --Well, I--

Justice Scalia: You want this guy to win, but you don't want anybody to think that you're voting Democratic--

Mr. Tribe: --I think--

Justice Scalia: --and so you write in his name separately.

Mr. Tribe: --Justice Scalia, I think that after Burdick I would certainly argue that you could eliminate all write-ins, but if you allow write-ins, you can't tell people that the name you write must be a name not otherwise on the ballot.

Chief Justice Rehnquist: So... but that isn't involved here, is it?

Mr. Tribe: No, it... it is the Minnesota law, but that's not--

Chief Justice Rehnquist: We--

Mr. Tribe: --That just shows how the law operates, I think.

Chief Justice Rehnquist: --But your principle would involve that.

If we were to rule for you, it would result in quite sweeping changes, and in a lot of States.

Mr. Tribe: Well, most people actually suggest that it would be far more marginal than the plaintiffs in this case anticipated, mostly because the benefits of a third party nomination are often going to be somewhat dubious, and so--

Justice Ginsburg: Mr. Tribe--

Chief Justice Rehnquist: --But this goes to write-ins, too, which isn't a third party.

In other words, if you have to allow people to write in someone who's already on the ballot, you're creating a great deal of additional problems in counting the ballot.

Mr. Tribe: --Mr. Chief Justice, I don't think someone... if Mr. Dawkins, after a favorable decision, if there were one in a case like this, if he were on the ballot already in a way that would allow a voter to indicate upon choosing him whether the voter is voting for him as a member of the DFL or as a member of the New Party, that there would also be an additional right to say, oh, I don't want to vote for him as a member of the New Party.

Up top, I want to write that in.

Chief Justice Rehnquist: But if we're breaking down all these nuances, certainly that would be absolutely permissible.

Maybe there wouldn't be many of them, but you couldn't say no, I don't think.

Mr. Tribe: No, I don't think, Mr. Chief Justice, that it would follow from the right we're talking about that you would have a right--

Justice Scalia: Why isn't the right not to be counted for a party just as important as the right to be counted for a party, which is what you're arguing for here?

I think the right not to be counted--

Mr. Tribe: --Well, I--

Justice Scalia: --as a member of that party is just as important.

Mr. Tribe: --You know, I think... I don't want to just do a 90-degree turn, but I think you're right, Justice Scalia.

I think the fact is that if... if there is a write-in mechanism the State has... they don't have to have one, but if they have one, I don't think they can tell you that you better write a name that isn't already there, and I don't think that would go away even if we prevail.

Justice Kennedy: Mr. Tribe, in California, some ballots have over 200 items to mark.

If you had a State like Minnesota, or a system like Minnesota where only 500 people are required to petition for a party, I think there is a very, very real danger of confusion which just could bog the process down completely.

Mr. Tribe: Well, in California, Justice Kennedy, they disallow fusion and they still have these terribly long ballots.

I don't know that there's any reason at all, given the history, to believe that confusion would be enhanced by fusion.

And in particular, when Justice Souter asked about the history, I think that should tell us a good bit.

Not just why were these things enacted, but where is the evidence that in all the years prior to about 1905, that hundreds of fusion candidacies existed, and the evidence in New York up to the present that either the stability of the political system has been seriously injured, or that people have been obvious... you know, utterly confused about what to do--

Justice Ginsburg: Mr. Tribe, what about judges--

Justice Kennedy: --I'll check the history, but it does seem to me that in those times they did not have initiative, they did not have referendum, they did not have the ability of many citizens to make arguments directly to the public via television and radio.

Mr. Tribe: --Well, I think, Justice Kennedy, that dealing with a problem of unduly long ballots by techniques that are not at least facially neutral, that don't say, well, let's up it from 500 to 1,500, dealing with it by saying we will allow some kinds of political coalitions and not others, we will allow people to have planks in common in their party platforms, words in common in their party names, but we won't allow them to coalesce around a mutually acceptable candidate, it seems to me not a constitutional--

Justice Ginsburg: Is it done... with respect to judges, is the States that generally have no fusion, it's not uncommon to have the same good judge the choice of two, maybe three parties.

Do you know how that works in States that have general no fusion laws?

Mr. Tribe: --With non... in the election for nonpartisan offices it is often the case that several parties nominate or endorse, but it's often, and typically the case with judges, that no party label is attached to the judge's name in those States, and that is a possible solution.

That is, if one agreed with the position that I think Justice Scalia was in part suggesting, that the point of the ballot isn't necessarily to get information about which party, then there is a solution that's neutral.

It perhaps isn't the less restrictive alternative, but it's certainly less targeted against minor parties, and that's to say, no party label on the ballot.

Anybody can endorse anyone they want.

In Tashjian, both the majority and the dissent assumed that that was a paradigmatic exercise of First Amendment rights.

Here, we move from endorsement to nomination, but the only difference is that nomination in a State that does put the party name on the ballot counts for a great many things, and to insist that it not count in precisely those cases when otherwise disparate groups that are not so far from the main stream that they are satisfied to nominate protest candidates coalesce around a nominee, to suggest that that's the one case where it's not permissible--

Justice O'Connor: Well, that's a real problem in cases where two candidates have virtually the same name.

Talk about voter confusion--

Mr. Tribe: --I suppose that--

Justice O'Connor: --and we've seen that recently in Northern Virginia.

It would be pretty disastrous to have two people with the same name and no party designation.

Mr. Tribe: --I suppose you might have to solve it in some other way.

In Texas there were two Morales running recently.

I think it is... it suggests that the problem of confusion, if it is one, is a problem that is not plausibly correlated to the idea of fusion candidacies.

Chief Justice Rehnquist: Thank you, Mr. Tribe.

Mr. Tribe: Thank you.

Chief Justice Rehnquist: The case is submitted.

Attribution:

The Oyez Project

Featured:

U.S. Term Limits v. Thornton - Oral Argument

Fri, 09 Jan 2009 14:49:56 +0000

Case:

U.S. Term Limits v. Thornton

Media File:

93-1456_19941129-argument.mp3

Related Transcript:

1994_93_1456_argument.xml

Transcript:

Argument of J. Winston Bryant

Chief Justice Rehnquist: We'll hear argument now in Number 93-1456, U.S. Term Limits, Inc., v. Ray Thornton, 93-1828, Consolidated, Winston Bryant v. Bobbie E. Hill.

General Bryant.

Mr. Bryant: Thank you, Mr. Chief Justice and may it please the Court:

The State of Arkansas is before this Court today defending its constitutional authority to encourage rotation in office of its congressional delegation.

Amendment 73, which would have accomplished that objective was ruled unconstitutional by the Arkansas supreme court.

The court held that Amendment 73 amounted to a qualification and, further, that the State of Arkansas could not add additional qualifications to those listed in Article I, sections 2 and 3.

We disagree with that ruling.

Amendment 73 is not a qualification, but even if it is a qualification, the State of Arkansas has the authority to add additional qualifications to those listed in Article I, sections 2 and 3.

Our Founding Fathers envisioned a Congress of citizen legislators who would serve awhile, return and xx with the people, and not stay in office indefinitely, and during the 18th and 19th Centuries, voluntary rotation was a common practice.

During the 20th Century, we have seen a dramatic increase in the number of long-term, entrenched incumbents.

Entrenched incumbency makes for an electoral system that is less fair, less competitive, and less representative.

Amendment 73 was adopted in 1992 by the people of Arkansas overwhelmingly, by a 60 percent to 40 percen majority.

Twenty-two States now have some form of term limit proposals or ballot access initiatives on their books.

Thirty-seven States have term limits that limit the terms of the executive branch officials of those States or the legislative branch officials of those States.

Justice Kennedy: Is the theory that by this rotation the policy that the legislators adopt will be different one system than in the other system?

That is to say, are there policy implications electing an incumbent as opposed to a nonincumbent?

Mr. Bryant: Yes, Your Honor, that is correct.

That issue is not before this Court, however, but the people of Arkansas, by Amendment 73, have decided to encourage rotation in office to make the election process more fair and more competitive.

Justice Kennedy: Well, but you're explaining the rationale for the limitation, and I'm asking if part of that rationale is that rotated representatives will vote differently than incumbents would have, would shape public policy in a different way.

Mr. Bryant: Your Honor, they would be more beholden to the people under the theory of Amendment 73 because they would not be career politicians.

They would be more responsive to the people.

Justice Kennedy: So there would be a difference in the kind and the shape and the policies of the legislation that they would enact.

Mr. Bryant: There could be, Your Honor.

Justice Kennedy: Well, is that the justification for the rule, or isn't it?

Mr. Bryant: Yes, Your Honor.

Yes, Your Honor.

Amendment 73 provides for strict term limits for certain State elected officials in Arkansas.

It denies ballot access to multiterm congressional incumbents, but does allow those incumbents, after serving a maximum number of terms allowed by Amendment 73, to run as a write-in candidate.

Justice Souter: But once they're denied the ballot access, they're denied it for life, is that right?

Mr. Bryant: That is correct, Your Honor.

Justice Souter: Doesn't the permanency of the denial carry a suggestion of what we would normally refer to as a qualification?

Mr. Bryant: No, Your Honor.

The definition of a ballot access proposal like Amendment 73 as opposed to a qualification is put forth in our brief, and that is, a qualification is something that absolutely prohibits a candidate from serving even if elected.

Justice Souter: Well, I realize that's your position, but in any case, your position would take us beyond Storer, wouldn't it?

Mr. Bryant: No, Your Honor.

Justice Souter: Well, in Storer... maybe my recollection is wrong.

In Storer, I thought there wasn't a lifetime disqualification.

Mr. Bryant: That is correct, Your Honor.

Justice Souter: I mean, if you... you know, had been party-affiliated within a certain period of time, you couldn't be there as an independent, but the next election was coming, and that was a new day.

Isn't that right, in Storer?

Mr. Bryant: That is correct, Your Honor.

Justice Souter: So Storer didn't have that implication of permanence which is in fact a feature of the Arkansas system.

Mr. Bryant: That is correct, Your Honor, but the State's position is that Amendment 73 is consistent with Storer, the difference being that under Amendment 73 a candidate can actually serve a couple of terms in the Senate, or three terms in the House, so it does not absolutely prohibit a candidate from serving.

After that candidate reaches a maximum number of terms, then obviously that candidate is denied access to the ballot.

Justice O'Connor: General--

Justice Ginsburg: --precedent, any case where a group based on past experience, past lawful experience, has been categorically hobbled in this way.

It's not simply a handicap in the race if the only access they have is as a write-in, is it?

Mr. Bryant: Your Honor, to answer your question, the State does not take the position that Amendment 73 is an absolute handicap, because we're dealing with multiterm incumbents who would have great name recognition, resources available to them that ordinary challenges would not have.

Justice Ginsburg: I'm trying to contrast a mere handicap from a hobbling, and it seems to me this falls in the latter category.

Mr. Bryant: No, Your Honor.

The State's position is that Amendment 73 will allow a candidate to serve even if elected, and under that scenario, under that definition that we put forth to this Court, would amount to only a ballot access regulation.

Justice O'Connor: Well, General Bryant, a good many States have passed so-called term limit measures that just disable a candidate from appearing on the ballot for a short period of time, isn't that correct?

Mr. Bryant: That is correct, Your Honor.

Justice O'Connor: And Arkansas has a very different provision in that it extends for the rest of that particular candidate's life.

Mr. Bryant: That is correct, Your Honor.

Justice O'Connor: Do you think that there may well be, even if you are correct that it is seen as a ballot access measure, that there may be First Amendment issues at stake here, the associational rights, for instance, of the political party that might want to have the candidate on the ballot as its candidate?

Mr. Bryant: Yes, Your Honor, there are--

Justice O'Connor: And are those issues issues that were resolved in the courts below?

Mr. Bryant: --No, Your Honor.

Justice O'Connor: So that would be open on remand, I assume, even if we agreed with you it were a ballot access measure?

Mr. Bryant: That is correct, Your Honor.

That is correct.

Chief Justice Rehnquist: Those... you say the First Amendment issue were presented to the supreme court of Arkansas but not decided by it.

Mr. Bryant: That is correct, Your Honor.

Amendment 73 is also consistent with this Court's jurisprudence.

In Burdick v. Takushi, a case from Hawaii, in that particular case, the State of Hawaii had adopted a statutory scheme that allowed write-in voting to be completely banned.

In this--

Justice O'Connor: Yes, and what about a State like Hawaii that has no write-in voting allowed at all?

Mr. Bryant: --Your Honor--

Justice O'Connor: Would it become a qualification then?

Mr. Bryant: --It would become a qualification at that point, if there is no write-in provision, but even assuming--

Justice Scalia: How is that?

I'm not sure how that makes it a qualification.

It seems to me the test for whether it's a qualification is whether, when a person has been supposedly elected and reports to Congress, Congress can sit in judgment and say, this person is not qualified.

Now, if that should happen, what disqualification would there be?

Mr. Bryant: --Your Honor, under that scenario, Congress can consider the... obviously can consider under Article I, section 5, the qualifications, and under the position of the State in this particular case, a pure write-in, a pure term limits proposal--

Justice Scalia: Let's assume in Hawaii the person gets on the ballot by mistake, or in Arkansas.

An incumbent who has no right to be on the ballot is put on the ballot and gets elected, all right.

Mr. Bryant: --If--

Justice Scalia: Reports to Congress.

Now, could Congress sit in judgment and exclude that person?

Mr. Bryant: --Yes, Your Honor.

Under Article I, section 5, if the person were not properly qualified, yes.

Justice Scalia: Well then it is a qualification in Arkansas.

Do you say that if somebody gets on the ballot by mistake in Arkansas and is elected, Congress can exclude that person?

Mr. Bryant: Your Honor, I was considering it under a pure term limits proposal.

Justice Scalia: I'm not talking about--

Mr. Bryant: Under Amendment--

Justice Scalia: --I'm talking about, Hawaii exclusion from the ballot system.

It's not a term limit proposal, it's just exclusion from the ballot, but entirely.

No write-in allowed, either, and the Arkansas system.

Mr. Bryant: --And under the Arkansas system, Your Honor, the Congress could not consider the Amendment 73 proposal as a qualification under that scenario.

Justice Scalia: It seems to me they couldn't with respect to Hawaii, either.

Hawaii doesn't say you shall not serve, it just says you shall not get on the ballot, and people will not be able to vote for you.

Mr. Bryant: That is correct.

Justice Scalia: And if that happens, you're not unqualified.

Mr. Bryant: That is correct, Your Honor.

Justice Scalia: Could I ask you... you say that this is not a qualification.

Is it a time, place or manner restriction?

Mr. Bryant: Yes, it is, Your Honor.

Justice Scalia: It is.

Is there such a thing as something that is neither the one nor the other, it is neither a qualification nor a time, place and manner restriction?

Mr. Bryant: Neither a qualifica... no, Your Honor.

Justice Scalia: It's either one or the other.

Mr. Bryant: It's either one--

Justice Scalia: Everything falls into one or the other category.

Mr. Bryant: --According to our--

Justice Stevens: Which category would a law providing that you only count half the votes of a candidate fall?

Would that be a qualification or a time, place and manner?

[Laughter]

Or maybe something different?

Mr. Bryant: --That would probably fall under time, place, and manner, Your Honor, but--

Justice Stevens: Time, place, and manner?

Which of the three?

Is it time, place, or manner?

[Laughter]

Mr. Bryant: --It would be the manner.

Justice Stevens: The manner, okay.

Mr. Bryant: But, Your Honor, that would have to undergo First and Fourteenth Amendment scrutiny if that proposal were adopted by the State.

Justice Scalia: If it's time, place, and manner, this means, of course, that the current Congress, composed mainly of incumbents, can simply revise the Arkansas law right?

Mr. Bryant: That is correct, Your Honor.

Justice Scalia: And indeed, the current Congress could revise those laws that don't provide for term limitations or don't provide for exclusion from ballot access to incumbents.

Mr. Bryant: Yes, Your Honor,--

Justice Scalia: So in effect you could have the Federal legislature doing something that discourages... that discourages incumbency.

Mr. Bryant: --Yes, Your Honor, under Article 1, section 4.

Chief Justice Rehnquist: What could the Federal legislature do?

Mr. Bryant: The Federal legislature, Your Honor, is given authority under Article I, section 4, to override anything the States do in the area.

Chief Justice Rehnquist: Yes, but are you suggesting that it could do... the Federal legislature could do anything more than simply negate a State regulation?

Mr. Bryant: Yes, Your Honor.

Chief Justice Rehnquist: And what would be the authority for that?

Mr. Bryant: Article I, section 4 would give Congress that authority, Your Honor.

Chief Justice Rehnquist: To do more than just negate a State regulation?

Mr. Bryant: Yes, Your Honor.

Chief Justice Rehnquist: And what part of the language is it of that section that--

Mr. Bryant: The term 4, has a very broad, expansive meaning, and during the ratification debates the States were concerned about the fact that under Article I, section 4, Congress was being given the authority which the States concluded would allow Congress to override anything the States did in the area.

The Article I, section 4 clause was sold on the basis that Congress needed the authority or power to preserve its... the Union, if necessary, and so Article I, section 4 has a... is very broad in its meaning, and would authorize Congress to adopt legislation in the area.

Chief Justice Rehnquist: --So that even though, perhaps, a State hasn't acted, Congress could, by law, make regulations governing the time, place, and manner?

Mr. Bryant: Yes, Your Honor, and in fact Congress could override amendment 73 if Congress so desired.

Chief Justice Rehnquist: But what if Arkansas had made no provision for term limits at all, could Congress step in and make a provision for term limits?

Mr. Bryant: Yes, Your Honor, under Article I, section 4, Congress could do that.

Justice Ginsburg: You've mentioned that there were qualifications that don't come from the Constitution itself.

You started out your argument by saying the States could add qualifications.

Now you've told us that there are only two categories, there's qualifications, and there's time, place, and manner, but you see two categories of qualifications, I gather, because you've told us that some come from the Constitution, and then there are others the States can add.

So what's the category of qualifications, extra-Constitution, that the State can add that are not time, place, and manner regulations?

Mr. Bryant: Your Honor, the qualifications that the States could add would all be time, place, and manner under Article I, section 4.

Also the State could, if there are some enumerated... if Article I, section 4 does not cover some particular areas, Amendment 10 would allow the States to act in that particular area, but the States have always added additional qualifications.

In fact, when the Constitution was adopted by the States, the State of Virginia had a property qualification as well as a residency requirement.

James Madison--

Justice Kennedy: If you call those qualifications, can the State override them?

Mr. Bryant: --No, Your Honor.

Justice Kennedy: So the--

Mr. Bryant: I'm sorry--

Justice Kennedy: --Pardon me, can the Congress override them?

Mr. Bryant: --Yes, Your Honor, the Congress could under Article--

Justice Kennedy: So anything the State adds as either a qualification or a time, place, and manner can be overridden by the Congress?

Mr. Bryant: --Your Honor, the specific provisions that can be overridden by Congress are the Article I, section 4 grants of authority to the States by--

Justice Kennedy: Well, are there some qualifications that the State can add, and I... this was suggested by Justice Ginsburg's question, that cannot be overridden by the Congress?

Mr. Bryant: --None comes to mind, Your Honor.

The States--

Justice Stevens: General Bryant--

--Well, why--

--the Congress can't impose any qualifications, can it?

Mr. Bryant: --Yes, Your Honor.

Justice Stevens: Oh.

Mr. Bryant: Congress can impose additional qualifications.

Justice Stevens: What's the source for that?

Where do you find the authority for that?

Mr. Bryant: Article 1, section 4.

Justice Stevens: That doesn't talk about qualifications.

That talks about time, place, and manner.

Mr. Bryant: Yes, Your Honor, but under our definition the Congress can add additional qualifications based on Article 1, section 4 authority, and Congress has done so since the very first Congress.

In the very first Congress--

Justice Stevens: You think Congress could pass a statute saying every Senator must be at least 50 years old?

Mr. Bryant: --Congress could pass--

Justice Stevens: What's your answer?

Mr. Bryant: --Yes.

Yes, Your Honor, they could pass such a statute sub... of course, it would be subject to First and Fifth Amendment.

Justice Scalia: Now, where do you get that?

You don't get that from the Tenth Amendment.

Where does that come from?

Mr. Bryant: That comes under Article I, section 4 authority, Your Honor.

Justice Scalia: But that's time, place, and manner, not qualifications.

I thought you make a distinction between the two.

You make no distinction between time, place, and manner and qualifications?

Mr. Bryant: Yes, we make a distinction, Your Honor.

The... the narrow--

Justice Scalia: Well, you must be... 50 has nothing to do with time, place, and manner of elections at all.

It has to do purely with qualifications.

Mr. Bryant: --The narrow issue before this Court is whether or not Amendment 73 amounts to a ballot access regulation.

If it amounts to a qualification, the States as well as Congress can add additional qualifications to those listed in Article--

Justice Scalia: Well, I can understand why you argue the States can on the basis of the Tenth Amendment.

I don't know where the Congress gets the power to do that.

Mr. Bryant: --And that is under Article 1, section 4, Your Honor.

Justice Scalia: But that doesn't relate to qualifications, that relates to time, place, and manner.

Is there no qualification that is not a time, place, and manner provision?

Every qualification is a time, place, and manner provision?

Mr. Bryant: Yes, Your Honor, that would be consistent with the State's position.

Justice Scalia: Every qualification--

Mr. Bryant: Under that--

Justice Scalia: --is a time, place, and manner provision.

Mr. Bryant: --Under that theory we advance.

Justice Souter: How is the age qualification a time, place, and manner?

How would a qualification that every elected Senator must have a college degree, how is that a time, place, and manner qualification or condition?

Mr. Bryant: Oh, Your Honor, that is a time, place, and manner because if the State of Arkansas or Congress did that, that would be... that is constitutional, according to our position, under Article I, section 4.

However, it would have to pass constitutional muster, and that is the test.

Under the ballot access--

Justice Souter: That is a manner condition, as it were?

Mr. Bryant: --Yes, Your Honor.

That could be considered a manner condition under Article I, section 4.

Justice O'Connor: Well, General Bryant, this is a very remarkable proposition--

[Laughter]

--and... does your argument depend in any way on this most unusual interpretation?

[Laughter]

Mr. Bryant: Your Honor, the State's argument is that Amendment 73 amounts to a ballot access regulation.

That is the narrow issue that this Court can reach.

If Amendment 73 does in fact amount to a qualification as determined by this Court, then it's the State's position that the State of Arkansas can add additional qualifications under Article I, section 4 to those enumerated in the Constitution.

Justice Kennedy: But what we're interested to know is, does it follow from that that the Congress could not override that qualification?

Where does the Constitution give the Congress authority to override qualifications?

Mr. Bryant: Because, Your Honor, that qualification would be adopted under Article I, section 4.

Justice Kennedy: Well, but then we're right back where we're--

Mr. Bryant: Yes.

Justice Kennedy: --Let's assume that we tell you that under the Constitution we think there are two things, two semantic, two juridical categories, one qualifications and the other time, place, and manner.

Now, if you say, and if you assume that we hold that term limit is a qualification, we are exploring whether or not the Congress could override that, and you say, oh, well, they can go under section 4, but we've just stipulated this is a qualification, and that doesn't apply to section 4.

Mr. Bryant: Under that--

Justice Kennedy: And the gravamen of the argument is it would be very strange to allow Congress to override a time, place, and manner regulation, but not to override a greater restriction, which is a qualification, and you're not answering that argument because you keep resorting to Article I, section 4, but that's a very odd interpretation.

Mr. Bryant: --Your Honor, under that scenario, then the States would have the authority under Amendment 10.

Congress would not have the authority under your scenario to add additional qualifications.

Justice Souter: On that assumption, may we put the question directly that Justice Kennedy alluded to?

Isn't there something very odd in a scheme in which the... we'll say the comparatively less important conditions that fall under time, place, and manner can be overridden by Congress, and yet the presumably more fundamental conditions known as qualifications would be left entirely to the States?

If they couldn't trust the States on time, place, and manner, wouldn't it be odd if they trusted the States on qualifications?

Mr. Bryant: That is correct, Your Honor.

Under the jurisprudence of this Court, ballot access jurisprudence, the States can erect barriers or limitations to limit the field of candidates, and so long as that passes constitutional muster, then the States have the authority to do that.

Justice Scalia: Or you might have responded that perhaps they were willing to trust the Federal Congress with respect to the relatively minor matters of time, place, and manner--

[Laughter]

--but not willing to trust the Federal Congress with respect to the greater matter of qualifications.

That's a possibility, isn't it?

Mr. Bryant: Yes, Your Honor.

[Laughter]

Argument of John G. Kester

Chief Justice Rehnquist: Mr. Kester, we'll hear from you.

Mr. Kester: Thank you, Mr. Chief Justice, and may it please the Court:

I'd like to start out, I think, by introducing--

Justice O'Connor: Mr. Kester, do you adopt the same argument as your predecessor here about everything is either a qualification or a time, place, and manner?

Mr. Kester: --No, not precisely, Justice O'Connor.

I think that the question that several members of the Court have been putting really illuminates the constitutional structure that we're talking about here, and the argument that is being made by the opponents of Amendment 73, first of all skipping over and pretending that it's a legal incapacity when it's nothing of the kind... it's a less restrictive alternative that the State has adopted, but skipping over that and accepting the pretense that this is a limitation on service in the Congress, you're then put to the task of fitting together some provisions of the Constitution.

What does the Constitution say with respect to the power of Congress to adopt, say, a term limits provision and apply it to the States?

I think the answer to that has to begin by looking at the sources of power of Congress and of the States, and they are very different.

Congress has power only insofar as it is granted in the Constitution, and the only grant of power to Congress to legislate in this area has to come from Article I, section 4, or, I quickly amend, the Necessary and Proper Clause, which is also part of Article I, section 4, and nowadays section 5 of the Fifteenth Amendment, which has received a very, very broad interpretation, and I don't think that we need to address that at this time, but we recognize that that's very broad.

The sources of power of the State are very, very different, and particularly when you have legislation, a constitutional amendment that the people of Arkansas adopted and imposed on themselves.

They're not reaching out... this is not a State trying to regulate interstate commerce in other States.

This is a law which, if anything, hurts the people of Arkansas.

Justice O'Connor: Well, Mr. Kester, let me ask you this, do you this Congress has the power under Article I, section 4, to adopt precisely the kind of law that Arkansas has applicable to all States?

Mr. Kester: No.

My answer would be no, it does not, for the following reason.

I would say, in the first instance, if you take the words of Article I, section 4, "make or alter", and say that those are of equal force, and I'm not sure that you have to do that at all, I would say Congress has the power to knock out any State law with respect to elections that Congress doesn't like.

It's very, very clear that that's why Article I, section 4 was put in the Constitution.

But once you have the law passed, once you have the authority of Congress to do that exercise, that's not the end of the exercise, that's just the beginning.

This Court pointed that out in Williams v. Rhodes.

There may be power there, but then, has the power been properly exercised?

First of all, it would obviously be subject to attack under the Fifth... the equal protection aspects of the Fifth Amendment, just like a Fourteenth Amendment case, which is what this really is.

Secondly, you would have to test it under the Tenth Amendment, because this Court recognized in cases like New York v. United States, Gregory and Ashcroft, that there is a certain core of State authority that really is sacrosanct.

And finally--

Justice Scalia: More specifically, gives you the power to override that State authority if it exists under 10.

Section 4 says specifically that Congress can make or alter such regulations.

Mr. Kester: --Right, but we're talking now, as I understood it, Justice Scalia, we're talking about Congress just acting in the first instance, and I'm saying the reason Congress could not do this just by itself in the first instance, say we're going to pass a statute imposing term limits, is furthermore that you have another provision which we haven't talked about yet this morning, and that's Article I, section 2, Clause 1, and that says the people shall choose their representatives in the House of Representatives.

If Congress did that, Congress would be acting diametrically opposed to what the people have done.

Now, this is all hypothetical.

Justice Scalia: Let me ask you about the Tenth Amendment, before we get--

Mr. Kester: Surely.

Justice Scalia: --too far away from that.

Mr. Kester: Surely.

Justice Scalia: If that is the source of the State's power that you assert would justify this piece of legislation, then I assume that the State could also say that the State's electors shall not vote for a President who, in addition to having the qualifications set forth in Article II of the Constitution, has certain other qualifications.

Could the State do that?

Mr. Kester: Now we're talking about a different provision of the Constitution.

That's Article II.

Justice Scalia: Yes, we are--

Mr. Kester: Right.

Justice Scalia: --but the Tenth Amendment hasn't changed.

It's still there.

Mr. Kester: Right, but I--

Justice Scalia: If they can add conditions to whom its citizens may vote for for their representatives, why may it not add conditions to the person for whom its electors may vote for as President?

Mr. Kester: --Justice Scalia, I would say that the Tenth Amendment applies differently in different situations, and you have to--

Justice Scalia: Oh, that's very convenient, but I don't know why.

[Laughter]

Mr. Kester: --Because the question would be, in your case of the presidential electors, it's like the case of Williams v. Rhodes.

Ohio came in there and said, we have very broad authority on how we select presidential electors, don't tell us how we do it, we'll decide that, and this Court said, wait a second, there are other provisions of the Constitution, and the Fourteenth Amendment is generally sufficient.

The important thing is that the State's authority draws on several sources, not just Article I, section 4.

It draws on the Tenth Amendment.

The States started out with the authority to do this.

They didn't have to be granted it at all.

They started it out.

It was reserved.

They also were the people of the State, and remember, it's the people who acted here.

This was--

Justice Ginsburg: But the test of whatever the State does, did I understand you to say that it could be overridden by Congress, but Congress has to come second?

Mr. Kester: --The Congress--

Justice Ginsburg: Whether the State is acting under the Tenth Amendment, or whatever source.

Mr. Kester: --I believe, Justice Ginsburg, that the proper understanding of section 4 is that was the check that the Framers intended to place on the States.

They were very worried about what kind of election laws the States would pass.

Justice Ginsburg: Well then, time, place, and manner is not a limitation, as you see it.

It includes what one might think of as time, place, and manner, plus qualifications, including age 60 is the limit--

Mr. Kester: Any of those things which would be Fourteenth Amendment issues, yes.

Manner was a word that essentially was unlimited, and that was why Article I, section 4 was so controversial.

Justice Ginsburg: --So we should forget all about the way we use time, place, and manner in the context of the First Amendment where it's a limited category of things that don't go to the core of free expression, but here you say it covers everything.

Mr. Kester: Here we're construing specific language in the Constitution, and it's different, and the power given to Congress was broad enough to do whatever was necessary to keep the States from passing inappropriate legislation.

Justice Souter: But I don't see why it isn't also broad enough to authorize Congress to act in the first instance.

Mr. Kester: It is... Justice Souter, in the first instance, it may well be, but then Congress is checked in a number of ways, and in some ways that the State isn't, particularly if you look--

Justice Souter: You mean by other provisions of the--

Mr. Kester: --By other provisions.

Justice Souter: --Yes.

Mr. Kester: And in particular, Article I, section 2, Clause 1, which here is a source of the State's power, an independent source of the State's power, but when Congress acts, it becomes a restriction, if anything, on Congress' power, because there you have Congress going in and saying to the people of the State, you can't do what you want.

Justice Scalia: Well, if that is a restriction, it just negates... it just negates section 4.

Mr. Kester: To that... to that--

Justice Scalia: Whatever the people--

Mr. Kester: --If--

Justice Scalia: --do is okay, so... right?

Mr. Kester: --No.

No, not at all, sir.

Justice Scalia: You can't possibly read it that broadly, or it negates section 4.

Mr. Kester: No.

In that particular case it might, yes.

Justice Scalia: So long as the people of a State vote for this time, place, and manner restriction, Congress can't do anything about it.

Mr. Kester: We're... no, no, no, no.

I'm sorry, I--

Justice Scalia: That's what I thought you were saying.

Mr. Kester: --I did not express myself clearly, then.

Justice Scalia: Or I didn't understand clearly, I guess.

Mr. Kester: Well, whatever--

[Laughter]

Congress has power, I would urge upon the Court, and I think that this is very, very clear when you look at the history of Article I, section 4.

Congress has power granted there, controversial power... a lot of them didn't like it... to go in and say, we don't like your State election law.

They don't even have to say it's unconstitutional.

All they have to say is, we--

Justice Stevens: May I ask this question to be sure I understand your theory?

I understand you're saying, if it's a time, place, and manner regulation adopted by the State, the Congress can modify it.

Now, supposing it's a qualification.

There are two ways we can look at the Arkansas law, and assume they take it to be a qualification rather than a ballot access matter, could Congress amend that?

Mr. Kester: --Well, yes, I think they could, because otherwise you're driven, and this is where some of the argument--

Justice Stevens: But then you're adopting the Attorney General's position that a manner includes a qualification.

Mr. Kester: --What I'm saying is, yes, manner is the broad word... that's the hook--

Justice Stevens: Which includes qualifications?

Mr. Kester: --Surely.

It has to, because otherwise as I believe Justice--

Justice Stevens: Well, it doesn't have to.

One can say qualifications are things like being over 50, and manner things like where you hold your elections and the like.

One doesn't have to say that, but I can understand that.

But that's your view of the word manner.

Mr. Kester: --Otherwise Article IV, the power of Congress in Article IV would make no sense, because then you'd be in a position, and this is where the Solicitor General's argument leaves you, is saying that Congress would have the power to override minor State laws but not huge--

Justice Scalia: It would make no sense unless there is a prohibition upon additional qualifications, in which case it would make perfect sense.

Mr. Kester: --And... and--

Justice Scalia: It only would make no sense under your theory of the Constitution.

[Laughter]

Mr. Kester: --And... but I submit that my theory of the Constitution, Justice Scalia, has historical validity and makes sense when you--

Chief Justice Rehnquist: Under your theory, Mr. Kester, could Congress say that no person shall be a Senator who is not over the age of 25 and have that the controlling qualification?

Mr. Kester: --I... if Congress or the States passed a law that was absolutely flat-out contrary to those provisions in Article I, if they've made it contrary to it, then that would be unconstitutional just on the face of it.

Chief Justice Rehnquist: How about saying no person over 50 under 50, saying... you know, Congress obviously was... the Framers were concerned about age, 35, and you know, we're also concerned about age.

We think it should be 50.

Could that override the 35-year-old provision?

Mr. Kester: I think there you've got legislation going right at the heart of provisions that were put in the Constitution, and it could be that those are minimum qualifications, or it could be that they could be enhanced with respect to age or district residence.

Chief Justice Rehnquist: So what's your answer, under your theory?

Mr. Kester: My answer, sir, is that it would never stand up under the Fifth Amendment, under Article I, section 2.

That--

Chief Justice Rehnquist: But it could stand up under the framework we're talking about now, Article I?

Mr. Kester: --Possibly in the first instance, but it hardly matters because it would so clearly violate those other provisions.

Justice Stevens: Why would it violate those other provisions?

Perfectly reasonable to change the age from 35 to 40, 45.

Why would that violate the Fifth Amendment?

Mr. Kester: Well, I think--

Justice Stevens: I just don't understand that.

Mr. Kester: --Well--

Chief Justice Rehnquist: We've held age is not a suspect classification.

Mr. Kester: --I think in that case it would be, and in looking at it as a suspect--

Justice Stevens: Well, then the constitutional provision is invalid, the 35-year thing is irrational under your approach.

I don't understand why 40 is any more irrational than 35.

Mr. Kester: --Well, it would have to be judged.

It would have to be judged under the Equal Protection part of the Fifth Amendment.

Justice Stevens: And not under the Qualifications Clause?

Mr. Kester: The Qualifications Clauses are there... if a law is enacted that this Court believes contradicts those qualifications, that would be unconstitutional.

Justice Stevens: No, it's just merely what I thought was your basic position, that the State has every right to impose additional qualifications if it wants to.

Mr. Kester: Yes.

Justice Stevens: And I don't know why 40 years is any different than being an incumbent.

Mr. Kester: Oh, but my position is not that the State can come in and impose any qualification it wants to, it's that the State--

Justice Stevens: Well, any reasonable qualification.

Mr. Kester: --Well, any qualification that doesn't violate the other restrictions on the States, the Fourteenth Amendment.

I mean, this--

Justice Stevens: I just have to say, I don't see why the 40-year thing would violate the Fourteenth or Fifth Amendment.

Mr. Kester: --I defer to your judgment on that, but the analysis, Justice Stevens, would be an analysis--

Justice Stevens: Well, if the analysis takes you to the conclusion it does not violate the Fourteenth, then you'd have to face up to the question--

Mr. Kester: --Yes.

Justice Stevens: --whether they can have an additional qualification, which is what I thought this case was all about, but you seem to say they cannot have certain additional qualifications.

Mr. Kester: No, I said... I said if they have one that's absolutely contradictory, but if it's not--

Justice Stevens: Well, why is 40 contradictory to 35?

It just supplements it--

Mr. Kester: --I'll defer to Your Honor on that.

Justice Ginsburg: --Mr. Kester, let's take an age... you can't run after the age of 70, instead of upping the age from 35, a mandatory retirement.

Wouldn't that get you out of your Equal Protection problem?

Mr. Kester: Well, it would be very much like Gregory and Ashcroft, wouldn't it, because that was upheld, a mandatory retirement was held not to violate the Fourteenth Amendment.

Basically--

Justice Ginsburg: So if that was the qualification, nobody can run in this State after the age of 70, the State could do that, and that would be a qualification--

Mr. Kester: --The States have done things like that for 200 years.

That's our point.

The States at the beginning said, not only do you have to be a resident of the State, you have to be a resident of the district.

Now, that's a supplementation, that's a qualification.

Justice Ginsburg: --There are States that have said you can't run after the age of so-and-so for Congress?

Mr. Kester: Mm-hmm, and--

Justice Ginsburg: You said States have done that for years, put--

Mr. Kester: --Oh, not... not that, but States have added qualifications since the very beginning, and incidentally, they called them time, place, and manner regulations.

Chief Justice Rehnquist: --Thank you, Mr. Kester.

Mr. Kester: Thank you, Mr. Chief Justice.

Unknown Speaker: Mr. Cohen, we'll hear from you.

Argument of Louis R. Cohen

Mr. Cohen: Thank you, Mr. Chief Justice, may it please the Court:

My theory of the Constitution, which I think is also Madison's and Hamilton's theory of the Constitution on this point, is that the Constitution deals comprehensively with the filling of the office of the Congress that it created, that it prescribes fixed qualifications that may not be supplemented by either Congress or the States, and that it gives both the States and Congress the power to set time, place, and manner regulations so as to assure fair and orderly elections, but that that is an essentially procedural power, leaving the people at each election to choose whom they please to govern them.

Justice Scalia: Why didn't they put it differently, then, Mr. Cohen?

The briefs here have been referring to this as a qualifications clause.

It's really not a qualifications clause, it's a disqualifications clause.

They could have said, every person shall be eligible to serve in the House of Representatives who shall attain to the age of 25 years, shall have been 7 years a citizen of the United States, and shall not when elected... and shall be when elected an inhabitant of that State in which he shall be chosen, a very easy way to say it.

Mr. Cohen: Well, of course--

Justice Scalia: But they took the circuitous route of saying, no person shall be a representative who shall not have attained the age of 25 years, been 7... in other words, you can't, unless you have these conditions, but that isn't to say that just because you meet these conditions you are eligible.

It does not say that, and John Randolph--

Mr. Cohen: --I agree that the constitutional--

Justice Scalia: --pointed this out in the first congressional debate on the matter.

Mr. Cohen: --I agree that the constitutional text doesn't resolve the issue because it phrases it that way.

One reason why it may phrase it that way is because there are other disqualifications in the Constitution itself, and there was contemplation, of course, of further possible disqualifications, but when Madison and Hamilton came to explain what the Constitution did, when the House Committee on Elections in 1807 studied the meaning of that clause, they concluded that the intention was to make those qualifications exclusive.

Chief Justice Rehnquist: Well, you say the House Committee on Elections, Mr. Cohen.

Was the House committee's view accepted by the full House?

Mr. Cohen: The full House didn't adopt the report, but I think it did accept the House committee's view.

It voted to seat Congressman McCreary, and it voted to seat Congressman McCreary after a point in the debate when it becomes clear that the dissenter, Mr. Randolph of Virginia, recognized that he was about to lose, and diverted the House debate to a more neutral resolution.

Chief Justice Rehnquist: Well, that's very speculative, isn't it?

I mean, couldn't the full House's result have been also because some people thought that he was in fact a resident of Baltimore, that he complied with the State regulation?

Mr. Cohen: We don't know--

Chief Justice Rehnquist: We simply--

Mr. Cohen: --of course, why anyone voted.

We do know that the understanding at the time, the scholarly understanding of what had been resolved in the McCreary episode was that the--

Chief Justice Rehnquist: --Well, what... how does the fact that the scholarly understanding... does that elevate what actually happened into something different?

[Laughter]

Mr. Cohen: --No, of course not.

Of course not this Court reviewed this history in the Powell case starting with the fact that on August 10, 1787, the question that was being voted on on the floor of the convention was whether to give Congress the power to add a property qualification or to add other qualifications.

This Court said on that day the Court faced and rejected the possibility that the legislature... and it was clearly talking about legislation, and not merely about a judging power... the legislature would have the power to usurp the right of the people to return whom they thought proper.

Chief Justice Rehnquist: Well, now you're not talking about the McCreary case.

Mr. Cohen: Well, I'm... I'm leading up to it.

The Court then went on--

Chief Justice Rehnquist: We've only got 40 minutes.

Mr. Cohen: --Okay.

[Laughter]

I will... let me move on.

But the Court reviewed Hamilton's statement in the Federalist Number 60 that the qualifications were unalterable by the legislature, Madison's statement to the same effect in Number 52, where he is clearly talking about State power to add qualifications.

Chief Justice Rehnquist: More clearly than Hamilton, isn't he?

Mr. Cohen: Well, I think Hamilton, when he referred to the legislature, was referring to Congress, but I think Madison is talking about the States.

Justice Souter: What was the... do you remember the phrase in 52?

I can't remember the text that you're referring to.

You said it clearly refers to the States.

Mr. Cohen: Well--

Justice Scalia: If it does, he was making a mistake, wasn't he, because he also was excluding the States' power to change the qualifications of electors--

Mr. Cohen: --No.

Justice Scalia: --which it obviously could.

Mr. Cohen: No.

What he was doing in 52 was explaining how the Constitution had fixed both the qualifications for voters and the qualifications for the elected.

It fixed the qualifications for voters by delegating that to the States subject to the most numerous branch compromise requirement.

Justice Scalia: That's not much of a fixing.

The fact is, the States could change it so long as they were willing to change it for their most numerous branch of the legislature.

Mr. Cohen: Madison uses the word 52--

Justice Scalia: Why say it's a mistake?

Mr. Cohen: --in relation to... in relation to the State constitutional provisions on this point, and he says that... in effect that these are fixed because the States and the people of the States won't allow changes in State provisions for voting for the most numerous branch of the State legislature, so we've dealt with that problem.

I would like to move on to the State's principal contention, which is, we didn't do that.

We just barred these people whom--

Justice Ginsburg: Before you do that--

Mr. Cohen: --we'd like to disqualify--

Justice Ginsburg: --Mr. Cohen, may I ask whether in your view we owe any kind of precedential respect to the interpretation of history in Powell v. McCormack?

We're not dealing here with a new discovery by Professor Warren, we're dealing with what has already gone over.

Mr. Kester has told us that... that perhaps some of the statements there, some of the conclusions weren't quite right, that there was room for other interpretations.

Mr. Cohen: --I think that Powell is a very persuasive opinion, and the Court should find it persuasive.

I also think there is substantial additional evidence on our side of this point that wasn't reviewed or reached in Powell.

I think--

Justice Souter: Did Powell at this point purport to go beyond the decision whether Congress or a House of Congress could act?

It seems to me that it did not--

Mr. Cohen: --It seems to me--

Justice Souter: --and it seems to me that that's the limitation... with the possible exception of your reference to 52, which I'm not sure of, that seems to me the problem with some of the, or at least the limitation on the cites to the debate text and say, Federalist 60.

It's clearly referring, by legislature, to the national legislature, and it seems to me that you're supporting legislative history, as it were, doesn't take you beyond the limitation on Congress.

Mr. Cohen: --The... it seems to me that Powell rests on the proposition that the qualifications were fixed in the Constitution and could not be supplemented legislatively.

Chief Justice Rehnquist: Well, I think you're mistaken on that, Mr. Cohen.

The holding of Powell clearly has to be that a single House of Congress cannot add to the qualifications otherwise legitimately set.

Mr. Cohen: Yes, but as this Court explained in the Judge Nixon case, the basis for that holding was not an aspect of the judging power as such, it was the fact that the... or that Article I, section 2, fixed qualifications that could be applied.

There are two questions here.

One is, vis-a-vis Congress, are we talking only about a judging power, or are we also talking about the power to legislate additional qualifications?

It seems to me every point in argument that was made in Powell goes to the power to legislate, not to the power to judge, although the ultimate question was only whether Congress could judge.

Chief Justice Rehnquist: And so the ultimate holding, wasn't it?

Mr. Cohen: The ultimate holding, I agree, but the logical foundation was that, and it then seems to me that the extension to the States is straightforward.

In the first place, some of the examples that the Court used in Powell were State additions of qualifications, or attempts by States to add qualifications.

Justice Scalia: But it can't possibly be straightforward, because Congress would need to have been given the power to make the alteration.

That power would have had to be found within the Constitution.

With respect to the States, that is not true.

With respect to the States you have the main thing that's relied on here, the Tenth Amendment.

There's nothing in Powell about the Tenth Amendment, is there?

We didn't even consider the Tenth Amendment.

Mr. Cohen: I agree that I need to go on to talk about those points.

I don't think that the Tenth Amendment reserves--

Justice Scalia: We're going to have you do that, but you're trying to not have to do it by saying--

Mr. Cohen: --No--

Justice Scalia: --we've decided it--

Mr. Cohen: --No, no, no.

Justice Scalia: --already in Powell.

Mr. Cohen: No.

I'm only saying that I think Powell did dispose of additional qualifications.

I don't think the... and I think that if you read the admittedly not clear and dispositive constitutional text as a preclusive list, there's simply no logical reason to think that it is preclusive vis-a-vis Congress and not preclusive vis-a-vis the States.

But I think this is not a Tenth Amendment case, because the Constitution doesn't leave the States or Congress the power to bar or to officially and materially prefer some qualified candidates over others.

Justice O'Connor: Well, Mr. Cohen, we have Storer, for example, which certainly prevented a candidate from appearing on a ballot at least for a period of time.

We did not treat that as a qualification, did we?

Mr. Cohen: That's right.

Storer--

Justice O'Connor: And so in theory this provision may not be a qualification at all.

Mr. Cohen: --No.

The fact that Storer said that the States have power to regulate access to the ballot in order to provide for fair and orderly elections, or as in that case, in order to preserve the integrity of the various routes to the ballot so as to give people a choice, doesn't mean that the States may impose ballot access limitations based on place of birth or civil profession or prior service in the State legislature or prior service in Congress, or being under the age of 70.

The Constitution--

Justice Scalia: Those things, if you do it on those bases it converts itself from a time, place, and manner restriction to a qualification?

Mr. Cohen: --Yes.

I think the--

Justice Scalia: If it's a qualification, I assume that the House would sit in judgment of whether that qualification was met.

Mr. Cohen: --I do not think that either the States or Congress may add qualifications.

I'm happy to use the term qualification in the sense in which you suggested earlier, Justice Scalia, which is qualifications is something that--

Justice Scalia: You can't serve if you don't have it.

Mr. Cohen: --that says you can't serve if you don't have it.

Justice Scalia: And that's not the case here.

Mr. Cohen: That is not the case here, but the State also may not keep off the ballot in order to disadvantage somebody who lacks a substantive personal characteristic because the Constitution leaves those questions to the voters every second year.

Justice Scalia: Well, maybe, but certainly not because the State is adding an additional qualification.

I mean, it may be bad, but not for the reason that it's violating the presumably exclusive Qualifications Clause.

Mr. Cohen: I will accept that with this exception.

I think the Arkansas supreme court was justified in saying here this measure is impermissible for essentially the same reason.

That is to say, the lawmakers of Arkansas, the people, were told, and then they said in the measure that they adopted, that the measure limited the terms of public officials, and the Arkansas supreme court simply rejected the argument that something that did that, that tried to impose a qualification, if you will, could be saved on the argument that it just might not achieve its stated purpose because of a loophole, the write-in loophole that has no significant history of working.

Justice Souter: May I just go back to Storer for a moment?

Could you just state for me the criteria, the standard on which you would have us distinguish the Storer disability, we'll say, from this disability?

Mr. Cohen: Yes.

Storer involved a legitimate time, place, and manner regulation designed to produce a fair and orderly election with a manageable ballot so that the people of California could choose by saying people who want to run in a prim... to be in a party in connection with a particular election must run in that party's primary and be the party's candidate.

People who want to run as independents must leave a party early enough to assure the genuineness of their independence and the nonfracturing of the party.

Justice Souter: Orderly elections.

It's orderly elections that's--

Mr. Cohen: It's orderly elections.

Now, it's quite different from... it's... if I can use a metaphor, it's like the difference between saying that someone must run in his assigned, qualifying heat in order to get into the finals of the 100-yard dash, and saying that somebody who won the medal last time must start 50 yards behind the others because we want to pass the medals around.

One involves procedural regulation that the Constitution authorizes the States to do, and the other involves a State substantive preference for one class of candidates over another that I think is not part of the entire scheme that is spelled out in some detail in the Constitution.

Chief Justice Rehnquist: --You justify sore-loser statutes on the basis that they are procedural.

Mr. Cohen: Yes, and there's a good deal of, in addition to text, legislative history that supports this reading.

If you read, particularly the Federalist 59 and 60.

Now, petitioners aren't very clear, to say the least, about whether the State's supposed power here is... is a power granted by the Time, Place, and Manner Clause or by the Tenth Amendment.

I suggest the reason that they're not very clear is that neither argument works.

The Constitution explicitly gives Congress the superior power to make election regulations or to alter those of the States, but it plainly, in doing so, means to limit the power of both the States and Congress to procedural matters.

It seems to me that the argument that a State can impose ballot access restrictions under some power outside the Time, Place, and Manner Clause is answered in the clause itself, which contains the phrase, "make or alter", and incidentally, the primary reason for that phrase was a fear that the States might not set up the machinery for congressional elections at all, and so the "make" part of the "make or alter" phrase is an important part of it.

The convention deliberately gave Congress the power to make or alter State regulations because Hamilton said an exclusive power of regulating elections for the national Government in the hands of the State legislatures would leave the Union entirely at their mercy.

That's the Federalist Number 59.

Justice Scalia: Mr. Cohen, what is your view as to whether something can be neither the one nor the other, neither a qualification nor a time, place, and manner restriction?

Is there some--

Mr. Cohen: I don't... if you mean by that something--

Justice Scalia: --Some restriction that is--

Mr. Cohen: --permissible--

Justice Scalia: --Something... no, not permissible.

Mr. Cohen: --Well--

Justice Scalia: Something that... whether it's permissible or not, is there anything that does not fall within one or the other category?

I gathered from your answer to my earlier question that you thought that there wasn't.

This might, indeed, be it.

Mr. Cohen: --No, I think--

Justice Scalia: You say it's impermissible, but not because it is technically a qualification.

Mr. Cohen: --That's right.

That's right.

I think there can be--

Justice Scalia: But it's also not a time, place, and manner.

Mr. Cohen: --That's right.

That's right.

Justice Scalia: So it is a third something-or-other, but an impermissible third--

Mr. Cohen: That's right.

I think for a State to say, on the whole we don't think people over 70 ought to continue to serve unless their constituents really want them, and so we'll keep them off the ballot, but if they can win by a write-in that's okay.

I think that is not a valid time, place, and manner regulation.

I also would not urge that anyone call it a qualification for the reason you point out, that it is merely keeping someone off the ballot.

I would then carve out an exception for that point for the--

Justice Stevens: --Are you abandoning the position of the Arkansas supreme court that it was a qualification?

Mr. Cohen: --I think what... I'm--

Justice Stevens: Yes or no.

Mr. Cohen: --I'm--

Justice Stevens: Because that was part of the rationale of their decision.

Mr. Cohen: --I am... I am reading... if that's the premise as to what it says, my answer's no.

As to what Arkansas said, my answer is yes, I disagree with that.

Justice Stevens: You're conceding that this is not a qualification in this case?

Mr. Cohen: I am arguing that it was appropriate for the Arkansas supreme court to say is does--

Justice Stevens: I understand that, but are you conceding that it's not a qualification?

Mr. Cohen: --I'm willing to... yes.

Yes.

Justice Stevens: It's a rather major concession.

Justice Kennedy: That's not, as I--

Justice Scalia: --It's a very reasonable one, Mr. Cohen.

[Laughter]

Justice Kennedy: That's not how I understood your brief.

Your first argument is the Constitution bars States and Congress from adding to the qualifications for service in Congress.

Mr. Cohen: I think that's important, and I don't think that I've made a significant concession.

We argue in the second section of the brief that whether something is a qualification is not technically what's at issue here.

The Constitution bars adding qualifications.

It also bars doing essentially the same thing indirectly, and I think that is the essence of what the Arkansas supreme court held, that--

Justice Kennedy: Well, but you begin with the major premise that a qualification cannot be added.

Mr. Cohen: --Yes.

Justice Kennedy: And then you say... and then you say, and this is so like a qualification that it must be invalid.

Is that--

Mr. Cohen: Yes, but I also say... but I also say that even if it is not a qualification, it is something that the States have no power to do, because the States have, as Congress has, only the power that is granted to them under the Time, Place, and Manner Clause, and the Time, Place, and Manner Clause does not... and the Time, Place, and Manner Clause does not authorize States to draw this kind of substantive distinction in the course of setting procedures for elections.

Justice Kennedy: --I take it your position is, is that the State can require, or the State can be forbidden from requiring its officeholders to have the same qualifications as its electors?

Mr. Cohen: Yes.

I think it's clear that the Constitution gave the States power to determine the qualifications of electors that it did not give to determine the qualifications of officeholders, of Federal officeholders.

Justice Kennedy: So that a State could bar a felon from voting but not for running for office?

Mr. Cohen: Yes, because one is a matter of the State's business, and the other is not, not for running from office... not for running from Federal office.

There was a period of time when I was qualified to be President of the United States, but as a resident of the District of Columbia I wasn't qualified to vote for one.

Justice O'Connor: Mr. Cohen, what about a law that just prohibits ballot access for one election, for example?

Mr. Cohen: I think--

Justice O'Connor: Do you make exactly the same argument?

Do you make no distinction between such a law and the one here?

That is, a lifetime inability?

Mr. Cohen: --I make a distinction, but the distinction I would draw is that it seems to me the lifetime inability demonstrates the falsity of the suggestion that this has something to do with incumbents.

I think that a bar for a single election would run afoul of the same principle that I am asserting here, which is, again, that the Constitution gave that choice to the people every second year, and gave the States only a limited and fundamentally procedural role.

Mr. Bryant says that all the examples of--

Justice O'Connor: Well, I don't know what kind of a line you end up with in examining Storer and knowing what is time, place, and manner regulation and what isn't.

It's difficult for me to draw a clear line from what you say.

Mr. Cohen: --Well, there may be some difficult cases in drawing lines.

In the speech area the Court had to wrestle with whether a sound limitation on a rock band was a time, place, and manner limitation or, as a applied to that band, a content limitation.

This is a clear case.

This is an easy case.

The Court has... the State has singled out people based on a personal characteristic, and if they can do this under the Time, Place, and Manner Clause, Congress could under the Time, Place, and Manner Clause, it seems to me, keep off the ballot for the Senate anybody who hasn't served in the House, and so on.

The State has singled out for this burden people based on a substantive qualification that does not relate, a substantive characteristic that does not relate to the election process or their compliance with reasonable procedures established by the State under its power under the Time, Place, and Manner Clause.

Justice Scalia: Mr. Cohen, maybe you think this is a clear case.

Some aspects of it at least I find very close, where you have Thomas Jefferson and Joseph Story on opposite sides of the issue, for example, whether the States have any power to add qualifications.

That's a close case in my mind.

Mr. Cohen: Story only... I mean, Jefferson only in one letter in 1814, but okay.

Justice Scalia: A letter he never retracted.

Story--

[Laughter]

In any case, just posit... posit that I think on that question at least it's very hard and very close, and in situations like that I am inclined to credit the practice that has been engaged in from the time when the Constitution was written, and there have, indeed, been a considerable number of State additional qualifications, I guess the most common being that in order to run for office you have to be qualified as a voter, which brings in all sorts of qualifications.

You can't be a felon, and so forth.

What is your response to that?

In addition to some property qualifications in Virginia, in the early days.

Mr. Cohen: I think actually, if you sort through the lengthy appendices attached to the petitioner's briefs, there's very little there.

The single, most telling episode is that in 1789 Pennsylvania calls a Constitutional Convention to eliminate a difference between its constitution and the Federal Constitution and conflicts, and repeals its term limits for service in Congress while keeping them for State officers.

The only property qualification that I'm aware of is that Virginia had the word "freeholder".

Other States that had property qualifications for State offices didn't impose them on... for Federal officers.

Justice Scalia: District resident qualifications.

Mr. Cohen: District resident qualifications strike me as the kind of thing that somebody might... they certainly were imposed.

They're the sort of thing that a State might fall into in making the arrangements.

Under the Time, Place and Manner Clause they are unconstitutional, as the Committee on Elections determined in 1807 in the McCreary case and as several courts have determined.

Justice Scalia: But there were quite a few of them, and they persist.

They're still out there, aren't they, these horrible things?

Mr. Cohen: It's possible that not every State went back and read the annals to see the McCreary episode and immediately repealed its statute.

I think they are, and would be held, and have been held unconstitutional because the voters of a State can, if they choose, pick candidates who come from another district.

Chief Justice Rehnquist: By what authority?

You say they've been held unconstitutional.

Mr. Cohen: By several State and lower Federal courts.

Chief Justice Rehnquist: Recently, or--

Mr. Cohen: Actually, yes, I think most of the cases are fairly recent.

--The Constitution gave the Federal Government only delegated powers to govern people's lives and activities, but it seems to me, again, that it dealt comprehensively with filling the offices that the Constitution itself created.

There's an overall design to give We, the People, every 2 years the power to select who will represent them in Congress, subject only to fixed qualifications and reasonable, fundamentally procedural regulations that the State has given power to adopt subject to congressional supersession.

If now congressional term limits are not a fad but are considered national judgment, the way to impose them is in Article V.--

Chief Justice Rehnquist: --Thank you, Mr. Cohen.

Mr. Cohen: Thank you.

Argument of Drew S. Days, III

Chief Justice Rehnquist: General Days, we'll hear from you.

Mr. Days, III: Thank you, Mr. Chief Justice, and may it please the Court:

I want to reinforce the extraordinary and anomalous nature of petitioner's argument in terms of the power of Congress.

We think that a fair reading of Powell v. McCormack and the Nixon case are that Congress may not add to the textual qualifications set out in the Constitution with respect to service in Congress.

Chief Justice Rehnquist: You agree that was not the holding of the Powell case.

Mr. Days, III: I do, Mr. Chief Justice, but I also want to underscore the fact that this Court, after an exhaustive review of the preconstitutional... the constitutional convention, the ratification, and the post-ratification history, concluded that those requirements were fixed in the Constitution.

I think that's the reading of Powell and Nixon together.

Chief Justice Rehnquist: That's dicta, is it not?

Mr. Days, III: Yes, Mr. Chief Justice.

Chief Justice Rehnquist: And we don't... we are not bound by dicta.

Mr. Days, III: That is correct, but I think that this case does not necessitate this Court's reviewing the history that it found in Powell v. McCormack, and much of the evidence that's been brought forward was addressed by this Court here.

Chief Justice Rehnquist: Well, how about the McCreary episode, where now it appeared apparently to the Powell court that the committee report had the same validity as another committee report which was adopted by the full... now it appears this report was not adopted by the House.

Doesn't that cast some doubt on the historical abilities of the Powell court?

Mr. Days, III: Well, Mr. Chief Justice, that's one piece, and I think my cocounsel is correct.

Chief Justice Rehnquist: Well, falsus in uno, falsus in omnibus.

[Laughter]

Mr. Days, III: Well, I... Mr. Chief Justice, I would be the last person to suggest that this Court was in error when it reviewed the history in Powell v. McCormack.

Justice Scalia: We're all in big trouble if that maxim is going to be applied, I must say.

[Laughter]

Mr. Days, III: Let's look at the argument that the petitioners have put forward.

They seem to rely principally upon the times, places, and manner provision, Article I, section 4, but we have to remember that the power there is one shared coextensively by Congress.

Where does that lead the petitioners with respect to their arguments?

If it is a qualification, then the States may add, and the Congress may add.

If that's what they're relying upon, this creates an interesting situation that I think Justice Scalia and Justice Souter were alluding to.

That is, if the States can set qualifications, then presumably, under Article I section 5, Congress can judge those qualifications not against the constitutional, textual qualifications, but the potentially myriad qualifications that States could set up along the lines of the ones that have been provided by Amendment 73.

If it is a manner, then the States may bar access to the ballot, but Congress also may bar access to the ballot, and it is not a power in Congress that has to await action by the States.

The term is 73 imposes.

But we would suggest that this is not a manner.

This is not times, places, and manner.

This is a qualification.

With due respect to my cocounsel, I think it's unavoidable that this is a qualification.

Let me suggest why that is so.

First of all, the times, places, and manner requirement, as my cocounsel has set out, was designed to ensure the fairness and the efficiency and the accuracy of the legislative process, the electoral process.

Justice Ginsburg, you pointed out that in our First Amendment jurisprudence it is a procedural cast that the Court has given to the concept of time, place, and manner.

Justice Ginsburg: And I believe listed the language from section 4.

Mr. Days, III: Yes.

I always wondered where that came from, and now, with further study, I understand that.

But how do we know that it's a qualification as opposed to a manner?

Justice Souter, you asked that question.

I think Justice O'Connor also asked the question, and I think the answer lies in the fact that Storer v. Brown was focused on one election cycle.

That is, the burdens that were imposed upon the would-be candidates in Storer v. Brown were based upon their failure during the election cycle to do the types of things that California law required.

Our view is that any burden placed on a candidate for Congress based upon conduct that has not occurred during the election cycle in question is a qualification.

Justice Scalia: If it's a qualification, Congress has to be able to judge it.

Now, let's assume that somebody gets elected without complying with the qualification.

Somehow his name gets on the Arkansas ballot accidentally, by a mistake or by some corrupt act, and he gets elected, and he appears before the House, and the committee is to judge his qualifications.

Can they exclude him?

Mr. Days, III: If Congress can rely only upon the textual qualifications, then they cannot exclude him.

Justice Scalia: No, no, no, no, no.

I mean, assuming that this is a qualification, and a valid qualification.

Mr. Days, III: Yes.

Justice Scalia: Assuming it's a qualification, and a valid qualification, I don't see how any congressional committee could possibly exclude him.

He's entitled to serve.

He's been elected.

Mr. Days, III: I agree with you, Justice, Souter--

Justice Scalia: He is not--

Mr. Days, III: --that there would be no--

Justice Scalia: --disabled from serving.

Mr. Days, III: --There would be no point of reference.

Congress, a House of Congress, could not, under Article I, section 5, do very much at all.

It certainly could try, but I agree with you that they would have no standard--

Justice Scalia: I suggest the reason is because it is not a qualification.

Arkansas has not said, this person may not serve.

It's simply said, this person may not run for office and be listed on the ballot.

If he accidentally gets listed on the ballot, he may serve.

Mr. Days, III: --Justice Scalia, I--

Justice Scalia: That seems to me to say it's not a qualification.

It's something.

Maybe you can argue, as Mr. Cohen does, it has the same effect and therefore it's bad--

Mr. Days, III: --Well, I do argue that--

Justice Scalia: --but you're trying to argue that it is itself a qualification, and that just flies--

Mr. Days, III: --It doesn't really make any difference, Justice Scalia--

Justice Scalia: --Okay.

Well, I'll... fine.

Mr. Days, III: --Because... because--

Justice Scalia: That argument I can understand.

Mr. Days, III: --All right, fine.

[Laughter]

Whatever that unidentified flying object is that's neither a qualification nor a time, place, and manner restriction is unconstitutional, because States cannot derive from the constitution the power to impose whatever we want to call it.

Justice Stevens: But if you make that argument, what do you do about the Tenth Amendment, with these--

Mr. Days, III: I would agree with my cocounsel--

Justice Stevens: --Why doesn't the Tenth Amendment preserve the right of the States to use all the flying objects it wants?

[Laughter]

Mr. Days, III: --Justice Stevens, I think this Court has made very clear that the Tenth Amendment restates divisions of authority that are provided elsewhere in the Constitution, and the very idea that the Tenth Amendment could give the States the power somehow to fill in the gaps with respect to the Federal structure when we're talking about provisions that do not grant Congress explicitly the power to address them, or deny to the States explicit power to deal with them, that somehow the Tenth Amendment provides that power.

I think if anything the Tenth Amendment is reinforced by the times, places, and manner provision.

That might be viewed as something that the Tenth Amendment reinforces, or vice versa, but I don't see how the Tenth Amendment could come into place under these circumstances.

It is truly an anomalous reading of the Tenth Amendment and this Court's jurisprudence.

I wanted to touch upon--

Justice Breyer: Before you leave that--

Mr. Days, III: --Yes, Justice Breyer.

Justice Breyer: --could I go back to what I think is Justice O'Connor's question, which is, I take that your basic position is that no additional qualifications can be provided by States.

Mr. Days, III: That is correct.

Justice Breyer: All right.

It says they shall choose whoever they want, the Constitution, subject to certain listed disqualifications.

Mr. Days, III: That is correct.

Justice Breyer: Birth would be no good, property would be no good, being... service in the legislature would be no good, term limits would be no good, and being a pre... and being a member of a political party such as being chosen by the Democrats or Republicans would be no good.

Mr. Days, III: That's correct.

Justice Breyer: Right.

All right.

But then in Storer, I take it it's okay to, through this back door, insist on one of the qualifications, namely, being chosen by the party.

Mr. Days, III: Yes.

Justice Breyer: But why, then, isn't it okay to insist on this other one, namely the term limits one.

Mr. Days, III: Well, as I indicated, Justice Breyer, I think--

Justice Breyer: That... I mean you... I just want to get a very clear--

Mr. Days, III: --Well, there's a temporal quality here.

The requirement with respect to being a member of the party, or if you wanted to run as an independent, not being a member of a party, is related to the integrity of the electoral process, and it focuses on that election cycle.

The people who were disqualified in Storer can, in the next election cycle, prepare themselves to qualify according to the rules of California.

Under Amendment 73, once a Member of Congress has served three terms in the House of Representatives or two terms in the Senate, there is nothing that that person can do to conform his or her behavior.

Justice O'Connor: --Well, would your answer be different, then, in a State which has just adopted a one-time interruption of the ballot access, as some have?

Mr. Days, III: It would not be different--

Justice O'Connor: I didn't think you were relying on that distinction.

Mr. Days, III: --I'm not.

You asked about the lifetime disqualification.

I don't think it makes any difference whether it's for a few years, or a lifetime disqualification.

It still--

Justice O'Connor: That's what you were just arguing in response to Justice Scalia.

Mr. Days, III: --I didn't understand myself to be responding in that fashion.

I--

Justice Souter: Don't you also, or wouldn't you also in that case accept the point that Mr. Cohen made, that there was a justification in Storer based on a demand for orderly election procedure, and that compliments the point that you've also made about the significance of the permanence of the disqualification in this case?

Mr. Days, III: --Yes, exactly.

Exactly so.

Justice Ginsburg: I take it you did not mean to concede that a State could say you have to be a Republican, or you have to be a Democrat, that you could be an independent--

Mr. Days, III: Well, that--

Justice Ginsburg: --you have to be independent early enough to make it persuasive.

Mr. Days, III: --That's right.

I mean, the requirements, what obviously you want to file under those circumstances, are First and Fourteenth Amendment criteria, so I was not suggesting that they would fly under those circumstances.

I just wanted to address a couple of other points that were raised during the argument, and that is that Justice Scalia, you talked about the disqualification clause.

This Court in Powell canvassed the history of that particular formulation and locution, and I think what the Court concluded was, it was done by the Committee of Style, and the Committee of Style had no authority to change the substance, and indeed, during that period it was quite often the case that alternative formulations were used that had no substantive significance.

Justice Scalia: Did people who voted for this Constitution know that?

Mr. Days, III: I'm sure some of them did.

Justice Scalia: I mean--

Mr. Days, III: They were a very learned bunch.

[Laughter]

Justice Scalia: --I don't care what the committee said and what the committee changed.

I mean, it was the Constitution as written that was promulgated to the people, and they adopted it, reading it as it was written.

I don't think they knew what happened in the Committee of Style.

Mr. Days, III: That's certainly--

Justice Scalia: Or, you know, I'm not sure that we do.

I mean, we're taking James Madison's word for it all, I guess.

[Laughter]

Mr. Days, III: --Well, he's a fairly credible source--

Justice Scalia: We could do worse, couldn't we?

Mr. Days, III: --Mr. Justice Scalia.

[Laughter]

We could do worse, I think, Justice Souter, was your point.

Chief Justice Rehnquist, you asked about residency requirements, and Justice Scalia, you asked about various limitations.

There have been some recent decisions, one in 1968, Exon v. xx in the District of Nebraska, where residency requirements were struck down.

This was also the case in Chavez v. Evans in 1968 in New Mexico, where the courts concluded that States did not have the power to impose those types of restrictions.

Mr. Chief Justice, and the other members of the Court, Amendment 73 is unconstitutional.

It is not a qualification in the sense that if it is a qualification it violates the Constitution, and it does not fit into the time, place, or manner powers granted to States under the Constitution.

It seems to me that if what Arkansas is done here can be done not only by other States but by Congress, we have closed the door that Madison had in mind that would be open to merit of every description with respect to service in the United States Congress.

We urge this Court to affirm the judgment below.

Thank you very much.

Rebuttal of J. Winston Bryant

Chief Justice Rehnquist: Thank you, General Days.

Mr. Bryant, you have 7 minutes remaining... General Bryant.

Mr. Bryant: Thank you.

Justice Stevens: General Bryant, before you start, how many terms did Senator McLellan serve?

Mr. Bryant: The Honorable Senator McLellan served at least five terms, and was probably into his sixth term.

Justice Stevens: Thank you.

Mr. Bryant: Two points, Your Honor.

First is the Respondents... Mr. Cohen has conceded that Amendment 73 does not amount to a qualification.

Under that scenario, it is the State's position, as I originally stated, that Amendment 73 is a ballot access regulation clearly permissible under Article I, section 4 of the Constitution, and the Arkansas court held that Amendment 73 was, in fact, a qualification.

Under that scenario, we request the Court... this Court to reverse the Arkansas court and remand--

Justice Breyer: But if it were a qualification, then would you lose?

Mr. Bryant: --No, Your Honor.

Justice Breyer: But why, if we're thinking on qualification, I take it if the States can pass qualification such as the one at issue, they also could pass qualifications setting requirements of birth, or property, or previous service in the State legislature, or add on to the list almost indefinitely, and why should we think that the Constitution, particularly with Hamilton and Madison, intended to give the States the power to create that kind of Congress?

Mr. Bryant: Your Honor, under your scenario, Article... the States can add additional qualifications.

That is our position.

Any qualifications added, of course, would be subject to First and Fourteenth Amendment scrutiny, so any scenario that the State came up with that violated the First and Fourteenth Amendment would, in fact, not pass constitutional muster.

The Tenth Amendment gives the States the authority to adopt additional qualifications, and as has already been pointed out here, the States, all the States in this Union have a number of qualifications on their books.

Arkansas requires a candidate for Congress to be a registered voter.

A registered voter cannot be a felon or a mental incompetent.

Arkansas... the Arkansas constitution prohibits a Senator who is appointed from running for reelection, so Arkansas has a number of laws on its books, both statutory and constitutional, that amount to qualifications under the Respondent's theory, and if qualifications--

Justice Breyer: But my question actually was why would Hamilton or Madison, who, after all, were writing before the Fourteenth Amendment was passed, think that it was possible that this Constitution would permit qualifications for the Congress based upon birth or property, and why would we today think that a State could pass a rule saying to be in Congress you have to be a previous member of the State legislature, for example?

Mr. Bryant: --Your Honor, our position is that Madison and Hamilton did not preclude the State from adding additional qualifications under the Tenth Amendment.

Justice Breyer: So therefore Hamilton and Madison, when they wrote the Federalists and said to the people, don't worry about creating a Government of birth or property, that they were wrong in that?

Mr. Bryant: Your Honor, no, Your Honor, because under the State's position any qualification that went to the point you suggested would be unconstitutional under the First and Fourteenth Amendments.

Justice Breyer: This was before--

Mr. Bryant: Yes--

Justice Scalia: --I guess that Madison and Hamilton and the people they were writing for weren't worried about their State legislatures.

They felt that their State legislatures were responsive to the people.

They were worried about whether this new animal that was being created would be responsive to the people, and they weren't about to give it vast powers to impose qualifications that their own people didn't like.

That's the only explanation for the fact that in all of this discussion there's no... in the debates there's no categorical mention about this issue about the States adding qualifications.

They weren't worried about the States.

The States were the people as far as they were concerned.

Isn't that the response to why--

Mr. Bryant: --Yes, Your--

Justice Scalia: --Madison and Hamilton--

Mr. Bryant: --Yes.

Yes, Your Honor, that is correct.

[Laughter]

Justice Kennedy: --Are you aware of any case in which we have said that a State may impose a burden or restriction by reason of the fact that someone has previously exercised a Federal right or privilege?

Mr. Bryant: I'm not sure I follow the question, Your Honor.

Justice Kennedy: Are you aware of any case in which we have said that a State may impose a burden or restriction on a person by reason of his or her having exercised a Federal right or privilege?

Mr. Bryant: If I understand your question, Your Honor, yes, I think the Storer case fit that, I think the Burdick case fit that, and the test in those cases, those cases stood for the proposition that a State can't add additional qualifications or barriers--

Justice Ginsburg: What was the addition... what was the Federal right or privilege exercised in Storer, which was someone who had signed up as a member of a party and didn't quit early enough?

Mr. Bryant: --Your Honor, in Storer, the Federal right or privilege would have been the candidate attempting to run for Congress as an independent candidate, but was precluded from doing so by California law, and in that particular instance, the State had erected a barrier, but by the same token under the First and Fourteenth Amendment analysis, the State... that barrier passed constitutional muster, and we submit that Amendment 73 falls in that category and is clearly authorized--

Justice Ginsburg: It's the most temporal of limitations, though.

It's kind of like you have to be living in a State a certain amount of time before you can get a divorce.

It was... it's very transient.

Mr. Bryant: --I'm... if I understand your question correctly, those prohibitions were temporary in that the candidate could run subsequently, but by the same token, Amendment 73 allows a candidate to serve for a certain number of terms before Amendment 73 comes into effect.

Chief Justice Rehnquist: Thank you, General Bryant.

Mr. Bryant: Thank you.

Chief Justice Rehnquist: The case is submitted.

Unknown Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.

Attribution:

The OYEZ Project

Featured:

Burdick v. Takushi, Director Of Elections Of Hawaii - Oral Argument

Fri, 09 Jan 2009 14:49:30 +0000

Case:

Burdick v. Takushi, Director Of Elections Of Hawaii

Media File:

91-535_19920324-argument.mp3

Related Transcript:

transcript.xml

Transcript:

Argument of Arthur N. Eisenberg

Chief Justice Rehnquist: We'll hear argument now in No. 91-535, Alan B. Burdick v. Morris Takushi.

Mr. Eisenberg.

Mr. Eisenberg: Mr. Chief Justice, and may it please the Court:

At issue in this case is the constitutionality of Hawaii's total prohibition against write-in voting.

This case began in 1986.

In the general election that year held in Hawaii with respect to State legislative offices, one-third of those elections were uncontested; a single candidate was running unopposed.

And that pattern of uncontested elections was consistent with the pattern that prevailed in the 1982 elections and in the 1984 general elections with respect to State legislative offices.

One of the uncontested elections in 1986 occurred in the State legislative district, the State House of Representatives district in which Mr. Burdick lived.

A single candidate was running unopposed.

Mr. Burdick had no interest in voting for that candidate.

He did, however, want to participate in the election, and he saw his only opportunity to participate as the casting of a write-in ballot to express his opposition to the single candidate running unopposed, and to express support for an alternative candidate.

Hawaii, unfortunately, has a total prohibition against all write-in voting in all elections and under all circumstances, and that total prohibition was invoked to bar his right to exercise a write-in ballot.

This total prohibition, therefore, denied Mr. Burdick the opportunity to vote for the candidate of his choice, or in the alternative, to cast a ballot as a protest vote.

Moreover, one of the unique functions of write-in voting in our society is that it serves as a safety valve mechanism, to permit voters to respond to new issues or changed circumstances that arise after the close of the petitioning period but before the election.

In this case, Mr. Burdick did not realize that a single candidate was running unopposed until the close of the petitioning period and still Hawaii invoked its total prohibition against write-in voting, even to deny the use of the write-in ballot as a safety valve mechanism.

Unknown Speaker: Mr. Eisenberg, are you asserting the right just to make a write-in vote for someone who would otherwise be qualified to be on the ballot?

Mr. Eisenberg: We think that Mr. Burdick has a right to vote for somebody who is unqualified as well as for somebody who is qualified.

We think that if Mr. Burdick--

Unknown Speaker: For someone, who under State law could not qualify to occupy the office?

Mr. Eisenberg: --That's right.

In that instance, the vote would simply be a protest vote, a vote no.

Unknown Speaker: Donald Duck.

Mickey Mouse, Donald Duck, whatever, that is fine.

You are claiming that right?

Mr. Eisenberg: We are claiming that the individual has a right to vote for Mickey Mouse or Donald Duck.

How the State chooses to record that vote is--

Unknown Speaker: I suppose that anyone can write something on the ballot.

Now you are going further than that, you want the State to have to count it?

Mr. Eisenberg: --Well, there are several things that are implicated in the phrase, count it.

We don't insist that Mr. Burdick has the right to have somebody who is ineligible to hold office, hold office.

So his vote isn't counted towards the election of that person.

But we do think that the right to vote embraces both a right to choose, and if there is no meaningful choice, a right to say no, and if Mr. Burdick chooses to say no by voting for an unqualified candidate or a fictional character, Mr. Burdick can do so.

The State should record his vote, we think, as a protest vote.

The State has an obligation to record that vote as a protest vote.

Unknown Speaker: You mean quite literally to set up a column in the returns that it gives to the reporters and certifies, to set up a column as protest vote?

Mr. Eisenberg: Well, there are several approaches.

The State of Virginia simply records every vote as it is written in, so that if somebody votes for a fictional character, if somebody votes for an unqualified candidate--

Unknown Speaker: You think the Constitution requires every State to do that?

Mr. Eisenberg: --We think that the Constitution, at the very least, requires that the State acknowledge the protest vote, the vote no.

We think if elections are about voting either in support or against candidates, then the vote against a candidate must be recorded somehow.

It needn't have a full list--

Unknown Speaker: Just a minute, I am trying to ask you a question.

Mr. Eisenberg: --I am sorry.

I am sorry.

Unknown Speaker: What provision of the Constitution do you think it is that requires that?

Mr. Eisenberg: We think that the textual source of our constitutional claim is either the First Amendment or the equal protection clause.

Unknown Speaker: Have we ever held that the First Amendment establishes a right to vote?

Mr. Eisenberg: Well, we have--

Unknown Speaker: Have we?

Mr. Eisenberg: --We have used the equal protection clause to find that there was a right to a meaningful vote.

Unknown Speaker: I wasn't asking you about the... I didn't ask you about the equal protection, I asked you about the First Amendment.

Mr. Eisenberg: Well, I think we have talked about the First Amendment right of political participation in a number of cases, and in Anderson against Celebrezze, the Court identified the right to vote, the right to run for office, the right to associate in support of a candidate, all as an amalgam of rights protected by the First Amendment.

Unknown Speaker: Is the theory behind your answer a theory of effective franchise or solely a theory of First Amendment expression, in effect, quite independent of the act of voting?

Mr. Eisenberg: I think, Your Honor, it is both.

It involves the right to cast a meaningful ballot, which is in some sense, the right of effective franchise.

Unknown Speaker: Well, to the extent that your argument is based on a meaningful ballot kind of argument, why should the standards be any different from... or perhaps you are not saying they should be, but should the standards be any different from the ballot access cases?

Mr. Eisenberg: We think that the overarching standard employed by this Court even in ballot access cases generally is Anderson against Celebrezze which--

Unknown Speaker: Do you think under the ballot access cases, we will assume it is some real individual, not Donald Duck, decided at the same time your client did that he would like to be on the ballot and came forward under, given the statutory scheme of Hawaii, that he would have any claim on the ballot access theory?

Mr. Eisenberg: --Well, we think that he may or may not have a claim under a ballot access theory, but that is because there are very different interests that apply when the State is regulating access to the ballot in a formal printed way.

Unknown Speaker: Well, but the fact is that the ultimate value to be served by ballot access is effective franchise.

I mean, it is ultimately a public interest and not merely the interest of the individual who wants to be on the ballot, and bearing that in mind, number 1, shouldn't the standards be the same whether we are dealing with a person who wants to be on the ballot or the person who wants to write in a name.

Wouldn't you agree that they should be essentially the same standards?

Mr. Eisenberg: We do agree that the standards are the same, and the standard is Anderson against Celebrezze.

Unknown Speaker: Now if they are the same standards, isn't it clear that under the Hawaii statute, the access to the ballot is sufficiently free so that the individual who woke up after the primary period and said, gee, nobody is running, I want my name on there, that individual wouldn't have any claim under the... given the Hawaii statute.

Mr. Eisenberg: Well, we think that that individual should have a claim, because we think that write-in voting provides an important safety valve mechanism which should be recognized--

Unknown Speaker: So that you basically want us to expand the law, not merely with respect to somebody who wishes to write in, but you want us to expand ballot access law beyond any point that it has reached thus far.

Mr. Eisenberg: --Well, ballot access law as we have generally understood it involves regulating the formal printed ballot.

Unknown Speaker: What's the answer to my question?

I mean, you do basically want an expansion of ballot access from anything that our cases have held up to this point, isn't that correct?

Mr. Eisenberg: If ballot access is to be defined more broadly, as Your Honor is suggesting, yes, that is correct.

Unknown Speaker: I thought you were accepting that.

Mr. Eisenberg: That would be correct, but we think that the overarching standard is the Anderson against Celebrezze standard, which requires in this instance the State of Hawaii to come forward with some showing that the total prohibition that it imposes is necessary to the advancement of some substantial governmental interest, and that is a showing that the State of Hawaii cannot make in this case.

That is a showing that the State of Hawaii has not made in this case.

Hawaii advances four interests in support of its claim.

First, an interest in limiting factionalism by prohibiting sore-loser candidacies; second, an interest in protecting political parties against interparty raiding; third, an interest in an informed electorate; fourth, an interest in protecting Hawaii's runaway election provisions.

Unknown Speaker: With respect to each of those interests, do we apply strict scrutiny, rational-basis scrutiny or some other form of scrutiny to assessing the validity of Hawaii's interest?

Mr. Eisenberg: We think we apply Anderson against Celebrezze with teeth, which approaches strict scrutiny, which is the standard imposed in Tashjian and in Eu.

Unknown Speaker: Is that under the First Amendment prong of your argument or under the right-to-vote prong?

Mr. Eisenberg: The Court has in Anderson and most recently in Norman against Reed suggested that while it looks first these days to the First Amendment as the source, as the textual source for the protection of the rights of electoral participation, it would reach the same result under the equal protection clause, and it doesn't much matter whether you call it a right to vote or an equal right to vote.

In both instances, we think that Hawaii is obligated to show that the total prohibition is necessary to the advancement of substantial governmental interests, and it has not made that showing in this case.

The interest in an informed electorate, while a worthwhile goal, cannot justify Hawaii's blanket prohibition, even in circumstances where there are no sore-loser candidates.

If the State is concerned about sore-loser candidates it can enact a narrow sore-loser provision.

The interest in protecting parties against interparty raiding has no application whatever to a prohibition that would be extended to a general election.

Interparty raiding is a concern about voting in primary elections.

So again, Hawaii's total prohibition sweeps too broadly.

We think that there is another consideration in this regard, and that is that at least one of the three established parties in Hawaii, the Libertarian Party, has now expressly requested that voters in its primary elections be permitted to cast write-in ballots.

So Hawaii, it seems to us, now has a Tashjian problem, a problem confronted by this Court in Tashjian where the State, in that instance, the State of Connecticut, was imposing a restrictive measure on ballot access, and even in circumstances where the party had no interest in the protection that the State was affording it.

And so for these reasons we think that the interest in protecting against interparty raiding is insufficient in this case.

The interest in an informed electorate, again, while a worthwhile goal, we think cannot be justified here.

If the State is concerned about voters voting in an ignorant way, that concern seems improbable, because it is not likely that somebody is going to vote for somebody that they know nothing about, when you have to actually go to the trouble of casting a write-in ballot.

If the concern is for the--

Unknown Speaker: Isn't it likely that a write-in voter is probably better informed than other voters?

Mr. Eisenberg: --It is likely that a write-in voter who goes to the trouble of casting a write-in vote is better informed than other voters.

Moreover, if the State were concerned about the body politic in general, that is to say, if the State were concerned that everybody ought to know that are surreptitious write-in candidates afoot, then the State can do, the State of Hawaii can do what approximately 20 other States do: it can require that write-in candidates file a declaration of candidacy shortly before the election.

This mechanism satisfies the safety valve concern.

It allows write-in candidates to enter the race after the petitioning process is closed where new circumstances or new issues arise, and it provides that flexibility.

And if the State were concerned about an informed electorate in that regard, informing the electorate that there are other write-in candidates or indeed there are other candidates beyond those who are simply listed on the ballot, Hawaii can do, as I say, what 20 other States have done.

Finally, the interest in protecting Hawaii's runaway election provisions cannot justify Hawaii's policy.

To the degree that Hawaii has abolished general elections in these circumstances, there is no occasion to cast a write-in ballot, so this last concern about Hawaii, this concern about their provisions with respect to runaway elections, is irrelevant.

In fact, Hawaii's runaway election provisions, provisions which permit a candidate who emerges from the primary election as a victor and unopposed for at least county offices and State legislative offices, not to have to stand for election in the general election, that provision argues more forcefully in favor of a right to cast a write-in ballot in these dispositive primary elections, because in Hawaii, given the pattern of uncontested elections, and given these runaway election provisions, the right to cast a write-in ballot at the primary level is very, very important.

With the Court's permission, I should like to reserve--

Unknown Speaker: May I ask a question, just to be sure I understand your position.

Do you think that Hawaii could prohibit anyone from qualifying for and holding office unless they have followed Hawaii's procedure for getting on the election ballot?

Mr. Eisenberg: --If Hawaii had a write-in candidate registration requirement, a requirement that a write-in candidate declare and if the candidate fails to comply, it seems to us that Hawaii can do what these 20 other States do, which is to declare the individual ineligible to hold office.

We have no quarrel with that.

Unknown Speaker: But if it were a... not a voter standing here today, but someone who would like to be a candidate and hold office, you would take the position that Hawaii's present laws concerning who goes on the general election ballot and therefore who can serve in those offices on the ballot, you would take the position that that is unconstitutional?

Mr. Eisenberg: We think to the degree that Hawaii does not provide for the safety valve mechanism of a write-in ballot, to permit the candidate, in Your Honor's hypothetical, to enter the race as a write-in candidate after the petitioning period is closed, which in Hawaii is 60 days before the primary election, 105 days before the general election, we think that Hawaii's provisions are too restrictive.

Unknown Speaker: And how many States have similar prohibitions against all write-in?

Is that a total of five States?

Mr. Eisenberg: There is a total of... there are four States that by statute prohibit write-ins and we are informed that Louisiana, as a matter of practice, also prohibits write-in voting.

Unknown Speaker: Is it part of your case that the State has to count these votes or does the State just have to allow them to be cast?

Mr. Eisenberg: We think that the State has to count the votes, clearly a vote for a qualified candidate should surely be counted.

But we also think that the State should have to count the protest vote, the vote no.

The State may be able to put it into a broad category of no votes, but the State has to recognize that there is a body of dissenters out there who don't like the choices that have been provided to them.

Unknown Speaker: Why does it have to provide this forum for the dissenters in its election machine?

What if the State says, gee, it's just a lot cheaper to buy time for them on some television channel, so election eve, everybody who wants to vote no will be given time to come in and protest?

Mr. Eisenberg: Because voting is about voting for or against the candidates who are holding themselves up--

Unknown Speaker: Voting is about getting somebody elected.

It's about choosing someone to govern you.

It's not about protesting it.

Mr. Eisenberg: --We think, Your Honor, that it is about both.

And in fact, this Court has recognized that the electoral process extends beyond simply choosing somebody who is going to get elected.

In Anderson against Celebrezze, this Court recognized the important expressive aspects of the electoral process, engendering new issues into the process, in putting forth new ideas.

And so this Court has granted First Amendment recognition to--

Unknown Speaker: How did we recognize that in Anderson?

Mr. Eisenberg: --Well, because... there was a great deal of discussion of the role of third parties and what the Court called third-force candidacies in talking about the importance of John Anderson's campaign in 1980.

Unknown Speaker: Well, sure, but the importance there is that by discussing different issues, you may elect a different person.

There is nothing in that opinion that suggests anything about the ability of the people to protest, to use the election as a protest mechanism, is there?

Mr. Eisenberg: Not specifically, Your Honor.

But the very definition of an election, in our view, embraces the right to choose and again, if there is no meaningful choice, the right to say no, and that right to say no has to be reflected somewhere on the books of the State.

It is a very dangerous notion, both in First Amendment terms and in terms of higher democratic values, for the State to try to sweep that dissent under the rug, to pretend it doesn't exist.

When Hawaii says to Mr. Burdick, in the interest of promoting consensus, you can vote for only one candidate or not vote at all, consensus may be a very valuable interest, but consensus depends upon consent, and the State has an obligation as well to recognize the dissenting members of its society in the important aspect of voting.

Unknown Speaker: Mr. Eisenberg, if the essence of your claim is the right to be heard in saying no, why isn't the statement of no sufficiently recorded simply if the State records a blank ballot?

By doing that, they are saying, he has said no to the candidate on the ballot.

Mr. Eisenberg: Because a blank ballot signifies more than a vote no.

A person can simply fail to vote because they overlooked that particular election on the ballot.

The voter may have simply--

Unknown Speaker: Yes, and the voter may get the name wrong when the voter writes the name in.

I mean, no method of expression is absolutely foolproof, but by and large everybody understands that most people don't cast blank ballots unless they do so for the sake of saying, I don't want to elect any of these people.

And isn't that expression recorded when either a blank ballot is recorded as such or the State simply says there were X ballots cast and the total of votes for the candidate is something less than that?

Mr. Eisenberg: --We think that... Hawaii does count blank ballots, Your Honor, but we think that a blank ballot is not sufficiently understood as a dissent because there may be a variety of reasons why an individual may leave the place blank.

The person may have forgotten.

The person may have reached no conclusion, but an expression of dissent is clear and it ought to be recognized.

Unknown Speaker: Did you say there were 5 States that currently don't allow write-ins.

What is the historical practice?

Is it a relatively new phenomenon, not to allow write-ins?

Mr. Eisenberg: No, actually, at least one of the States that prohibits write-ins has prohibited it from the inception of the Australian ballot.

Most States, as we indicated in our brief, responded to the Australian ballot reform, to the State-prepared ballot, by recognizing that there had to be some sort of safety valve mechanism, both for the reasons I have suggested and to give flexibility to the electoral process, to give the voter an opportunity to choose, but some--

Unknown Speaker: And before the Australian ballot, you could always, of course, cast a vote for whomever you wanted.

Mr. Eisenberg: --That's correct.

That is our understanding of the history.

And with the advent of the Australian ballot, the question of how voter choice would ultimately be recognized, and most States recognized that write-in votes preserve voter choice.

But a few States did not even at the outset.

And in Oklahoma, for example, the interpretation by case law was that a write-in was a defacement of the ballot and therefore voided the ballot.

And in South Dakota, I don't quite, Your Honor, remember the basic reason, but it was a turn-of-the-century decision of the highest court in that State.

With the Court's permission, I would still like to reserve the balance of my time.

Unknown Speaker: Very well, Mr. Eisenberg.

Mr. Michaels, we will hear from you.

Argument of Steven S. Michaels

Mr. Michaels: Thank you, Mr. Chief Justice, and may it please the Court:

At the outset of our argument, we would like to emphasize three very brief points that we would like to carry through our discussion with the Court, and which we would urge the Court to keep in mind as it deliberates upon this important case.

First, Hawaii is simply not in a small minority of States when it comes to the issue that is actually presented by this case, because rather than the mere 4 States that Mr. Eisenberg refers to, well over 30 States, and in fact, by our count, 37 States do not permit what Mr. Burdick claims the Constitution compels, namely the right at primaries and general elections to vote for whomever one pleases.

Second, if this case is about voting, then this case is governed by this Court's ballot access decisions.

Voting is very different from generalized speech.

It is the casting of legally effective speech, and under the ballot access decisions of this Court, Hawaii's law is plainly constitutional because viewed as a whole it does not substantially burden Mr. Burdick's ability to cast an effective vote, and if there is any substantial burden, those burdens are justified by Hawaii's compelling interest in narrowing the field of eligible candidates for the general election and promoting an informed vote.

And third, to the degree Mr. Burdick is saying that Hawaii need not seat a write-in candidate who would get a certain number of votes, but that nonetheless, Hawaii must count up and publish that speech, this case is not governed by the questions of substantial burdens or the issue of compelling State interests.

It is merely controlled by the question established by this Court's public forum cases, namely whether Hawaii has acted neutrally in excluding the purely advisory question from the ballot, I quote, if you don't like all of the people on this list, who would you vote for?

That advisory question Hawaii has excluded in a neutral fashion, and because the answer... that answer to the public forum question runs in our favor, Hawaii's law is constitutional and Mr. Burdick is entitled to no relief from the Federal courts.

As the argument in the briefs and the discussion has established, it has to be the case that States have the authority under our Constitution to exclude the ability of voters to cast write-in votes for broad classes of candidates.

In fact, Mr. Burdick really doesn't contend otherwise.

He says that we need not seat ineligible candidates.

We need not seat primary losers, and we need not seat late filers.

And if one just looks, for example, at what the right to vote means in our country, it has to mean that.

Because in our Nation, and as this Court has defined what voting means in a constitutional sense, the right to vote is preservative of other rights, as this Court said in the Yick Wo v. Hopkins case, because the right to vote is legally effective speech.

It is the right, when joined with other votes, to transfer power.

Now it is true that not all votes end up in seating a particular candidate, but the reason politicians worry about votes as opposed to just ordinary speech, which is nonetheless very important, is the fact that votes, if there are enough of them, put you out of a job.

We have eligibility rules in our Nation for a variety of reasons.

We have them because some people, we have determined as a constitutional matter, don't have enough experience.

But we also have eligibility rules that would serve to eliminate classes of candidates because they have too much experience, term limits for example.

And one of the great ironies of this case, if write-in voting really means the right to vote for whomever one pleases, is that the term limit movement, which is a widespread movement across this Nation, would be shut down at the outset as a matter of constitutional law.

And that--

Unknown Speaker: Why would that be--

--I don't understand that, explain that to me.

Mr. Michaels: --Well, the petitioner, we think has essentially conceded that Hawaii need not seat anyone who in the 1994 election would vote by write-in for Governor Waihee.

His time has come to an end at that time, and for that reason, the term limit is an effective ban that Mr. Burdick agrees Hawaii can effectuate by prohibiting votes for that category of candidates.

What he is saying, Hawaii must count up all the protest speech that would be cast at that time for people that want Governor Waihee to keep serving, but we need not seat Governor Waihee for a third term.

And what we are contending to the Court is that that protest speech is a public forum question.

It is not a voting question because what is being cast by that protest speech is not a vote at all.

I hope I answered the question.

Unknown Speaker: You haven't at all.

You agree, I think you stated expressly in your answer that you understand that they are not claiming that the person for whom the write-in vote is cast must by the same reasoning be seated in office if there is a sufficient number, or would otherwise be a sufficient number of write-in votes to elect the person.

You understand them explaining that?

Mr. Michaels: We understand that concession.

Unknown Speaker: As long as that concession is made, how does their argument threaten the term limit?

In other words, the former governor isn't going to have to go back to the State House on their theory, it is just that everybody is going to know that a lot of people wish he could.

Mr. Michaels: That's true... well, we do accept the concessions.

I suppose my argument was even if they hadn't conceded that, they would have to concede that.

Unknown Speaker: Maybe your argument was just hyperbole.

Mr. Michaels: There is probably a little bit of that on both sides, but I accept the criticism.

Unknown Speaker: I wasn't worried about the multiterm congressman, I was worried about Donald Duck.

That is really scary.

[Laughter]

Mr. Michaels: The point that we would emphasize to the Court also in considering this case is that this is very... at its outset, a facial challenge to Hawaii's ban on write-in voting.

The petitioner, even in the 1986 State House race that was before the court, never said who he wanted to vote for, never said whether the person he wanted to vote for was in fact Donald Duck or someone who was not eligible or so on.

And under that situation, the Court should not be speculating as to all the possible ranges of situations in which our law might operate in a tough manner.

On a facial challenge, you look to see whether there is any circumstance in which the law can be validly applied, and the petitioner has virtually conceded that there are large numbers of cases in which it can.

Secondly, the petitioner did not make any record below concerning the burden that our law may impose upon him.

There was none of the typical testimony or evidence that one finds in the voting cases that have come up through the courts of appeals, that we really tried to get the signatures but we couldn't; it was too hard to get the signatures at that time of year.

None of that... there is no such testimony in this record.

And the record from our side of the case shows that there are large numbers of third parties that exist and have existed in Hawaii and large numbers of nonpartisan candidates who make it through the primary stage.

Our Hawaii law is structured around a four-part process; the party petition process which commences with the filing of the party petitions in April; there is the candidate filing deadline in July; there is the primary in September; and then the general election.

And Hawaii's law should be particularly amenable to being sustained by this Court because it creates two cumulative opportunities for voters like Mr. Burdick to get the candidates they want on the ballot.

We do have a petition route, and you can guarantee access for your chosen candidates by filing the petitions equal to 1 percent of the general electorate vote by April, and we have a primary route.

And the routes are structured in a manner so that those persons who try to file for that automatic access in April have that 90-day period between the April deadline and the July candidate filing deadline in which all of the litigation that typically occurs about petitions must occur.

The lieutenant governor must make his decision on the petitions within 30 days.

There is an administrative appeal authorized under our little APA for the last 60 days; and for those persons who are disqualified from that automatic access by the April deadline, they have the right to bail out and get back into the game by filing for a nonpartisan slot.

And what we would emphasize to the Court also is that you can file a party petition even if you are just a single candidate.

This is not the situation that the Court referred to in Storer v. Brown where you have to bring all this party baggage with you to file at the April deadline.

Unknown Speaker: Could you explain something to me, General Michaels, just, your primaries are September?

Mr. Michaels: That's right.

Unknown Speaker: And your general election is in November, right?

Mr. Michaels: Right.

Unknown Speaker: What safety valve is there for the unlikely contingency that on October 1st the two principal candidates are either killed in an airplane accident or suddenly revealed to be armed robbers or some very dramatic thing that would convince 90 percent of the people in Hawaii they didn't want to vote for him.

What can be done?

Mr. Michaels: Well, Your Honor raised two hypotheticals and the statute deals with them differently.

In the case of death, withdrawal or substitution, the relevant statutes are Hawaii revised statute sections 11-117 and 11-118, which appear in our brief.

And the way those work for those three categories of postfiling events, there are rules of succession.

Within a certain number of days, the candidate can withdraw and the party can actually get a new name on the ballot.

It doesn't work for independent candidacies because of the way the independent candidacies are structured, that is it--

Unknown Speaker: Let me just change the question a little bit.

Assume they don't withdraw.

The two candidates that survived, or just some very dramatic incident that makes them extraordinarily unpopular with the electorate, they are revealed to have been involved in something very unusual, is there any safety valve?

I mean, you don't have a write-in, so is there any safety valve by which some other candidate could appeal to the electorate?

Mr. Michaels: --The law does not allow that, and if I may respond further to explain why, Hawaii's law is set up sort of as a corollary to Abraham Lincoln's famous saying, you can fool all of the people some of the time, and some of the people all of the time.

Our theory behind our law is that you are going to fool a lot less of the people all of the time if there is mandatory competition between the candidates.

And it is true that there is a gap time at which things can't be changed, and at that point the processes of impeachment and recall are the recourses for the electorate.

This is a problem, of course, that we have in between elections generally in this Nation.

Unknown Speaker: Of course, that startling disclosure might just as well occur the day after the election as a week before the election and you are still in the same situation.

That is a problem that I guess can't be avoided.

Mr. Michaels: It is a problem of republican forms of government, small r.

Unknown Speaker: But it is a problem that every State that has write-in ballots has a solution for it up to the election date.

Mr. Michaels: Well, not in 35 States because, or at least in the big block of 27 States that have filing deadlines.

In all of those States the legislative judgment has been made that at some point we are going to flush the candidates out, and in fact, if I just might focus on a few of the States that have filing deadlines, some of them do come fairly early in the process.

Florida comes 100 days.

That is our deadline.

Arkansas is 60 days.

New Mexico, 56 days; Texas, 55 days.

We admit, other States make different judgments about when that filing deadline should occur.

Unknown Speaker: Are those filing deadlines, means you can't write-in for the candidate unless he meets that deadline?

Mr. Michaels: That's correct, sir.

Our basic, our system is structured in a way so that not only can an individual get on the ballot through the automatic access in April, because you don't have to have party committees, party officers, or rules.

The statute admonishes you to file them if you have them, but if you don't have them, you won't be kicked off the ballot.

But it also allows the party candidates whose petitions fail to get on the ballot through the nonpartisan process... there is no disaffiliation requirement under Hawaii law, and so it is truly a case where Hawaii has two complementary and each equally available systems for getting on to the ballot.

We submit to the Court that under this Court's cases in Munro v. Socialist Workers' Party is we submit our best case, that our system is wholly constitutional, and there is really no argument by the petitioner that it is not.

There are a couple of footnotes in the brief criticizing parts of the law, but there is no extended argument looking into the Court's cases and what the Court has decided in these cases, to challenge as a constitutional matter our law.

And if one looks to the principles that the Court adopted in the Munro case, that access at the primary stage alone would be sufficient, we have that automatic backup that you can get into at April with a 1 percent signature requirement that is equally sufficient and makes our law doubly good.

The Ninth Circuit in this case therefore has a right to say that there wasn't any substantial burden on Mr. Burdick's constitutional interests, and the Court need not get to the second step of the analysis, as to compelling interest, except perhaps to note that there is a rational relationship between the laws, the goals that we have, and the law that is adopted.

And we think that that should be the proper way for the Court to decide the case.

But even if one gets over that hump, Hawaii's law is backed by compelling State interests at every turn that are narrowly tailored to the way that the law is written.

You simply cannot have the kind of informed voting that Hawaii mandates unless you have deadlines that stick, and although Mr. Burdick concedes that the sore-loser interest is only a narrow one, we urge the Court to look at Judge Easterbrook's opinion in the Seventh Circuit case.

A lot more people than just the candidates are mad after the primary.

Our eligibility requirements, those are conceded to be valid and can be enforced, and at the primary there is an important interest in respecting the party's ability to, in a sense, have their own house in order.

Now, Mr. Burdick says that it is enough just to say that in Hawaii our laws provide that you have to be a member of the party in order to be a party candidate at the primary.

But time is really of the essence in election law, and the point we wish to make with respect to the party raiding argument is that the parties need not just to have this requirement out there, but they need the time to make that requirement effective by looking at the filing deadline to see if there really is a bona fide person who is a member of their party running in the primary, and then to go to court and to use the time we provide to go to court, if in fact they have a beef about that.

And as far as the runaway primary winner argument goes, it is true that in the Federal races and State-wide office, a person isn't automatically seated.

But in that instance, as I explained to Justice Stevens, we have provisions for succession in the case of death, withdrawal or substitution, and those rules of succession respect the primary mandate, and the--

Unknown Speaker: Mr. Michaels, let me ask you about something you covered, I believe a moment ago, and that is the interest against party raiding and the necessary time for the party to go to court.

I don't think I quite followed that.

Could you expand on it a little bit?

Mr. Michaels: --Our interest at the primary stage in banning write-in voting, in part, not... we have interests that cover it otherwise, but in part is justified by a party raiding interest.

In avoiding the situation where you have a Democrat in sheep's clothing, as it were, running in the Republican primary and then strategic voting by Democrats basically, you get a weak Republican candidate to run against the Democrats.

This Court has recognized that as an interest.

Hawaii, in our statutes--

Unknown Speaker: You could accomplish that, of course, by just providing that only registered voters could vote in the primary of the party, couldn't you?

Mr. Michaels: --Only registered Republicans.

Unknown Speaker: Yes, only registered Republicans vote in the Republican and only Democrats--

Mr. Michaels: That's true that that is one way, but we have chosen to balance the question a little differently.

As a matter of constitutional law in our State, we do have an open primary, and this is recognized because for a large number of races the Democratic primary was determinative, and it remained so in large numbers of races.

But for the protection of the Republican Party and the Libertarian Party and any other party that exists in Hawaii, what we do is two things.

One, we say that the candidates who run in the primary have got to be party members; and secondly, we provide that 60-day period between the filing deadline and the primary date for the party itself to go to court and say, this person isn't really a Republican or this person is not a Democrat or not a Libertarian or whatever.

And under Mr. Burdick's theory of write-in voting at the primary, what he is saying is that you can have last-minute nominations by write-in.

If he is really serious about that, that period of time that the State gives to the parties to go to court and effectuate their own interests is gone, and that is why we believe we have a legitimate narrowly tailored party raiding interest.

Unknown Speaker: --So a registered Democrat could not run in the Republican primary in Hawaii?

Mr. Michaels: That's correct.

In large measure this case is not about write-in voting at all, because Mr. Burdick has said that there are broad classes of candidates where he is asking not that a candidate be seated or that politicians need worry about write-in votes in the manner that I described before, but he is asking that Hawaii, at its own expense, count up what he writes on his ballot and publish it in the lieutenant governor's reports.

If I could just, at this point, direct the Court's attention to page 71 of the JA, these are sample ballots and this is the way the ballot looks to the voter on election day.

These were the facsimile ballots in the 1986 election.

And we can state to the Court with confidence, it is no crime in Hawaii to write in on your ballot, but we are not going to count it up and we are not going to publish it, and that is the law in Hawaii if you write a message on your ballot.

What we are contending under that set of undisputed facts is that this is a case about a claim for State subsidization of protest speech.

Actually, it wouldn't matter if Mr. Burdick wrote in and said the lieutenant governor is a great guy.

We are not going to publish that either.

So whether it is favorable or not favorable, we just don't publish what is written in on the ballot if it is not punched and executed in a manner required by law.

And under the Court's decisions, the Cornelius case is certainly a very powerful case for us.

This is a matter that the State can regulate, how it publishes the... and what questions it will address at the ballot.

Judge Posner in the Georges v. Carney case put it very well, a State could decide to have the advisory question of who if not these do you want regardless of whether they could be seated, but Hawaii, along with a large number of States has decided not to do that, and that is a legitimate decision to make.

I might just add that in that regard, our law would also be justified as a time, place and manner restriction at the ballot because what you are saying, if there is this right to cast this advisory speech, is that you must double the election ballot, that there is an advisory question tacked on to every single race from governor on down, and that conceptual overcrowding of the ballot is something that Hawaii has an interest in avoiding.

And unless the Court has further questions, we rest on the briefs, and we ask the Court to affirm the judgment of the Ninth Circuit.

Unknown Speaker: Very well, Mr. Michaels.

Mr. Eisenberg, you have 6 minutes remaining.

Rebuttal of Arthur N. Eisenberg

Mr. Eisenberg: Thank you, Your Honor.

In response to Justice Scalia's expressed concern about Donald Duck, the State may have some dignitary interest in not recording in its books the vote for Donald Duck, but it is our position that that vote should, at the very least be recorded as a vote no.

And a vote no is not the same as a blank vote because the blank vote does not necessarily signify that the person is voting against the specific candidate, in this instance, who is running on the ballot.

In talking about--

Unknown Speaker: I am troubled that the case might turn on that.

Do you think the case might... if we disagree with that proposition, do you lose the case?

Mr. Eisenberg: --The proposition that--

Unknown Speaker: That a no vote is qualitatively much different than a blank ballot?

Mr. Eisenberg: --We think Hawaii's deficiencies are twofold, Your Honor.

I think the answer to your question is we don't lose the case because Hawaii's law is deficient in a second way.

Hawaii essentially closes off, as we said, the political process to write-in vote, and even for qualified votes, so that if somebody wants to vote for... not express a no vote, a protest vote, but vote by virtue of a write-in for somebody who is perfectly qualified to hold office, we think Hawaii's law which closes off the process 60 days before the primary election and 105 days before the general election is deficient on that ground as well.

The total prohibition simply cannot be sustained.

On that issue, there was some discussion with Mr. Michaels about filing deadlines with respect to those States that require a write-in candidate to register shortly before the election, and Mr. Michaels shows several States which have quite long filing deadlines.

There are other States that we could have chosen that have quite short filing deadlines; California requires filing by write-ins 2 weeks in advance of the election.

Unknown Speaker: But under your argument all the States with a long filing deadline for write-in candidates would also be violating the Constitution.

Mr. Eisenberg: We think that those States are subject to the Anderson against Celebrezze requirement, but the fact is that most States have filing deadlines a week or two shortly before the election.

In Arizona it is the Wednesday before.

In Illinois it is the Friday before the election.

Unknown Speaker: You say even those are invalid.

Mr. Eisenberg: No, no, we do not say that those are invalid.

We think that those restrictions shortly before an election, the filing deadline is reasonable, and the State can say if the write-in candidate does not file, that write-in candidate is not eligible to hold office.

If the deadline is not unreasonably long, we say that those filing deadlines are perfectly reasonable.

The only then remaining question is, what does the State do with a vote for somebody who has not registered?

What does the State then do with the vote for an unqualified voter?

In that circumstance, the vote in our view is a protest vote, is a vote no, and in that circumstance, the State must still record the vote as a vote no, but we have no problem with filing deadlines for write-in candidates that are reasonably imposed.

Unknown Speaker: Well, you do.

You say that even those votes for candidates who haven't met the filing deadlines have to be counted.

Mr. Eisenberg: Have to be counted as a no vote; that is different, we think, than a vote for a qualified candidate.

Our view is that if an individual votes for a qualified candidate, that must be counted in a quite serious way to effect legal change.

Unknown Speaker: These States that have 1 or 2-week filing deadlines, do they now count those votes no for people who haven't--

Mr. Eisenberg: Some States do and some States don't.

I think as we have surveyed the statutory framework, most States say the candidate who fails to file properly, shortly before an election, is ineligible to hold office and the vote won't be counted.

But there are some States, for example, Georgia, that has a filing deadline that continues to count the votes, and in fact, there was an unreported Federal district court decision in the 1980s, James against Falagant, where the voters voted into office, in essence, an individual who did not properly register.

And the question in that circumstance was whether Hawaii's prohibition against that individual from serving had to be recognized, or whether, when the voters vote in somebody who hadn't complied with the filing requirements and therefore was ineligible, whether that person had nonetheless to be seated, and the Federal district court concluded that the ineligibility would stand and that the individual wouldn't be seated, but the vote is recognized as a protest vote.

Unknown Speaker: --You didn't disagree with that?

Mr. Eisenberg: No, that in fact is the appropriate approach we think.

What is at stake in this case is the right of the voters to choose, petitioner's right to direct his portion of sovereign power to the candidate of his choice.

This right, we say, is not an absolute right.

Many States regulate write-in voting in a variety of ways, with specific focused concerns, and those regulatory measures at not at issue in this case.

What is at issue is the application of Hawaii's total prohibition against all write-in voting in all elections and under all circumstances.

That total prohibition, we think, cannot satisfy the standard articulated by this Court in Anderson against Celebrezze.

That total prohibition cannot be shown necessary to the advancement of any substantial governmental interest, and the decision of the court of appeals should be reversed.

Thank you.

Chief Justice Rehnquist: Thank you, Mr. Eisenberg, the case is submitted.

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Norman v. Reed

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Transcript:

IN THE SUPREME COURT OF THE UNITED STATES

BARBARA J. NORMAN, ET AL., Petitioners v. DOROTHY REED, ET AL., and COOK COUNTY OFFICERS ELECTORAL BOARD, ET AL., Petitioners v. DOROTHY REED, ET AL.

Nos. 90-1126, 90-1435

October 7, 1991

The above-entitled matter came on for oral argument before the Supreme Court of the United States at 1:55 p.m.

APPEARANCES:

ROBERT E. PINCHAM, JR. ESQ., Chicago, Illinois; on behalf of the Petitioners Barbara Norman, et al.

KENNETH L. GILLIS, ESQ., First Assistant State's Attorney, Chicago, Illinois; on behalf of the Petitioners Cook County Electoral Board, et al.

GREGORY A. ADAMSKI, ESQ., Chicago, Illinois; on behalf of the Respondent.

PROCEEDINGS

1:55 p.m.

CHIEF JUSTICE REHNQUIST: We will hear argument next in No. 90-1126, Barbara Norman v. Dorothy Reed, and 90-1435, Cook County Officers Electoral Board v. Dorothy Reed.

Mr. Pincham, you may proceed.

ORAL ARGUMENT OF ROBERT E. PINCHAM ON BEHALF OF THE PETITIONERS BARBARA J. NORMAN, ET AL.

MR. PINCHAM: Mr. Chief Justice, may it please the Court:

We are here today because the Democratic Party, partisan politics, continues to permeate the Illinois judiciary up to and including the Illinois Supreme Court.

The October 12, 1990, order of the Illinois Supreme Court completely disregarded this Court's precedent in Illinois State Board of Elections v. Socialist Workers Party and Moore v. Ogilvie. More importantly, not only did it disregard the precedent previously set by this Court, but it was a flagrant and blatant attempt to limit political opposition to the existing Democratic Party machine.

I hasten to point out to this Court that the Harold Washington Party is now the second largest political party in the city of Chicago and of the municipality of Chicago. It regularly out-polls the Republican Party, for example, and today offers the only viable alternative to the Democratic Party in the city of Chicago.

QUESTION: Mr. Pincham, is it the same party? I mean that's one of the controversies here.

MR. PINCHAM: Indeed it is, Your Honor. I hasten to point out to Your Honor that the Illinois legislature has promulgated no statute or regulation controlling the expansion of an established political party from one jurisdiction or one subdivision of the State into the next. The striking of the entire Harold Washington Party from the ballot was a judicially contrived remedy by the four Democratic Party justices of the Illinois Supreme Court, and indeed, contradicted the rule of law as previously set forth by that court in Anderson v. Schneider.

QUESTION: How do -- how do we know that it was the same party?

MR. PINCHAM: The record is --

QUESTION: All the record says, if I recollect it, is that the city Harold Washington Party had no objection to the use of the name.

MR. PINCHAM: Actually it went further than that, Your Honor. The leader of the city Harold Washington Party and the founder of that party appeared before the county officers electoral board, and went even further and said not only is it the same party, I give my permission to expand this party outside of the municipality of Chicago and into suburban Cook County. The record is clear on that point.

Moreover, and I hasten to point out to Your Honor, that there is no competing group here saying no, this isn't the Harold Washington Party, we are. There is but one Harold Washington Party, and references to the contrary by opposing counsel are simply misrepresentations of the fact. There is but one Harold Washington Party, and it now seeks to expand beyond the city limits of Chicago and into Cook County.

The question then becomes --

QUESTION: Was that evident to those who had to make the initial judgment --

MR. PINCHAM: Yes, Your Honor.

QUESTION: -- as to whether the party had the proper number of signatures? I mean, in retrospect, maybe we can say, well it is one in the same. But was that evident to those that had to make the judgment?

MR. PINCHAM: Yes, indeed it was.

QUESTION: From what?

MR. PINCHAM: From the testimony of Mr. Timothy Evans and from the affidavits that were submitted to the Cook County Officers Electoral Board. And they, in fact, so found in their opinion.

QUESTION: You're talking about testimony before the election board.

MR. PINCHAM: Before the Cook County Officers Election Board, that is correct. That testimony was given.

QUESTION: Where is that?

MR. PINCHAM: Where in the record before you?

QUESTION: Yes. And you don't have to give it right away, but before you're done, if you could refer me to that part of the record, I'd be --

MR. PINCHAM: Certainly, I'd be more than happy to, Your Honor.

QUESTION: What did the supreme court of your State say about this matter, about the party?

MR. PINCHAM: Frankly, Your Honor, that's one of the reason's we're here. They said nothing. They simply entered an order striking the Harold Washington Party from the ballot, and in that order stated that they would write an opinion in the near future. That opinion has never been written. We don't know why that opinion was never written. I point out to Your Honor --

QUESTION: Well, so you don't know why they struck the Harold Washington Party?

MR. PINCHAM: We know the reasons that the dissenters gave for disagreeing, but the opinion analyzing the reasons for striking the Harold Washington Party were not fully set forth in an opinion. What the -- four Democratic Party judges of the Illinois Supreme Court in effect ruled is that, contrary to the prior precedent of this Court, this political party much have, not 25,000 petition signatures, but 50,000 signatures, and that those 50,000 signatures must be divided geographically 25,000 from the city of Chicago, and 25,000 from suburban Cook County outside the city of Chicago.

I point out to Your Honor that the total number of signatures required statewide for the entire State of Illinois is only 25,000 signatures. Thus, the ruling of the Illinois Supreme Court would not only require twice the number of signatures, but would require those signatures be obtained from a smaller portion of the State than, of course, the entire State itself.

So in ruling that --

QUESTION: So you think they couldn't write the opinion, that's why they never wrote it. It would not write itself, you think.

MR. PINCHAM: I think that the -- to be perfectly candid and frank with Your Honor, I think that the opinion would have been an embarrassment to the justices of the Illinois Supreme Court.

QUESTION: Well, the court also changed, though, didn't they? I mean, there were new justices so --

MR. PINCHAM: Yes, Your Honor, but it did not change between the date that Justice Stevens issued the initial stay or the date upon which the full Court issued the stay and December 6. The court had 2 months within which to write that opinion. And of course, that opinion was not written. Moreover, had the court acted in good faith, or intended to act in good faith, it could have asked this Court, for example, to stay its proceedings and to give it an opportunity to write its opinion so that this Court would have the benefit of the analysis of the four Democratic Party justices of the Illinois Supreme Court. But that, too, was not done.

More importantly, or perhaps equally importantly, the Illinois Supreme Court did not distinguish its own prior opinion in Anderson v. Schneider. We are, of course, sensitive to the precarious and perhaps irreconcilable dilemma of co-petitioner Cook County Officers Electoral Board. They find themselves in the untenable position of trying to reconcile self-contradictory language of the statute.

First, the statute provides that the entire petition shall contain not more than 25,000 signatures as the minimum requirement. Elsewhere, in the same section of the statute, Section 10-2, it provides that each component of the petition shall provide 25,000 --

QUESTION: So I take it your principal argument is that the each component portion of the statute is invalid.

MR. PINCHAM: Well, as the three Republican justices of the court pointed out, that need not be reached. However, and I also point out to this --

QUESTION: Well, but is that one of your principal contentions before us?

MR. PINCHAM: That it is invalid? Absolutely. Absolutely.

QUESTION: Now, what's your best authority for that?

MR. PINCHAM: It is invalid because this Court said in the Socialist Workers Party case and in Moore v. Ogilvie, that it is unconstitutional to require a third political party to obtain more signatures on its petition, nominating petition ballots, than are required for an entire State.

QUESTION: Suppose that in your case the requirement was for a total of 25,000 signatures, roughly apportioned between the suburban and the city area, so you could have, say 40, percent of your signatures from the suburban area and 60 percent of the city. What result there?

MR. PINCHAM: That, too, would be unconstitutional --

QUESTION: Why?

MR. PINCHAM: -- under this Court's ruling in Moore v. Ogilvie, because then you would in effect give veto power to suburban voters as the Harold Washington Party expands from the city. Where the Harold Washington Party is strongest --

QUESTION: And that is so even if the signature requirement were in proportion to the number of registered voters in each of the districts?

MR. PINCHAM: No. That, perhaps would correct that constitutional infirmity. But I hasten to point to Your Honor, the statute does not say that. The legislature --

QUESTION: Well, I'm trying to find out the rationale for your argument so that if we do decide to write an opinion we can.

(Laughter.)

MR. PINCHAM: I base my argument and the rationale of my argument on this Court's prior decisions in Moore v. Ogilvie and Socialist Workers Party, along with the rationale employed by the Illinois Supreme Court in Anderson v. Schneider, where, in that case, the court ruled that even if the party failed to file a full slate, for one reason or another, the remedy is not to exclude the entire party from the ballot. And that is the rationale that I urge upon this Court at this time.

We further point to this Court that in ruling on the objections, the Cook County Officers Electoral Board considered the fact that the objections themselves were not properly obtained. While the Cook County Officers Electoral Board ruled that they did not consider the manner in which they were obtained to be fraudulent, it is clear that false affidavits were submitted to the County Officers Electoral Board with those objections through the nominating petition of the Harold Washington Party. Generally, such false affidavits submitted to a tribunal will result in the objections for other document being stricken in its entirety. That was not done here.

Had that been done, of course, we would not have the problem that we're faced with today. In reviewing the statute, I would point out to Justice Kennedy that the burden of analyzing the statute has been removed from this Court. The Illinois Supreme Court, the highest tribunal of the State of Illinois, has interpreted that State statute in a manner that is repugnant to the Constitution as previously set forth by this Court's rulings in Anderson -- I'm sorry, in Socialist Workers Party and Moore v. Ogilvie.

So as we stand here today, Your Honor, we urge upon this Court to enforce its own prior decision over the Illinois Supreme Court, which did not deem fit to bless us with its opinion before the justices changed, nor have they taken any effort subsequent to that change to rehear the case and to provide us with an opinion.

QUESTION: Mr. Pincham, can I ask you this question? There are really two different issues, as I understand, well, putting aside the name problem for a minute, just the 50,000 vote requirement. The 50,000 vote requirement applies to the commissioners who are elected from the suburbs and to the officers like State's Attorney who ran county wide. They had to have 50. But you also challenge, as I understand -- under the Illinois Supreme Court's holding -- under the Illinois Supreme --

MR. PINCHAM: The county-wide offices would only require 25,000. Those county commissioners running from the city of Chicago itself would require 25,000 and those running from suburban Cook County would require 25,000. Those running county wide could combine their signatures with either one or the other.

QUESTION: No, but the effect of the Illinois Supreme Court's decision, as I understand it, is to disqualify the entire ballot.

MR. PINCHAM: That's correct.

QUESTION: Even though those running for like State's attorney had more than 25,000.

MR. PINCHAM: Absolutely, Your Honor.

QUESTION: Because they, in effect, require 50,000 for those offices. And I understand your position on those officers and on the county commissioners running from the suburbs -- rather from the city -- from the city.

But now with respect to the county commissioners running from the county only, the suburban area, they did not get 25,000 signatures from the suburbs.

MR. PINCHAM: That is correct.

QUESTION: And you nevertheless contend they are entitled to be on the ballot, too. This is a point in which you differ with the election board.

MR. PINCHAM: That is exactly correct, Your Honor.

QUESTION: And I don't think you've explained why the Socialist Party case supports you with respect to those candidates.

MR. PINCHAM: The ruling of this Court was that, as we understand it and we have read it and as it has set forth by other courts, including the Seventh Circuit Court of Appeals, is that the total number of signatures, the total number for the entire petition, is 25,000. It has never been suggested, and in fact, the same section of the statute that provides for each component to have 25,000, also says that the entire petition shall not be -- shall not be required to exceed 25,000. So it can't be both. The language of the statute itself is self-contradictory. And that alone would invalidate the statute.

QUESTION: We shouldn't be involved in interpreting the Illinois statue. Is there any Federal constitutional requirement that would prohibit the State of Illinois from saying that if you want to run from the suburbs of Cook County for a position on the county board representing the suburbs only, that you must get 25,000 signatures from the suburbs? What in the Federal Constitution prohibits that?

MR. PINCHAM: The brief of amicus curiae, American Civil Liberties Union, addresses that at great length. First of all, when you ask me about the constitutional requirement, the equal protection clause of the Fourteenth Amendment, the freedom of association under the First Amendment, the liberty provision of the Fourteenth Amendment all would seem to suggest that that would be unconstitutional in that it requires the Harold Washington Party to obtain more signatures from a smaller geographical unit, that is suburban Cook County, than would be required for the entire State.

We also point out the obvious that -- Chicago itself is, of course, within Cook County.

QUESTION: Is it more or the same?

QUESTION: But the statewide officers only need to get 25,000.

MR. PINCHAM: That's correct.

QUESTION: So it's the same.

MR. PINCHAM: But we're being asked to get 50,000 for county-wide office.

QUESTION: Why?

MR. PINCHAM: Because the Supreme Court has determined that --

QUESTION: But you're saying that -- you're in effect saying that it must be unconstitutional to divide Cook County into Chicago and the suburban area.

MR. PINCHAM: No, sir, not at all. That's not what's unconstitutional about it. What's unconstitutional is requiring the excessive number of signature petitions, in effect giving suburban voters veto power over the expansion of the Harold Washington Party.

QUESTION: We're just talking about the -- Justice Stevens is just talking about those officers running for places on the suburban.

MR. PINCHAM: He asked about those as well as the county-wide offices. Perhaps I should clarify.

QUESTION: I did originally. I said I understand your position on the county-wide officers and on the commissioner residents of Chicago who are elected.

MR. PINCHAM: Yes, sir.

QUESTION: I'm asking for further enlightenment only with respect to your argument pertaining to the county commissioners elected from the suburbs. I think that's the point in which you differ with the election board.

MR. PINCHAM: That is correct. That is correct. We don't know what that provision would provide, Your Honor, because the supreme court of our State has not addressed that adequately to give us any insight.

QUESTION: Well, if they say that you didn't get on the ballot at all because you didn't get a sufficient number of votes --

MR. PINCHAM: Signatures.

QUESTION: -- signatures in the suburban area, you got fewer than 25,000 in the suburban area.

MR. PINCHAM: That's correct.

QUESTION: Now if the State may constitutionally divide Cook County into city and suburban area, and say each area -- signatures from each area must be over 25,000, what's wrong with that?

MR. PINCHAM: Because that then requires the expansion of the party to produce 50,000 rather than the 25,000 signatures. But more -- which is the statewide requirement. So you now have a party running county wide, getting 25,000 signatures for suburban Cook County, 25,000 for the City of Chicago, which is also within Cook County, and using --

QUESTION: Does that mean that if they got 26,000 in Chicago they wouldn't need any signatures in the suburbs to run a slate in the suburbs?

MR. PINCHAM: No, not at all. Not at all. But we don't know how many to produce from the suburbs and how many to produce from the city to give us the total number of signatures of 25,000. And our State Supreme Court has not given us the insight into that question.

Thank you, Your Honor.

QUESTION: Thank you, Mr. Pincham.

Mr. Gillis, we'll hear now from you.

ORAL ARGUMENT OF KENNETH L. GILLIS ON BEHALF OF THE PETITIONERS COOK COUNTRY OFFICERS ELECTORAL BOARD, ET AL.

MR. GILLIS: Mr. Chief Justice, may it please the Court:

If I might follow up on the last question. There are two districts in Cook County, the large City of Chicago and the large suburban area. Each has over a million registered voters.

The -- after this Court's ruling in 1979 in the Socialist Workers case, Illinois put a cap of 25,000 signatures on any large district. So that's what you need in this case. In this case, the Harold Washington Party did obtain 25,000 -- in fact, 44,000 -- signatures in the city of Chicago. And these petitions had two components, the county-wide candidates at the top, and the city of Chicago candidates also on the same petition. So my client, the electoral board ruled that they had qualified to run county-wide at-large candidates as well as candidates in the city of Chicago for county commissioner.

On the other hand, and this is the one point we differ with the Harold Washington Party, the Harold Washington Party only filed 7,800 signatures in the suburban area, or about one-half of 1 percent of the million and some registered voters there are in the area. The Cook County Electoral Board held that that did not show a modicum of support, and hence did not let them on the ballot in the suburban area.

What the Illinois Supreme Court seems to have done, although they did not use these words, is to apply what's known in Illinois law as the complete slate requirement. It amounts to a rule that if any one of your candidates is off, they all go off. The Illinois Supreme Court's order stated that since there were not sufficient signatures in the suburbs, all the candidates went off.

This Court's order of last October 25th stayed that order and upheld the order of my client, the electoral board, which says if you qualify in the city, and you can show a modicum of support there, those candidates go on. And also the at-large candidates went on. It seems to me that the Illinois Supreme Court's order, and the feeling behind that, could be shown in a dissenting opinion in a 1977 Illinois case called Anderson v. Schneider. That shows the workings of the complete slate rule, or the -- at least the thoughts of some of the justices about that.

I submit that is a harsh rule and one that intends to block ballot access.

QUESTION: Mr. Gillis, is the question concerning that rule one of the ones included in the petition for certiorari?

MR. GILLIS: I believe it was. The grant of certiorari was general and I believe that it covers the complete slate requirement. It's in the last page of the appendix.

QUESTION: Now your client, which as I understand it, is the Board of Elections --

MR. GILLIS: Right. The Cook County Officers Electoral --

QUESTION: -- held or decided that the Harold Washington Party candidates did not qualify for the -- is it the Sanitary District Offices -- where the suburbs elect, and they simply represent the suburbs only.

MR. GILLIS: Well, that issue did not get by -- that was not decided by the Illinois Supreme Court, so I do not believe that issue is before the Court. But they ruled an insufficient number of signatures on those petitions.

QUESTION: Well, the Supreme Court of Illinois didn't upset that determination, did it?

MR. GILLIS: No. They were held insufficient.

QUESTION: Mr. Gillis, it may well be a harsh rule, but what is wrong with a State rule that does not require you to run on a slate? If they required you to run on slate, and then said if you -- you must run on a slate and everybody on the slate must get all the votes, then that would be, in effect, requiring more than 25,000 votes. But if they just say it's up to you, you can run on a slate or not. However, if you chose to run on a slate, everybody on that slate must be properly qualified. Why is that an unconstitutional rule?

MR. GILLIS: I think to run with a political party, to run with other persons of a like mind set and a like platform, is a political advantage. If you said that these people can just run individually, I think that puts them in an inferior position when facing other -- the established political parties that have a banner and have a number of candidates.

QUESTION: Well, that may be, but it seems to me a State can say, you know, voters are going to be misled. They think their voting for a slate when, you know, when in fact some of the people on that slate don't make it. They might have voted differently. They might have signed the petitions differently. You don't know how many people would have signed the petitions for these individuals. They signed for them as members of a slate.

MR. GILLIS: I really see no State interest in requiring a complete slate. The -- what is required --

QUESTION: That's not my hypothetical. They do not require a complete slate. They just say if you chose to go as a slate, and that's how you get your petitions signed, then, by George, every member of that slate has to be qualified, otherwise, you've misrepresented what you're doing.

MR. GILLIS: Well, one vice to that is Moore v. Ogilvie, which if you required them to get a complete slate in both the city and the county, a party could be quite popular and show a modicum of support in one district, but not in the other. If you would --

QUESTION: You're not listening to -- I am not requiring them to get a slate. You don't have to get a slate. If you want to run individually, you may. But if you run on a slate, everybody on your slate has to be qualified. Now what's wrong with that?

MR. GILLIS: I think it's -- I'm sorry, I think it violates the requirement that if a person -- party qualifies in one district that they should be on the ballot as happened in this case. And if -- that there, in this case, the petitioners chose to run under a party banner. And I think that's their right.

QUESTION: Well, isn't it true also that in this case, the petitions, at least the ones at the beginning of the appendix, for the 19 candidates, were the 19 that were elected either from Chicago or county wide. And the seven others, who were just from the suburbs, were on an entirely different petition.

MR. GILLIS: That's right. And that that was the one --

QUESTION: So there wasn't any danger of the kind of confusion.

QUESTION: Mr. Gillis, do I take it you are not here supporting the decision of the Cook County Electoral Board across the board, so to speak?

MR. GILLIS: No, I am. I am supporting.

QUESTION: You are. And you are supporting its decision to exclude the suburban candidates running for suburban offices only?

MR. GILLIS: Yes, because only 7,008 signatures were brought forth and the board found that that does not show a modicum of support. To the --

QUESTION: Would 25,000 signatures have been the required number in the suburban area for suburban candidates?

MR. GILLIS: Right. That would be about 2-1/2 percent.

QUESTION: Mr. Gillis, you know, I simply can't find in the questions presented, in either petition, a question on the whole slate question. Am I overlooking one of the questions?

MR. GILLIS: When the supreme court -- I'm sorry, I may have used a shorthand, but when the Supreme Court held that by failing to qualify in the suburbs --

QUESTION: The Illinois Supreme Court?

MR. GILLIS: The Illinois Supreme Court's order said you failed to get enough signatures in the suburbs, then you're off the ballot entirely. That is the workings of what we call in Illinois the complete slate requirement.

QUESTION: Well, that may be, but I guess what we're looking at here, as far as I know, are the questions presented in these blue petitions. And I simply fail to see a question presenting that complete slate requirement. Am I missing one?

MR. GILLIS: Well, it is wrapped up in the issue about whether it's constitutionally permissible to take the complete -- to take the Harold Washington Party off the ballot. That's how it's phrased in the petition.

QUESTION: Which question do you say covers it?

MR. GILLIS: The first one: whether it's constitutionally impermissible to knock the Harold Washington Party off the ballot. Because it imposes conditions that there's no compelling State interest. What's at work there is the State rule that if one candidate is off, they all go off. And that's illustrated, as I said in Anderson v. Schneider.

QUESTION: Well, that would -- you were reading from your argument, not your question.

MR. GILLIS: Yes.

QUESTION: I think that's part of the confusion.

MR. GILLIS: Going to Justice Steven's point about the name, that is displayed in a transcript of August 21st at page 25, and August 24th at page 4. The Cook County Officers Electoral Board interpreted Section 10-5, one of the members said that 10-5 did not even apply to this. And they found -- the board found that there was no violation of 10-5.

I think what's implicit in that is the Court's opinion in Eu v. San Francisco, which states that political parties ought to be allowed to fashion their own business if that doesn't interfere with some compelling State interest such as the manner of running elections or things of that nature.

QUESTION: Well, what would be your position on a State law which required a complete slate within say, just the city of Chicago? Say they required -- say they had 25,000 signatures, but they were required to run a complete slate of officers?

MR. GILLIS: I don't think there's any State interest. I think that would be constitutionally impermissible. The only thing that Mr. Adamski --

QUESTION: Is it because it's not indicative of the existence of a viable party that it can field candidates for all of the ballot positions?

MR. GILLIS: I think it's discriminatory against new political parties. Established political parties don't have to do that. The Illinois Supreme Court has held in the case I've been citing, Anderson v. Schneider, that if one candidate goes off, in some instances the others go on. And I think basically there's no compelling State interest, no good reason, to knock all of the candidates off if one happens to go off or be found unqualified for the ballot.

And in this case it works a further vexatious result that these candidates brought forth 44,000 signatures and enough to qualify under Illinois law, and oops, because they did not qualify in one district, they could be off. This could go on in many jurisdictions. We just have to find one county or one State representative district where somebody doesn't qualify, and you could disqualify the whole ticket, I think that's just constitutionally impermissible.

It's another hoop to make new political parties jump through that existing political parties do not have to.

The name issue, I think the board found the name was not improper. The trial court affirmed on that issue. And I submit that the political party should be allowed to manage its own business.

If there's no other questions, I thank the Court and ask the Court to affirm the decision of the Cook County Officers Electoral Board.

QUESTION: Thank you, Mr. Gillis.

Mr. Adamski, we'll hear now from you.

ORAL ARGUMENT OF GREGORY A. ADAMSKI ON BEHALF OF THE RESPONDENTS

MR. ADAMSKI: Mr. Chief Justice, may it please the Court:

The Illinois Supreme Court said nothing about complete slate. The issue concerning the complete slate is simply this. That seven people who were on this ticket did not get enough nomination signatures. As a result of that, the nomination petition that was submitted for the formation of the new political party, that is the county-wide Harold Washington Party, was not in proper form. The fact that the Illinois Supreme Court struck it down was for that very reason.

There were three things before the Illinois Supreme Court. The first issue was the Harold Washington Party use -- the use of the Harold Washington Party name by this new political party. The second was the 25 signature requirement for each of the units. And the third was the propriety of the form -- of the petition. And on behalf of my clients, who were objectors to these petitions, the Illinois Supreme Court was correct in all three instances.

Now unfortunately, I don't know what the reasons were for their decisions, but I can read their decisions, and I believe their decisions are correct.

Concerning the name violation, the petition that was actually submitted here was a petition for a new political party. It was a petition for a new political party that was called the Harold Washington Party. Mr. Evans, in fact --

QUESTION: May I ask at that point, is that the petition at page 4 of the joint appendix?

MR. ADAMSKI: Yes, it is.

QUESTION: And the only names on that are the 19 candidates who either ran from the city or ran county wide. Is that --

MR. ADAMSKI: Yes. And then if you look at the next page, there's -- you are correct, Justice, that there were -- there are two separate petitions here. One petition is for the city and one petition is for the county.

But this is a party formation party. This is a party formation issue, Your Honor. These people were forming a party to run concerning county issues, the needs of the county, the goals of the county, the aspirations of the county. And it's not unreasonable, and it's certainly -- it certainly is not, I believe, unconstitutional that the State of Illinois requires that if you're going to run in the county, and the county has more than one political subdivision, that you have to come up with -- a modicum of support. In this instance, 25,000 signatures.

QUESTION: Maybe that's right. But just -- because I'm really a little puzzled by it. The first of the two petitions is the one that has the candidates who did get the 25,000 signatures.

MR. ADAMSKI: That's correct.

QUESTION: And the second is the group that go the 7,800 or whatever it is.

MR. ADAMSKI: That's correct.

QUESTION: Now, were they two separate petitions, or are they two parts of the same petition?

MR. ADAMSKI: They were submitted as part of the same petition, I believe.

QUESTION: I see. And so that you're saying the failure to qualify in the one part should disqualify the part --

MR. ADAMSKI: That's correct. That's correct because they're running as a party. And the fact is that when you form -- the law gives special benefits the --

QUESTION: But you would not have been able to make the argument if they'd simply omitted the second part? If they had confined their petition to page 1 and left page 2 out entirely, then you would have no objection?

MR. ADAMSKI: No, I would have a different objection. And that is there is a section of the statute that says you have to put forward a complete slate of candidates for all positions -- for all offices that are to be filled. So in order for them to have complied with the electoral --

QUESTION: For all offices to be filled throughout the State or throughout the area from -- throughout the area that you're petitioning from?

MR. ADAMSKI: For that -- for the particular contest that you are petitioning to run in.

QUESTION: In the particular context on page 1 was county wide and commissioners from Chicago.

MR. ADAMSKI: But the contest included the election of commissioners from the city and from the suburbs.

QUESTION: Well, it also included running for Governor, possibly, too.

MR. ADAMSKI: It didn't. The fact is that the section of the -- I believe it's 10-5, the section of the electoral code that concerns this issue specifically says that you must put forth a complete slate. And that has been upheld in Anderson v. Schneider.

QUESTION: A complete slate for all county officers?

MR. ADAMSKI: All county officers and county commissioners. For everyone who is running in that particular political subdistrict election at that time. And the idea of that, if I may suggest this to the Court, is that you not only want to show that people that you have 25,000 voters, or a modicum of support, you not only want to show that you have that modicum of support from both areas, but you want to show that you have people in both areas who will represent both areas. And the idea here is that there are 10 --

QUESTION: And you couldn't form a new political party to elect just those members of the county commission from Chicago?

MR. ADAMSKI: That's correct. I don't believe that the Illinois electoral code gives that advantage to --

QUESTION: And that must be true or the supreme court wouldn't have ruled the way it did.

MR. ADAMSKI: Well, the supreme court could have ruled otherwise.

QUESTION: Isn't it -- The supreme court could have come down on other grounds then. The supreme court could say that because -- and I suggest to you this is what the supreme court did conclude did conclude -- that the petition was in improper form, that the entire petition was not properly presented because it did not have candidates.

QUESTION: Isn't it -- aren't their instances in Illinois where the two major parties don't put up complete slates?

MR. ADAMSKI: Yes.

QUESTION: Well then, what is the justification if the major parties aren't subject to the complete slate rule, for requiring it of a new party?

MR. ADAMSKI: Well, Your Honor, this goes to the issue that this Court has addressed in Anderson and in the other, what we'll call classification scheme, cases. The --

QUESTION: You're referring to the Supreme Court of Illinois' decision in the Anderson case?

MR. ADAMSKI: No, I'm referring to Anderson v. Celebrezzi, this Court's decision.

The fact is that there is an interest in promoting the two-party system and I believe that Monroe stands for that proposition. I believe that there's language to that effect in Socials Workers. The State has a right to set up certain restrictions in allowing new parties. Now there's a gigantic advantage, and the State of Illinois favors, in fact, party formation. There's a gigantic advantage to running as a party, because the party only has to come up with 25,000. It only has to comply with the number of votes -- signatures on the nominating ballots for the district in which it is running. If individuals ran, if you are running as an Independent, you have to come up with 25,000 each yourself.

So what the State does is, the State of Illinois makes a determination. We can run the whole spectrum of ballot access here. There can be no ballot access or you can have complete ballot access. And the State of Illinois says for new party formation it's 25,000. And the additional price that you have to pay to get that advantage is that you have to show us that you have a full slate of candidates that you -- that you can field people of common interest, common goals --

QUESTION: I think that in our cases, the talk about a two-party system as being a valid electoral goal, we were talking in terms of requiring new parties to do almost as much, or perhaps as much, as the established parties. But Illinois requires a new party to do more, apparently.

MR. ADAMSKI: Well, Your Honor, the fact is that all the States that require new parties to come up with certain -- a number of nominating petitions require those new parties to do more than a party where that for instance --

QUESTION: Well, where there's been a past track record --

MR. ADAMSKI: Right.

QUESTION: -- of support.

MR. ADAMSKI: No, that isn't what I was going to say, if I may excuse you. In the instance --

QUESTION: You don't have to excuse me, just say what you were going to say.

(Laughter.)

MR. ADAMSKI: In the instance where no one has run for an officer, in the instance where say, an office has been held by Democratic Party holders for years and years and years, and there is no Republican Party holder, there's no restriction there. And there's a restriction -- there's a greater restriction on the person who's coming into that area.

QUESTION: But supposing that there has been no republican candidate in a particular part of Chicago for many, many years. And then the Republicans want to start having a candidate there. They're not subject to this full slate requirement, are they?

MR. ADAMSKI: No, they're not because they're an established party. And that -- if it please the Court, that is the price that Illinois puts on new parties. If you're going to come in and be a new party, if you're going to take advantage of this liberal 25,000 requirement, then you simply have to have a full slate of people.

QUESTION: May I pursue that just a little. There are seven or eight offices -- I can't remember -- State's Attorney of Cook County, Assessor of Cook County, Clerk of Cook County, Sheriff of the County, Treasurer of Cook County, Superintendent of Eduction, and so forth. Supposing a party wanted to run for six of those, but not all seven or eight, whatever it is. The law would not permit them to qualify as a party unless they got 25,000 -- and what is the State interest in requiring all eight instead of just six or seven?

MR. ADAMSKI: The State interest is that the State while it encourages party formation wants to be certain that individuals -- that you put forth a full party. That you are putting forth for the voters --

QUESTION: Why doesn't that apply equally to the Republicans or the Democrats who might decide they haven't got a chance of electing the Clerk of Cook County for some reason -- maybe the incumbent is so terribly popular that they don't have to run a candidate. What is the State interest that justifies the disparate treatment?

MR. ADAMSKI: I don't know that you're correct that the Republican would not be subject to attack. I don't know -- or the Democrat, whoever it is --

QUESTION: Well, what's the State interest in making them run somebody that they know is going to lose, and they aren't going to spend any money trying to elect?

MR. ADAMSKI: Well, I -- there's no State interest in that. There's none.

I think the Court has taken in these cases -- the Court -- the language of the Court is that there is no litmus paper test. And the Court has looked in a fact-intensive basis into each one of these cases to see where the burdens are. Now the State's interest, and Mr. Justice White in the Monroe case specifically said and noted that this Court has never made a particularized review -- required a particularized proof from a State as to the needs, as to the State's interest in regulations, so long as those regulations are reasonable. And so the Court has to look on a factual basis, in effect, as to the reasonableness of these.

Now the requirement of 25,000 -- we've thrown that around, but in fact the requirement is a percentage requirement. It is the percentage requirement of 5 percent maxed out under the Socialist Workers case at 25,000. There is no evidence in this record, no evidence in this record whatsoever, that unduly burdened these people.

These people simply came in, they put their ballot -- they put their nominee -- nomination petitions in and made no effort or record that they had a difficulty to expand. Essentially what they're telling you here, what they're asking you to do is because they didn't comply with the law, they want you to strike the law down so they can run anywhere they want.

Now the State has an interest, and I think all the parties agree, the State has an interest in regulating these elections, and there's no, I suggest to the Court, there's no --

QUESTION: What -- I gather that though in this case because the suburban -- the party, new party didn't get enough signatures in the suburban area and they got plenty in the city.

MR. ADAMSKI: That's correct.

QUESTION: But nevertheless the new party couldn't run in either the city or the county.

MR. ADAMSKI: For the county positions. That's correct.

QUESTION: Yeah, for the county positions.

MR. ADAMSKI: That's correct.

QUESTION: In effect, then, the people who are running for county commissioners from Chicago, even though they had more than 25,000 votes -- or signatures, were off the ballot.

MR. ADAMSKI: That's correct.

QUESTION: Because there weren't 50,000 in the whole county.

MR. ADAMSKI: That's correct.

QUESTION: Why is -- why doesn't that violate our cases?

MR. ADAMSKI: Your Honor, the cases say that the State has a right to put restrictions on to show that a particular party has a modicum of support. These people were saying -- these people were representing to the public, and to their competitors in the other parties, that they were a party that had county-wide interests. They didn't. They didn't have --

QUESTION: But our cases also say that you can't require more support for a subdivision of the State than you require for the whole State. And the whole State you only require 25,000, whereas for Cook County you require 50,000.

MR. ADAMSKI: Unless --

QUESTION: How do you figure that?

MR. ADAMSKI: The case -- I think you're referring to the Socialist Workers case in particular, that case says unless there's a good reason. Socialist Workers was a situation, Your Honor, where because of this Court's decision in Moore, the City of Chicago had requirements for ballots, ballot nominations, three times greater than the State of Illinois. And this Court struck that down and in effect amended -- our legislature did it, but in effect amended the State law to say 25,000 was the cap. But in that very case, that 25,000 that this Court was talking about was the 25,000 from Chicago.

And this Court recognizes, Justice Stevens recognized in his footnote 3 of that opinion, that the 25,000 requirement was a requirement for all political subcomponents. Our law in Illinois requires if -- let's take for example one of our counties is called Sangamon County. It's in Springfield, Illinois. If these people wanted to go to Sangamon County, they'd have to -- and they wanted to form their new party there -- there's nothing in our law that stops them from doing that -- they'd have to come up with 5 percent of the people in Sangamon County.

If they're going to go around and form parties in every city and every county in the State, they're going -- I'm saying this to you, Your Honor, because I want you to understand we're talking about a lot more than 50,000 here. The fact is that before they get to go into those areas --

QUESTION: I understand, but Cook County is just one county. Sangamon and Cook County are two counties, and that's 50,000, and that's fine. 25,000 in each county. Cook county is just one county.

MR. ADAMSKI: Cook County has 900 -- 650,000 registered voters in the last election. The City of Chicago has 850,000. When you're looking -- let's take this first on the idea of reasonableness. When you're looking at the reasonableness of this, this is a drop in the bucket, I suggest to you.

When you're talking next about why have the difference, the difference is based upon this Court's discipline in all of its cases that says that the State has a right to demand that someone has a modicum of support. These people should not have the right, under our State law and under good representative participatory government and democracy, they should not have the right to simply go into any area they want and run their party, unless they have people there who are going to support them. And the 5 percent rule, I suggest to you is not unreasonable and does not unduly burden them.

QUESTION: It's only unreasonable when you require more from the county than you would to have for somebody to run statewide. I mean, yes, they are big numbers you gave me for the number of voters in Cook County and in the city of Chicago, which is part of Cook County, for the purposes of the breakout in counties, right? This is one county we're talking about.

MR. ADAMSKI: But the city of Chicago is a completely separate political subdistrict under the Illinois Electoral Board.

QUESTION: Of the county.

MR. ADAMSKI: Of the State. Of the State.

QUESTION: I take it you're really not arguing that they struck this whole -- that they disqualified the candidates from Chicago as well as from suburbia because they didn't get 50,000 votes?

MR. ADAMSKI: You wouldn't permit the people from Chicago who got their 25,000 votes to run in the election because the suburbanites didn't get enough votes.

MR. ADAMSKI: That's correct.

QUESTION: So you're really saying they were -- the Chicago people were disqualified because of the full slate rule.

MR. ADAMSKI: Well, I don't know --

QUESTION: Isn't that right?

MR. ADAMSKI: I don't know about a full slate rule. I know that the petition wasn't in proper form.

QUESTION: Why wouldn't you let the county people who got 25,000 -- the Chicago people who got 25,000 votes run on the ballot? Why couldn't they get on the ballot? Why?

MR. ADAMSKI: Your Honor, well, because that's not what the rules provide. If they want to run as independents, then each of them has to get 25,000 --

QUESTION: No, they want to run under the party name.

MR. ADAMSKI: But the party they put forward, and this goes back, I guess to what Justice Stevens was pointing out, the party that they ran for was a party that had more people in it than they had support from. And that made their petition infirm. It made their petition improper. It made their petition invalid.

QUESTION: Yeah, but it's because the party just didn't have candidates from suburbia that had enough votes.

MR. ADAMSKI: That's exactly why.

QUESTION: All right. And therefore, you disqualified the Chicago people as well.

MR. ADAMSKI: The Chicago people were running -- this is a county election, Your Honor. The Chicago people were running in a county election for county positions.

QUESTION: Sure.

MR. ADAMSKI: And there's good reasons why you shouldn't let that happen. You shouldn't allow the city people -- in this instance, you shouldn't allow the city people to attempt to take over county positions without having support throughout the county. That seems to me to be axiomatic.

QUESTION: Yes, but you don't really mean that because on the position for State's Attorney or County Clerk, for example, you would accept 25,000 signatures all from Hyde Park or one tiny area in Chicago that would qualify them to run for State's Attorney, if they filed the right form.

MR. ADAMSKI: If they were a party?

QUESTION: Yes.

MR. ADAMSKI: No. No, I don't agree with that. They were --

QUESTION: Even if they ran a full slate?

MR. ADAMSKI: If they ran a full slate --

QUESTION: But the people running for the offices I'm describing, all of the signatures came from a tiny area within the city of Chicago.

MR. ADAMSKI: Right.

QUESTION: Those petitions would still be good. Assuming --

MR. ADAMSKI: I agree with that. Yes, I do agree.

QUESTION: So that a candidate for a county-wide office does not have to have any support at all outside the city of Chicago to get on the ballot.

MR. ADAMSKI: So long as the candidate for county --

QUESTION: So long as the slate is -- you know, a complete slate.

MR. ADAMSKI: Yes. Yes.

QUESTION: So people in the city of Chicago do vote, say, for Treasurer of Cook County.

MR. ADAMSKI: Yes, Your Honor. The --

QUESTION: Well, excuse me. And the Board of County Commissions, they are county commissioners of Cook County.

MR. ADAMSKI: That's correct.

QUESTION: And some of them are elected from the city of Chicago.

MR. ADAMSKI: 10 of them are.

QUESTION: Right.

MR. ADAMSKI: That's correct.

QUESTION: So how is that a separate political sub -- I mean, I don't understand what you mean by a separate political subdivision if you have a Board of County Commissioners that governs both the county and the City of Chicago.

MR. ADAMSKI: For purposes of the county board elections, the statute -- and this is not just in Chicago, this is in any county that has a similar county board -- the statutes provide that if you have -- if you're running for more than one component, then you have to show a modicum of support from both components.

An example might be for the -- I'm not sure if this is accurate -- I'll give this example to the Court and tell you that I think it is, but the State Senate positions run for more than one county. You have to show a modicum of support from the various places that you run from that is outside the City of Chicago, in the southern areas of the State, the central areas of the State, and western areas of the State. So I don't think that that's unreasonable.

This is a county position and you need to show county support if you want to take advantage of the ameliorative party formation laws in the State of Illinois. If you want to run -- if a group of individuals want to run as a group of individuals, then each of them has to go and get that number of votes, 25,000 or 5 percent. But if they want to run together as a group and take advantage of this, this law, then they have to get the support from every component that there is.

The other point that I wanted to make about the factual basis here is that I said first that there's no reason to believe that the 25,000 requirement burdens anyone. There's no evidence to that effect before the Court.

Likewise, there's no evidence to the effect that the filing of a proper form burdens anyone. They simply didn't do that.

The Harold Washington Party is alive and well in Chicago. It has run in two city elections in the last 2 years and has done very well for itself.

The brief that I filed points out, and I don't think I need to go into much detail on this, that if they want to expand, the mechanisms are there for them to expand. They simply, in this case, did not follow those mechanisms. And I suggest to the court that there is nothing unreasonable about a requirement, the two requirements -- that you file a proper form and the requirement that you file 25,000 signatures from each unit to get to -- take advantage of the new party laws in Illinois.

QUESTION: Mr. Adamski, you don't contest that the Harold Washington Party is the Harold Washington Party, do you?

MR. ADAMSKI: I do.

QUESTION: You do.

MR. ADAMSKI: Yes, Your Honor, yes. It's not. It's not.

QUESTION: It's not.

MR. ADAMSKI: This Harold Washington Party is Mr. Pincham's Harold Washington Party. Mr. Evans ran in a special election against Mayor Daly in 1989, I believe, and he formed the Harold Washington Party for the City of Chicago. He never appointed any committeemen, he never held any caucuses, he never held any -- he had no primaries, nothing.

In August of 1990, Mr. Pincham came in with petitions at this time and at the time he ran on the Harold Washington Party -- Mr. Evans, by the way, was a functionary of the Democratic Party, he held an office in the Democratic Party of Cook County -- Mr. Pincham came in and filed these document. And the documents say that it's a new political party. The documents say that.

Now, at the hearing before the board, the electoral board, Mr. Evans testified that he had authorized it. Well, the law doesn't give Mr. Evans the right to authorize it. The law -- once parties are formed, parties are very serious matters, and once they are formed they are regulated by law. They had to hold a convention, they had to hold a caucus, they had to hold a primary. Mr. Evans only had authority to point interim committeemen under Section 10-2 of the Electoral Code, I believe.

QUESTION: I take it you are saying a political party is either a new one or an old one, and this was a new -- this had to be a new party.

MR. ADAMSKI: This is a party formation case.

QUESTION: It was said -- and then they said it was new when they filed their petition.

MR. ADAMSKI: No, they've taken the position -- they said it was new, yes.

QUESTION: Well, I mean -- they wanted to file a new -- for a new party.

MR. ADAMSKI: Since then they've taken the position that all they were really doing was expanding.

Be that as it may --

QUESTION: Oh, no wait. Could they have come into Cook County and said we are an old party?

MR. ADAMSKI: I believe they could have, yes. I believe that they could have filed nominating petitions for the formation of the Harold Washington Party in Cook County, yes.

QUESTION: I thought that you're a new party if you are new in the elective unit that the election pertains to. They were -- they had to --

MR. ADAMSKI: They are new.

QUESTION: Well, okay. That's why they said they were a new party. Of course they were a new party in Cook County, in suburban Cook County.

MR. ADAMSKI: The were a new party. They were a new party.

QUESTION: Before you were criticizing them for being a new party, now you say yeah, of course, they were a new party. Well which is it?

MR. ADAMSKI: They were Mr. Pincham -- I've taken a -- maybe I just --

QUESTION: Even if Evans -- even if Alderman Evans had come in, he would have been a new party under your view.

MR. ADAMSKI: Yes.

QUESTION: Because the old party was just formed for the city of Chicago.

MR. ADAMSKI: Right. That's correct.

QUESTION: And you're now talking about a new political unit.

MR. ADAMSKI: That's correct.

QUESTION: So there had to be a new party.

MR. ADAMSKI: That's correct. That's exactly right.

QUESTION: So the distinction isn't between the Evans Harold Washington Party and the Pincham Harold Washington Party. It's the distinction between the Chicago Harold Washington Party and anything else.

MR. ADAMSKI: That's correct.

QUESTION: Now, what evidence is there that -- did the Supreme Court of Illinois say that this party was not qualified to use the Harold Washington name?

MR. ADAMSKI: Yes.

QUESTION: It didn't say why, but it said that.

MR. ADAMSKI: Yes. It did not say why.

QUESTION: And you would say because it was a new party and a new party can't use the same name as an old party.

MR. ADAMSKI: It can use somebody else's name. The party continuity issue there is a different issue. You can't -- they can't come forward and say we're going to use somebody else's name when the name's already been -- in use. They can't do that.

QUESTION: Well, they're forming a new party and they want to use an old party's name. Can they do that?

MR. ADAMSKI: No.

QUESTION: And is that basis for the Supreme Court of Illinois judgment?

MR. ADAMSKI: I'd like to think so.

(Laughter.)

QUESTION: Now, wait a minute. Of course a new party can use an old party's name.

MR. ADAMSKI: If it has the permission of the old party.

QUESTION: It depends on what you mean by a new party. A new party in the political unit, in the sense that it's new to that political unit, can use the name of an old party from another political unit. You mean a party cannot expand in your State?

MR. ADAMSKI: A party can expand, but it has to be the same party. They weren't the same party. This was a brand new political party.

QUESTION: Oh, you're saying that it was new in that sense, that it is not the same party.

MR. ADAMSKI: If there's no more questions, I would --

QUESTION: Weren't there findings against you on that? Didn't the board simply find that it was the same party?

MR. ADAMSKI: Yes. The board found that it was the same party. The circuit court, which reviewed it de novo, essentially affirmed the board. I don't think that circuit court made any findings on that issue, but it essentially affirmed the board.

I would ask that the Court affirm the decision of the Illinois Supreme Court. And I thank you.

CHIEF JUSTICE REHNQUIST: Thank you, Mr. Adamski.

The case is submitted.

(Whereupon, at 2:48 p.m., the case in the above-entitled matter was submitted.)

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Tashjian v. Republican Party Of Connecticut - Oral Argument

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Tashjian v. Republican Party Of Connecticut

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85-766_19861008-argument.mp3

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1986_85_766_argument.xml

Transcript:

Argument of Elliot F. Gerson

Chief Justice Rehnquist: We will hear arguments next in No. 85-766, Julia H. Tashjian, Secretary of State of Connecticut, versus Republican Party of Connecticut, et al.--

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

Mr. Gerson: Mr. Chief Justice, and may it please the Court, this case involves a conflict between Section 9-431 of the Connecticut General Statutes which requires that persons be enrolled members of a political party when they vote in that party's primary election, and a rule adopted by the Republican Party of the State of Connecticut that would, contrary to that state law, allow unaffiliated voters to vote in Republican primaries for United States Senate, United States House of Representatives, Governor, and certain other state executive offices.

The rule would not, however, apply to other elective offices in the state, including state house and state senate.

The issues in this appeal are whether this law, which sets voter qualifications in a major party state primary is unconstitutional simply because a state party adopts a conflicting rule, and whether the particular rule adopted by the appellee party in this case is itself violative of Article 1, Section 2, and the Seventeenth Amendment to the Constitution.

When Connecticut enacted its primary electoral scheme, which has now been in effect for greater than 30 years, the legislature thoroughly debated the implications of the various electoral codes that had already been adopted in the various states.

Connecticut, in fact, was one of the last states to adopt a primary.

The legislature selected a system that recognized the important role played by major political parties in the electoral and governmental process.

The legislature sought, while opening up the process to the party rank and file, to at the same time maintain party responsibility and accountability by limiting participation in primary voting to party members.

The legislature thus struck a balance between a convention system and a wide open direct primary.

Simply stated, the law in this case allows a candidate of a major party in Connecticut who obtains 20 percent of a roll call vote at a party convention to wage a primary in which all party members may participate.

Connecticut law further provides for automatic and preferential ballot access for major parties.

The primaries in Connecticut are financed by the state and its towns and administered by the state and its towns, and enrollment is a very simple process involving completion of a short form up to noon the last business day before the primary.

The basic point--

Unknown Speaker: When you say enrollment, is that synonymous with registration?

Mr. Gerson: --It is synonymous with participation in a party primary.

Unknown Speaker: It is enrollment for the convention, not for primary voting?

Mr. Gerson: It is enrollment for purposes of the primary.

Unknown Speaker: Does it differ in some way from what in other states would be called registration to vote in the primary?

Mr. Gerson: No, it does not.

There is registration to vote as an elector in the general elections, but enrollment refers to enrollment in a party which allows one to participate in the party primary.

Unknown Speaker: Oh, I see--

--You mean the person has to elect a party affiliation at that time in order to vote in the primary of that party.

Mr. Gerson: That's correct.

Unknown Speaker: You have to say, I am a Republican and I want to vote in the Republican primary, for example.

Mr. Gerson: Justice O'Connor, a simple form simply requires statement of name and address and a desire to enroll in that party for purposes of that primary.

Unknown Speaker: So under Connecticut terminology you register to vote in a general election but you enroll to vote in the primary?

Mr. Gerson: Yes, Mr. Chief Justice.

Enrollment is enrollment in a party list which allows one to vote in a party primary.

Unknown Speaker: Do you have to be already registered to vote in the general election to enroll and successfully vote in the primary?

Mr. Gerson: You have to be a registered voter to enroll in a party primary, Your Honor.

Unknown Speaker: If you have... to register to vote in the general election, may you say you are a Republican or a Democrat?

Mr. Gerson: You may be a Republican or a Democrat or unaffiliated voter.

Unknown Speaker: Or an independent.

But your enrollment for the primary purposes does not change your designation in your registration.

Mr. Gerson: When you enroll in a primary you are then listed as a Republican or as a Democrat or as an unaffiliated voter for purposes of any other election unless one elects to disaffiliate from that party, which is also a very simple process.

Unknown Speaker: But if you have registered as a Republican for the general election, in the last election, then your registration is still good?

Mr. Gerson: That is correct, Your Honor.

Unknown Speaker: If you choose to vote in the Democratic primary it doesn't change that registration.

Mr. Gerson: That is correct, Justice White.

The basic points I wish to discuss today may be simply stated.

First, that this case does not involve the merely internal affairs of a private association, but rather the public electoral functions of a major political party, that the state has a real and substantial interest in assuring the accountability and responsibility of the major political parties in view of the party's major governmental and electoral roles, that the decision of the Court of Appeals and particularly the analysis and the test that it employs have profound implications for the electoral codes of Connecticut and all the other states, and we also wish to demonstrate in the particular context of the rule adopted in this state the significant administrative burdens that would be imposed on Connecticut's electoral officials if this rule were in fact implemented.

Fourth, that there is no real showing of any injury to the constitutional right of appellees that this statute has caused.

The state is merely regulating appellees' interaction with people who do not want to join them in membership.

And finally, we will argue that the rule itself in this case is unconstitutional as violative of Article 1, Section 2 and the Seventeenth Amendment of the Constitution.

First, we wish to stress that this case does not involve the merely internal affairs of a private association or a private debating society, but rather the public electoral function of a major political party.

Major political parties dominate the electoral process, dominate the government.

As a practical matter, the choices that voters will have as to who will govern them are made when the major parties nominate their candidates.

Accordingly, people have a right to say through their elected representatives how those people are selected and what electoral system best promotes governmental goals.

Unknown Speaker: What if this weren't a major party.

Are you arguing that we should regard this provision as different in its application to major and minor parties?

Mr. Gerson: Yes, Justice Scalla, this case would be a different case were a minor party or petitioning party involved.

Unknown Speaker: Now, does the law apply equivalently to minor parties?

Mr. Gerson: No, Your Honor, different laws apply to minor parties and petitioning parties.

Unknown Speaker: What is the test of minor?

Mr. Gerson: The test of a minor party is whether or not the candidate in a previous election has received 1 percent of the vote for that office.

A minor party--

Unknown Speaker: That is not very major.

Mr. Gerson: --That's correct.

Chief Justice Rehnquist: We will resume there at 1:00 o'clock, Mr. Gerson.

Mr. Gerson: Thank you.

Chief Justice Rehnquist: You may resume, Mr. Gerson.

Mr. Gerson: Mr. Chief Justice, just to further elaborate on Justice Scalla's point about minor parties, as I stated, a party qualifies as a minor party by receiving 1 percent of the vote for an office, but remains a minor party generally until that party receives 20 percent of the vote in a gubernatorial election.

The state in no way regulates the nominating process of those minor parties.

As I was indicating before the recess, this case does not involve the merely internal affairs of a private association but the public electoral functions of major political parties.

When a major party is participating in a state primary election it is performing a function that the state has delegated to it, and the state then adopts that party's choice by automatically and preferentially placing the nominee of that party on the general election ballot.

The duties assigned to major parties do not become matters of private law simply because they are performed by a political party.

In addition to the--

Unknown Speaker: Mr. Gerson, do you concede that a political party does have a protected First Amendment right to define its own membership?

Mr. Gerson: --Justice O'Connor, it does have such a right to define its own membership, but membership in a political party is not equivalent to qualification for voting in a party primary.

What is involved in this case is the state determination about who may participate in a state election.

Membership relates to the internal affairs of a political party.

Unknown Speaker: So you reject the concept that there is any First Amendment right at stake here at all?

Mr. Gerson: Your Honor, a party certainly has First Amendment associational rights with respect to its internal affairs.

The party is free to determine whatever ideology it chooses, whatever platform it desires, but in this particular case the associational rights of the party are not implemented.

The burden on the party here is at most an incidental one.

They are desiring to affiliate with people who by their own voluntary choice are indicating they do not want to be members of that party, so the membership question in this case is not one that directly implicates those rights.

Unknown Speaker: Well, but I guess the party is taking the position that they want to have the votes counted of people who are interested enough to at least cast their vote with the party in the selection of candidates.

Is that a right protected by the First Amendment, do you suppose?

Mr. Gerson: No, Justice O'Connor, I don't think it is.

To the degree it is, it certainly cannot supplant the state's major interests in regulating the electoral process.

The state, aside from its electoral responsibilities, has a substantial interest in ensuring the accountability and responsibility of major political parties in light of their elective role.

The state--

Unknown Speaker: Well, if the Court were to determine there is some First Amendment right to be protected here, what standard or test do you think we would have to employ?

Mr. Gerson: --Justice O'Connor, in the context of a challenge to an election statute, a state statute such as this, the appropriate test would be that the state may adopt a neutral, nondiscriminatory restriction, and such a restriction is constitutional as long as the state has a reasonable regulatory interest with the burden being on the challenger.

The test adopted by the Court of Appeals in the context of associational interests of private associations with their own membership really has no applicability to the public electoral function in this case.

If it did, it would invalidate many election codes across the country.

The test is implicit in cases of this Court such as Anderson against Celebreeze where this Court recognized that election codes inevitably affect the associational rights of political parties or candidates or voters to some degree, but nonetheless subjected the state statute to a much lower level of scrutiny, indicating that the state's regulatory interests are generally sufficient to override such associational claims.

The issue in this case, unlike the way in which the Court of Appeals framed it, which was asserting that the state was arguing that closed primaries are to be preferred to open primaries, is not that at all, but it is rather who makes the choice as to whether a state's primarily electoral system will be an open system or a closed system or a blanket system or any other kind of system.

That decision has implications for the public and for the polity at large.

It is a decision that does not go only to the internal affairs of a political party.

Indeed, the appellees concede, and in the Court of Appeals the Democratic Party of Connecticut stated in its brief that if the Republican Party in this case adopted this rule, that the Democratic Party would necessarily follow suit.

The reasons that date back to Charles Evans Hughes' original recommendation that states adopt closed primaries, reflected also in the American Political Science Association Committee on Political Parties in 1950 advocated closed primaries, was not because those... that... Charles Evans Hughes or the APSA believed that closed primaries improved the internal operations of a political party, but rather that the implications of a closed system affect the state at large, and the state has a legitimate if not compelling interest in determining what kind of election scheme there is going to be.

Unknown Speaker: What benefits, Mr. Gerson, did Charies Evans Hughes and the American Political Science Association think flowed from the closed primary?

Mr. Gerson: A number of them, Chief Justice Rehnquist.

They believed that a closed primary is more compatible with a responsible party system, that a closed primary retains membership, the incentive for membership, and therefore is very important in leading to responsible and accountable elected officials.

Without party membership, there is a much looser link between elected officials and voters.

Again, though, it is important to state, and the legislative history in 1955 as well as in 1985 reflect the judgments of Connecticut legislators that the basic decision as to how the candidates of major parties are to be selected have implications far beyond that narrow party.

Unknown Speaker: But in your general election you certainly want the votes of the people not unless they registered in the primary, so anyone who becomes an elected official is almost surely going to become the elected official by virtue of votes other than from members of the party.

Mr. Gerson: Absolutely, Justice Rehnquist, but then again, given the role of major parties in our states, there is an important interest in the state ensuring that a candidate of a political party is the representative of that party for a citizen or for a voter to be able to go to that party about the accountability of that particular elected official.

The state has a legitimate interest in making these kinds of determinations.

We are not in any way indicating that this is a decision that is appropriate for all states.

Other states in light of their own interests may determine for different reasons that an open primary is preferable or a blanket primary is preferable, but the decisions have implications well beyond a party, and accordingly that decision should be made by a body that is accountable to all the people in a state and not a decision that is just made by a political party.

Unknown Speaker: When you... how do independents get on the ballot in Connecticut, or do they?

Mr. Gerson: An independent candidate can get on the ballot by--

Unknown Speaker: Petitioning?

Mr. Gerson: --petitioning.

Unknown Speaker: And he doesn't need to belong to a political party?

Mr. Gerson: That is correct, Your Honor.

Unknown Speaker: He can get on the ballot and be voted for or against without ever being... belonging to a party?

Mr. Gerson: That is correct, Justice White.

Again, the state is not attempting in any way to regulate the nominating process of independent candidates, petitioning candidates, or minor parties.

It is because of the fundamental public electoral role and the important governmental role played by the major parties that the state has a legitimate interest if not a compelling interest in determining how that system shall operate, beyond the very decision as to what kind of system should be in place.

If the decision as to what kind of elective system there is going to be is left to the political parties, the implications for the electoral administration in all the states are profound, which is undoubtedly one reason--

Unknown Speaker: Mr. Gerson, I am still concerned about the extent to which there may be a First Amendment interest.

In the Democratic Party case I guess the Court held that the inclusion of people unaffiliated with a political party may seriously distort its collective decisions and therefore it has a First Amendment associational right at stake.

Now, isn't the converse true as well?

Mr. Gerson: --No, Justice O'Connor, I don't believe it is.

The Democratic Party case involved the extraterritorial application of a state law on a national party.

There was never any question in that case whether the State of Wisconsin could regulate its own state parties and its own state elective system, and similarly, that case relied on the Cousins case, where again this Court applied strict scrutiny in the context of an intrusion into the internal affairs of a political party.

That is not what is involved in this case.

Unknown Speaker: Well, certainly there is language in the opinion to the effect that Democratic Party implicitly assumes that freedom of association creates a presumption that it may participate in deciding who votes in a primary.

Mr. Gerson: Justice O'Connor, that is correct, and I think it is also one reason why this Court has repeatedly recognized in election cases that any election code is going to inevitably affect the associational interests or at least the asserted associational interests of a political party, and if the opinion of the Court of Appeals were adopted by this Court, political parties would essentially have a veto over matters that are now the sovereign responsibility of the state with respect to election regulation.

The State of New York in its amicus brief on support of 16 states with radically differing kinds of primary election systems, closed primary and blanket, indicated that the Court of Appeals decision had the prospect of undoing 100 years of election law reform.

Under the logic of that opinion the political primary, just as in this case, it is arguing that it is somehow opening the process, could just as easily close that process down.

There would be nothing to stop the Republican Party or the Democratic Party or any other major party from saying to the State of Connecticut, we do not want a primary at all, we want simply a convention.

Or we do not want a 20 percent rule in the challenge primary, we want--

Unknown Speaker: Well, Mr. Gerson, I think perhaps your opponents might argue that if the parties were to take that drastic a position there might be much more serious administrative or regulatory consequences to the state.

Here it was either the Second Circuit or the District Judge found that the administrative burden on the state from administering the kind of a primary that the Republican Party... would not be great.

Do you question that finding?

Mr. Gerson: --The only thing in the record that relates to the administrative burden is the comment by... in the legislature by the elections attorney for the state that this system would be workable.

There is nothing to indicate in any way that the system would not have enormous problems or be difficult or would be costly.

I mean, counting ballots by hand would be workable.

The point, though, is, regardless of the administrative burdens imposed by this particular rule, if parties could dictate what the qualifications are for voting in primaries elections, electoral regulation would become characterized as a form of regulation that a state engages in of perennial instability.

Every party, every election could adopt different determinations as to who may vote in its primaries.

It would be one thing, although the administrative burden would still be enormous, if what was involved really related only to the internal affairs of that political party, but when, as here, it goes to how the basic elective system is going to operate, which has implications well beyond the political party, it seems to us that such a burden clearly outweighs any putative associational interests in this case.

And if I may just explore what the associational interests are in this case, the Court of Appeals initially indicates that the burden is indirect and that it affects the rights of the Republican Party to some limited extent, yet somehow transforms that indirect limited burden into a massive intrusion into their rights.

Yet we would submit that by any reasonable standard the burden here is really no more than a minimal inconvenience to the party that is well within the state's Article 1, Section 4 authority to regulate the time, place, and manner of elections.

The fact that voters take the very simple step of enrolling a day before hardly leaves the Republican Party of Connecticut powerless to attract voters to its cause, and we also have a difficult time understanding the nature of the interest.

Absent a willingness to profess an interest in affiliation, where is the right?

Without a commonality of interest, where is the association?

This statute does no more than regulate the parties' interaction with people who do not want to be members of the party for purposes of voting.

The state is not preventing unaffiliated voters from voting.

There is no disenfranchisement involved in this--

Unknown Speaker: But by hypothesis don't we have to assume that some people are going to vote in the open primary that didn't vote in the closed primary?

Otherwise it is just much ado about nothing.

Mr. Gerson: --That's correct, Justice Rehnquist, but we would have to say it is just by hypothesis.

There is no indication in this record that there are unaffiliated voters who are clamoring for participation in the Republican Parties in Connecticut.

Quite the contrary.

Unknown Speaker: Well, the Republican Party thinks it is worth a lawsuit anyway.

Mr. Gerson: Absolutely, Justice Scalia.

Unknown Speaker: I mean, you have to believe that they think it is important.

Mr. Gerson: The state in no way is questioning the sincerity of the Republican Party's desire to open up its primaries.

The state is merely asserting that the decision as to what kind of primary elective scheme a state is going to adopt is a decision that must be left to the elected representatives of all the people of the state, and not just the members of a particular political faction in the state.

The implications--

Unknown Speaker: Well, Mr. Gerson, it seems to me that you denigrate unnecessarily, perhaps, in your argument the strong interest that a political party may have in allowing independents in this case to vote in the primary because they are sufficiently aligned with the party to permit them to play a role in the party's decision-making process, and it would seem to me that that is an arguable position for the party to take.

Mr. Gerson: --Justice O'Connor--

Unknown Speaker: Now, there may be countervailing state purposes here that can outweigh it, but I just wonder whether you aren't giving too little credence to the interests at stake.

Mr. Gerson: --Justice O'Connor, again, we agree that the Republican Party sincerely and conscientiously is arguing its position that it desires this affiliation that it is now not allowed by the state party, by the state law.

Nonetheless, we would argue that there is nothing preventing the Republican Party of Connecticut from involving unaffiliated voters in many of its internal affairs, taking their--

Unknown Speaker: Well, but they want them to be involved in the most important function of all, which is nominating candidates.

Mr. Gerson: --Justice O'Connor, precisely, but that most important function of all is a state function performed by a major political party.

It is not a matter that goes just to the internal affairs of that political party.

Mr. Chief Justice, I would like to reserve the rest of my time.

Argument of David S. Golub

Chief Justice Rehnquist: Thank you, Mr. Gerson.

We will hear now from you, Mr. Golub.

Mr. Golub: Mr. Chief Justice, and may it please the Court, there are two fundamental disagreements between the parties on the issues in this lawsuit, and one is involved with the questions that Justice O'Connor was just asking Mr. Gerson about the nature of the freedom of association issue in this case.

And the state in its argument today has characterized it as one based on membership, that it is an attempt to force people who don't want to become members to participate without assuming the mantle of membership.

That is not the freedom of association issue that we rely on solely.

It is true we want them to participate.

It is true that the Republican Party has adopted this rule in the ultimate hope that independent voters will become members of the party in the future.

But the reason the rule is adopted goes beyond that.

The reason the rule was adopted is because whether or not independent voters become members of the party, their numbers are so great in the State of Connecticut they outnumber the number of Republicans significantly.

The present numbers are 700,000 Democrats, 600,000 independents, and 475,000 Republicans.

Whether or not those independent voters become members of the party, their participation, whether through a formal affiliation or an informal affiliation in party affairs, their participation in supporting party candidates at an early stage, their participation in helping the party select candidates with enough popular support to win general elections by getting other independent support or even support from other groups, those kinds of feelings were what prompted the Republican Party to adopt this rule.

Unknown Speaker: Mr. Golub, you don't contest the... indeed, you welcome the action of the State of Connecticut in giving political parties a prominent role in their electoral process?

Mr. Golub: That's right.

Unknown Speaker: I mean, political parties are folded into the electoral process.

I mean, conceivably they could run it without political parties.

Mr. Golub: Yes.

Unknown Speaker: Now, isn't it reasonable for the state once it has let political parties in to assure that they are functioning as political parties?

Mr. Golub: Yes.

Unknown Speaker: What if the Republican Party decided that the way it wanted to have its candidates nominated to be sure of winning in a state that is overwhelmingly Democratic or independent is simply to endorse each year whatever candidate the Democratic Party endorses?

All right?

And the Republican Party by convention says we will endorse whatever party... whatever candidate the Democratic Party endorses.

Would the state have to accept that?

Mr. Golub: Well, I think--

Unknown Speaker: Doesn't that make the whole party system a charade?

Mr. Golub: --I think that is the critical question in this case, because whether you take this case at the primary level, whether you take it at the convention level, whether you take it back to the town caucus level where no convention is necessary, the issue is what degree of involvement can the state have in the party's determination of the philosophy of its candidates.

Unknown Speaker: And what I am suggesting is, the only involvement it is asserting here is, all we want to be sure of is that this candidate is really the party's candidate, because we are running a party system, and what you, Republican Party, are telling us is that you don't want a party's candidate, you want whatever candidate the independent voters out there want because basically you want to win.

Now, the state is saying that is not a party candidate.

The only thing we are imposing upon you is that you be a party.

Mr. Golub: Let me respond directly to that, because I think the state's authority to act is limited to ensuring a fair nominating system and a representative nominating system, and I say those two words because they are a little different.

We have to back in history to how the state first developed the authority to even insist upon primaries.

Before the 1900s it is well established there were no primaries.

But the reason that states were allowed to say you must have a primary, whether it is a direct primary or a challenge primary, was because party bosses were preventing a fair and representative decision by the party and because corruption and fraud was preventing it.

Unknown Speaker: My first hypothetical, which you rejected, was fair and representative.

All of the Republican Party unanimously in their convention say, we will nominate every year whatever candidate the Democratic Party nominates.

You tell me that the State of Connecticut has to accept that and run its primary system on that basis?

Mr. Golub: I do, and I say that knowing that it involves what seems on its face to be an incredible position, and I do that because the party's right to pick its candidate, pick its candidates, and the method of picking its candidates has to be paramount to the state's rights to insist that a candidate reflect a certain philosophy, and taking that a step further, if the--

Unknown Speaker: It isn't a matter of reflecting a philosophy.

It is just a matter of insisting that the party not abdicate, that the party function as a party.

Mr. Golub: --If the party wants to abdicate, if the party chooses to put up no nominee, if the party chooses, as the party does in New York from time to time--

Unknown Speaker: Then it should leave the primary system.

Mr. Golub: --I am sorry?

Unknown Speaker: Then it should leave the primary system.

The State of Connecticut is saying our primary system is for parties and we want candidates who are nominated by the party.

If they don't want to nominate anyone, if they want to leave it up to another party or to independents, well, they can still participate in the election but not as a party.

Mr. Golub: If the party in the State of... if any party in... if a major party in the State of Connecticut said at its convention, we unanimously endorse the Democratic candidate, the state would have no requirement of insisting upon a primary.

Unknown Speaker: That is not my hypothetical.

My hypothetical is, we don't know who the Democratic candidate is going to be, but we will beforehand announce that we will endorse whoever the Democratic Party endorses.

Mr. Golub: If the party decides that that is the best way for it to get into power, if the party decides that that is the best way for it to attain is goals, the party may be 100 percent wrong, the party may be adopting a self-destructive course, but it is not for the state to come and say we won't let you do that.

Unknown Speaker: I am not concerned about its being self-destructive.

I am concerned about its being destructive of the whole purpose of a party primary system, which is what the state is trying to run.

Mr. Golub: What the party has done in this case is open up its system to make it more representative.

We recognize that the party is limited by the state's authority to ensure a representative nominating process or a fair and orderly representing... nominating process.

And in a sense what your question really suggests is, supposing the party adopted a rule that eliminated a representative quality to its candidate selection process.

Unknown Speaker: No, this is thoroughly representative.

All of the party members thoroughly vote that we want to abdicate, basically, we will endorse whoever the Democrats endorse.

Mr. Golub: Well, our position--

Unknown Speaker: All I am saying is that maybe Connecticut has a right to ensure that it be, Number One, fair, Number Two, representative, and Number Three, a genuine party choice and not an abdication by the party.

Mr. Golub: --Well, I certainly agree with Number One, fair, and Number Two, representative, and I respectfully have to maintain the position that if the party wants to abdicate or make a mistake, that is why we have voluntary private parties, so that other parties can grow up, so that other parties will develop, so that a majority of the people in the Republican Party who agree or don't agree with that particular course have the option of saying, okay, we will do that--

Unknown Speaker: Well, Mr. Gerson, some of your answers suggest to me that one might fairly say that you are putting the cart before the horse.

To me at any rate the horse would appear to be the general election where the state provides for the election of people who are going to hold public office in Connecticut, and the parties are more or less a means to that end.

But some of your answers give me the impression that you think that these kind of election functions are kind of subordinate to the functioning of the party.

Mr. Golub: --Well, I think that that is the second disagreement between the parties in this case, parties with a small p.> ["] And I think that what the state has asserted within the rubric of "public electoral function" is a right to impact not only on the fairness, the orderliness of the primary procedure, but on the decisions as to who can participate in the primary procedure.

We agree that Article 1, Section 4 confers upon the state a right to regulate elections, and I think we also agree... this has not been articulated exactly this way, but that the granting of ballot access to the Republican Party gives the state a right to go beyond that back a step to before the general ballot is implemented to the nominating system.

We don't agree that the state can do more than ensure a fair and representative party decision, and to that extent I am putting the cart before the horse.

I wouldn't put it that way, of course.

Unknown Speaker: You wouldn't agree that you were, but--

Mr. Golub: Yes.

Unknown Speaker: --Do you agree--

Mr. Golub: I put the state's cart before my horse, or whatever it is.

0 [Generallaughter.]

Unknown Speaker: --Mr. Gerson, do you agree that the primary is an integral part of the election?

Mr. Golub: I agree that it is, and I agree that--

Unknown Speaker: Well, then, the state has the same right over that that it has over the general election.

Mr. Golub: --I don't agree with that.

Unknown Speaker: Why not?

Mr. Golub: I think we agree that for the purposes of state action determinations the primary is such an important... can be such an important part of a general election that the protections of the Fourteenth or Fifteenth Amendments apply, but we don't think that the state can bootstrap its way into saying, we have the right to regulate you, we force you or we require you to participate in a primary, and now that we require you to participate in a primary, since that is a "public electoral function", we can now insist upon your participating substantively in the primary with the members or the voters that we think are appropriate.

I don't think anybody would say that the state could regulate the people who attend the convention or the people who attend the town committee caucuses.

Unknown Speaker: Because the convention is not a primary.

Mr. Golub: That's right, and we don't contend it is, but it is part of the same nominating system that--

Unknown Speaker: What is there in a state primary that the state cannot regulate?

Mr. Golub: --The state cannot regulate who may participate in the primary as the party wishes.

Unknown Speaker: May I ask if under your view the Republicans could invite 17-year-olds to vote?

Mr. Golub: No.

Unknown Speaker: Why not?

Mr. Golub: I think that the state has a right to establish minimum voter qualifications, which have traditionally included age and residency and other similar kinds of things.

Unknown Speaker: But if the theory, as Judge Kaufman explained it, part of it was to get the ideology of the party reaching out and getting other views that's necessary to vote to get, I don't know why that theory wouldn't apply to aliens and other unregistered voters.

Mr. Golub: Well, I don't go as far as the Second Circuit opinion went in that regard.

Unknown Speaker: You don't go... anyway, you don't go that far.

Mr. Golub: The rationale that I would use, and I think it is an important rationale for the argument I am advancing, is, going back to the representativeness of the decision, what the state has the right to insist upon is that whatever decision the party ultimately makes through its primary is a representative decision of the wishes of its members.

If the members say, only members can participate, at that point the vote in the primary will be representative based upon the votes of the members in the primary.

Unknown Speaker: Well, Mr. Golub, then you would say in a state like Wisconsin where the state mandates an open primary the Republican Party could come up and say, no, we want a closed primary, and the state could not impose an open primary on that party.

Mr. Golub: I think that is a difficult question.

Unknown Speaker: I do, too.

Mr. Golub: Fortunately, it is not posed in this case.

But I have an answer to it.

Unknown Speaker: How does it differ from the question that is posed in this case?

Mr. Golub: It differs in a fundamental respect.

Our rule is supportive of opening up the system of participatory democracy.

If the state--

Unknown Speaker: What is so good about that, other than its appeal?

0 [Generallaughter.]

Mr. Golub: --I have a flag in my pocket to wave.

We think the state can make determinations about what is necessary to ensure the representative nature of its parties' decisions, and if a state such as Wisconsin said, in order to ensure a representative decision we have to have open primaries, we think that could be upheld as expanding rather than restricting the party functions.

There is no case in this Court that has ever held that a state has the authority to restrict a party's attempt to expand associations, memberships, or participation in its processes.

That includes the white primary cases, which of course dealt with the parties' attempts to exclude voters, in violation of the Fourteenth or Fifteenth Amendment.

That includes the disaffiliation cases, Rosario and Cusper, which dealt with an individual's attempt outside the party to force his way into the party.

Unknown Speaker: Mr. Golub, if the state law said to each party, well, you may have an open primary for your party, or you may invite independents to vote and they may vote in your primary, but provided they do their enrolling the day before?

Mr. Golub: Well, that is, to an extent, part of what is involved in this case.

Unknown Speaker: I know.

Mr. Golub: I want to clarify one answer that was given--

Unknown Speaker: What's wrong with that?

Mr. Golub: --What we think is wrong with it is, it requires independent voters to make a public affiliation.

In the context--

Unknown Speaker: Not any more.

They don't have to... they don't have to do anything more than what they do on a... what the party wants them to do on Election Day.

Mr. Golub: --No--

Unknown Speaker: I guess they enroll.

Mr. Golub: --The answer that was given to you earlier on in this argument I don't think went far enough.

Let me explain to you my understanding of the relevant statute.

Statute 956 of the Connecticut General Statute says a person may enroll in a party, an unaffiliated voter may enroll in a party at any time.

If he enrolls in a primary up until the day before... noon before the day of the... the day of a primary... I'm sorry, if he enrolls in a party up until noon before the day of a primary he may in addition to all of the other accoutrements of party membership vote in the primary.

Unknown Speaker: Yes.

Mr. Golub: But he is a full member of the party.

Unknown Speaker: That isn't my hypothetical.

I say he doesn't... they say independents may stay independents and vote in the Republican primary if they just enroll, just sign up the day before and say, I am going to vote in the primary.

Mr. Golub: Well, we think that would be a least restrictive alternative that might be applicable if the Court finds that the state has other compelling interests.

We say that--

Unknown Speaker: Well, I didn't ask... do you have a solid answer for that or not?

Mr. Golub: --Yes.

I am sorry.

I didn't mean to avoid the question.

Let me try--

Unknown Speaker: Well, would it be all right?

Would it be alright for the state to say, go ahead and vote in the Republican primary as long as you just enroll the day before?

You stay independent but you just let the party know or let us know also that you are going to vote.

Mr. Golub: --Well, I have trouble with the word "enrolling" in that context.

If it is only announcing--

Unknown Speaker: Use any other word you want, then.

Mr. Golub: --Okay.

If it is only announcing an intention to vote--

Unknown Speaker: Yes.

Mr. Golub: --which could be for administrative reasons, to know how many machines to have--

Unknown Speaker: Yes.

Mr. Golub: --I have no problem with that.

Unknown Speaker: You have no problems with that then?

Mr. Golub: The problem in Connecticut is that there is a traditionally historical--

Unknown Speaker: So the real... the real problem then is what?

Mr. Golub: --The problem is that the state is insisting on a public act of affiliation, leaving the independent status, joining the Republican Party as a condition of this association.

Unknown Speaker: Yes, but he isn't... in my example they are not insisting on that.

Mr. Golub: Yes, I am sorry, but in the example--

Unknown Speaker: Yes, all right.

Mr. Golub: --I mean, I think your example, if it was necessary to administer the open primary--

Unknown Speaker: Well, there's a law that says, go ahead and vote, but you have to sign up to do it.

Mr. Golub: --Yes, as long as the state showed it was necessary for the administration of the primary I think that could be acceptable.

What is not acceptable is forcing voters to give up their independent status, because they won't do it, because they haven't done it, whether it is because they are afraid of--

Unknown Speaker: Mr. Golub, all they have to do is publicly enroll.

But even under your system wouldn't they have to publicly ask for a Republican ballot?

And there are watchers at the polls.

They have to identify themselves as participating in the primary even under what you want.

Mr. Golub: --That's correct.

Unknown Speaker: It's the difference between publicly doing it that way and publicly signing an enrollment form the day before.

Mr. Golub: I think that there is a major difference philosophically between affiliating with a party formally and going into a polling booth and saying, I need a Republican ballot, and I think that that is a difference not only... I mean, it is... I mean, there are--

Unknown Speaker: 0 xxx.

0 [Generallaughter.]

Mr. Golub: --I, of course, am a registered Democrat, so--

0 [Generallaughter.]

Unknown Speaker: The more you describe the difference, the less I like it, because you are saying that is it, people who really have no affiliation with the Republican Party at all, in fact, they are deep in their hearts Democrats, they can come in and they will cheerfully select the Republican candidate.

Right?

Mr. Golub: Well--

Unknown Speaker: My problem is that your notion of what it means for the state to assure that the selection by the party is a representative selection is a strange description of what is representative.

For example, under the Federal doctrine that Congress has to make legislative judgments, we don't say that Congress is making the legislative judgment it has to.

If it passes a law saying we have decided that the executive can do whatever it wants in this field, that would be invalid as a delegation of legislative authority.

But you are telling me that this is not a delegation of the parties' responsibility to select its own candidate.

If the party says, we have decided not who our candidate is, but we have decided that independents are going to select our candidate, that is not a representative selection by a party.

It is an abdication of selection by the party.

Or at least the state can reasonably view it that way.

Mr. Golub: --I think the state... the state could view it that way if it wanted to, but I think it has no right, and this is where I fundamentally part with the state's analysis of the case.

The state sees it as an interference with states' rights.

We see it as the state attempting to assert authority in an area that it is not given authority by the Constitution.

Article 1, Section 4 does permit the state... does authorize the state--

Unknown Speaker: You acknowledge that the state has the right to assure that the party selection be a representative selection, so all we are quibbling about is whether it constitutes a representative selection to say, I am not going to select, I am going to let somebody else select.

You say that that constitutes a representative selection.

Mr. Golub: --It may be that my definition of... I need to define my definition of representative, and let me define that so that my quibble can take on a more substantial status.

Unknown Speaker: All right.

Mr. Golub: I think that representative in the context of the private rights of the association means that whatever decision is voted upon is voted upon with the... as a result of the approval of the majority of the party members, and if a majority of the party members say we are going to allow this kind of input, that is still a representative decision, and I do take it a step farther, going back to where I got--

Unknown Speaker: If you applied that to the doctrine of unconstitutional delegation, we would have a quite different system that we would be living under now.

You wouldn't think that the Congress was exercising its responsibility to represent the people if it did something like that.

Mr. Golub: --Well, that is the difference between a legislature and a political party.

A political party could say, we are not going to nominate anybody this time.

A political party could say, we are going to nominate somebody this time who we know is going to lose because in the future that race will help us.

A political party could say, we want to build something now so that in the future we will be a different... a different number, or a different philosophy.

The party has the right to do all that.

Unknown Speaker: Well, what if we affirm this judgment, and the Republican Party plan is therefore put into effect in Connecticut, but the Republicans still don't elect any candidates to statewide office, so the party at its next convention says, instead of having just our primary open to independents we want only independents in it, because we think Republican voters are skewing us away from where the electors are.

0 [Generallaughter.]

Would that be all right?

Mr. Golub: Well, at that point, going back to the issue of representativeness, the party votes are not... I mean, the party members have no longer a voice in the party primary system.

Unknown Speaker: We don't know that they have a majority vote under the present system.

We don't know how many independents are going to come crowding in.

The way you describe it there are a lot more independents out there than there are Republicans.

Mr. Golub: Yes, but the party has determined that it wants the input from independents.

Unknown Speaker: They have determined under the Chief Justice's hypothetical, too.

They have determined that they want the independents, just to be sure they are going to win, they want the independents to make the pick.

Mr. Golub: The Chief Justice's hypothetical, though, eliminates any party participation at all in the primary, and I concede that the state has the right to require a primary.

Unknown Speaker: There has to be at least a minority participation of the political party--

Mr. Golub: No.

Unknown Speaker: --in the selection of its nominee.

Mr. Golub: I go farther than that, and I think that there is... there can be discrimination through dilution, and I think that the state has the right to make sure that there is no... that the party members have an equal right to participate in the primary.

That is what... there is no claim here that the party is not allowing its members to participate in the primary, is not allowing its members a full vote in all of the party processes.

The claim by the state is that the party can't elicit additional support from groups outside the party.

And the reason we think that that is so fundamental is, if you have a minority party, and not just in Connecticut but in a democracy, the way a minority party displaces the ruling majority is by forming coalitions with other groups, whether it is formal coalition so that the party grows, whether it is an informal coalition of two groups that maintain their identity.

Unless you allow the party to make its own decision about who it can associate with you can't displace the ruling majority.

Unknown Speaker: I suppose you would sustain a state law that said you can't cross over or that Republicans can't vote in a Democratic primary?

Mr. Golub: I would sustain a state law that intruded upon the party's decision as to who can vote in its process.

If the party said we don't want Democrats to vote here, only independents can vote--

Unknown Speaker: What if the party said, we don't care.

Can the state still say Democrats can't vote in the Republican primary?

Mr. Golub: --Well, I take the position that the state can't say that.

I take the position that the... and I have to do that--

Unknown Speaker: I guess you have to.

I guess you have to to in terms of your position.

Mr. Golub: --to be consistent.

That is not the issue before this Court right now, and I should say before I run out of my argument that whether or not this absolute position I am advocating here, and it is an absolute rule that I am advocating in a sense, the rule that in the absence of invidious discrimination a party's decisions about who it will participate with is absolute.

Whether or not that rule is adopted by the Court there still was the inquiry performed by the two lower courts where there was an inquiry into the sufficiency of the reasons the state adopted under the familiar compelling state interest test that had been set forth by this Court.

And I rely on that as an alternative basis wholly for the decisions below.

But answering Justice White's question, my answer is, the party has the right to associate with independents.

The party has the right to associate with Democrats.

The party has the right to associate with any qualified voter, so long as it is not done to discriminate in violation of the Fourteenth or Fifteenth Amendments.

Unknown Speaker: Mr. Golub, I would like to ask you another, more basic question that we haven't touched on yet.

You said earlier but I know it was in a different context, that the primary is part of the general election process, and if you make that assumption for purposes of reading Article 1, Section 2 of the Constitution, which I know you might not, accept, but just make it for a moment, is it not correct that the qualifications requisite for electors of the most numerous branch of the Connecticut legislature in the primary include party membership?

Mr. Golub: All right.

Unknown Speaker: So if that is true, and if the primary is a part of the process, why doesn't the plain language of Article 1, Section 2 answer this case?

Mr. Golub: All right.

First of all, I don't agree that the word 1, Section 2 applies to primary elections.

Unknown Speaker: I understand that, yes.

Mr. Golub: Okay.

And that is set forth.

And I think that this Court has held that that is the law also, because otherwise Oregon versus Mitchell was wrongly decided.

In Oregon versus Mitchell the Court approved 18-year-old voting for Federal elections, Federal Senate and House elections, and 21-year-old voting in state representative elections.

And if that language in Article 1, Section 2 means as you have just hypothesized to me, that decision couldn't stand, because that would be a different qualifications requisite for the electors.

Our position is that if you are right... if the state is right that electors means primary elections as well, that the purposes of that were to ensure that there was no restriction of the right to vote in Federal elections, not just to require straight symmetry of the qualifications, and that is satisfied by a rule that expands the right to vote in Federal primary elections beyond that--

Unknown Speaker: What about United States against Classic?

Mr. Golub: --United States versus Classic said, as I read that decision, primaries are an integral part of the election system.

Therefore, in order to protect the right to vote established in Article 1, Section 2, we must reach out and allow Federal control over primary elections.

Classic did not say that Article 1, Section 2's reference to electors includes primary elections.

What it said was, if we don't protect primaries from fraud and corruption, then the right to vote in that first phrase of Article 1, Section 2 has no... can be diluted.

And that's what... if you compare Classic with Ray versus Blair, in Ray versus Blair a state... the Republican Party had--

Unknown Speaker: I think Classic stands on its own.

You don't have to compare it with anybody.

Mr. Golub: --I am not asking the Court to impair the holding of Classic at all, but--

Unknown Speaker: It said that the primary is an integral part of the election machinery, period.

Mr. Golub: --And I agree with that, but I--

Unknown Speaker: No qualifications at all.

Mr. Golub: --I agree with that and I think it goes beyond that to say that because the right to vote is guaranteed by Article 1, Section 2, Federal control of the primaries is sanctioned under the aegis of Article 1, Section 2, but no one has ever said that all of the election provisions in the Constitution apply to primary elections.

And if Article 1, Section 2 through Classic meant that there would have been... I mean, then Classic would have... then Ray versus Blair, which said that the loyalty pledge that violated the Twelfth Amendment of electors to the Electoral College, that Ray versus Blair would also have to be decided, and Ray versus Blair specifically addressed this issue about how far does Classic go and how far does Smith versus Allwright go, and what it said was, those cases indicate that if there is a secured right being violated, as there was in Smith versus Allwright, the secured right under the Fourteenth or Fifteenth Amendments--

Unknown Speaker: Smith and Allwright and Classic were two different cases.

Mr. Golub: --Yes.

I agree to that also.

Unknown Speaker: One was racial and the other was not.

Mr. Golub: We are not asking this Court to adopt any rule that in any way impinges the law of Classic or Smith versus Allwright.

Unknown Speaker: Please don't ask me to do it.

0 [Generallaughter.]

Mr. Golub: I am not asking you to.

I say that in all seriousness, because the position we have taken in our brief is that, first of all that they were properly and rightly decided, and second of all, they are the limits on what the party can do.

Just as Smith versus Allwright said that a party cannot exclude on the basis of impermissible discrimination voters from a primary system, we say that's the limit.

We can't exclude.

What the state here is doing, and I say this respectfully, is using the white primary cases for the flip side, which they don't stand for.

The white primary cases have never been held to say that the state has the right to prevent a party from expanding.

Unknown Speaker: But there again you call Classic a white primary.

Mr. Golub: Not, I am saying Smith versus Allwright and Terry versus Adams--

Unknown Speaker: Okay.

Mr. Golub: --on this point.

The state is saying those cases allowed the Court to restrict a party's attempts to expand, and those cases said just the opposite.

They said a party may not... it said the state may restrict a party's attempts to exclude.

That goes back to, in a sense, where we started with the argument, that what the party is trying to do here is expand, and it is trying to do that in a manner which it believes is representative and which the state has not shown to be unrepresentative.

I recognize that the state has discretion in making judgments, but in terms of deciding where it can interfere with a party's private affairs of candidate selection, I don't think that there is deference to the state's judgments when they interfere with what are fundamental associations of who and how people may participate in the candidate selection.

Rebuttal of Elliot F. Gerson

Chief Justice Rehnquist: Thank you, Mr. Golub.

Do you have anything further, Mr. Gerson?

You have four minutes.

Mr. Gerson: Thank you, Mr. Chief Justice.

I will be brief.

I would first like to comment on Justice Stevens' question about Article 1, Section 2, which we believe does clearly invalidate the rule that the Republican Party would supplant the state statute with.

Appellee referred to Oregon against Mitchell as somehow inconsistent with our position.

The holding in Oregon against Mitchell relied on Congress's power under Article 1 to override a determination by the state.

The pertinent opinion in Oregon against Mitchell that relates to the state's position here is Justice Stewart's opinion that was joined by Justice Blackmun and Chief Justice Burger which stated very clearly that the states are not free to prescribe qualifications for voters in Federal elections which differ from those prescribed for the more numerous branch.

In this case the qualifications differ.

Article 1, Section 2, and the Seventeenth Amendment invalidate it.

If there is any point.

Unknown Speaker: How does it invalidate it?

Mr. Gerson: It invalidates it very simply because many voters in Republican primaries in Connecticut for Senate and House of Representatives would lack the qualifications for voting in Republican primaries for the Connecticut State House of Representatives.

Electors without qualifications to vote in state primaries would have qualifications to vote in Federal primaries.

The constitutional language of Article 1, Section 2 forbids just such a discrimination.

Unknown Speaker: So there would be a different problem if the Connecticut law applied to all offices?

Mr. Gerson: If the rule adopted by the Republican Party in this case applied to all--

Unknown Speaker: Yes.

Mr. Gerson: --Republican offices, then Article 1, Section 2 would not be invalidated.

The reason it is invalidated is because it discriminates among offices, and that is a very good illustration of how constitutional protections begin to unravel when the sovereign authority of the state over primary elections is granted to political parties.

Unknown Speaker: Well, Mr. Gerson, If we were to agree with that submission I take it we wouldn't have to address the other questions.

Mr. Gerson: That is correct, Your Honor.

The Republican Party rule itself would be unconstitutional and there would not be a dispute before you.

Unknown Speaker: How can a Republican Party rule be unconstitutional?

Mr. Gerson: Because the rule itself would apply in a state election.

The Republican Party--

Unknown Speaker: What you are saying is, the state has the authority to foreclose the application of any rule?

Mr. Gerson: --Of an unconstitutional rule, if in fact that rule dictates--

Unknown Speaker: You are just insisting... you would just be insisting that there be... that people shouldn't... can't vote who are ineligible.

Mr. Gerson: --Yes, Justice White.

The Republican Party rule--

Unknown Speaker: The Constitution, you think, requires that certain people be allowed to vote and certain people not be allowed to vote, and you are enforcing that rule?

Mr. Gerson: --Article 1, Section 2 says the qualifications shall be the same, and under the Republican Party rule if it could supplant the state statute they would not.

Unknown Speaker: Well, if the Republican Party just invited to their state convention independents and put in the primary anyone who got 20 percent, and decided only to... we are going to... we are not going to have... we won't need a primary, we are only going to... we are just going to put in the general election the person who gets the most votes at the state convention, may it do that?

Mr. Gerson: No, Justice White.

If the state decides there is going to be a primary election, that is a--

Unknown Speaker: All right, they are just going to put up one candidate then, and we have a primary election.

Everybody votes for one candidate.

Mr. Gerson: --I am not sure I understand the question, Justice White.

Unknown Speaker: Well, how do the Republicans choose the people who stand for election at the primary?

Mr. Gerson: By their party convention.

Unknown Speaker: Well, suppose they by their own rule just nominate one candidate.

Mr. Gerson: And if they did?

Unknown Speaker: And they also had independents sitting in their state convention.

Mr. Gerson: Under current Connecticut law they would not be able to have unaffiliated voters in their state convention, but that is not the issue before the Court.

Unknown Speaker: Okay.

Chief Justice Rehnquist: Thank you, Mr. Gerson.

The case is submitted.

Attribution:

The OYEZ Project

Featured:

Munro v. Socialist Workers Party - Oral Argument

Fri, 09 Jan 2009 14:48:31 +0000

Case:

Munro v. Socialist Workers Party

Media File:

85-656_19861007-argument.mp3

Related Transcript:

1986_85_656_argument.xml

Transcript:

Argument of James M. Johnson

Chief Justice Rehnquist: We will hear arguments next in No. 85-656, Ralph Munro, Secretary of State of Washington, versus Socialist Workers Party.

Mr. Johnson, you may proceed whenever you are ready.

Mr. Johnson: Mr. Chief Justice, and may it please the Court, the State of Washington has a uniquely open election system, a system unusually hospitable to new and minor parties and independents and their candidates.

Washington voters wishing to exercise their right to politically associate through these vehicles easily organize and choose their candidates.

Those candidates have long been automatically placed on the Washington elections ballot.

After a 1976 election, with the most crowded ballot in Washington's history, the Washington legislature decided to exercise what this Court has called a state's undoubted right to require candidates to make a showing of substantial support in order to qualify for a place on the ballot.

The Washington legislature, by statute, placed all candidates on the primary ballot and added a requirement that any candidate not able to attract the votes of 1 percent of the voters would not remain on the ballot a second time.

It is that 1 percent requirement to remain on the ballot a second time that is challenged here by a candidate placed on the Washington primary ballot who got fewer than 600 votes, less than one-tenth of the 1 percent, and thus was not remained on the... did not remain on the Washington ballot a second time in the general election.

I shall explain first the Washington experience and the election with its crowded ballot in 1976 leading to this change, then telling you why the 1 percent is consistent with this Court's numerical definitions of substantial support and argue under this Court's decision the Washington requirement is neither unconstitutional per se and is less than the numerical test that this Court has approved, such as the Jenness v. Fortson, a 5 percent of voters test, arguing that it is less burdensome on minor parties and serves to improve the political debate which is the constitutional issue before the Court; finally... and also that the Washington statute by cutting off some few candidates avoids subsidizing hopeless candidates, as this Court recognized in the different case of Buckley v. Valeo was appropriate.

Finally, I can show--

Unknown Speaker: Subsidizing meaning printing, including their name on the ballot?

Mr. Johnson: --There's more than that in the State of Washington, Chief Justice Rehnquist.

The printing on the ballot and the counting of votes is one issue.

Washington is also unique in the states that we print and distribute to every residence in Washington a voter's pamphlet and candidates' pamphlet for publicizing the election and the candidates, at considerable expense.

In that additional regard, I think, we are subsidizing hopeless candidates by placing on the ballot those candidates that have not and will not receive any substantial support.

Unknown Speaker: Is that kind of information disseminated in connection with the primary as well as the general election?

Mr. Johnson: It is not, Justice Stevens.

It is only disseminated in conjunction with the general, and may have been one factor in the legislature determination to move this substantial support determination to the primary.

I referred to Washington's uniquely open system.

I shortly explain, and explain the relevance of this system.

In Washington there is no party registration.

There is no identification of voters by party in the State of Washington at all.

The voting is a blanket primary, we have referred to it, and the general is the same.

Under a blanket voting system each Washington voter may vote for any candidate for any position irregardless of party affiliation.

One vote per race, of course.

In a case tomorrow arising from Connecticut you will hear debated the merits of open versus closed primaries and restrictions on voters, how they vote by party.

In Washington we have no such system.

The Washington system is more open than the open primary.

This has direct relevance, of course, to using a primary vote requirement for determining substantial support, since any Washington voter attracted to the votes can vote for any and all candidates.

For example, a Washington voter may choose to vote for a Socialist Worker candidate for governor, a Republican candidate for U.S. Senate, a Democrat candidate for their local legislatures, et cetera, down the ballot.

Thus again the primary test is much easier than it would be in most states with either a closed or open primary in which party affiliation is somehow tested first before the voters can exercise their option.

Finally, in Washington if any candidate is not on the ballot a Washington voter can write in any candidate with the sole exception of a sore loser of a major party primary.

The Court of Appeals decision in this regard is just confused.

The District Court finding of fact and conclusion of law at JSC 5 is accurate.

The Washington statute allows write-ins with the sole exception I have mentioned.

If not on the ballot, of course, in the Washington system the voters have made that decision.

In 1976 the voters had lots of options to choose from, culminating the preceding four elections' increase in the number of independent and minor candidates.

The 1976 election had 12 parties, one of which, the OWL, Out with Logic, On with Lunacy, Party, was avowedly frivolous and ran a statewide slate.

There were numerous candidates, however, as noted in our brief, 65 of them on that ballot.

Important to note, though, is that of these--

Unknown Speaker: Sixty-five candidates for what, Mr. Johnson?

Mr. Johnson: --Sixty-five candidates for statewide and Congressional races, Your Honor, Mr. Chief Justice.

Unknown Speaker: So those were not just local races.

Mr. Johnson: That does not include local races, no.

That is summarized in the appendix.

It is a confusing number, confusing in this particular regard.

It includes all the Congressional candidates, and every Washington voter did not have access to those, so each voter would have faced probably 12 fewer, and then added to the... at the end of the ballot would have been the local races together with such issues as constitutional and levy elections.

It was a long--

Unknown Speaker: How many candidates were there for Governor?

Mr. Johnson: --There were eight candidates for Governor, Your Honor, Mr. Chief Justice, and a good example of showing that the candidates, the non... the minor party independents did not attract any substantial support.

Of those six independent and minor party candidates, none of them got 1 percent in the general election.

Four of them, including the Socialist Workers Party candidate, got less than.3 percent of the ballot.

This, by the way, was also consistent with the preceding history in Washington of minor parties and independents.

As noted in our reply brief, since the Depression, only two such candidates for statewide office had ever received even 1 percent of the vote.

The Washington legislature reasonably then saw this unduly lengthy ballot, and as we have discussed, Mr. Chief Justice, with regards to the voters' pamphlet, I think reasonably concluded that in some regard the ballot placement and the voters' pamphlet were subsidizing hopeless candidates, and the "subsidizing hopeless candidates" is your language--

Unknown Speaker: Well, of course, that could be remedied by not printing them.

Mr. Johnson: --Yes, but much to the detriment of the voting system, at least in the judgment of the legislature and the citizens of Washington, Justice Marshall.

The voters' pamphlet serves to publicize all the election as well as helping--

Unknown Speaker: I don't think it is something to keep emphasizing.

You mention it every other minute.

Mr. Johnson: --Justice Marshall, as in Buckley v. Valeo, I think the public is not obligated to undertake public financing of elections.

That quote was extracted because I think the concepts are similar in that one regard.

The encumbering of the ballot, however, remains irregardless of whether a voters' pamphlet is chosen.

Unknown Speaker: Mr. Johnson, I feel bound to inform you that there is no word in the English language "irregardless".

The word is "regardless".

Mr. Johnson: Thank you, Chief Justice.

Thank you.

And regardless, the problem of an encumbered ballot as existed in 1976 remains.

The Washington legislative solution to that problem and to this Court's then recent decisions in Jenness and American Party of Texas, recognizing that the state had the authority to remove frivolous candidates or remove those that had no public support, the legislature reacted in these ways.

All candidates were placed on the primary with an essentially concurrent filing for minor party and independents and the major parties.

That is, the convention for minors and independents is a Saturday, Monday the filing begins, and on the Friday of the same week the convention certificate together with the major party are closed.

One percent requirement was imposed.

Any candidate not getting 1 percent would not remain on the ballot.

Important to note, this was down from the preceding 5 percent requirement.

The preceding 5 percent, of course, applied only to major parties who in the earlier system were the only ones on the primary ballot.

Unknown Speaker: And of course it is 5 percent of something different, isn't it?

Mr. Johnson: No, the 5 percent before, Justice Stevens, was also applied to the primary vote.

Unknown Speaker: I thought it was... oh, I see.

Mr. Johnson: This was in the Washington system before the legislative change.

Unknown Speaker: The 5 percent was required for the major party candidate to got on the ballot?

Mr. Johnson: It was.

A major party candidate not getting even 5 percent would not remain on--

Unknown Speaker: Of course, that would never happen, I don't suppose.

Mr. Johnson: --The record here does not show that.

Unknown Speaker: Does the record contain examples of this pamphlet you describe as being sent out to the voters?

Mr. Johnson: I don't believe there is such in the record, Your Honor.

Unknown Speaker: Is there any reference to it at all in the record?

Mr. Johnson: There is reference in the legislative history.

Unknown Speaker: No, I mean in the record before us.

Mr. Johnson: I think there is not.

Unknown Speaker: So you have just told us about it for the first time?

Mr. Johnson: Pardon?

It is, however--

Unknown Speaker: Yet this was one of the major things they were saving in enacting this statute?

Mr. Johnson: --I think it is in the legislative history, A, Justice Stevens, and it is a statutory requirement of which I think the Court can take judicial knowledge.

In Washington Code 2981 140, which as I noted requires its preparation and distribution to all residences.

Unknown Speaker: Could you tell me why it is that in running in this primary the independent and small party candidates are not really running in the primary?

The system is set up so that they have to be nominated by some sort of a convention system previously.

And that is one of the complaints here, that it is a primary that... for them it's a primary that really isn't a primary.

Mr. Johnson: Justice Scalia, I do not understand... first, the nominating convention requirement was not challenged below, nor do I understand the party here to object or to prefer primary nomination for its candidates.

In this regard, the minor parties have an advantage over major parties, and it makes some sense for minor or new parties.

They can control their own candidate rather than going through the blanket primary system to allow all Washington voters to choose their candidates.

Unknown Speaker: I see.

Mr. Johnson: I think, but Mr. Smith may best address whether this is preferred by the party.

Unknown Speaker: I am still curious as to the reason for it.

Is that... was that the reason, to prevent party cross-overs from destroying small and independent parties?

Mr. Johnson: The legislative record does not show that.

Unknown Speaker: You don't have any guess as to what it was--

Mr. Johnson: Printed as A1 in our reply brief, in that appendix the legislative memorandum mentions the question of minor parties being allowed to not control their own candidates and convention, which suggests to me the argument I have just advanced, that what was intended was to let them at the smaller stage not have the general election... the major parties in Washington sometimes object to the primary system we have, which allows all voters to determine a party's nominees.

And I think the analysis is more likely to be applied in a small and growing party that would like to control its own candidates.

Unknown Speaker: --But you understand that one of the arguments being made here is that since there are not two candidates competing, why would you expect voters to come out to vote for their--

Mr. Johnson: I do understand that, and I think, Justice Scalia, the answer in part is the Washington system.

The primary serves... on the primary ballot in Washington are not just candidate nominations but local races, nonpartisan races, together with local issues such as levies and those kinds of things.

The burden imposed on a minor party candidate is exactly the same as any candidate.

They have to bring out voters and get them to vote for them.

In the Washington system the beauty for a minor party is that every voter that comes to the polls can vote for the minor party candidate, as I mentioned.

In a blanket primary they don't have to just attract... any voter that walks into that poll can vote for one of the candidates.

Typically, by the way, the minor party doesn't run a whole slate of candidates.

In this regard it also has two advantages over the prior system.

First, the old system had the convention the same day as the primary, and so you had... a minor party adherent had to give up their primary right to go to the convention.

In this regard it is a direct benefit.

Secondly--

Unknown Speaker: --What did they give up?

I don't understand.

Mr. Johnson: --In the old system, Justice Stevens, you had to go to the convention the same day as the primary and could not vote in the primary.

Unknown Speaker: You mean the person who was a delegate to the convention couldn't vote?

Mr. Johnson: Yes.

Unknown Speaker: Why couldn't he?

If the convention was held in his home town, couldn't he do both?

Mr. Johnson: The statute prohibited it.

Unknown Speaker: Oh, I see.

But why would he want to vote in a primary if... I don't understand--

Mr. Johnson: There are lots of other issues on the primary, Justice Stevens, than this nomination.

Unknown Speaker: --Oh, I see.

Mr. Johnson: Typically a small party, and this case has several examples, only nominates for a couple of races.

Under the old system--

Unknown Speaker: But you have other issues like bond issues and things like that on your primary ballot?

Mr. Johnson: --And you can go to the primary and vote for the Socialist Workers' candidate for Governor or legislator and also vote for the other party--

Unknown Speaker: It occurs to me that the 1 percent requirement could be quite different in an election which had, say there was no contest for the Democratic nomination and no contest for the Republican nomination.

It might be rather easy to get a 1 percent then, but if you have a big party fight going on and a lot of other issues, the 1 percent would then be ten or fifteen times as hard to get.

Mr. Johnson: --Justice Stevens, it depends on the position.

In our most recent race--

Unknown Speaker: It depends on what the issues are at the primary election.

Mr. Johnson: --And the position.

In our most recent primary, the hotly contested race for U.S. Senator, but if the Socialist Workers had a candidate for a legislative race any place down the ballot, all the voters that are attracted to that hot race, as you called it, could vote for that position also.

It has... the system has another advantage over either the petition or the prior system in that it added the minor parties and independents into the political debate.

That is what we are talking about here, is broadening the political debate, and under the prior system or any other system the minor parties and independents have no role in the period of debate in Washington leading up to the primary because they are not on the ballot.

In that regard the primary is actually monopolized by the major parties if they are the only ones on the ballot.

By adding them into the ballot there is at least this advantage, if not to the party, and I think it is to the party, there is the advantage to the voters in the political debate that they are allowed in.

The primary system that it is not per se unconstitutional, we can say at least from this Court's summary affirmance in Allen v. Austin in 1977 of such a system.

Indeed, since that was summary affirmance, I suppose that is the most I can say, that it is not unconstitutional per se.

That it is numerically consistent with the then recent cases of Jenness v. Fortson and American Party of Texas we have pointed out in the table in the brief, the example being the Jenness system, in which this Court approved a petition requirement of 5 percent of the registered voters in Georgia.

Such a requirement imposed in the State of Washington would mean 122,000 signatures to get the statewide gubernatorial candidate of a minor party on the ballot in Washington, as contrasted with the 9,100 required as 1 percent of the primary vote in 1984.

Now, it may be more difficult to get one voter out to vote in a primary, but I submit it is not 13 times more difficult to get a voter than it is to get a petition.

I further argue that the political debate benefits by the choice.

In this regard the primary system is better than a petition.

After all, the petition, once filled in, the petitions are discarded.

The buttonholing of candidates, which one of the amicus... excuse me, the buttonholing of voters, which one of the amicus briefs suggest is a real easy way to get petitions that is probably true, but it adds little to the political debate, as contrasted with the Washington system, as I have noted, which encourages the same time and money and effort to be expended instead in attracting voters to the primary and getting them there to vote for their candidates.

The limited resources of a minor party, I suggest, are better expended in getting voters out and getting them to the primary than they are through this, to us, to Washington, basically meaningless petition-gathering proposition, meaningless in the sense it doesn't really add to the political debate, which is the issue, the interest that we are trying to protect.

I also--

Unknown Speaker: Why, then, do you suppose the minor parties have had such bad luck under this new law?

Mr. Johnson: --There are three reasons, and by the way--

Unknown Speaker: That is true, isn't it?

Weren't they more frequently on the ballot before this law was changed?

Mr. Johnson: --Justice White, I think the Ninth Circuit says that, and I think they are applying the wrong historical analysis.

They improperly limited their consideration to only statewide offices and only minor parties, implicitly assuming that the right involved is a right of candidacy.

Unknown Speaker: To the extent their analysis... they should have looked more broadly, but their narrow look was correct?

Mr. Johnson: The statistics were correct, with the exception that they were numerically wrong about independents.

Independents statewide have actually placed four out of five candidates on the general election.

Unknown Speaker: You mean since the law was changed?

Mr. Johnson: Since the law was changed.

What we are looking for, though, is not... we are not trying to accommodate rights of candidates, because most recently in Clements v. Fashion, this Court said there is no right of candidacy, and surely not a right to have your name placed on the general election ballot.

Unknown Speaker: I wasn't suggesting that the experience of the... that the state had to allow the same access to the general ballot as they had had before this new law.

Mr. Johnson: Then it is a slight reduction.

Unknown Speaker: The question is whether this new law is constitutional.

Mr. Johnson: Yes, Justice Stevens, but I think what we are looking for in the historical material is... we are analyzing for the rights of the voters so we are--

Unknown Speaker: I feel obligated to tell you that my name is White.

Mr. Johnson: --I am sorry.

0 [Generallaughter.]

Thank you again for the correction.

Justice White, what we are seeking here, though, is an index to the health of the political system, aren't we?

We look at the historical information to see whether Washington's system allows major parties to monopolize the debate, or do we have a healthy system which allows and even encourages dissent.

Put another way, again, do the major parties monopolize debate in Washington?

The answer is clear from the record.

The wide-ranging debate is alive and well in Washington.

In 1984 the--

Unknown Speaker: Maybe the Socialist Workers Party position would be that the issues that are alive and well and being debated in Washington aren't the ones we want to debate.

We have got some other things that may seem odd to a lot of people, but we still would like to mount our little campaign.

Mr. Johnson: --And we think that is very important.

Washington thinks that is very important, Chief Justice Rehnquist, and protects it, first through allowing the party nearly automatic access to the primary, and secondly, the figures will show that even this party has consistently placed candidates.

It is true that they have not been successful in attracting votes in the statewide races.

In the '84 election their Governor candidate did not qualify, but their candidate for U.S. Representative did qualify.

Unknown Speaker: Where did they get their votes from in King County and Takoma?

Mr. Johnson: I think they have conceded in their brief this party has its major... if there is a base of adherence, is in Seattle-Takoma metropolitan area.

I am sorry about the name error.

To answer you first question, why they don't qualify, I think there are three reasons.

The Court has said we are entitled, the state is, to ask for reasonably diligent candidates.

Two, they may have a message the voters just do not like.

Or, three, they may have unattractive candidates, and on this record we don't know exactly why Mr. Peoples didn't qualify, but the record does show they expended $1,900 on a statewide Senate race in the State of Washington, an insignificant amount, and if it reflects the support that they could draw, a financial support, the effort, I say, was insignificant.

As you have noted, their support is concededly in the Seattle-Takoma area, where all that effort was expended, instead of broadening their base to the whole of the state.

Finally, the record also shows the affidavit at C13 was their affidavit setting forth all the electoral efforts.

Four out of five news releases they put out, four out of five were about this case.

Unknown Speaker: Mr. Johnson, what is the state interest you rely on?

Mr. Johnson: Primarily what this state, this Court has conceded the state's interest in requiring a showing of substantial support before a candidate appears on the ballot.

However, Justice O'Connor, we allow the candidate on the ballot the first time, the primary, without such a requirement.

In that regard I believe the Washington system treats them better, them being minor parties, better than most systems.

Unknown Speaker: So you rely only on a purpose of the state of requiring substantial support.

Mr. Johnson: And that purpose serves two--

Unknown Speaker: And what underlies that?

Mr. Johnson: --That purpose serves two interests.

First, avoiding the unduly lengthy laundry list ballot that this Court has referred to with the possible effect of confusing voters and allowing frivolous candidates--

Unknown Speaker: Well, under your system the ballot is so long and complicated already that that might not be a very persuasive argument.

What else--

Mr. Johnson: --It was a persuasive argument to the Washington legislature, Justice O'Connor, and I think they have a right under this Court's decision to respond to that.

Secondly, as I have discussed with Justice Marshall, in some regard placing candidates that history shows have never attracted substantial support, works to be subsidizing hopeless candidates, nor is the state or the government obligated to subsidize these hopeless candidates.

We can require them to exercise some reasonable diligence and expend some effort.

Ultimately, then, to the extent that a few of these candidates do not remain on the ballot, and as we note in our reply brief, the summary numbers are that of 48 candidates, independent and minor party, since the '76 election, since the '76 changes, I believe the number was 37 of them have remained on the general election ballot, and again, they are already on the ballot in the primary and thus afforded the opportunity to participate in political debate through that part, and most of them, albeit usually for the U.S. Representative and local races, including Washington State legislative, most of those candidates have remained on the ballot.

The voters determine who stays on the ballot, and that is an important part of the democratic system.

The constitutional objective or test was differently stated by the majority and the dissent in this Court in your 1983 Anderson v. Celebrezze case, the majority saying the primary values protected by the First Amendment here are a commitment to debate on public issues, uninhibited, robust, and wide open, not monopolized by the existing political parties.

The dissent differently stated that a court's job is to ensure that the state in no way freezes the status quo but implicitly recognizes the potential fluidity of American political life.

Under either formulation of the constitutional issues here, the Washington statute and Washington election system meets the test and protects the constitutional rights of its voters.

The decision below should be reversed.

Argument of Daniel Hoyt Smith

Chief Justice Rehnquist: Thank you, Mr. Johnson.

Mr. Smith, we will hear from you now.

Mr. Smith: Mr. Chief Justice, and may it please the Court, when we analyzed state restrictions on political expression and association relating to minor parties with dissident views, we are operating in the core of the First Amendment.

Since there is no litmus test for ballot access restrictions, the numbers game is not useful.

The cases do not say 1 percent is constitutional or an early deadline is unconstitutional, so to decide this case it is necessary to look at three questions.

First, did the 1977 additional restrictions have a substantial impact on expression and association of minor parties and voters?

Two, is there a governmental interest in these additional restrictions so compelling that it outweighs the burden on fundamental First Amendment rights?

And three, are the new restrictions precisely drawn so that First Amendment rights are not necessarily... unnecessarily burdened, or could the legitimate state interest be achieved by less drastic means?

I would like to address these in order, but first I must touch on the most crucial aspect of Washington's ballot access amendments of 1977.

This was the conversion of the traditional one-step barrier as it applies in every other state in which qualifying candidates participate in the general election whether they are a minor party or major party nominees to a two-step exclusionary process.

Now, as to the first step, as Mr. Johnson has discussed, Washington's nomination process, by convention, is different from a door-to-door petition signature requirement, so it is not automatic qualification.

Far from it.

The mounting of convention does require substantial effort, and in 1977 the legislature doubled the number of participants required with the result that the nominees that have been able to... the minor parties that have been able to qualify as shown by the table on Page 5 and 6 of our brief has been extremely limited--

Unknown Speaker: You are referring now, Mr. Smith, to the statutory requirements for the convention?

Mr. Smith: --Correct.

Unknown Speaker: What are those?

Mr. Smith: The convention requires that on the Saturday before the major parties even have to declare their candidacy, the minor party has to gather supporters on one day in one places nominate its candidates, and have a nominating petition signed by a number, which is now on a sliding scaler according to population, approximately 200 at this time, registered voters who give their names and voting addresses attesting to the nomination of that candidate.

Unknown Speaker: That means that 200 registered voters would have to attend the convention?

Mr. Smith: That's correct.

And that restriction had been somewhat, I guess, degenerating by the increase of population, and the legislature remedied that problem.

Previously it had been 25.

It had been raised to 100.

In 1977 the legislature about doubled it, and now it is tied to population.

Since that change, the number of nominees has been one, two, or in one case three, and so we are talking about a very small and identifiable group of dissident parties who like the Socialist Workers Party and the Libertarian Party who filed the amicus brief here, who consistently over the years have put forth substantial effort into the electoral system to introduce their new ideas to the voters and have continued to be able to qualify candidates in very small numbers by convention.

Unknown Speaker: You are saying what it now takes is 200 people in a convention.

Mr. Smith: In a convention.

Unknown Speaker: That is for a party.

Mr. Smith: That's correct.

Unknown Speaker: What if you want to run without party support?

Mr. Smith: As an independent it is the same requirement for a similar convention.

You have to organize a convention to support your independent candidacy and get the signatures of the same number of voters.

Unknown Speaker: Well, now, if this were the only requirement to get on the general election ballot you wouldn't be challenging it, would you?

Mr. Smith: That's correct, and we believe that the record shows that historically a reasonable but small number of serious minor parties have been able to qualify, and since this has been adopted have still been able to nominate candidates.

Our objection is that these nominees who have qualified are then universally eliminated by the primary requirement, and as Mr. Johnson... or as Mr. Justice Stevens brought out, it is a different situation for the minor parties than for the major parties, and it depends not primarily on the level of support, which is admittedly small because by definition these minor parties are small parties, and their contribution to our electoral politics does not depend on mass support, but the single example of any minor party candidate that has been able to meet the requirement since 1977 has been one race where there was only a single Democrat and a single Republican on the primary ballot, and so there was no contest, and it resembled a party versus party choice, and in that situation the Libertarian Party candidate for treasurer, a relatively low profile race, but was able to get the 1 percent.

With that exception, when there was no contest, every time there has been a contest for the Republican or Democratic nomination, no minor party candidate has ever been able to qualify for statewide office.

It has been a blanket exclusion, as the Ninth Circuit correctly found the record indicates.

So that is the first question that the Court needs to address: Has there been a substantial impact on the participation of minor parties and the Interest that that affects of both the minor parties and the voters in injecting their ideas into the electoral system.

Unknown Speaker: Mr. Smith, is that relevant?

I mean, all that it would prove... it would prove either, either that the new law is excessively restrictive or that the old law was excessively latitudinarian.

It could prove either one.

It depends entirely on whether there were too many parties before, whether the parties beforehand did not have a significant amount of popular support, significant enough under our laws to justify putting them on the ballot.

Now, how do we know that the preexisting situation was a good situation?

I tend to think that the OWL Party is not something that we needed on the ballot in Washington.

Mr. Smith: Well, with regard to the first question you ask, Justice Scalla, whether it is too latitudinarian, this Court has said that one of the first things we can look at is whether in practice as applied minor parties are able to qualify, and the Court has said it is one thing if minor parties are regularly able to qualify for the ballot, and it is quite another thing if only rarely can any minor party get on.

And this case definitely presents the situation of that other thing where minor parties are systematically barred.

With regard to the OWL Party, the record indicates that the legislature was reacting to a situation where they were offended by the insufficient reverence that the OWL Party paid to the major parties, and particularly and ironically to the level of public support that the OWL Party was able to get, and--

Unknown Speaker: Mr. Smith, would you accept any number?

Suppose the state said you have to have at least 100 votes.

Mr. Smith: --Yes, we believe that the fact that serious minor parties have been regularly able to meet the nominating convention requirement would be adequate support for that requirement to withstand any attack by somebody else who was not able to meet it to say the fact that these small but serious minor parties are able to meet this requirement indicates it is fair.

Unknown Speaker: So if somebody has a convention of 200 relatives they can get on the ballot?

Mr. Smith: The historical record indicates that that is not a problem, that has never happened in the State of Washington, and that there is no support on the record for the fear that that might happen, especially not if the remedy for such a hypothetical fear should be such areal and drastic and devastating impact on the few minor parties who need this route to the ballot.

Unknown Speaker: Well, do you think a person could during 20 years of his life run every two years and get less than ten votes?

Mr. Smith: Pardon me?

Unknown Speaker: You don't understand the question?

John Dokes runs for Congressman ten elections in a row and never got more than ten votes.

The state has to consider him as a serious candidate.

Mr. Smith: Well, I believe if the state wants to let people on without mounting the substantial effort that the convention requires, that the state may make that choice to open its ballot to those kinds of candidates, but--

Unknown Speaker: Is it obliged to?

Mr. Smith: --We are not suggesting that it is obliged to.

We are suggesting that when it has got this first stage requirement which already limits the ballot to a small number of serious parties, to add the second stage, which totally wipes them off the ballot, is not... first of all, has a drastic impact, and second, is not necessary.

Unknown Speaker: Well, Mr. Smith, in your definition of serious minor party when you were replying to Justice Marshall's question, I gather there is a numerical component to seriousness.

The party which can muster only ten votes at its convention, it may have ten of the best debaters and the best philosophers in the State of Washington but the state can say that just isn't enough.

Is that correct?

Mr. Smith: Well, the hypothetical question is not posed in this case because we have a real situation in which there is a real and substantial requirement to qualify.

If we didn't have this historical experience and we had to hypothesize in the dark, the state could test out a requirement and see if serious parties could qualify.

Unknown Speaker: But it seems to me part of your argument is that our cases have said that there must be a way for serious minor parties to get on the ballot.

Mr. Smith: That's correct.

Unknown Speaker: And I am curious to know whether the way you use that term the term "serious" can at least be construed by the state to have a numerical component.

That is, serious minor parties who can muster one-half percent of the turnout at the last election for that office at some stage in the campaign, just take hypothetically.

Mr. Smith: Well, it depends on what the requirement is, because the numerical requirements for petition signatures, which are the only requirements that have been upheld by this Court, do represent some level of organizational ability and diligence that the party itself can control and go out and get signatures on the petitions, in Jenness, for example.

We are not saying we will vote for this candidate, but we think that this candidate should be allowed on the ballot, and because of the traditional American openness to hearing different points of view, it is very easy to get people to go out and say, yes, we believe you should be allowed to be heard, and in American Party versus Texas, the Socialist Workers Party went out and got 22,000 plus signatures on their petition to get on the ballot without a serious problem but by their diligence and by their effort.

And the vote, on the other hand, as the record indicates, reflects the primary contest by the major parties and not the diligence or the efforts put out by the minor party within their limited capabilities, but that is more related to the contribution a party can make to the debate that they are capable of organizing and organizational effort like that to gather petition signatures than to make it rely on having some certain level of support in the primary election for a number of reasons.

Number One is that the primary is not an adequate forum as a substitute for the general election.

First of all, the timing is prior to the identification of the candidates by the nominating process of the major parties.

Second, as in this race, there are numerous, often dozens of major party candidates that still have to be selected by the party for who is going to represent them, and so that if there is any confusion, which Mr. Johnson identified as the interest the state is concerned about, it takes place at the primary, as in this case with 32 Democrats and Republicans on the ballot along with a single Socialist Workers Party candidate.

The voting machine has no instruction on that of what even the purpose of the minor party candidate is on the ballot, and if the minor parties are going to make a contribution to the election process, it is not because they are likely to win, but because in the debate between the representatives of the parties they have some new ideas and they have a differing point of view.

That is really not relevant.

Unknown Speaker: Excuse me.

Your brief has a good deal of that in it.

If that is really the criterion, then your answer to the Chief Justice earlier should have been different.

Then there really would be no reason to exclude anybody from the ballot.

If Socrates is running alone, without any support whatever, he should be on the ballot.

Mr. Smith: I think that is probably correct if the state's interest that it is asserting against Socrates is that the voters would be confused and the ballot would be crowded, and the Democrats and Republicans say you cannot be the third candidate on our ballot because that would confuse the voters and crowd the ballot, I think Socrates should win in that case.

Unknown Speaker: Even if he has no support whatever.

It is just, he is a wise man, he can contribute to the discussion.

Mr. Smith: That's correct.

Unknown Speaker: What about the many expressions in our cases that in fact the state can require that the people it puts on its ballots have substantial support?

Not that they be wise.

Not that they have good ideas to contribute.

But they have substantial support.

Mr. Smith: That is because of the experience that with no requirement whatsoever substantial... some modicum of support is a fair requirement to avoid the problems of ballot crowding and voter confusion, and in this case we have such a legitimate interest being taken care of by one mechanism.

The question is whether... how far beyond that, to get the OWL Party, whether you can employ your shotgun that wipes out every other party totally off the ballot.

Unknown Speaker: That can't be the explanation of our cases because a much more... much less restrictive means of preventing confusion is to have a sliding scale of the degree of support you need.

That is, there will be 15 slots on the ballot.

We will let every party get on the ballot up to 15.

Past 15 it is confusing, but up to 15 it is not confusing.

So I don't care if you get 30 votes.

We will still put you on so long as there is a 15th slot available.

Now, we have never required anything like that, so there must be something underlying this beyond merely confusing the voters.

We do require substantial support.

Mr. Smith: Substantial support is not required as an end in itself, Number One, but Number Two, if it is of a reasonably low level that it allows, consistently allows serious minor party candidates to qualify, then the cases say you haven't met the threshold of showing... the first step is showing a substantial impact on diversity.

Unknown Speaker: But I note you have slipped in the word "serious", "serious minor party".

What do you mean by serious?

When you say serious, I immediately think substantial popular support.

Now, what do you mean by serious?

They are Socratic?

They are wise people?

Or they have substantial support?

Mr. Smith: The record in the State of Washington is that there are a small number of minor parties that have regularly qualified candidates for the ballot, like the Socialist Workers Party, like the Libertarian Party, and what the legislative history indicates is that the frivolous parties that were allegedly targeted were ones with no serious program and no solutions to offer the people, and the record indicates that they were specifically irritated by the OWL Party, and unfortunately used an ax when they should have used a scalpel.

Unknown Speaker: Mr. Smith, let me get back again to something I think I asked you previously.

Do I get from your answers to my questions and some other questions that a numerical requirement to get on the ballot, a numerical requirement of support would fail of constitutional muster, would fall to pass constitutional muster if parties such as the Socialist Workers Party, as it has been in Washington, couldn't meet that requirement, no matter what the requirement was?

If it doesn't let a party like the Socialist Workers Party In Washington on, it is unconstitutional?

Mr. Smith: I would say if it doesn't let any party... if, like this case, it lets no party outside the Democratic and Republican Party qualify for the ballot, it is clearly unconstitutional if--

Unknown Speaker: What if it let the Socialist Workers Party on but not the Libertarians?

They couldn't quite make the numbers.

Mr. Smith: --Well, then it would be a harder case than this one is.

Whatever the--

Unknown Speaker: How would it come out?

Mr. Smith: --Well, whatever the number is, it cannot be zero as a reasonable number.

Unknown Speaker: How would that case come, out?

Might it be constitutional, a system which allowed the Socialist Workers Party but not the Libertarian Party through the use of numbers?

Mr. Smith: I'd say if another small party could meet a, for example, a petition signature requirement which could be met through reasonable diligence, then it would be constitutional to say your failure to exercise that diligence to gather the relatively reasonable number of signatures that other small parties are able to gathers then you are responsible for your own fate.

That is not the case we have here today.

Unknown Speaker: May I ask you another question?

You have placed quite a bit of emphasis on the fact there are two stages that have to be met by your party, one, a convention, which is rather modest, and then the I percent primary requirement.

Supposing the state said, as they do with Democrats and Republicans, anyone may get on the primary ballot, just eliminate the first stage, and then your candidate could run simply on that and have to meet a I percent.

Would that be permissible, do you think?

Mr. Smith: We suggest that it would not for the reasons that I mentioned earlier why the primary election is not an adequate forum for minor parties.

Unknown Speaker: So your position really is that no requirement that depends on an Independent candidacy getting a certain number of votes in the primary would be permissible because the function of a primary is really to sort out the major party candidates?

Mr. Smith: Well, if it was a requirement that was not so high that it--

Unknown Speaker: Well, take Justice Marshall's example.

Say it said 100 votes.

You have to get 100 votes in the primary.

Or the 200 that you have now for your convention.

Would that be permissible?

Mr. Smith: --Well, for example, If--

Unknown Speaker: I have given you the example.

Mr. Smith: --Okay.

Unknown Speaker: Would that be permissible?

Mr. Smith: If it had no substantial exclusionary effect on all minor parties, that would be permissible.

Unknown Speaker: Well, it would exclude all those that couldn't get 200 votes.

Mr. Smith: Well, as a practical matter I think that this is a hypothetical question which does not require answering to decide this case, and it is unlikely to--

Unknown Speaker: It does for me, because I am wondering whether you are assuming there is some minimum threshold that could be imposed in a primary.

It may be different in petitions.

I understand your argument about that.

Or are you saying that the primary is not the appropriate vehicle to test the minimum threshold support, and can never be used?

I am just not sure what your position is.

Mr. Smith: --I suggest that the primary should never be--

Unknown Speaker: Well, should never.

I know it is not the best.

It is constitutionally Impermissible to use a primary which is primarily designed for another purpose to satisfy this threshold test.

Mr. Smith: --I'd say it is analogous to the cases of the Court on filing fees, that there is a less restrictive alternative of the petition signatures, and therefore if it has a--

Unknown Speaker: Well, there is always going to be a less restrictive alternative.

If you put it at 200, it could have been 100.

Mr. Smith: --Well, if the state aims that are being accomplished are preserving the integrity of the ballot, then you cannot use a system that heavily burdens the First Amendment.

If a reasonable number of serious minor parties are able to meet the requirement, then you are not causing the harm of wiping the slate clean of all but the two major parties and creating a monopoly.

Unknown Speaker: If I understand you correctly, the constitutional outcome depends on the empirical results.

In other words, the non-statewide candidates who could get the 1 percent, it is perfectly constitutional as to them, but it is unconstitutional as to those who can't pass the threshold.

Mr. Smith: That's correct, you have to show the--

Unknown Speaker: So you could have... this same provision might have... it didn't work in Michigan, I know, but in another state the 1 percent might be okay if three or four parties could meet the requirement.

Mr. Smith: --That's correct.

You have to show the harm as applied, and this Court has always sale you have to look at the impact, you can't look at the abstract.

You have to look at the impact, which depends on the historical record, and so has universally rejected--

Unknown Speaker: Kind of local community standards for elections.

Mr. Smith: --Well, this Court has rejected facial challenges and said, you have to look at the impact on the actual community, and that if a monopoly is the result, that is impermissible.

Unknown Speaker: Mr. Smith, what is the Washington system as to write-in votes?

Suppose your candidate doesn't make it to the general ballot.

I get some confusion in the briefs as to whether write-in votes are permissible.

Mr. Smith: The Court of Appeals decision interpreted the Washington statute, which says that an unsuccessful minor party... or an unsuccessful primary participant cannot be a write-in candidate to say that the write-in was not available and the Court of Appeals also followed the decisions of this case saying that a write-in vote is not a constitutionally accepted alternative to general election ballot placement.

The state has argued that this only applies to major parties, even though there is no specific limitation in the statutory language, and also the record indicates that the election results reported by the Secretary of State show no write-in votes for any of the offices that they have ever reported the election results in on the record, and so the inference that can be drawn from that is either that nobody ever exercises a write-in vote or the Secretary of State doesn't keep track of them, but in either case they are not a sufficient substitute for the participation in the campaign, the debate, and the presentation of their ideas, in the same way this voters' pamphlet that was brought up by Mr. Johnson for the first time, there is no showing of any financial burden on the record here that to add an extra paragraph to a 30-page pamphlet would put some burden on the state or would unfairly or unreasonably subsidize the minor parties by broadening the choices available to the voters.

We suggest that that is exactly the kind of contribution that minor parties should be playing in this election campaign.

Unknown Speaker: Tell me again, you probably stated it before, but tell me why the Socialist Workers Party isn't able to get the requisite votes at the primary.

Mr. Smith: Well, historically the record as pointed out by Mr. Johnson indicates that choosing the 1 percent level, the state has chosen a level that is higher than 90 percent of the minor parties have ever been able to get, even in the general election, so they have chosen a level that is up at the 90th percentile instead of choosing a level from the record that was down at the 50th or--

Unknown Speaker: That is... what you say may be correct, but what I asked you is, why haven't the Socialist Party or the other minor parties been able to get the requisite votes at the primary?

Mr. Smith: --Well, first of all, only one-third of the voters even are interested in enough in the primary to participate, and those are typically partisans of one of the major party candidates who care about what the primary is about, namely, which major party candidate will get the nomination.

Unknown Speaker: Well, that's fine, 1 percent of a smaller number is a smaller number.

I mean, that doesn't prove anything.

Mr. Smith: This is not a randomly selected smaller number.

It is a number selected from partisans of the major parties.

Unknown Speaker: But it is... the one-third are the ones that the major parties make an effort to get out.

Mr. Smith: That's correct.

Unknown Speaker: But the Socialist Workers Party surely make an effort to get their partisans out, don't they?

Mr. Smith: That's correct, and we are saying that this is not only unfair in its mode but also that it should not be required that voters make a commitment at that primary stage to the Socialist Workers Party candidate to allow a small number of candidates to participate in the general election, and that--

Unknown Speaker: Why shouldn't you be... why isn't it fair to say if you... why don't you just get out your supporters and hope that they will add up to 1 percent?

Mr. Smith: --Well, the Socialist Workers Party has made that effort, and $1,900 may not be very much, as Mr. Johnson says, but it is a lot of leaflets, and it is certainly not a prime time television ad that goes statewide the way the major parties can put on.

Unknown Speaker: And what is wrong with saying if you can't get your people out you don't get on the ballot?

Mr. Smith: Well, because the first amendment and the recognized role of minor parties in the election process does not depend on a large measure of support, and the abolitionists, the prohibitionists--

Unknown Speaker: I know, but the question is whether the First Amendment requires... forbids a state to require a showing of 1 percent.

Mr. Smith: --And we suggest that if the interest they assert of confusing the voters and having ballot crowding is the justification for a monopoly by the minor parties, then the Court of Appeals was correct in returning Washington to the system that had worked so well for 70 years and saying that monopoly is not justified on the record here by any demonstrated history of ballot crowding and voter confusion, which is the burden of the state to establish.

Unknown Speaker: I suppose you would also say if Washington said the only minor parties who can get on the next general election is one that got 1 percent of the vote at the last general election, that would be unconstitutional, too.

Mr. Smith: That would perpetuate the monopoly, especially when there is the reasonable alternative in the convention and petitions.

Unknown Speaker: Even though there's a lot of people out at the general election.

Mr. Smith: Well, because they have been excluded from the general election, there is no way they can get the 1 percent at the general election and it is a closed door for the minor parties.

Unknown Speaker: Thank you, Mr. Smith.

Mr. Johnson, did you have something more to say?

You have four minutes remaining.

Rebuttal of James M. Johnson

Mr. Johnson: Just a moment, please, to correct an answer I gave Justice Stevens, that consideration of the number of candidates printed in the voters' pamphlet was discussed in the Washington legislature, Justice Stevens, and is reprinted at Page A2 of our reply brief, the note that this effect retroactively analyzed would have been to cut down the number of candidates from 65 to 50 in that printing.

The argument here appears to want to escalate the Washington convent ion requirement to another "barrier"--

Unknown Speaker: May I just ask, 65 to 50, are these all statewide candidates?

Mr. Johnson: --No, they are not, as I responded to the first question.

Unknown Speaker: So there is a different pamphlet for each election district?

Mr. Johnson: There is a different pamphlet by each Congressional District.

Unknown Speaker: By each Congressional District.

Mr. Johnson: Yes, Justice Stevens.

Unknown Speaker: I see.

Mr. Johnson: In fact, the convention requirement in Washington is the equivalent of a petition.

First, the convention requirement was not challenged below at all, as you can see from the complaint.

Secondly, the District Court found that this party's convention was a "street corner convention".

The attachments to C13, an affidavit of the party, show the candidates standing on a street corner in Seattle conducting their convention, and the point is, that is all right with Washington.

We do not have any separate barrier through convention at the de minimis 200 voter requirement.

Finally, I think we should consider the alternatives that are clearly and constitutionally available to Washington.

The Jenness versus 5 percent requirement would work an obligation to get 122,000 signatures to qualify for the Washington ballot as contrasted with the 9,000 for a Governor' race in Washington and a sliding scale actually which we impose.

The 1 percent is applied to each office, working your way down the ballot, and is much less, of course, for local offices, and this is why Washington legislative positions and local offices, the minor parties have always been successful in qualifying for the general election.

One percent is not a large requirement to dictate substantial support.

Any other kind of method, Mr. Smith suggests we use a scalpel, but any content control requirement to discern frivolous parties would, I submit, be unconstitutional, so a numerical requirement is required constitutionally, The 1 percent imposed by the Washington statute is reasonable and easily reached by a diligent party.

Therefore we conclude the Washington statute is constitutional and ought to be upheld.

Chief Justice Rehnquist: Thank you, Mr. Johnson.

The case is submitted.

We will resume there at 1:00 o'clock.

Attribution:

The OYEZ Project

Featured:

Anderson v. Celebrezze - Oral Argument

Wed, 18 Feb 2009 07:11:08 +0000

Case:

Anderson v. Celebrezze

Media File:

81-1635_19821206-argument.mp3

Related Transcript:

81-1635_19821206-argument_transcript.xml

Transcript:

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.

His rights--

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.

Assume that.

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.

0 [Generallaughter.]

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.

Our position--

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.

Right?

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, okay.

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.

There has--

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.

It did.

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.

0 [Generallaughter.]

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.

0 [Generallaughter.]

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?

No.

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.

Thank you.

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.

Attribution:

The OYEZ Project

Featured:

Clements v. Fashing - Oral Argument

Fri, 09 Jan 2009 14:47:31 +0000

Case:

Clements v. Fashing

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80-1290_19820112-argument.mp3

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transcript.xml

Transcript:

ORAL ARGUMENT OF JAMES P. ALLISON, ESQ., ON BEHALF OF THE APPELLANTS

Chief Justice Burger: We will hear arguments next in Clements against Fashing.

Mr. Allison, you may proceed whenever you are ready.

Mr. Allison: Mr. Chief Justice, and may it please the Court, this case involves Article XVI, Section 65 of the Texas Constitution, the resign to run provision, and Article III, Section 19, concerning eligibility to the state legislature.

The action was brought for declaratory judgment and injunctive relief alleging violation of the First, Fifth, and Fourteenth Amendments to the U. S. Constitution.

The officeholder plaintiffs were a judge of the county court at law, two justices of the peace, and a constable.

Other plaintiffs included citizens and registered voters.

The defendants were the local and state officers who were charged with the enforcement of the challenged provisions.

The district court held that both Article XVI, Section 65, and Article III, Section 19, contravened the equal protection clause of the U. S. Constitution, and therefore the district court granted the plaintiffs' motion for summary judgment and injunctive relief.

The U. S. Court of Appeals for the Fifth Circuit affirmed the district court opinion adopted in the memorandum pending in the district court.

A short, very brief historical background on these provisions and the Texas political system would be helpful in analyzing these provisions.

The current Texas constitution was adopted in 1876.

The constitution provides for a very decentralized system of government.

Under this constitution, almost all local and state offices are elected, and from 1876 until the 1950s each of these, almost all of these were elected for a two-year term.

In the 1950s, four-year terms were extended to most of these offices.

In 1954, four-year terms were extended to the precinct and county offices included in Article XVI, Section 65.

In 1958, after the people of the state had extended four-year terms to these offices, the resign to run provision in Article XVI, Section 65, was adopted.

Article III, Section 19 has been included in the Texas constitution since the constitution of the Republic of Texas was drafted in 1836.

I would first like to point out an error in the conclusions reached by the district court in its memorandum opinion.

The district court found and apparently relied heavily upon a distinction between the application of the resign to run rule to the office of justice of the peace and its application to the office of municipal court judge.

The district court stated that the justice of the peace is included under Article XVI, Section 65, and the municipal court judge, who has very similar jurisdiction, is not, and found that to be a distinction of some great importance in finding that the resign to run rule contravened the constitution.

What the district court overlooked was Article XI, Section 11 of the Texas constitution, adopted in 1958, at the same time as the resign to run rule in Article XVI, Section 65.

Article XI, Section 11, states that any municipality which extends the terms of its officers from two years to four years, that once that is done, that those officers will be under the same resign to run provisions as offices that are under Article XVI, Section 65.

So there is no distinction between the application of the resign to run rules, between the office of justice of the peace and any municipal office, whether it be municipal judge--

Unidentified Justice: Was that called to the attention of the district judge?

Mr. Allison: --No, Your Honor.

To the best of my knowledge it was not.

Unidentified Justice: Even after the judgment?

Mr. Allison: I don't know, Your Honor.

I did not have this case until after the Fifth Circuit had ruled on it.

Unidentified Justice: But municipal judges who still have two-year terms are still subject to the resign to run rule?

Mr. Allison: No, sir.

Unidentified Justice: I mean, they aren't.

They are not subject to it.

Mr. Allison: They are not.

Unidentified Justice: Yes, that's right.

Mr. Allison: Because no one with a two-year term is subject to the resign to run rule.

Only when they adopt a four-year term.

Unidentified Justice: Does that necessarily destroy the holding below?

Mr. Allison: I think it destroys the contrast, because any time that a municipal judge is in the same position as a justice of the peace, that is, holding a four-year term, it is under exactly the same rule.

Unidentified Justice: Well, it might depend on whether the difference is relevant.

Mr. Allison: It might.

Unidentified Justice: Is there any question but what the state trial court of general jurisdiction or the district court is subject to Article III, Section 19?

Mr. Allison: Article III, Section 19, or Article XVI, Section 65?

Unidentified Justice: Article III, Section 19.

Mr. Allison: No, it is subject to Article III, Section 19.

In analyzing these provisions, I think it important to note the activities or rights which are not restricted under these two provisions.

There is no question that the right to vote is not included and is not restricted under either of these provisions.

Neither is the right to support other candidates, the right to speak out on issues, or the right to test the water.

Unidentified Justice: May I get back to just a moment to what you tell us was the error of the district court?

What can we do about that?

Can we correct it?

Mr. Allison: I don't think... I think you can correct it by reversing the judgment.

I pointed out simply that the district court was in error in arriving at that conclusion, and using it--

Unidentified Justice: Yes, but you said this was relied on very heavily.

Mr. Allison: --It appears to be.

Unidentified Justice: To support the finding of unconstitutionality.

Mr. Allison: Yes, sir.

Unidentified Justice: But it is a matter of Texas law, I guess, isn't it?

Mr. Allison: Well--

Unidentified Justice: Ordinarily, we don't second guess holdings of district judges or courts of appeals--

Mr. Allison: --In this case--

Unidentified Justice: --as to what state law is.

Mr. Allison: --In this case, it appears to be a conclusion of law as to whether or not there is a rule--

Unidentified Justice: Well, I know, but we have to read the section that you said he misconstrued, and we would have to do what?

Construe it ourselves?

Mr. Allison: --I think you would have to reach the conclusion that there is no difference between the application of resign to run rules between these two offices.

Unidentified Justice: What is the highest Texas court that would take care of a question like this?

The Supreme Court?

Is it the Texas Supreme Court?

Mr. Allison: If it were presented to it, yes, sir.

Unidentified Justice: Do you say that is an error of law or an error of fact by the district judge, by the trial judge?

Mr. Allison: I think it is both.

I think the court was in error as to the fact of whether or not there was a resign to run rule applicable to the municipal court judges, and then did arrive at an erroneous conclusion of law that Article XVI, Section 65, creates a difference in classification between the two offices.

Unidentified Justice: But the real error was in not giving the judge a chance to straighten it out.

Right?

Mr. Allison: I do not know.

I don't know if the judge would straighten it out had he--

Unidentified Justice: He wasn't given the opportunity.

You didn't call it to his attention.

Mr. Allison: --To my knowledge, it was not.

Unidentified Justice: You said you didn't, but I mean your office was responsible for it.

Mr. Allison: The record does not reflect that it was called to his attention at that time.

Unidentified Justice: And it could have been straightened out then, couldn't it?

Mr. Allison: Right.

It was pointed out to the Fifth Circuit.

Unidentified Justice: Did I understand you to say the judge overlooked the recent statute?

Mr. Allison: No, sir, he overlooked Article II, Section 11, of the Texas constitution.

Unidentified Justice: That was not newly enacted, of course.

Mr. Allison: No, sir, it was adopted at the same time as Article XVI, Section 65, the resign to run provision.

It was on the same ballot.

Unidentified Justice: His opinion did not mention that at all?

Mr. Allison: No, sir.

Unidentified Justice: So what you are saying is, he simply, so far as the face of his opinion goes, did not consider an article and section of the Texas constitution.

Mr. Allison: Yes, Your Honor.

Unidentified Justice: So he didn't construe it, he just apparently didn't cite it at all.

Mr. Allison: Right.

Unidentified Justice: Or consider it.

Mr. Allison: That's correct.

I would further point out that among the activities not restricted to Article XVI, Section 65, is the right to test the water, that persons who contemplate running for office in Texas have the opportunity to go out and solicit possible support without having to resign an office, and that is in direct opposition to the position taken by the plaintiff appellees in this case.

I would further point out that the Texas resign to run rule does not involve any suspect classifications.

There is no direct burden on any particular portion of the electorate or upon any particular political viewpoint.

The only effects upon the voters would be if they wished to support a particular candidate and that candidate was in mid-term of an office he was holding at the time, and he declined to run because of the resign to run rule.

In that limited sense you could say that the Article XVI, Section 65, resign to run provision has some slight effect upon the pool of candidates available to the voters.

Otherwise, it has none.

Article XVI, Section 65, appears to be a unique resign to run provision.

Although a majority of the states now have some resign to run rule, Article XVI, Section 65 differs as nearly as I can determine from all of these, in that Article XVI, Section 65, applies only to the first three years of a four-year term.

In the last year of your term in Texas, you are free to run for any office, either re-election of the office you then hold or for any other office that you might choose to announce for.

I believe this is important in weighing the rationale behind the adoption of the resign to run rule.

In 1954, when the four-year terms were extended, replacing the two-year terms, the people of Texas staggered the terms to be served.

That is, they provided that approximately one-half of the officeholders would come up every two years, thereby shortening the ballot.

What this also did was create a temptation and an opportunity for an officeholder in mid-term, in the middle of the four-year term that had been extended to him, to run for another office, to take a free ride while continuing to hold the office that he had been elected to for a four-year term.

The state interests served by the resign to run rule have been widely discussed in other cases, and were recognized by the district court in its opinion in this case.

The resign to run rule prevents abuse of office, and in this case, by applying it to the first three years of the term, it also prevents neglect of the duties of the office, and that a person may not go out and use his time to run for office while occupying the office he has been elected to.

It also prevents abuse of office by a losing candidate who if he were allowed to run in mid-term would return to the office that he had presently held and continue to serve for two years after having run and lost for another race, and certainly it also eliminates even the appearance of impropriety of candidates who are holding an office being allowed to run for higher office or other office in the middle of their term.

There is no less restrictive means to achieve these ends.

The other possibilities, a leave of absence provision, for example, would certainly not prevent the abuse of office by a losing candidate who would return to the office.

The criminal statute, which prohibits abuse of office or abuse of official power, does not in any way affect the neglect of duties that could occur while an officeholder left his office and went out and ran for another office in the middle of his term.

Unidentified Justice: Do you see any comparison or analogy between the resign to run provision and the provision of Article I, Section 6, of the United States Constitution, that says no Senator or Representative shall during the time for which he was elected be appointed to any civil office under the authority of the United States which shall have been created or the emoluments thereof have been increased during such time?

Mr. Allison: Yes, I certainly see an analogy between that and Article III, Section 18, of the Texas constitution, which has the same provision, and I have cited it further in my argument.

And I certainly see an analogy between that and the provisions of both the federal Hatch Act and the state Hatch Act, which also prohibits candidacy.

The plaintiffs in this case, the appellees here, argue that apparently the resign to run rule is defective because it is under-inclusive.

They argue that it does not apply to everyone, it only applies to them.

And it is true that there are a number of offices excepted from the rule.

The process at arriving at a decision through the legislature is always one of compromise, and certainly that was involved in the arriving at this resign to run rule, but to hold the resign to run rule unconstitutional simply because it makes too many exceptions would require that a statute or constitutional provision either go all the way in treating a problem or not attack the problem at all.

Unidentified Justice: Do you think the exemption of state legislators from the rule was the result of compromise?

Mr. Allison: Possibly, though I would certainly point out that members of the house of representatives only serve a two-year term anyway, so the resign to run rule purpose of preventing them from neglecting their duties in mid-term while running for another office would have no application to them, because they have to run either for re-election or for other office every two years.

The state senate, that may have been the case.

Unidentified Justice: Well, do we have to find that this is the result of a compromise, or this is the deliberate choice of the state legislature for reasons which they haven't explained, and perhaps don't need to explain?

Mr. Allison: I think that the provisions can be upheld on the basis of any rational basis for their application, but if you go beyond that--

Unidentified Justice: Do you have any system of preserving the legislative history, the evolution of a statute in Texas?

Mr. Allison: --Unfortunately, at the time these provisions were adopted, 1954 and 1958, there was no legislative history as such in Texas.

Unidentified Justice: These were amendments proposed by the legislature, were they?

Mr. Allison: Amendments proposed by the legislature, adopted by the people.

Unidentified Justice: Yes.

Mr. Allison: I would point out that the exceptions found in Article XVI, Section 65, are not classes of persons.

They do not involve any suspect categories.

They are exceptions of specific positions, and the presumption there is that the legislature based these exemptions upon some circumstances within their knowledge, and that the judiciary will not normally invade that province of the legislature.

Article III, Section 19, has been similarly attacked on the same basis, that it creates classifications, and the same arguments apply.

I would also point out that the standing of these plaintiffs to attack Article III, Section 19, is particularly objected to by the appellants in that there is no plaintiff who indicated a definite intention to run for the legislature.

Article III, Section 19, provides that any person holding a lucrative office in the state shall not be eligible for the legislature during the term for which they are elected.

None of the plaintiffs in this case indicated that they definitely intended to come within that provision.

One of the plaintiffs said that if it weren't for Article XVI, Section 65, that required him to resign the position he then held, he might run for the legislature or he might run for one or two other offices that he named in his affidavit.

We do not believe that that meets the standard case or controversy requirement in order to challenge the constitutionality of Article III, Section 19.

Unidentified Justice: But I gather each of these plaintiffs falls within one of the categories to whom Section 19 applies?

I mean, he is either a judge or one of the other offices, is he?

Mr. Allison: Each of them would.

Unidentified Justice: Each of them would.

Mr. Allison: Yes, they were all holders of a lucrative office.

Unidentified Justice: But none of them has suggested he wanted to run for the legislature except the one who said maybe he might.

Mr. Allison: Except the one who said he might run for the legislature, or he might run for one or two other offices mentioned.

The district court also did not mention Article III, Section 18, which provides that no senator or representative shall during the term for which he was elected be eligible to, one, any civil office or profit under this state which shall have been created or the emoluments of which may have been increased during such term, or two, any office or place the appointment to which may be made in whole or in part by either branch of the legislature.

This is the equalizer between the application of Article III, Section 19, which says that if you are holding a lucrative office in another branch you cannot run for the legislature during that term, and Article III, Section 18, states that if you are in the legislature you cannot run during your term for an office that you created or increased the emoluments of or that the legislature may act upon the appointment.

That provision prevents abuse by legislators.

Unidentified Justice: General Allison, you say this is an equalizer, but a moment ago you said that the classifications here are not classifications of persons, but rather classification of offices.

Do I understand that argument to mean that you don't understand there to be a constitutional duty to treat all offices alike, and if so, you don't even need the equalizer if that argument is right?

Is that correct?

Mr. Allison: That's correct.

I am working on two levels.

If you adopt the rational basis argument, then any rational basis that can be found to sustain these provisions is sufficient to uphold them, but if you go further, and if you adopt either the means to the end test or some type of balancing test, then these other provisions come into play.

Unidentified Justice: If I understood your argument about the difference between offices, not persons, you don't even need a rational basis, because the persons just happen to occupy different offices, and there is no constitutional requirement that different state offices have the same emoluments.

There is no constitutional requirement that a county judge be paid the same as a circuit judge, for example.

Is that what you are arguing?

Mr. Allison: Not exactly.

Unidentified Justice: What is the constitutional requirement that different offices have the same emoluments, burdens or benefits?

Mr. Allison: I don't think there is any.

Unidentified Justice: Well, then you don't even need a rational basis.

Mr. Allison: Well, I think you need a rational basis when you differentiate or distinguish between the qualifications to be a candidate for an office.

Unidentified Justice: Why?

Why couldn't you say, you need a college education to be a circuit judge, and you need a high school education to be a county judge?

What is wrong with that?

Mr. Allison: You can.

Unidentified Justice: Even if it is not rational.

Even if the one has greater responsibility than the other.

What is the constitutional objection?

Mr. Allison: Well, that is a rational basis.

Unidentified Justice: No, I am saying, even if the more difficult job you merely required a high school education for, I don't know why the Constitution would prevent the Texas legislature from doing that.

Mr. Allison: I don't think it would.

Unidentified Justice: Well, I took it that you were attempting to respond to the rationale of the Fifth Circuit on this.

Was that the point you were trying to make?

Mr. Allison: Yes, it was.

There is no question that these provisions of the Texas constitution create some restrictions on candidate access to the ballot, but this Court in Bullock versus Carter set the standard in stating that in approaching candidate restrictions, it is essential to examine in a realistic light the extent and nature of their impact on the voters.

As I have stated, these provisions serve legitimate state interests.

That has not been contested either at the district court or the Fifth Circuit level.

They serve them in the least restrictive means possible, and the classifications that are created are reasonably related to the interests to be achieved, so regardless of the standard adopted, be it rational basis, means to an end, the ends-means test, or even strict scrutiny, these provisions meet the standards.

This Court also in U. S. Civil Service Commission versus National Association of Letter Carriers, quoted Thomas Jefferson, stating as follows:

"The right of any officer to give his vote at elections as a qualified citizen is not meant to be restrained, nor, however given, shall it have any effect to his prejudice, but it is expected that he will not attempt to influence the votes of others nor take any part in the business of electioneering, that being deemed inconsistent with the spirit of the Constitution and his duties to it."

The people of the state of Texas have elected to require their officers to adhere to this principle.

Such is their right under the Constitution.

Unidentified Justice: Mr. Allison, if one subject to the resign to run rule... those are four-year term people?

Mr. Allison: Yes, sir.

Unidentified Justice: Now, if you want to run for an office for the term beginning when yours expires, you are going to have to start running while you are in office.

Mr. Allison: In the last year.

Yes, sir.

Unidentified Justice: And so you have to resign under that?

Mr. Allison: No, sir.

Unidentified Justice: You don't?

Mr. Allison: In the last year of your four-year term, you can announce--

Unidentified Justice: You can run for a term that starts at the expiration of your own?

Mr. Allison: --Yes, sir.

Unidentified Justice: Whether or not it is for re-election of your present office or a new one?

Mr. Allison: Yes, sir.

Without restriction.

Unidentified Justice: Mr. Allison, in your brief you advanced a number of arguments justifying the various classifications in Section 65, but in the answers to your interrogatories at the trial level, or the interrogatories that were propounded, it sounded like at best Section 65 was just the product of maybe some sloppy legislative drafting, and that these arguments are rather an afterthought.

Is that the case?

Mr. Allison: It is difficult if not impossible to say.

There is no legislative history in Texas to support what the rationale may have been for the provisions.

The defendants in this case are the executive officers charged with enforcing them, and they had no role in the adoption of the provisions.

To ask them what was the rationale or the basis in the minds of the legislature at the time they adopted the provision, it is almost impossible to answer.

I advanced several arguments that could have been, and that certainly can be sustained as a rational basis for these provisions.

Chief Justice Burger: Mr. Caballero?

ORAL ARGUMENT OF RAYMOND C. CABALLERO, ESQ., ON BEHALF OF THE APPELLEES

Mr. Caballero: Yes, Your Honor.

Mr. Chief Justice, and may it please the Court, Texas in Article XVI, Section 40, has a prohibition against dual officeholding.

That means that you cannot hold more than one lucrative office at the same time.

Article XVI, Section 65, is not a dual officeholding prohibition.

Article III, Section 19, started out as a dual officeholding provision, and in 1836, they added that clause,

"during the term for which he is elected or appointed."

That is what causes the problem in III, 19, that I will be discussing later on.

In terms of the legislative history here, Section 65 of Article XVI was passed in 1954, after the resolution of the legislature to place it on the ballot for the revision of the constitution at the general election, and its purpose, and if you look at the headnote, says it is a transitional article to provide for the staggering of elections between the various officeholders who had been granted four-year terms.

In 1958, the paragraph in question here in Section 65 was also made part of the constitution, and at exactly the same time, verbatim, the same clause came into Article XI, Section 11, that I will be discussing here in just a second.

There is no reason that I know, nor did the state advance any in the courts below, other than that it... well, the state in the court below simply said that it was going to prevent abuse of office, and therefore that is why the article was placed in there.

Now, the question was raised here this morning that the district court made an error of fact or of law in neglecting to mention Article XI, Section 11.

That was the provision enacted in 1958 which allowed cities in the state of Texas to give four-year terms to mayors and members of the city council.

They had to vote it in.

They didn't give it automatically.

Very few cities took advantage of that provision to give members of its city council four-year terms.

Perhaps counsel here in rebuttal can mention one.

I don't know of any, but there may be some.

Certainly El Paso, Texas, where this case arose, did not take advantage of it, and where Judge Hudspeth sat at the time members of the city council and municipal courts only had terms of two years.

Unidentified Justice: Well, isn't the point that if the municipal judges had only two-year terms, and the justices of the peace four years, that it is--

Mr. Caballero: I apologize.

The municipal court judges had four-year terms, but under our provision, we do not have the application in El Paso nor in most areas of the state of Texas of the four-year Article XI, Section 11, statute.

The members of the city council run for two years, but the municipal court judges have four-year terms, but the statute does not apply to offices in... I am sorry, they have two-year terms.

That statute does not apply in El Paso.

My confusion is... is this.

The problem here is that municipal court judges run... municipal elections in Texas are in odd years.

State and county elections are in even years.

That means that a municipal court judge, when he comes around, he wants to run in a state election, in an even year, does not have to resign the office, even though he is only holding a two-year term.

Unidentified Justice: --Yes, but he has less than a year to go.

Mr. Caballero: He has less than a year to go.

There is no prohibition at all to a municipal court judge running.

Now, the times here as far as the Texas election process is concerned are important.

The filing date in Texas since 1959 has been the first Monday in February of an even year.

The way you are elected is, your term runs until January 31st of an even year.

That means, for example, if my term as a judge or another officeholder, I would be in office now.

If I wanted to run for another office, I would have to file by February 1.

However, if I went out and solicited any kind of support for that other office prior to January 1 of this year, the statute does not say private announcement or public announcement, it simply says by the mere solicitation of a campaign contribution, or the announcement of any kind, I am going to be a candidate for some other office.

That automatically causes you to vacate your office.

An officeholder... and therefore you lose that office immediately, and you lose your livelihood for a period of a year, even if you win the office that you are now seeking, and that is even if you are running in the last year of your term.

It is even worse if you are running mid-term, that is, if you have a four-year term and you are running two years into your term, because then you lose three years of your term.

Unidentified Justice: Counsel, are you arguing that the burden is so severe that it is unconstitutional even if it applied to everybody?

Mr. Caballero: Yes, that is one thing that I am arguing, that this statute... and I argued in the court below, this statute has problems.

Both statutes have problems.

Even if you... well, Section 65 has problems even if you applied it to everyone.

Unidentified Justice: Well, presumably when they ran for the original office, they took it subject to the burdens that the statute imposed.

Mr. Caballero: That's correct.

Unidentified Justice: So long as there is no equal protection problem.

What else would there be?

Mr. Caballero: Because it imposes a burden on voters and on candidates that is unnecessary.

What goal is it, Your Honor, that you are trying to further by placing a burden?

When you place a burden on election rights, our contention is there should be some reason for it.

The state has been able to advance, according to the district court, no valid reason for placing such burdens on candidates.

Unidentified Justice: Well, what happens with states that say you can only serve one term?

Mr. Caballero: There are states that provide that for certain offices you can only hold office for one term.

Unidentified Justice: There certainly are.

That is right.

What is wrong with that?

Mr. Caballero: I don't know of any prohibition against providing for one term.

Unidentified Justice: Well, isn't that a little more stringent than this one?

Mr. Caballero: Yes, Your Honor, it is more stringent.

Unidentified Justice: Under this one, you can serve 26 terms, provided you abide by the law.

Mr. Caballero: The problem with this provision is--

Unidentified Justice: And the other one, you can't serve but one anyway.

Mr. Caballero: --That's correct.

Unidentified Justice: When you talk about restrictions, I think you had better get another word, don't you?

Mr. Caballero: Well, the problem is, when you are running for that one term, Your Honor, you run for the one term knowing that you were going to keep the one term.

The problem--

Unidentified Justice: You run knowing that you can't campaign for the other one.

Mr. Caballero: --You run knowing probably that you cannot campaign for any other office.

Unidentified Justice: That's right.

Why is one so bad and the other one is not?

Mr. Caballero: I think that in this case, Your Honor, the policy generally should be that... I think you mentioned in one of your opinions... there are two... there are competing policies here.

It used to be that, one, you wanted to shorten the ballot, and the other policy was that you wanted to provide people access to the ballot and ways to express their viewpoints.

In this case, the problem is, you would like to keep people in office and have them tend to their office and not be running for other offices.

That is one policy.

The competing policy is, there are various judges on this very Court who have come from other courts.

The policy has been that you want people to move up the political ladder, to move up to higher office.

This defeats that policy.

Unidentified Justice: Where does that policy derive?

Mr. Caballero: It is not written anywhere, Your Honor.

Just the policy generally--

Unidentified Justice: Plus, I don't think any of us ran for this office.

Mr. Caballero: --No, you--

Unidentified Justice: I hope we didn't.

Mr. Caballero: --No, Your Honor, that is true, but in Texas, judges are political, not appointed.

You have to run for office in Texas.

That is a decision made by the legislature, obviously making judges political persons, as opposed to some states--

Unidentified Justice: Wouldn't it be unconstitutional for Congress to say that no federal judge may run for the United States Senate without first resigning?

Mr. Caballero: --Without first resigning?

Unidentified Justice: Without first resigning his judicial office.

Mr. Caballero: My offhand impression would be that it would not, Your Honor.

Now, there is--

Unidentified Justice: How is this different?

Mr. Caballero: --It used to be the law in the state of Texas, and in the Moreo case there was a prohibition of judicial officers running for non-judicial office.

That is not the case here.

The prohibition in Texas was removed some time ago.

I can see a state validly, as in the Moreo case, with which we have no quarrel, saying a judicial officer may not run for non-judicial office without resigning the judicial office first.

That was upheld in Moreo.

In this case, we would not have a First Amendment claim, we would have strictly an equal protection claim, were that the case.

Unidentified Justice: May I ask you a question about your equal protection claim?

What is the most glaring example of unfair treatment?

There are so many offices involved, it is hard to... and there are different dates of running and all.

Just pick the two that you think are the worst.

Mr. Caballero: All right.

I will give you a couple.

There is actually a case, and you can take the cite here, it is 377 Southwest 2nd, and it is also reported in 380 Southwest 2nd.

I think it was cited in the earlier briefs, not before this Court, by the state.

That is the case of Willis versus Potts, Willis versus Fort Worth.

It involves really both provisions that are akin to the ones that we have in question here in this case.

Unidentified Justice: Well, I would be much happier if you told me about one in this particular record, the two offices in this record that you think there is the most arbitrary discrimination between the two.

Mr. Caballero: All right, I think, for example, county judge.

Unidentified Justice: County judge?

Mr. Caballero: A county court of law judge who desires to run for the court of civil appeals, which is the next court of appeals up above that court.

Contrasted with a district court judge, also a trial judge, sitting alone, who also reports to the same appellate court.

The district judge is not governed by Section 65.

He may run midway through a four-year term, keep office, even if he lost.

Unidentified Justice: He is governed by Section 19, isn't he?

Mr. Caballero: Yes, he may not run for the legislature, Your Honor.

That is because it is a lucrative office.

That is correct.

He is ineligible for that section.

The county court of law judge, let's say that both seek the same office.

Unidentified Justice: Would it not be rational for a legislature to think that they should protect the public from confusing these various courts and judges, so that the judge on this county court you speak of would be precluded from having his picture and his posters out around the area, saying, keep Judge Moreo on the bench.

The public might think they should keep him on when in fact he is running for a different office.

Isn't that a factor a legislature is entitled to take into account?

Mr. Caballero: That is sort of the... that is a factor, but that is the judicial officer running for a non-judicial position, I think is what you are raising, which is not really the question.

Unidentified Justice: No, I am talking about the county judge running for the next highest court.

Mr. Caballero: You can say that, but why would you then turn around and say that a district judge can do that which a county court of law judge does not?

There has to be some reason for the distinction.

The state was unable to come up with any reasons at all, even in their brief.

They said, we have already discussed that distinction.

They didn't.

They never did discuss the distinction.

Unidentified Justice: Do the courts have the same kind of jurisdiction?

Mr. Caballero: Akin.

The county courts at law, being creatures of the legislature, are given all kinds of different jurisdictions.

Some of them have family, divorce--

Unidentified Justice: In other words, they have broader jurisdiction than the district judges?

Mr. Caballero: --For example, in probate, they have plenary jurisdiction.

Unidentified Justice: Yes or no?

I don't need the examples.

Does one have a different jurisdiction?

Mr. Caballero: Yes.

The district court--

Unidentified Justice: And they get different salaries?

Mr. Caballero: --Yes, they do.

The district court--

Unidentified Justice: What is their claim... what constitutional provision do they rely on to say they are entitled to be treated equally?

They are not treated equally.

They are different offices, they are paid different salaries, with different jurisdictions.

Mr. Caballero: --They are not entitled to be treated equally, but to the extent that they are not treated equally there has to be some reason for it.

The state--

Unidentified Justice: Could not the legislature, which now pays one more than the other, change its mind and decide to pay that one less than the other?

Mr. Caballero: --Conceivably they could.

Unidentified Justice: Does it have to have a reason other than they just want to save some money?

Mr. Caballero: Under your past cases of the equal protection clause, yes, they do have to have a reason when they treat people--

Unidentified Justice: What past cases deal with any requirement to treat different offices equally?

The men or women occupy different offices.

Why must the offices be alike?

Mr. Caballero: --The offices do not have to be alike, but to the extent that they have made a distinction, there has to be some, even at the lowest level of scrutiny.

Unidentified Justice: Do we have to review the distinction in salary or distinction in jurisdiction?

Why is there a federal reason why those different offices have to have similar treatment?

I don't understand the basic premise on which the whole case rests.

Why can't Texas create the XYZ court, give it precisely the same jurisdiction as some other court, but just pay the judges a different salary if it wants to?

Mr. Caballero: It could.

Unidentified Justice: And then why can't it say, well, those judges have to resign to run, but other judges don't?

Mr. Caballero: Because there, when you--

Unidentified Justice: They occupy different offices.

Mr. Caballero: --When you are paying one more than the other, perhaps it is subject to attack.

Perhaps there is no valid reason why you pay one judge more than the other.

I am just assuming that one perhaps has more jurisdiction than the other, but when you are allowing two men with basically the same qualifications to run for the same appellate office, they are both qualified to run for the court of appeals, for example, on the one hand, you say, judge, you are a judge of the county court of law, therefore you lose your office; you are a judge of the district court, you get to keep your office.

This Court has said even at the lowest level of scrutiny there has to be some reason for the distinction.

The state cannot come up with any.

Unidentified Justice: Well, when you talk about distinctions, supposing that a county court judge is paid $15,000 and a district court judge is paid $20,000, and then the legislature decides to raise the salary of the district judge to $25,000 but not raise the salary of the county court judge at all, so that whereas the county court judge used to make 75 percent of what the district judge made, now he makes 60 percent.

Do you think that is subject to attack under the federal Constitution?

Mr. Caballero: It may be subject to attack if there was no reason, if the state... I can see the state easily coming up with a reason for that distinction.

Unidentified Justice: Supposing this was something done back in '54 or '56, and the state is in the position that they can't explain at all why the legislature decided to do this?

Do you think that then would be subject to attack under the Constitution?

Mr. Caballero: For example, if this Court were to examine it and find no reasonable... in other words, if you are placing burdens on some and not on others, and you are unable to come up with any reason, and you have burdened some rights, then I think the state statute is subject to attack.

Unidentified Justice: Well, is my example a burden?

Mr. Caballero: I suppose it is a burden of sorts.

I suppose someone could conceivably come up with an argument.

Here you are talking about something that goes way beyond a mere distinction of salaries.

You are talking about a person who is subject to losing office, and another person who is not subject to losing office, a tremendous distinction, not one of mere degree, but almost of kind.

Unidentified Justice: Would you urge that we apply a rational basis standard then?

Mr. Caballero: Your Honor, I am urging that you apply a balancing test, kind of like you did in Letter Carriers, and what the court of appeals below suggested in Moreo, and that is, the closer... that is a good example.

Unidentified Justice: How would you distinguish the Letter Carriers case, where the Court upheld the Hatch Act?

Mr. Caballero: Well, there, the interests of the government were tremendous.

There is a policy of long standing that in civil service in the United States, you want to keep them as free as possible from political pressures.

Unidentified Justice: Well, here is a policy of long standing in Section 19 of the state constitution.

Mr. Caballero: Your Honor, that is what I was saying.

I don't know of any policy other than it is a legislative enactment.

I am talking about a reason for it.

For example, in Letter Carriers, there is a reason.

We don't want civil servants to become involved in the political process to the extent where they themselves become partisans.

The reason behind Section 19, the state of Texas has been able to come up with one.

They said it that prevents conflicts of interest.

And then you pose the hypothetical, what happens if I resign my office?

Therefore there would be no possible conflict of interest.

I am still rendered ineligible.

In that situation, they have come up with no distinction whatsoever, no reason for it.

The policy decision that I was speaking of earlier is not one that is contained so much in the legislation or is embodied in the legislation, but simply something the government has come up with, and that is the reason that you have civil service on the federal side.

Unidentified Justice: Counsel, supposing the Postmaster General put into effect a policy against political activity such as in Letter Carriers, and the Secretary of HEW did not.

Could the postal workers claim a denial of equal protection?

Mr. Caballero: Yes, they could, I would think, if they--

Unidentified Justice: So if any one department of government imposes some such restriction like this, it is invalid unless it is put into effect throughout the government?

Mr. Caballero: --This Court has said in the past that... the argument was raised by defendants in those cases, you know, you can't expect a legislature to enact everything all at once so everything is uniform, and this Court has held that if someone brings a complaint that they are being treated unequally, that you cannot guess and say, well, maybe they... this statute that we have here in this case has been around for 23 years.

I don't know how long we have to wait for the legislature to come up with the provisions to make it equal treatment.

1836, I would think, is long enough on Section 19.

Unidentified Justice: Well, you are starting with an assumption that there is a constitutional requirement that there be equal treatment.

Mr. Caballero: There is, Your Honor.

There is, equal treatment to the extent that there is not, that there should be some reason for it.

That is the test of this Court.

Unidentified Justice: Well, I think you are a little too broad on different agencies.

I know some agencies in this government you can write and print whatever you want, and I know others you can't.

Mr. Caballero: That is true, and in application--

Unidentified Justice: And I think this Court has passed on that point.

Mr. Caballero: --In the Willis case that I was going to mention earlier, it is two cases, and I think they really illustrate the problems with both cases.

Willis was a congressman from Fort Worth.

Willis decided that he was going to run for the state senate.

Willis announced for election.

Filed his application, or tried to file his application with the Democratic chairman there in Tarrant County, and the chairman said no, Section 19 makes you ineligible to run for the Texas senate because your term, even if you resign today, would be extending into the legislative term sought.

Unidentified Justice: Is that a constitutional decision?

Mr. Caballero: It was mentioned, but it was not based on the constitution.

They simply went and upheld--

Unidentified Justice: It was meant to but it wasn't based on?

Mr. Caballero: --The court did not say... the court found nothing wrong with the provisions under the Texas or the U. S. Constitution, Your Honor.

Unidentified Justice: Well, would you mind if I am not bound by that decision?

Mr. Caballero: I don't think you are bound by the Willis decision.

Unidentified Justice: Thank you.

Mr. Caballero: But I am mentioning it simply because of the facts that it raises.

Now, in Willis, after this person was held to be ineligible to run for the Texas senate, as soon as he announced for the Texas senate, though he by law could not become a candidate, it was held by the Fort Worth City Council that he had resigned his office because they had a... it was not 65, but it was something akin to 65 that says as soon as you announce for another office, you lose your spot on the city council.

So Willis then filed a second lawsuit, and said, since I can't be a candidate for the Texas senate, I was never a candidate, I should not be losing my office.

And they held there, they applied what in effect was Section 65 in the Fort Worth City Charter, and held that he had lost his office also.

And that's the kind of situation you get here.

You are not eligible to be a candidate.

For example, Judge Baca in this case, who wants to run for the legislature, cannot file for the legislature.

First of all, he is ineligible.

Secondly, as soon as he files or announces for office, he loses the one year remaining in his term.

Unidentified Justice: You are suggesting that the legislature and the people of Texas haven't a right to say that if we have a person in this particular office, we want him to spend all his time, devote all his energies to that office, and not dissipate his time and energies by running for another office while he is holding the first one to which he was elected.

Mr. Caballero: The people of the state of Texas, Your Honor, I suppose could say that, but what has happened is that they have said some officeholders we are going to apply the rule to, and some we are not.

For example, if a district attorney decides to run for governor, loses his office; the attorney general decides to run for governor, he does not lose his office.

In the state's brief in this case, they say that it shouldn't be applied to state officeholders because they are unlikely to run for higher office, when in fact this present attorney general has already filed... he has announced for office.

The previous attorney general, John Hill, filed and ran for office and lost.

Neither one of them lost their terms.

Texas has 256 counties.

To allow you only 37 days to test the waters, to see whether or not you want to run for office, is so restrictive a burden as to be unrealistic.

What has happened also is that these provisions were enacted in 1958.

At that time, the filing deadline in Texas was in June, which gave you about five months to test the waters.

Immediately after these provisions were enacted, and I don't know how much thought was given to it.

There is no legislative history.

In 1959, the legislature moved up the filing deadline to the first Monday in February of each year, so you lost about four months of this testing of the waters period.

Before, it may have been reasonable, with a June deadline.

Now, with 37 days, saying you cannot run for statewide office or for any other office; if you merely seek office you have lost your present office, that has such a chilling effect that it has prevented a lot of people, including my clients in this case, they claim in affidavits and in pleadings that they will not run for those offices so long as we are looking at these legislative provisions.

If there are no further questions.

Unidentified Justice: Of course, there is another option that is always open, I guess.

They could resign their offices to practice law privately or whatever their skills might be, go into the private sector and then run.

They are not totally disabled.

Mr. Caballero: They are not totally disabled, but if you take judges, that is an unrealistic alternative.

Unidentified Justice: I know a lot of judges who have resigned.

Mr. Caballero: There are some who have resigned, but what I am saying is that there are many others... trying to crank up a law practice when you think you might win and have to go back into judicial office--

Unidentified Justice: That is really ironic, because my experience has been that most judges think lawyers are better paid than they are.

They don't think it is a great sacrifice to go out and have a chance to practice privately.

Well, Mr. Caballero, as I understand it, under Section 19, the judge could not resign and run for the legislature.

Mr. Caballero: --Under Section 19, it makes no difference if you resign.

You are ineligible regardless.

Unidentified Justice: Right.

Mr. Caballero: So long as your term extends into the next legislative season.

Unidentified Justice: Well, on that score, the people of Texas, having adopted that, have expressed the view that if we elect you to an office, we expect you to stay there until the end of your term, and this is one inducement, if not a pressure, to keep you there, that you can't run for any other office.

Mr. Caballero: I can see them saying that, and I think it is a fine policy.

Unidentified Justice: They have said that in the constitution, haven't they?

Mr. Caballero: If it is such a compelling policy, why haven't they said that for the other officeholders?

It leads you to believe maybe it is not such a valid reason.

Unidentified Justice: Well, I suppose a lot of people in Texas would say that is none of anybody's business except the people in Texas.

Mr. Caballero: That is true.

That has been advanced.

But under the decisions of this Court, when you do make a distinction between officeholders, they have to give you at least, even under the minimum level of scrutiny, some reason for it, some valid reason for it, and the state of Texas cannot.

In the Fourteenth Amendment area, if you look at the interrogatories or if you look at the brief, they have not mentioned any reason for the legislative distinction in Section 65 other than the one you mentioned, Your Honor, and that was legislative oversight.

That I contend is not a valid reason.

They simply said it was not before the people in 1958.

They are agreeing that they never even considered it, Your Honor, not that they had some reasons.

Thank you.

Chief Justice Burger: Do you have anything further, Mr. Allison?

ORAL ARGUMENT OF JAMES P. ALLISON, ESQ., ON BEHALF OF THE APPELLANTS -- REBUTTAL

Mr. Allison: Yes, Your Honor.

In the first place, appellees continue to state that the Article XVI, Section 65, provision prohibits testing of the water.

And I continue to state that it does not.

They have cited a provision of the election code that defines candidacy, but if you read that entire section, it concerns the financial requirements of candidates and states at the beginning of the section that the definitions therein apply only to that chapter.

If you look at the state cases construing Article XVI, Section 65, you will not find a single case in which a person has been required to resign from an office in which they have made anything other than a clear and definite pronouncement of candidacy for another office.

There is no situation in which a person has been required to resign for merely testing the waters.

That is not the situation in Texas.

In fact, the election code was recently amended to provide that if you try to file for another office before January 1, and might thereby inadvertently violate Article XVI, Section 65, that your filing will be declined, and it will be refused, and that you can only file after January 1, between January 1 and the first Saturday in February, thereby preventing any inadvertent violation of Article XVI, Section 65.

Finally, also on the question of the burden, this case was decided on summary judgment, and the burden, if you use the rational basis test, was upon the plaintiffs to show that there was no rational basis for these provisions, and we have set forth in our brief several.

Number One, Article XVI, Section 65, applies to your basic entry level stepping stone political positions, the precinct and county level positions, thereby providing a possible basis would be that the people of the state of Texas thought that it is more likely that someone entering at that level would try to run in mid-term, trying to step up while trying to hold onto the office that he had.

They are entitled to make that distinction.

Second, on statewide officials, such as the attorney general running for governor, they do not serve staggered terms.

They are all up at the same time.

Their terms expire at the same time, so they would only be running for another state office in the last year of their term, as provided in Article XVI, Section 65, anyway.

We believe that the plaintiffs have not met their burden in this situation and that these provisions do not contravene the Constitution of the United States.

Unidentified Justice: Article III, Section 19, would not prevent you from running in the last year of your office for the legislature if your legislative term would begin at the expiration of your own term?

Mr. Allison: It would.

Unidentified Justice: It would what?

Mr. Allison: It would not prevent you from running in the last year.

No, sir.

Unidentified Justice: Yes.

Yes.

Mr. Allison: You could run in the last year for the legislature.

Unidentified Justice: Well, you could begin running whenever you wanted to, as far as Article III, Section 19, is concerned.

Mr. Allison: That is true.

Unidentified Justice: As long as the term for which you are running begins at the expiration of your own.

Mr. Allison: That's true.

And the terms all expire at the last--

Unidentified Justice: But that is not so under 65.

Mr. Allison: --No, sir.

Chief Justice Burger: Thank you, gentlemen.

The case is submitted.

Attribution:

The OYEZ Project

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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.

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American Party Of Texas v. White - Oral Argument

Thu, 23 Aug 2012 18:25:18 +0000

Case:

American Party Of Texas v. White

Media File:

72-887_19731105-argument.mp3

Related Transcript:

72-887_19731105-argument

Transcript:

Argument of Gloria Tanner Svanas

Chief Justice Warren E. Burger: We’ll hear arguments next in Number 72-887, American Party of Texas against White and 72-942, Hainsworth against White.

Mrs. Svanas you may proceed whenever you’re ready.

You may lower that lectern if you would find it more convenient.

Ms Gloria Tanner Svanas: Mr. Chief Justice and members of the Court.

I am Gloria Svanas representing the appellants in this case, the Minority Parties from Texas, the American Party of Texas, the Socialist Workers Party of Texas, and the Texas new Party.

Also, representing the independent candidate Laurel Dunn, who was a candidate for the United States Congress.

This is direct appeal from a three-judge Federal Court in the Western District of Texas finding certain sections of the Texas Election Code to be constitutional.

It is the contention of the appellants, these minority parties that the Texas Election Code is precisely drawn to accomplish the goal that -- what is intended to accomplish.

That is the purposeful and invidious discriminate against -- pardon me, discrimination against minor parties and independent candidates.

The legislature in Texas arbitrarily and capriciously controls elections in Texas.

It has been said that there are four alternative routes to ballot position in Texas.

It is urged by the appellants that they’re rather -- there are four exclusionary routes from the ballot in Texas.

The first exclusion is based on a difference of opinion with political philosophy.

You either join up with the republican and democrat parties in Texas or you are actually excluded, practically excluded from the ballot.

You either adopt the political philosophy of the two major parties or you surrender your first amendment freedoms which allow you to practice the philosophy which you believe and to associate and organize political parties for that purpose.

Once you have participated in the party primary, you are locked in to that particular party.

Actually, voting in a party primary constitutes registration in the State of Texas.

Not only from the standpoint of our continuous registration which we now have but also from party affiliation.

Only through participation in the major political parties are you allowed the privilege of absentee voting.

Otherwise, you are completely excluded from absentee voting and if you should desire to go fishing on election day or should you by any other reason be prevented from participating at the ballot box, you will go to the County Clerks Office in Texas and be compelled to either vote republican or democrat of forfeit your right to vote.

Unknown Speaker: Do you know of any other State that has such a provision as to absentee ballots being restricted to one of the ballot?

Ms Gloria Tanner Svanas: No, sir.

I have not found one.

I found one particular case this Court had decided in McDonald from the Illinois case but that -- in that one, the absentee privilege is restricted to those who were confined in institutions even though they might just have been under charges and have not been convicted.

I find it little bit harsh to compare the minority parties in Texas to the inmates of penal institutions in other States.

The added bonus which we have in Texas since the 1971 McKool-Stroud Primary Financing Law which is also part of this appeal is the fact that if you participate in the Republican and the Democrat Primary, you get the bonus of having a tax paid for a primary.

If on contrast if you should determine to participate with one of the minority parties, then you are compelled to pay all of these expenses out of the minority party account.

There are no write-ins in the primaries in Texas since the original time of the rise of the Republican Party in Texas which used to nominate by write-ins in the primary so they exclude the write-ins from primaries when that party started growing up.

Actually, the nomination for local offices in Texas by the Democrat Primary as a practical exercise is determity participation because nomination for most offices in Texas by the Democrat Primary is tantamount to election.

The second exclusion from the ballot in Texas is by the numbers of the votes for Governor which were cast for the candidate of that particular political party in the last gubernatorial or general election.

For instance the American Party on 1968 hold 584,000 votes for its nominee for United States President but because the American Party did not have a nominee on the ballot for Governor, it was automatically excluded from the ballot from that time.

The question is, is the numbers of vote gained insofar as the gubernatorial candidate concern, a fairer competition and thus, that fairer competition constitute a compelling state interest.

We need not speculate what might have happened to our requirement for votes because of what actually did happen in Texas after the La Raza Unida candidate secured the necessary signatures and attained ballot position in the 1972 Primary.

They polled more than 2% of their vote for their gubernatorial candidate in 1972 and consequently they -- the Texas legislature in meeting in its next biennial session raised the quota from 2% to 20% for automatic ballot position from this date.

And so the numbers gained does prevail in Texas and if one minority party happens to fulfill the requirements of that then law, then they’ll change the law again.

And actually, that was the difference that was made in the law in this 1345 subdivision (2) after the 1968 campaign.

When the American Party started to where it said there is a competitive factor in Texas and so the law was changed and so we got this Honors petitions which we are now required to circulate.

This is the basis of the third exclusion from the ballot in Texas.

If the gubernatorial candidate did not receive 2% of the vote which is now been raised to 20% of the vote in the last general election, you have to go out and start the petition route again.

Of course, this presumes that you had a gubernatorial candidate, it would also include new parties like the Texas New Party and the Texas Socialist Workers Party which did not have a candidate on the ballot of any kind in 1970 and was not organized on a statewide basis.

We have a statutorily dictated statewide organization in Texas for new, the Minority Political Parties.

Early as November preceding the general election, we are required to file a notice of intent to nominate by a convention.

In January, all candidates must file for office on that ballot.

By March, the state rules must be filed.

In May, the county precinct conventions must be held at the same time as the party primary conventions are being held and suddenly the whole Texas totalitarian idea takes on the very reflections of Williams versus Rhodes.

The petitions which are required in Texas are statutorily dictated and exacting in wording.

The wording must be exactly as it is dictated by statute or they are not accepted and filed by the Secretary of State.

The form is dictated, the form of the signature.

Prior to the holding of the precinct conventions through out the 254 counties in Texas in May, there must be printed and circulated these petitions.

This is the first step for qualification for ballot position by the numbers gained in Texas.

They must be circulated, they must be in the hands of this precinct chairman in each of the precincts so they will be available for signature on that day because beginning as of that day, you have a total of 54 days as in 1972, it might be 55 days next year to secure 1% of the total vote for Governor in the proceeding general election to sign this petitions to indicate the support for some candidate who might be running on this minority party ticket.

This number in 1972 with some 22,000 plus signatures in 1974 will be 36,000 plus signatures.

But these petitions is not only must be in this exact form but they must be signed before a notary public and they carry a criminal penalty that you must have -- you must swear that you have not participated in any of the other party primaries in anyway whatsoever.

You have already been excluded from the absentee balloting and it is the contention of the minority parties hereon appeal that certainly if you are to put out a petition after the primary, we should also be accorded the right to compete for those absentee votes and there are many thousands of absentee votes cast in Texas in each election.

Unknown Speaker: Mrs. Svanas, you referred to a candidate for the presidency of the United States on what you’re calling minority party, was that the American Party?

Ms Gloria Tanner Svanas: Yes, sir.

It was.

Unknown Speaker: And that was in 1968?

Ms Gloria Tanner Svanas: Yes, sir.

It was.

Unknown Speaker: Was that party on the ballot as such?

Ms Gloria Tanner Svanas: He -- we were on the ballot from the standpoint only of the presidential candidate.

Yes, sir.

But see, after the 1968 election when the American party did hold 584,000 votes --

Unknown Speaker: For your presidential candidate?

Ms Gloria Tanner Svanas: Yes sir, for the presidential candidate.

Unknown Speaker: You have no gubernatorial candidate.

Ms Gloria Tanner Svanas: That’s right.

But not only at that time it was a very simple matter, 1345 subdivision (2) was changed in 1969 to meet that competitive threat of 1968 to assure that it would be very difficult to make the ballot in 1970 and 1972 and that’s where we came up with our petition requirement in Texas.

But in 1968, it was a simple matter by comparison for a minority party to get on the ballot and that was the method that was followed by the American Party to secure ballot’s position.

Unknown Speaker: But since that time the law has been --

Ms Gloria Tanner Svanas: Yes sir, it has been changed.

Unknown Speaker: Changed and made more -- making it more difficult for (Voice Overlap).

Ms Gloria Tanner Svanas: Much more difficult sir and actually the legislature in Texas meets every two years and it seems that the election code changes every two years to meet the threat of the minority party or the independent or the competing party just as the changes been made.

Now the 1972 McKool-Stroud Act for the purpose of state financing of party primaries was a one year statute and it was thought that the 1972 legislature would change the elections laws to provide for the whole new primary elections procedure but since they did not do so, they did have to pass another financing bill which is the Senate Bill 11 which has been filed by the American parties in supplemental appendix and they provided in that apparently to pay for the major party primaries in 1974.

But it just happened to incidentally changed 1345 subdivision (2) again to require that to maintain ballot position after 1974 that the party would have to poll 20% of the votes for Governor.

Of course it’s foreseeable that this could result in active campaigning by those who are now on the ballot to the point that some one of the three might even be excluded.

The fourth exclusion from the ballot is probably what is recognized in Texas as the least competition to the major parties and that is the exclusion of the independence and the nonpartisan candidates.

It is the contention of Mr. Laurel Dunn who was the candidate for United States Congress that the requirement of the petition in addition to the United States constitutional specified qualifications for United States Congress is actually the super added idea.

The petitions are super added to the qualifications as was distinguished by the candidate's commentaries on constitutional law.

This of course is the Powell versus McCormack suit which earlier had been decided as to Powell’s additional qualifications or the attempt to exclude him from the House of Representatives.

It is the contention of the appellants that the statutory exclusions from the ballot in Texas result in constitutional unjustifiable equity -- inequities.

We don’t believe that there is anything in the record whatsoever by which the State of Texas even attempts to justify these exclusions.

Whereas the compelling state interest for the deviation from these constitutional guarantees that any voter can effectively participate in the election for the candidate of it -- his choice as compared to being compelled to participate in either the -- of the two major parties.

The size of the ballot falls on their fears when we realize the numbers of the candidates who each year file in the Republican and Democrat primaries for the office of the Governor and the other controlling offices in Texas.

This is particularly true since this Court has overturned the filing fees requirement in the State of Texas.

Unknown Speaker: Mrs. Svanas, we come back a minute to the party conventions which you mentioned.

I think as I recall at Article 1547 states that party convention shall be held in Precincts County and the State.

Ms Gloria Tanner Svanas: Yes, sir.

Unknown Speaker: Now, did that construed literally to require that a precinct convention be held in every precinct in the State of Texas?

Ms Gloria Tanner Svanas: Yes, sir.

It is not required to be held but if we are to secure the signatures as are required then the ballots -- the petitions, pardon me, must be distributed to each of these precincts and be going at that level.

They -- the requirement becomes more obvious if one desires to participate in the primary and that the attendance at the county convention is limited to those who attended the precinct convention not to those who have signed the petition and then the appendance of the state convention which nominates on the statewide level is limited to those who attended the county convention which of course has been limited by the precinct.

So actually, to have any voice in the minor political party in Texas, it is necessary that you attend the precinct convention and make your voice heard there so you can attend on up the role.

And it’s these continuous requirements by a statute of what we must do that makes it practically impossible to attain ballot position in Texas.

Unknown Speaker: If conventions are not held in every precinct or in every county, does that disqualify the individual or the party?

Ms Gloria Tanner Svanas: It does not disqualify the party but it does disqualify the individual because if his lack of participation, there is no way for him to go back and become a participant that is in the nomination for the county and the statewide offices.

It is to be noted from the record that the Republican Party did not even hold party primaries in every county in Texas since we do have so many counties and some of them don’t indicate any interest in the Republican Party.

So those particular persons, if they did not participate in the Democrat primary and there was no offering of a precinct convention by the American Party, then they were totally without a vote in Texas in 1972.

Thank you.

Unknown Speaker: Mrs. Svanas, let me ask you one more question.

Explain to me this 5% bonus for the county clerk under the Financing Law?

Ms Gloria Tanner Svanas: That’s the county -- that’s the party county chairman, Mr. Justice.

The State Law in Texas provides under the McKool-Stroud Act and under the new recently passed primary financing law that the county chairman of the major political parties which this year will include Raza Unida because they did qualify by the 2% vote in 1972.

They will determine how much it is going to cost them to hold a primary in each county in Texas and they will report that amount to the Secretary of State then they -- after the primary has been held in the runoff primary then they will report the actual amount spent and based on the actual amount spent, each county chairman in Texas is liable -- is allowed to claim a 5% bonus for himself for his participation in the major party primary.

Chief Justice Warren E. Burger: Very well, Mrs. Svanas.

Mr. Hainsworth.

Argument of Robert W. Hainsworth

Mr. Robert W. Hainsworth: Mr. Chief Justice and may it please the Court.

I am here today to speak in behalf of the appellant Hainsworth and also in behalf of those others we have endeavored to become independent candidates in the State of Texas over the years and have not quite been able to make it.

To become an independent candidate in Texas, one has to meet the requirements of Article 13.50 of the Texas Election Code which provides among other things that the candidate must obtain a certain percentage of the votes of a certain number of the people who cast the ballot for governors both Democratic and Republican at the last preceding general election.

In addition to that, if the candidate is from a one county district, he has to get 5%.

If the candidate is from a district composed of one or more counties, then the candidate is only required to get 3% of the vote.

So there is some variance even with respect to candidates depending upon the number of counties in the district.

In addition, the independent candidate has to obtain notarized signatures from each sign or of his application.

And in addition to that, the independent candidate is proscribed in making his efforts to canvass for signatures in that those who have participated in the first primary, either Democratic or Republican and those who have voted in the second primary, a row of primary but not eligible to be canvassed by the independent candidate for that particular office.

Provided, anybody has been a candidate in those primaries, there were two primaries.

That in effect limits the independent candidate to about 50% of the voters in his district.

Now the appellant in this case was a candidate for state representative in District 24 -- District 2886 and this particular county is a single number district and they are approximately 23 to 24 single member district in Harris County, Texas.

Now, approximately 74,000 75,000 people in each state representative district and it is difficult to beat those requirements of the state statute, Article 13.50 in order to qualify as an independent candidate.

In addition, another difficulty is the requirement that you must get those signatures within 30 days.

Thirty days after the close of second primary day which usually comes about 3rd of July dated 1972.

The three-judge District Court in deciding the consolidated cases stated in its opinion that this consolidated cases fell in between Williams versus Rhodes and Jenness versus Fortson.

In that the Supreme Court in the Williams case was working on one end of the spectrum and in the Fortson case they’re working on the other and that the facts in these consolidated cases now before the Court fell exactly in between.

However, it seem to me that the Jenness case was the one that the three-judge District Court should have applied in making its decision because in that particular case are laid down some rules and possibly it may be stated that the State of Georgia had set forth the requirements they did consider appropriate for independent candidates and it may be that they were very, very liberal but it seems to me that they were very, very fair and I would like to submit to the Court that they should give considerations here as consideration to following the Jenness case in its requirements insofar as independent candidates are concerned.

In that particular case, no notary public was required in that particular state insofar as an independent candidate was concerned in getting on the ballot.

Unknown Speaker: But what’s involved in getting a notarized signature?

Mr. Robert W. Hainsworth: The matter is one of expense for one thing and another is a matter of getting --

Unknown Speaker: How much, how much it cost?

Mr. Robert W. Hainsworth: Well, the notary public fee by state statute in Texas is 50 cents for each notarization.

However, when you have to go out -- whenever a notary public goes out of his office to notarize something, it always cost more and of course if you are an independent candidate or you’re trying to become an independent candidate, you got to get a notary public, he will go around with you and walk and walk and notarized as necessary whenever you can get somebody who is willing to sign your application and [Interruption] for a dollar for a signature.

It may want even more, in those you get may be kind of feeble and not able to keep up so you kind of hump it.

It puts a burden upon independent candidate --

Unknown Speaker: And what formality does the notary public have to follow?

Mr. Robert W. Hainsworth: Well, there is an old proscribed by state statute which says something like this, “I solemnly swear that I have not participated in any primary first or second held this year to nominate a candidate for the office for which I desire, John Jones, an independent candidate to be a candidate for and so on.”

That is in substance what’s in the oath.

Unknown Speaker: Does notary have to execute any formal return?

Mr. Robert W. Hainsworth: Well, this is what the application is going up so that he can be for each individual sign up or it can be drawn up so that 10, 15 to 20 persons can sign the same application.

But if each answers that notary public has to appear, the person ask you a fee before the notary public can have him to swear that he is stating the truth and of course that kind of limits some people because people somewhat don’t like to make an oath.

They are kind of reluctant.

So that kind of detours some individuals from taking the -- for taking the oath and that takes away from the applicant in getting signatures.

Chief Justice Warren E. Burger: As a practical matter, don’t they usually get petitions by sending a notary public out to get them or at least have the notary public go out with the party order?

Mr. Robert W. Hainsworth: Well, now of course we are dealing with an independent candidate and use an independent candidate is working alone.

And he is trying to get somebody to help him and he is not able to get anybody to go out for him and pay them too.

Chief Justice Warren E. Burger: Most independent candidates have some friends or they aren’t like to get many votes, isn’t that a practical reality?

Mr. Robert W. Hainsworth: Well, I think this Your Honor the friendship comes when the independent candidate himself goes and speaks to the individual and the individual will readily sign.

I think that is the kind of friendship --

Chief Justice Warren E. Burger: If you carry that through its longitude conclusions then you would object to the requirements of getting any signatures at all because that takes work?

Mr. Robert W. Hainsworth: Well, no sir.

I wouldn’t object to that.

Chief Justice Warren E. Burger: Your objection then just goes to the degree?

Mr. Robert W. Hainsworth: Well, it goes to the notarization and of course not for the one, for the notarization.

I could go out myself and get 500 signatures without any hesitancy but we have to take a new republic along involving more press than notary public not have to wait until he catches up.

And I’ve got to go to those and let it know that these won’t sign about the keep going, keep going.

Well, I can work all day and I make it 15 and that is the way it goes with it.

Now that in his after notarization would be all right if you had say 90 days or 60 days but you only have 30 days so they cut you both ways.

If the notarization provision is there and if I could wait for any independent candidate could wait 60 days, you get the 500 signatures but when you have to have it notarized, you only limited to 30 days and then you exclude it from those who voted democratic and republican primaries or you cut so far down and you don’t know who to go to, you have to go from house to house and may have voted.

They say, “I would sign but I voted already.”

So it’s lots of handicaps and avoidance that you have to undergo in order to try and qualify.

Of course it is not even impossible, that if I have been able to have foreseen the many months of work that I’ll have to undergo to get here.

I believe I will wait for 90 days to have made it.

And I think I will say, “You should die.”[Laughter]

However, I am hoping that my appearance here will serve to make the Court aware of the problems of an independent candidate in that -- an independent candidate is striving to help to make -- help make the county stronger and -- well, an independent candidate goes out for a smaller office.

He does not expect the real great influence.

It’s just the matter of trying the champion somehow the government that he has and if he admits with the approval of the people, and he is able to get elected, fine.

Of course, an independent candidate gets on the joint election ballot.

He still has the Democratic Party and the Republican Party to defeat and he is strictly underdog.

He’s got a hard fight on his hands and he gets no funding and no financing like the Democratic Party does.

It’s all coming out of his pocket.

In latter times, the Democratic Party candidate or Republican Party candidate don’t have any opposition.

Once they get good nomination, which in many cases tantamount to election, where they are in.

You don’t have any joint election opposition.

So all they have to do is struggle to get on the primary ballot as the nominee and then they are just about in.

But lots of times the -- they may have an opposition candidate in the primary and none in the joint election and then they may not have even a opposing candidate in the primary.

Sometimes it’s just a show hand and of course it all depends upon what the office is that the candidate is running for.

Now I hope to reserve five minutes for a rebuttal if I may.

I don’t know what I’ve gone over it or not.

Chief Justice Warren E. Burger: Very well, Mr. Hainsworth.

Mr. Hill.

Argument of John L. Hill

Mr. John L. Hill: Mr. Chief Justice and may it please the Court.

I want to first thank Mrs. Svanas for filing an appendix with this Honorable Court in which she very promisingly asked that the governor signs Senate Bill 11.

I filed that as an appendix with the Court saving us the trouble of doing this.

I think it speaks very clearly for itself and we have not elaborated by any additional brief but with reference to it.

Second thing, I would like to say that particularly, after listening to him although I have known him in Houston that our Texas admires independent candidates and we want people like Mr. Hainsworth to stand if they desire as independent candidates and I think our laws have accordingly allowed that.

I need to speak if I might for a moment factually to the American Party situation.

This party of course with a very valuable political force in 1968 in our state with over 91,000 signed up members and they cast 584,269 votes for George Wallace for President.

Now since the American Party elect did not, for reasons of their own, to fill a governor nominee in the 1968 General Election.

That party in 1970 was required under our statute to nominate candidates for state and local offices for the general election by conventions and when the party did not file with -- more required and my represent I set the state sufficient certification to indicate the minimum support that our statutes covering these matters contemplate something in the neighborhood as 22,000 conventioneers or if that many people don’t get to the convention, we permit supplementation by petition which we regard as a helping hand not as a deterrent and add on in addition.

For reasons that I frankly don’t know and I understand and the record is sailing on it.

They just simply had 6,828 names.

Whether they were -- that was because of their tremendous and the Court can take judicial knowledge of their great participation in the Democratic Party are not, I did not know, but those are the facts.

Now the new party, on the other hand, represents truly just what it is, a new party at Texas New Party we don’t know very much about it, we’re not told very much about it.

This Court is not told much about it.

Made no effort at all under this record to have any compliance and that’s where that matter stand.

The Socialist Workers Party did comply with our laws and they were on the ballot and they’re -- while filing a brief here, are not here at least verbalizing that.

And I don’t know of any substantial complaint that they raised.

Well, as for Unida who took no appeal from this matter and we are part -- we are state of many minority parties today, just a proof for the putting.

We have a very fine gentleman for a governor, he received a very good vote and they qualified under the 2% and I’ll discuss how our procedure works in a little more detail in a moment.

And then Mr. Ronald Dunn who was an independent candidate for the United States House of Representatives and represents himself and before the independent candidate made absolutely no attempt to meet the requirements of our statute with reference to independent candidates and simply filed suit shortly after the primary elections.

Of course he has a perfect right to do.

Mr. Hainsworth did try.

Had he not obtained for reasons that I am sure the Court has heard here and whether that represent inability of what we can’t judge, it’s a peculiarly within probably in his mind but nonetheless his 328 fell short of the 500 which we believe is not an owner’s burden and one that many has met.

He filed a suit attacking the constitutionality of these provisions in a very candid and open way that he had displayed here before the Court.

Now, we were faced in Texas, of the last session of the legislature.

With this situation we will face with Williams as we could read it and understand it.

And we will face with Jenness as best we could read it and understand what this Honorable Court, we are saying to the state in this area.

We had read Rosario versus Rockefeller.

But we had here three cases in which this Court, the majority of this Court had been heavily involved.

In addition to that, you had written Bullock versus Carter arising from our state involving our financing situation of our filing fees.

If I might, in that text -- in that context, discuss with you for a moment Senate Bill 11 that’s here as in the appendix which was passed and signed by our Governor in June, the 15th of this year, it provides, one, a schedule of filing fees that we believe are in keeping with the rules of reasonableness permitted at Bullock versus Carter much less than before, much legislative.

Not here under attack and permitting the filing of a candidate of a nominating petition in lieu of the payment of filing fees which we believe is very progressive in keeping with Carter versus Bullock and not here under attack provides perspectives --

Justice Thurgood Marshall: (Voice Overlap) that petition required notarized signatures?

Mr. John L. Hill: Yes, sir 5,000 in the statewide case, yes sir.

And the notarization Mr. Chief Justice Marshall as far as I am aware is not been under attack in any decision of which I am familiar and the only decision in which the matter has been discussed was not thought to be a constitutional burden.

Unknown Speaker: (Voice Overlap)

Mr. John L. Hill: And moreover from my -- pardon me.

Chief Justice Warren E. Burger: It’s not -- that’s less than Jenness against Georgia requirement, isn’t it?

Mr. John L. Hill: Oh!

Yes.

Much, much you see under Jenness versus Georgia if we use Jenness and in this -- this can be considered by state.

The time to speak by a legislature but 5% of our total electorate in Texas and that is Jenness.

It’s not 5% of a gubernatorial candidate; it’s 5% of the electorate.

I don’t know what Mrs. Svanas and others would say that constitutes as of the time relevant to this case something over 200,000 signatures.

And we would be passed in clearer constitutional muster.

Under Jenness we just walked in, off our hats, and walk out.

We have elected not in any effort to hold down minority parties but we have elected in our state in an effort to have a totally fair system in one that we believe is much preferable to Georgia and much fairer to Georgia to have 1%, 1% --

Justice Byron R. White: How many is there?

Mr. John L. Hill: Of gubernatorial, it would be about 22,000 under our -- in other words we lack a lot of other states Mr. Chief -- Mr. Justice White, don’t vote our folks.

Justice Thurgood Marshall: But that 22,000 means 11,000 dollars, doesn’t it?

Mr. John L. Hill: No, sir.

Mr. Justice Marshall on the note --

Justice Thurgood Marshall: You know that it’s not 50 -- it’s not 50 cents per signature?

Mr. John L. Hill: Well sir, the practical answer to that and I realized that we have a current problem here as far as when you get into question as well and cost, I am not unmindful of that.

But the facts are that notarization is allowed and not have the statute opened here is allowed in bulk on certification for one thing.

It says, that the certifying officer may certify the petition.

I might just -- one certificate of the officer with whom before whom the oath is taken may be still made to supply all to whom it was administered.

The candidate can be a notary.

I am not suggesting that there can’t be some cost here but it’s an exaggerated point in my own judgment.

Unknown Speaker: How long does he get it?

Mr. John L. Hill: He has -- you mean in terms of the independent candidate?

Justice Byron R. White: Well, how long does he have to have it to get the (Inaudible)?

Mr. John L. Hill: Well, sir, this is the basic way we work Mr. Justice White is two conventions on minority party.

We presume that the convention will be held on the same day that we as democrats vote and as republicans vote and all other parties that the conventions will be held and as a result to the convention the 22,000 people will attend and certify their names.

You don’t even get into petitions.

The only way we get into petitions that all in Texas is we alight as a supplement to the convention process.

Unknown Speaker: Or its substitutes?

Mr. John L. Hill: No -- well it could be a total substitute but our tax is frankly are written to where it is implied in the statute that you will try to have convention.

Now for example the Socialist Worker Party in qualifying --

Unknown Speaker: I thought your points of argue there were -- they were strictly limited in time?

Mr. John L. Hill: They have 55 days --

Unknown Speaker: To do it.

Mr. John L. Hill: If -- well let me get -- it has to get this exactly because the Socialist Worker Party for example got all of their petitions by conventions in Harris County.

You don’t have to have precinct conventions all over our state.

In fact it would be kind of ridiculous to try.

You’re not required by law to do it.

You can have the conventions wherever you elect to have those conventions.

When you go to your conventions, our minority party and only one in our state there are minority party or those who didn’t pull over 2% of the gubernatorial vote in the preceding general election.

So we don’t have a very harsh rule of threshold to begin with but when they go under that rule and they come to this convention processes, it’s anticipated.

They can go out all of the time our elections are going on and say, “don’t vote in that democratic primary, I want you to come to our convention” we are going to have it the same day.

Unknown Speaker: Or if you can supply the names by certifying that those who attend your --

Mr. John L. Hill: Yes, sir.

Unknown Speaker: Or 55 days between them and the election?

Mr. John L. Hill: No, sir.

It works this way.

In early May, we have our first democratic primary, our first primary.

On that same day, minority parties who are under the 2%, our last rule, have their conventions anytime from seven to seven.

When they go into those conventions, if they produce and they can have them in one county, 50 counties, 30 counties, wherever they want to have them where they think they have support.

They can bring this -- the voters in -- their people into those conventions.

They could have all ready told them and had it planned ahead of time that that’s what we are going to do.

Then when I get there, if they have 22,000 roughly --

Unknown Speaker: Well, you’ve said that.

Now go on, let’s assume they don’t.

Mr. John L. Hill: All right then they have an extra period of time up until the latter part of June --

Unknown Speaker: How long is that?

Mr. John L. Hill: Which is 55 days.

Unknown Speaker: alright, 55 days.

Mr. John L. Hill: To supplement the convention signatures if they don’t have quite enough.

Unknown Speaker: But also if they don’t have any or they got 55 days to get 22 more?

Mr. John L. Hill: Yes, sir.

If nobody shows up at all.

Unknown Speaker: How about the independent candidate, what does he have to do?

Mr. John L. Hill: Independent candidate, he of course files along the time that everyone else does.

He has -- he can start getting his petitions signed after the primary which would be in May and he must turn a man 30 days after the second -- after the runoff.

I guess adding that up if you could help me I would say it is something if you started right after May you are looking at the better part of two months.

Unknown Speaker: I beg your pardon, about 24 to 25 days, not known once done?

Mr. John L. Hill: Well, if you would, if you start it only after the second runoff, the second runoff.

In other word if you started after the June runoff to get the independent candidate signatures you would be restricted if you want to exclude somebody to something in the neighborhood in 25 days.

It’s my thought about it that there is nothing in that statute.

Once, the May primary is held to prevent the independent candidate from securing signatures.

Unknown Speaker: (Voice Overlap)

Mr. John L. Hill: I’m sorry.

Justice Thurgood Marshall: When can they get the petition?

Mr. John L. Hill: I beg your pardon?

Justice Thurgood Marshall: When may they get the petitions?

Mr. John L. Hill: They can get the petition anytime after they filed for their -- announcing their candidacy, they file like every other candidate does back in February.

Justice Thurgood Marshall: And they can get the petitions in February?

Mr. John L. Hill: They could get the petition and I don’t -- but the last thing I want to do is a make a misstatement, I don’t -- first I don’t know for certain.

I believe the facts --

Justice Thurgood Marshall: I just handled petition not available for after the primary.

Mr. John L. Hill: I don’t believe that’s correct Mr. Justice Marshall, I don’t believe that’s correct.

I’m not sure though that that -- I wouldn’t think the case would in anyways depend on the accuracy of –-

Unknown Speaker: You’re not sure.

Do you?

Mr. John L. Hill: I’m not sure sir.

But it seems to me that whether he had the petition in his hand in February, March or April would be relatively immaterial because he can’t get anyone to sign that petition until after the primary is over.

Unless someone wanted to say categorically ahead of time, I’m not going to vote in the democratic or republican primary, so I will sign your petition but we do have a rule.

In our state that we think is very legitimate and very necessary that does prevent those who sign this supplemental petition or who signed the petition of an independent candidate not to vote in the democratic republican La Raza or any other party primary that we’re holding in our state.

Unknown Speaker: How many signatures Mr. Attorney General does an independent candidate have?

Mr. John L. Hill: The same, 1% of the vote of the gubernatorial candidates and the preceding general election.

But there is a limitation on the district like Mr. Hainsworth, I believe his was down to 500 maximum, 500 maximum, we don’t -- we don’t impose that.

Unknown Speaker: Is this to say it depends upon what office he candidates would?

Mr. John L. Hill: If it’s a statewide office, it’s more.

But the ones before this Court are all one for congress and one for representative, they both -- we put a 500 which is minimal.

If you’re going to have a system of elections in government and the state where you have any manner or way to not discourage the independent candidates, not to discourage the minority party but there has some stability to have some ability not to have rating.

Some ability not to have candidates come in to your primaries, whatever the primary is and try to vote for the weakest candidate to hurt your party and all of the other reasons that the Courts have approved in connection with anti-rating provisions or provisions to show minimal support so that you don’t have total chaos, you don’t have total vote of confusion.

Why is Texas here to defend a system with 500 votes, 500 signatures?

I’d be the last to want to just defend it because of the Texas statute but I do say candidly that the Court, this is -- this we have 500 in connection with independent candidate, we have 22,000 but supplementary petitions, supplementary petitions in our state.

We have two minority parties that made the ballot.

We have the other party here complaining that all 548,000 votes in our state four years ago and can turn it on anytime they want to turn it on.

And we have one new party that we would welcome into the arena of good ideas and new ideas because they do that.

They contribute that to our process.

Clearly they do and that is why we have a constitutional mandate that we’re not to burden them.

That we’re not to deprive them of their associational rights, we’re not to burden their free speech and we’re to accord them equal protection.

But nonetheless the Courts recognize that we have some compelling state interest and when we show that there is a necessity for what we do and that it’s reasonable and it is not invidiously discriminatory and not intended to be.

In fact in one, I honestly say, now Mrs. Svanas in all fairness describes an awful lot of motives to an awful lot of thing saying but those are words and she is free to express them but constitutional issues can’t be decided on that type of unsupported rhetoric.

We have done nothing in our state to injure her party, not to injure other parties.

We don’t meet in the Texas legislature just to revise laws for that purpose.

We change the laws in our state in 1973 solely because we were trying to get in line with the United States Supreme Court decisions written by the majority of the just to cede before I am now appearing and speaking on behalf of my state.

We wanted to comply with Bullock versus Carter.

That’s precisely why Justice Burger you told us, in Bullock versus Carter that you saw when we suggest it that if we went to a state financing system in Texas we might run in to some problems of equal protection and you said in Bullock versus Carter pointing to Jenness, pointing to Jenness but have the cutoff line at 20% for parties who “should take on the burdens of primaries and under 20% that didn’t.”

So we changed our law and we said, alright, everyone that pose 20% can come in under state primaries.

We weren’t trying to throttle La Raza Unida.

As a matter of fact, we made an exception for it, an exception for them, in a S.P. 11 so they could have an option this year as to whether they wanted to go primary or convention because we respect it, the fact that they’d earned that right and it was maintained.

But now we are faced with the very thing that we were trying to avoid and following Bullock versus Carter and Jenness to change to the 20% and allow those parties to have state financing supplement their filing fees.

We have a convention system through.

If Georgia to be accorded constitutionality because she elects solely to valid the petition system which has five -- ten times the required number of people that must be mustered.

For gentleman like Mr. Hainsworth to gain the ballot as opposed to the Texas system which says simply conduct conventions on Election Day, you don’t have to have a great big apparatus like was required in Ohio.

You don’t have to have primary elections.

You don’t have to send delegates to the nation of convention as they did in Williams versus Rhodes.

All we ask you to do or require you to do is simply to have conventions in counties and precincts where you think you can muster some support.

Justice Byron R. White: But you go to -- but in any event, you either got to get to conventions or get signatures the total 22,000?

Mr. John L. Hill: Yes, sir Mr. Justice White and if we were to have, yes sir --

Unknown Speaker: I just want to --

Mr. John L. Hill: And I honestly how can we say under constitutional principles that we have indeed in Williams and Jenness and Rosario of the majority opinions in those cases and the compelling state interest doctrine a necessity that that, that we are to second guess that kind of a system but why?

22,000 signatures gathered together to convention process are supplemented if -- if you had a minimal -- we are to require some minimal degree of support before people can.

Unknown Speaker: Yes.

But now, how did you certify the names of the people who attended your convention?

Mr. John L. Hill: Well, simply have their name and address as they come in the door.

They sign up and tell who they are and where they live.

Unknown Speaker: And does those all have to be notarized?

Mr. John L. Hill: It says certified and delivered to the Secretary State.

I assume that the state chairman or county chairman or precinct chairman would certify and probably notarize them but it doesn’t matter, it doesn’t matter, it’s not a very relevant point in my opinion.

It is that they are there and they signed up and the -- after it, he can certify the whole list on one petition under one notarization.

You say they’re presumably on run like the Socialist Worker Party has one big meeting, they were their.

They turned out, they signed the list and put down their address and we didn’t challenge one of them.

Not one of them, they were sent in, they had enough numbers I got on the ballot.(Voice Overlap)

Unknown Speaker: (Voice Overlap) but if people attending independent parties or minority parties’ convention and yet disqualified or unqualified from -- to sign this petitions?

Mr. John L. Hill: Well, certainly.

The theory only is -- only disqualification is that if you have attended the democratic or republican primary and voted.

But we did, so we don’t have party -- in May, first Saturday in May.

We don’t have party registration in Texas.

When you go in to a party primary in Texas you are simply to take your pole, that you’re -- excuse me, your poll tax, your registration certificate.

And, and you -- it’s stamped that you voted in the democratic primary, we say in Texas that put some moral obligation on you.

There is no legal result of it other than you cannot go over, for example and participate in the republican convention that night, that’s against the law.

Republicans can’t come over into ours.

We have that much law in sanctity to our processes.

Nor can I go and help an independent candidate get his petition.

Nor can I go participate in any convention of La Raza, the Socialist Workers, the new party and of others but when it comes to November, I can vote for whomever I please.

We have write-ins.

What’s wrong with our election system?

Justice Thurgood Marshall: How about the absentee ballots?

Mr. John L. Hill: Absentee balloting is a remedial piece of legislature.

A very great thing for this country and serves a very, very wonderful purpose.

But it’s never been held by any court that that remedial legislature which is frankly intended for those who must have or should have for reasons of frailty or absence.

A problem that’s beyond their control but we contemplate in this country as I understand our election procedures that people take the time and trouble to go vote.

That’s not the purpose of absentee.

Voting is to -- say I want to go fishing and it’s never been thought nor held that absentee voting must be opened up to every one under whatever circumstances they may be operating at that particular time in their political development.

It’s never been held not only improper, certainly never been raised for the (Voice Overlap)

Justice Thurgood Marshall: Do you think Texas to pass a law that absentee ballots are -- will be accepted providing they are either democratic or republican?

Mr. John L. Hill: I don’t believe Mr. Chief Justice -- I mean --

Justice Thurgood Marshall: It’s not that wide open.

It’s not (Voice Overlap) open, isn't it?

Mr. John L. Hill: I know it’s easy to criticize and if this did may be --

Justice Thurgood Marshall: No, I mean it’s not as wide open, you mean we have -- there’s nothing we can say about absentee ballots outside the jurisdiction of this Court?

Mr. John L. Hill: I don’t say it’s outside the jurisdiction of this Court, I say it outside the appeal of the United States constitution to protect the rights of those to it.

You and I and others may agree or disagree about what our law should be on absentee.

Justice Thurgood Marshall: Why then -- we don’t restrict it to constitution so you do say it’s our beyond that jurisdiction?

Mr. John L. Hill: I say it’s beyond the scope of overturning the lower courts decision in this case.

There would be no basis in my humble judgment for this Court to say because Texas has not seen fit to plan on its absentee ballot.

In our state, the names of every party and that’s what it fall down to what happen when you vote absentee in Texas today if you go down the County Court House and you’re taken to a voting machine or a printed ballot and the people on the ballot are democrats and republican.

It’s not designed though it’s a discriminatory matter.

It’s not done in our state for that reason.

It’s simply that the absentee ballot very frankly, Justice Marshall, it would be obtained today by the Texas new party in an absentee situation.

It’s not a great problem.

Now there are some things that we shouldn’t have --

Justice Thurgood Marshall: It’s not a great problem to whom?

Mr. John L. Hill: Well sir.

It’s not a great problem to them.

Where is the hue and cry from the Texas New Party for absentee voting?

Who are they going to vote absentee today?

Is this an imaginary problem or we use to deal hopefully with real problem.

Now you reach your point, yes.

If La Raza may have reach that point.

I don’t foreclose and I don’t foreclose a circumstance arising while another party was sufficiently strong that a deprivation of absentee balloting really would dilute down.

Bear in mind what we are talking about, their right to get on the ballot, that’s involved in the absentee voting so far as the minority party is concern.

It doesn’t have anything to do of who gets elected.

It has to do with whether they get enough people to get on the ballot.

Justice Thurgood Marshall: Well, I had assumed -- you also said it doesn’t matter who gets elected as to whether to get on the ballot or not as long as they stay in minority party, that is you’re position, isn't it?

Mr. John L. Hill: No, sir.

No, sir.

Justice Thurgood Marshall: Isn’t that true?

Mr. John L. Hill: No sir.

Not at all.

Not all.

Unknown Speaker: (Inaudible)

Mr. John L. Hill: Well, yes sir.

I like to think that I am but my party is that the absentee balloting is not in my own judgment.

First, a severe matter as far as numbers are concerned and secondly it’s been held by the Court that it does not rise to the dignity that would overthrow an election law or an election process from a constitutional standpoint.

And If I might very quickly just look over the -- we did, we discussed the 5% county bonus that was -- that is just simply a manner and way in which under our state financing law, we compensate the chairman and the staff of those who are charged with the responsibility of conducting the election.

It’s not a bonus.

It’s just a method that we have selected to accomplish that purpose.

So we do respectfully submit that pursuant to the law pronounced for this Court in Williams versus Rhodes respecting at all times the right of the vote or right of the ballot to all citizens respecting the equal protection requirements of that case.

Knowing that you require us to show compelling state interest and a necessity for the type of regulations that we have, we do submit that we have here a reasonable system and one that is not meant and is not invidiously discriminatory.

And one which has served not hindered the growth of minority party in our state and one which we feel is reasonably related to the state principles that we feel under the law, we have a right to carry out.

That is to further the notion of requiring before you are on a ballot that you have a minimal degree of support and that you not raid other parties to obtain that support.

Then in other word it’s not wrong to require a different type of support for a candidate or for a party.

So that he can have some semblance of a reasonable base to enter the process and appear on the ballot.

I think if you did not have at least those minimal requirements you would have, simply a confused and cluttered chaotic situation.

Justice William H. Rehnquist: Mr. Hill.

Mr. John L. Hill: Yes, sir.

Justice William H. Rehnquist: With respect to the absentee balloting provisions, we’re talking now about absentee ballots in the primary election?

Mr. John L. Hill: Absolutely.

Justice William H. Rehnquist: Anybody I take it I entitled to get an absentee ballot?

Mr. John L. Hill: Absolutely.

I hope I had made that clear and that’s why I referred, I am afraid I was -- perhaps I apologize greatly about if I offend it -- Justice Marshall I simply meant to state that the use of absentee voting in the primary posture when this other parties are having conventions.

They’re not having primary.

Does not really get at, the same problem you would be getting at is if after they have gained ballot status through that convention process then of course they should be accorded and they are accorded the right to absentee balloting.

Thank you very much.

Chief Justice Warren E. Burger: Thank you Mr. Attorney General.

Mr. Hainsworth.

Rebuttal of Robert W. Hainsworth

Mr. Robert W. Hainsworth: Mr. Chief Justice and may it please the Court.

There are a few points that I would like to attempt to call the attention of the Court.

One, after the case of Bullock versus Carter that party primary filing fees were lowered in the case of state representative to the sum of $200.00.

The ultimate nominating petition provided that 2% of the vote cast for Governor of the party in the last preceding general election would be sufficient in that area for the person to get on the party primary balloting.

And it should be at least 25 signatures but not to exceed 300.

I would like to make this distinction that the 5% of the persons who voted in the area applies in the Article 13.50 to all who cast a vote for governor in the last preceding general election.

You may have a democratic and republican running or some other candidate under another name but you add all of those in together to get the 5% in that particular area or district whereas the party -- primary nominee only has to get 5% of the -- no not 5%, only 2% of the total number of votes cast for the governor of his party.

So it’s maybe down the 25 and it maybe but it’s not to exceed 300.

And if the major party back to Republican Court in Texas, if that candidate for governor in this District only gets 1000 votes, 2% of that would be about 20 and that would put him in the primary.

Now, with respect to notarization under the old law with respect to party primary candidates, that was nothing said in it about notarization.

So I presume that they could have that petition signed without having it notarized.

Is all -- they also provide it that they had 90 days to get those signatures to party primary candidate but the independent candidate on Article 13.50 only has 30 days.

Now, the Honorable Attorney General Mr. Hill was talking about both minor party -- minor parties and independent candidates and there is some distinction between those two.

Now an independent candidate in order to get on the ballot has to have 5% of the votes cast in that area or district for that particular office whereas the minor party candidate only has to get 1% only 1% of a vote cast either for a general -- for governors throughout the state or for whatever.

But he is only has to get 1%.

Now the independent candidate only had to get 1%, that would be just fine but they have made it 5% and when you add in 30 days limitation and notarization.

I submit to the Court that there is too large of burden placed upon the independent candidate.

Unknown Speaker: I thought they only had to get 500?

Mr. Robert W. Hainsworth: The independent candidate has to get 500.

Yes, sir.

Unknown Speaker: You said 5%?

Mr. Robert W. Hainsworth: Well now, it’s likely as you suppose to get either 5% --

Unknown Speaker: Or 500?

Mr. Robert W. Hainsworth: Or 500 then you can take the less --

Unknown Speaker: So you never have to get more than 500?

Mr. Robert W. Hainsworth: I beg your pardon, sir?

Unknown Speaker: You never have to get more than 500?

Mr. Robert W. Hainsworth: Never have to get more than 500.

However, the 5% may be more than 500.

Unknown Speaker: Yes.

So you really don’t have to get 5% in every case?

Mr. Robert W. Hainsworth: Not in every case, yes sir.

Equal protection of the laws for independent candidates, I respectfully submit to the Court that the opinion of a three-judge District Court in Hainsworth versus Bullock and Hainsworth versus White before this Court be reversed on the grounds that the requirements under Article 13.50 are so strict and burdensome that there is violation of the Fourteenth Amendment, Section 1 of United States constitution of Equal Protection of the laws and that there is no compelling state interest involved in this situation or in this case which requires the State of Texas to have this particular Article 13.50 with respect to an independent candidate getting on the ballot.

Thank you.

Chief Justice Warren E. Burger: Thank you, Mr. Hainsworth.

Thank you, Mrs. Svanas.

Thank you, Mr. Attorney General.

The case is submitted.

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