*2 Judgе, Circuit Before THORNBERRY, TAYLOR, District and and HUGHES Judges. Jr., TAYLOR, District M. WILLIAM Judge. cases, plaintiffs seek In the above injunction an to restrain the enforce- Arts. ment of Tex.Election Code Ann. 13.08, 13.08a, 13.15, 13.16, 13.07a, and (1967) them to have V.A.T.S. and declared unconstitutional. provides representative. making
1. Art.
13.07a
that a candidate
“In
the assess-
candidate,
deposit
pay
upon any
a state
office must
the committee
ment
county
give
$50.00 tо the
at the time
im-
chairman
shall
due
to the
consideration
applies
place
portance,
emolument,
he
on the ballot.
term of
office
county
Art. 13.08
com
authorizes
for which the
to be made.”
nomination is
provides
mittee
to make an
maximum
assessment
Art. 13.08a
for the
running
ap
costs of
portion
and to
allowable assessments
that can be made
according
the сost
such a manner as
the committees
in counties
judgment
just
equitable
population.
their
to the
among
except
regulate
the various
13.15 and 13.16
candidates
Arts.
certain offices such as state
fees for certain
senator and
statewide offices.
legitimate legisla-
relation to
require
sonable
candidates
These articles
germane
having
to one’s
purpose
tivе
pay
a condition
intelligently in the
ability
participate
placed on
ballot
their names
(3)
process,
discrimina-
electoral
primary election.
tory,
in that
offices are assessed
some
stipulated
Plain-
parties
higher
than others.
amounts
*3
qualifications
all
meets
tiff
Pate
William
three-judge
was convened
A
court
in
the
to be a candidate
April 3,
with
accordancе
of
Primary
for
the office
Elections
to
the Plaintiffs’
hear
U.S.C. §
County
Four
of Precinct
Commissioner
injunction.
request
preliminary
Texas, except
County,
that
for El Paso
of Plain-
allowed the names
The court
deposit
the
pay
nor
he cannot
the $50.00
Wischkaemper
be
Pate
to
tiffs
and
Likewise, Plaintiff
assessment.
$1424.00
pay-
placed upon
without
the
the ballot
Wischkaemper
of the
meets all
Theodore
any
to
would have
ment of
No fee
fee.
qualifications
County Judge of Tar-
for
if,
paid
ever
on final determination
be
County,
except
rant
he has
merits,
accepted
are
of the
their claims
paid
$6,300.00
not
assessment
the
reject
by
court; but,
court
should the
the
application
to be
Plaintiff Carter’s
claims, they
required
then be
their
would
placed on
for
officе of
the ballot
the
challenged
pay
to
the
fees. Relief was
Commissioner of
General Land Of
he
as
denied
to Plaintiff Carter because
by
fice was denied
the State Democratic
filing
complied
require-
has not
with
not
Executive Committee
it was
because
filing
ments unrelated to
fees and assess-
notarized,
by
accompanied
it was not
a
Wischkaemper
nor
ments. Neither Pate
filing fee,3
accompanied
it was not
and
primary.
respective
won in their
by
loyalty
a notarized
affidavit.4
plaintiffs
they
All
stated that
intend to
plaintiffs,
to
become candidates
for state
addition
period.
Reubin
office
the next
election
Even
Jenkins
been allowed to
though Plaintiff
to
Carter has
intervene as a voter who
to
failed
wished
vote
requirements
plaintiff
other
to
Wisсhkaemper
for
meet
in addition
and Carlos
Guzman,
fee,
paying
filing
not
et
the court need
al. have asked to
allowed
pass upon
to
his claim because
relief
intervene as voters who
to
desired
vote
by
sought
he seeks is the same as that
Plaintiff Pate. The latter will be al
Wischkaemper.
Plaintiffs
24(a)
lowed
Pate
to
intervene.
Fed.R.Civ.P.
(2).
undisputed
It is
elections
political parties
are state action and
filing
Plaintiffs
claim that
fees
subject
to the Fourteenth Amendment.
deprive
right
them
their
run
to
Allwright,
Smith v.
U.S.
64 S.Ct.
process
office in violation of the due
(1944).
757,
Th
qualify as a com
In order to
quantitative
was an
in that it
there was
interest,
pelling
must
the law
state
apportionment
In
case.
Williams
merely
“necessary, and not
shown to be
30,
5,
Rhodes,
23,
21
89
393 U.S.
S.Ct.
accomрlishment
rationally
to the
related,
(1968),
right
to cast
L.Ed.2d 24
permissible
policy.” Mc
of a
state
again
effectively was
discuss
one’s vote
184, 196,
Florida,
Laughlin v.
in
vote
ed. The
effectiveness
222,
283,
290-291
13 L.Ed.2d
qualitative
that
in nature
case was
is,
(1964).
collection of revenue
The
quantitative
in
rather
than
that
course,
legitimate
permissible
a
voting
voters were desirous of
for a
under these circumstances
interest but
specific
espoused their
candidate who
compelling
not
These
state interest.
political beliefs.
necessary to insure
assessments are not
right
Approxi
to choose one’s candi
revenue.
collection
only
eighteen
mately
require
date is not
a fundamental
states
do
right
protected
pay any filing
Fourteenth
candidates
to
fees to
Amendment,
encompasses
support
primary.7
it
First
The State
right
Amendment
for the
“to associate
Texas has
to find other
been able
place
participation by
clamoring
parties
5. “Full and
on the
effective
all
are
requires,
determining
government
in
citizens
therefore,
state
the State
ballot.
In
whether
place
unequal
power
each citizen
burdens
have an
to
such
equally
groups
rights
minority
in
effective voice
where
election
legislature.
stake,
members of his state
the decisions of this
Mod-
kind are at
needs,
government
consistently
‘only
ern and viable state
Court have
held
demands,
compelling
regu-
and the Constitution
in the
no less.”
state interest
565,
subject
377
at
84
at
lation of a
within the State’s con-
U.S.
S.Ct.
1383.
power
justify
regulate
stitutional
to
can
presumption
constitutionality
6. “The
limiting
Amendment freedoms.
First
approval given
and the
‘rational’ classifi-
“The State has here
to show
failed
types
cations in other
of enactments are
justifies
‘compelling
im-
interest’ which
heavy
assumption
based on as
the institu-
posing
such
burdens on the
government
tions of state
are structured
vote and to associate.” Williams v.
represent
fairly
people.
so as to
all the
31,
Rhodes,
U.S.,
S.Ct.,
393
at 11.
89
However,
challenge
when the
to the stat-
Supreme
Term,”
Court,
See “The
1968
challenge
ute
inis
effect a
of this basic
60, 93,
83 Ilarv.L.Rev.
n. 30
assumption,
assumption
longer
can no
presuming
Colorado,
Iowa,
Illinois,
Indiana,
serve
the basis for
Kan-
consti-
tutionality.”
sas,
Massachusetts,
Kentucky, Maine,
Kramer
v. Union Free
District,
Jersey,
Michigan,
Hampshire,
School
395
New
New
U.S.
89
Dakota,
Oregon,
S.Ct.
New
North
York.
Rhode
Islаnd,
heavily
Dakota,
“[T]he
to vote is
South
Tennessee
bur-
may
only
dened if that vote
Vermont.
be cast
parties
one of two
at a time when other
collecting
Amend-
of the Fourteenth
revenue
tection clauses
adequate means of
revenue col-
ment when it is used as a
to vote.8
not restrict
which do
lecting
an absolute
F.
or when made
device
State
States v.
United
qualification
in
for a candidate
(W.D.Tex.1966).
order
Supp.
get
Indeed, there
his name on the ballot.
in the
By
“tax”
requiring this
compelling
which
interests
be other
filing fees, the
o'f
State
form of
justify
type of reasonable
would
some
imposed
re
a wealth
has in effect
recognized that
Williams court
directly upon
quirement
the candidates
could have a
State
represent.
seek
and the voters
regulating
the ballot.9
has never been
A
of wealth
standard
intelligent
to one’s
considered as relevant
determining
whether
process.
participation
As
in the electoral
exacting
interest in
State’s
Supreme
Harper
Court said
sufficiently
“we must con
compelling,
Elections,
Virginia State Board of
383 sider the facts and circumstances behind
1081-1082,
663, 668,
U.S.
S.Ct.
law,
the interests which the State
L.Ed.2d
protecting,
claims to be
and the interests
disadvantaged by
are
those who
conclude that a
violates
We
classification.” Williams v.
Equal
Protection Clause of
supra,
p. 30,
p.
U.S.
S.Ct.
Fourteenth Amendment whenever
high
charged,
Here the
thou
makes the affluence of the voter or
*5
dollars,
purposes
of
payment
any
sands
for
is
revenue
of
fee an electoral stand-
not a
qualifications
sufficiеnt
interest when com
state
ard. Voter
have no
pared
places
paying
to the burden it
on the
relation to wealth nor to
paying
or not
*
* *
voters
any
and their
A “write-
candidates.
this or
other tax.
bring
*
*
in”
*
*
*
*
alternative
not
about
would
the needed
on the
balance
“individual-
But we must remember that
the
state interest” scale and make these fees
of
,
interest
the
when it
State,
comes to
any
palatable.
more
Williams v. Rhodes
voting,
power
is limited to
fix
the
supra.
Little,
and
supra,
Jenness v.
qualifications. Wealth,
race,
like
creed,
color,
germane
or
is
to one’s
The Court is aware of
fact
the
that in
ability
participate intelligently
in Wetherington
Adams, supra,
filing
process.
the electoral
primary
fees for
upheld
a
election were
The Court does not
plaintiff
mean to as constitutional. The
in that
imply
compelling
that
there
is no
case was a candidate and the issues were
interest, pursuant
to which the State
decided on the
of
basis
what were his
may require
primary filing
rights
a
fee. We
vis-a-vis those of
the state.
have
say
limited our decision
approving
here to
disap-
that While. neither
nor
filing
proving
fee violates the
reasoning
First Amend
of thе
used or the
process
ment and
equal pro-
the due
reached,
only say
and
results
we need
in
that
Secretary
8.
already pre-
justification
of
primary filing
State has
aas
fee.
sented to the
Little,
F.Supp.
House Interim
(N.
Oommittee
Jenness v.
proposed
chang-
Elections
D.Ga.,
appeal
1969)
election law
dismissed Matthews
recognizes
es.
It
filing
the exorbitant
Little,
fees assessed in some
recognized
’counties and the
also
this
unworkability
present
system
of the
legitimate
possibly compelling
as a
and
the
pri-
future.
It recommends
that
the
However,
state interest.
the court
there
mary expenses
only by
be borne not
said that
it could not be
absolute
an
candidate,
county
but
qualification.
also
purpose,
If used for
this
Secretary
State,
state. Office of the
of
provid
there should be some alternative
Proposed
Changes,
Election Law
A Re-
pauper’s
support
ed. A
affidavit and a
port
Legislature
to the 62nd
of the State
ing nominating petition
protect
could
Texas,
of
December
and serve
an
alternative
to a
Wetherington
Adams,
F.Supp.
filing
(N.D.Fla., 1970) recognized this interest
and cir-
the facts
Court must consider
resolved
at bar we
the case
law, the interests
cumstances
behind
rights
the voters.
of
on the
issues
protecting,
that
claims to be
distinguishable.
state
therefore,
are,
cases
and the
those who are dis-
interests of
relief,
declaratory
we hold
granting
advantaged by
Ac-
the classification.
be-
are unconstitutional
statutes
that the
cordingly,
examine,
interests
I
first,
infringe upon the exercise
cause
disadvantaged by
provisions,
of those
rights without
voting and associational
and, secondly,
interests
State.
justification in violation
Amend-
Fourteenth
First
very
dispute
lies
theAt
core of this
through its
guarantee
The State
ments.
the First Amendment’s
enjoined from
parties,
be
political
will
right
engage
association for
Election
Texas
of the
enforcement
advancement of
and ideas2 and
beliefs
filing
requiring
fees
right”
seсtions
political
Code
the “fundamental
in order
of a candidate
assessments
constitutes
essence
a democratic
upon
placed
society
her name
“preservative
or
his
and is
of all
rights”
ballot.
to vote.3 In the State
—the
simply
way
of Texas there
no
person
Party
Judge
can obtain the
(con-
Circuit
THORNBERRY,
by paying
nomination other
than
curring specially):
being
fee and
elected. The election
is whether
case
instant
At issue
nominating
provision
code includes no
for
through
imposi-
petitions
party
Moreover,
at the
level.
unduly
tion of
under article 13.09 write-in votes
its citizens
impinged upon
primary elections,
not be counted in
advancement
to associate
space
provided
on the ballot is
its
beliefs and
Consequently,
them.
deprived
voters are
cast their
qualified
and to
voters to vote
opportunity
to have their candi
effectively.
am of the
I
votes
Because
date
Party
considered for the Democratic
*6
has,
in the result
it
belief
I concur
post
filing
nomination if he cannot
the
judgment.
of this
by
the constitu-
standard
which
The
majority
overwhelming
Since in the
of
tionality
election
of these controverted
politicаl
by
Texas
offices nomination
the
is,
provisions
measured
code
is to be
Party
is tantamount
to elec-
majority points out,
Williams
entry
it is
on
tion,
clear that restriction
only
Bearing mind that
a com-
test:1
may significantly
primary
into the
pelling
justify a state’s
state interest can
impair
limiting
freedoms,
to cast
vote ef-
one’s
First Amendment
Defendants,
Supreme
primarily
relying
wherein the
on
Court
found a de-
Snow
equal protection
Hughes,
1,
397,
nial of
an “in-
321
64 S.Ct.
without
den v.
U.S.
purposeful
(1944),
vidious or
discrimination.”
than Texas upon expense burden If Texas has a candidates. requiring primary
interest purposes, can
revenue
justify requiring candi- than no more portion
date to contribute a reasonable primary expenses attributable challenged candidacy. his The fees here
clearly not fall within that ambit do
must be invalidated.
I do not here undertake the task
determining what constitutes a reasona- however, emphasize, I would
ble fee. precious two of our most freedoms stake,
are at and thus the dimensions of reasonableness within which
may safely impose a are indeed low
and narrow.8
FORD CREDIT MOTOR COMPANY al.
LOUISIANA TAX et COMMISSION
Civ. A. No. 69-2970. Court,
United States District Louisiana, E. D.
New Orleans Division.
Jan. Feringa, Jr., Burke, Peter A. Gibbons McCall, Johnson, Chaffe, Charles B.
Phillips, Burke, Sarpy, New Or- Toler & plaintiff. leans, La., for Gremillion, Gen., Atty. Jack P. F. Jr., Atty. Jackson, Gen. E. Asst. John Louisiana; Ogden, Charl- William W. Og- III, Ary, Ogden, ton William B. R. *8 Orleans, La., Ogden, de- den & New fendants. Judge:
HEEBE, District Plaintiff, Compa- Ford Credit Motor brought declaratory ny, action against Tax the Louisiana Corn- relief petition, especially alternative, where, to the 8. This is such as a true as in case, provided instant lias