COLORADO LIBERTARIAN PARTY and Robin Heid, Petitioners-Appellants, v. SECRETARY OF STATE OF COLORADO, Natalie Meyer, in her official capacity and not individually, Respondent-Appellee.
No. 90SA382.
Supreme Court of Colorado, En Banc.
Oct. 7, 1991.
The court of appeals, in our view, erroneously resolved the constitutional validity of Blehm‘s Florida conviction solely on the basis of Florida law that precluded a defendant previously adjudicated insane from pleading guilty to a subsequently filed criminal charge unless the defendant has been formally restored to sanity. Notwithstanding this error, we find it unnecessary to address the constitutional validity of Blehm‘s Florida convictions. The reason we need not resolve the admissibility of the Florida convictions is that, even if we presume them to be constitutionally invalid, there were four valid Colorado felony convictions supportive of Blehm‘s adjudication as an habitual criminal under the habitual criminal statute. We limit ourselves in this opinion to disapproving the analysis employed by the court of appeals with respect to the constitutional admissibility of the Florida convictions.
The judgment of the court of appeals upholding the habitual criminal adjudication is accordingly affirmed.
Davis, Graham & Stubbs, Karen L. Page, Denver, for petitioners-appellants.
Gale A. Norton, Atty. Gen., Timothy K. Tymkovich, Sol. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Maurice Knaizer, Deputy Atty. Gen., Denver, for respondent-appellee.
Appellants, the Colorado Libertarian Party (CLP) and Robin Heid (Heid), appeal the district court‘s ruling that the unaffiliation requirement in
I.
This action arises from appellant Heid‘s efforts to become the CLP candidate in the 1990 Colorado gubernatorial election. The CLP is the Colorado affiliate of the national Libertarian Party and is a “qualified political organization” within the meaning of Colorado Secretary of State Rule 16, 8 C.C.R. 1505-1 (1984).2 The CLP has adopted a constitution and by-laws that outline its membership requirements and procedures for nominating CLP candidates. Membership in the organization occurs when an applicant either registers as a Libertarian voter in Colorado or pays the requisite membership fee established by the CLP Board of Directors, or both. The only requirement imposed on prospective CLP candidates is the submission of a signed statement by the candidate that he or she does not believe in or advocate the initiation of force as a means of achieving political or social goals.
Heid has been registered as a member of the Colorado Republican Party since April 25, 1980. On May 27, 1988, Heid also became a member of the CLP by paying a $25 membership fee to the CLP finance chairman, which entitled Heid to membership in the CLP for one year. In 1988, Heid circu-
On June 9, 1990, Heid attended the Republican Party State Assembly as a candidate for the Republican nomination. Heid‘s name was placed in nomination, but before the votes were announced, Heid committed his votes to John Andrews, who won the Republican gubernatorial nomination. Pursuant to his nomination as the CLP candidate, Heid submitted a petition to appellee Secretary of State, Natalie Meyer, to have his name placed on the November 1990 ballot.3 In a letter dated August 15, 1990, the State Elections Officer notified Heid that his petition had been rejected for his failure to register either as a Libertarian or as unaffiliated, and thus to disaffiliate himself from the Republican Party, at least one year prior to filing his petition for nomination, as required by
On September 4, 1990, the CLP and Heid filed a verified petition in district court pursuant to
II.
We must determine whether the unaffiliation requirement in
No person shall be placed in nomination by petition unless the person . . . was registered as unaffiliated, as shown on the books of the county clerk and recorder, for at least twelve months prior to the date of filing of the petition. . . .
In response to the Tenth Circuit‘s instruction in Baer v. Meyer, 728 F.2d 471 (10th Cir.1984),5 Colorado‘s Secretary of State refined the meaning of the word “unaffiliated” in
A.
We first address appellants’ contention that the twelve-month unaffiliation requirement in
The United States Supreme Court has approached the constitutionality of ballot access restrictions in an inconsistent manner, at times applying a strict standard of scrutiny, see Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979); American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974); Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), and at other times employing a more flexible standard, see Munro v. Socialist Workers Party, 479 U.S. 189, 193, 107 S.Ct. 533, 536, 93 L.Ed.2d 499 (1986) (following Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714 (1974); there is “no litmus-paper test for separating those restrictions that are valid from those that are invidious. . . . Decision in this context . . . is very much a ‘matter of degree,’ very much a matter of ‘consider[ing] the facts and circumstances behind the law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification.’ ” (Citations omitted.)); Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). See National Prohibition Party v. State, 752 P.2d 80, 83 (Colo.1988) (the Supreme Court “has only provided limited definitive guidance in determining the validity of restrictions on ballot access.“); L. Tribe, American Constitutional Law § 13-20 (2d ed. 1988) (discusses Supreme Court‘s inconsistent approach to ballot access cases).
This court has favored the balancing test set forth in Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983), wherein the Court advised that, in determining the constitutionality of a ballot access restriction, a court must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for
Appellants seek protection of their right to associate politically as guaranteed by the first and fourteenth amendments to the United States Constitution. Williams v. Rhodes, 393 U.S. 23, 30, 89 S.Ct. 5, 10, 21 L.Ed.2d 24 (1968). It is well understood that “[f]reedom of association is considered to be an element of the broad right to freedom of expression and protects ‘the right of individuals to associate to further their personal beliefs.’ ” State Bd. for Community Colleges and Occupational Educ., 687 P.2d 429, 439 (Colo.1984) (quoting Healy v. James, 408 U.S. 169, 181, 92 S.Ct. 2338, 2346, 33 L.Ed.2d 266 (1972)).
A disaffiliation requirement for prospective political candidates, such as the one at issue, directly impacts those aspiring to public office, rather than the voters. Bullock v. Carter, 405 U.S. 134, 142-43, 92 S.Ct. 849, 855-56, 31 L.Ed.2d 92 (1972). Although candidacy for public office has not been recognized as a fundamental right, Bullock, 405 U.S. at 142, 92 S.Ct. at 855, “laws that affect candidates always have at least some theoretical, correlative effect on voters.” Id. at 143, 92 S.Ct. at 856. Thus, ballot access restrictions imposed on candidates necessarily implicate voters’ freedom of association by limiting the field of candidates from which the voters might choose. Celebrezze, 460 U.S. at 787-88, 103 S.Ct. at 1569.
There is no question that political organizations enjoy the constitutionally protected freedom of association. Eu v. San Francisco County Democratic Cent. Comm., 489 U.S. 214, 224, 109 S.Ct. 1013, 1020, 103 L.Ed.2d 271 (1989). This freedom to associate politically includes a voter‘s right to choose a political organization with which to associate, and a political organization‘s right to identify those people who constitute the association and to select a candidate who represents the organization‘s ideologies. See id. Therefore, restrictions on a political organization‘s access to an election ballot burden two fundamental rights: “the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.” Williams, 393 U.S. at 30, 89 S.Ct. at 10; accord Munro, 479 U.S. at 193, 107 S.Ct. at 536; Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 990, 59 L.Ed.2d 230 (1979); National Prohibition Party, 752 P.2d at 83. Despite the fundamental nature of these rights, they are not absolute and are necessarily subject to limitation. Celebrezze, 460 U.S. at 788, 103 S.Ct. at 1569; National Prohibition Party, 752 P.2d at 83. “[A]s a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714 (1974); see also Munro, 479 U.S. at 193, 107 S.Ct. at 536. Indeed, “the State‘s important regulatory interests are generally sufficient to justify reasonable, nondiscriminatory restrictions.” Celebrezze, 460 U.S. at 788, 103 S.Ct. at 1570.
We therefore must evaluate the state‘s interests in imposing a twelve-month unaffiliation requirement on prospective candidates of a qualified political organization, such as the CLP, to determine whether those interests justify the impingement on the organization‘s associational rights. The federal courts previously upheld the constitutionality of
Thournir, 708 F.Supp. at 1187. In so holding, Judge Carrigan relied on the Supreme Court‘s resolution in Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974), which we also believe to be dispositive.does not discriminate unfairly against independent candidates. Rather, the statute works against would be independent candidates prompted by short-range political or personal motives, or who seek to bleed off votes in the general election that otherwise might go to a particular major party candidate. Colorado has an interest in insuring that voters are not presented with a “laundry list” of candidates who have decided on the eve of a major election to seek public office.
In Storer, the Supreme Court upheld a California election statute that denied ballot access to an independent candidate seeking elective public office if the candidate had a registered affiliation with a qualified political party within one year prior to the immediately preceding primary election. Id. at 736, 94 S.Ct. at 1282. In finding California‘s disaffiliation requirement constitutional, the Court stated as follows:
Storer, 415 U.S. at 733-36, 94 S.Ct. at 1280-82 (emphasis added).6 In our view, the state‘s compelling interest in “maintaining the integrity of the various routes to the ballot” is served by imposing the unaffiliation requirement on prospective candi-The requirement that the independent candidate not have been affiliated with a political party for a year before the primary is expressive of a general state policy aimed at maintaining the integrity of the various routes to the ballot. . . . It involves no discrimination against independents.
The general election ballot is reserved for major struggles; it is not a forum for continuing intraparty feuds. The provision against defeated primary candidates running as independents effectuates this aim, the visible result being to prevent the losers from continuing the struggle and to limit the names on the ballot to those who have won the primaries and those independents who have properly qualified. The people, it is hoped, are presented with understandable choices and the winner in the general election with sufficient support to govern effectively.
. . . [The disaffiliation statute] protects the direct primary process by refusing to recognize independent candidates who do not make early plans to leave a party and take the alternative course to the ballot. It works against independent candidacies prompted by short-range political goals, pique, or personal quarrel. It is also a substantial barrier to a party fielding an “independent” candidate to capture and bleed off votes in the general election that might well go to another party.
. . . It appears obvious to us that the one-year disaffiliation provision furthers the State‘s interest in the stability of its political system. We also consider that interest as not only permissible, but compelling and as outweighing the interest the candidate and his supporters may have in making a late rather than an early decision to seek independent ballot status.
Our holding is consistent with other cases upholding state disaffiliation requirements. In Anderson v. Hooper, 632 F.2d 116 (10th Cir.1980), the Tenth Circuit relied on Storer to sustain the constitutionality of New Mexico‘s disaffiliation provision, which required independent candidates to have no political party affiliation after January 1 of the general election year. In Davis v. State Election Board, 762 P.2d 932 (Okla.1988), the Supreme Court of Oklahoma upheld a six-month disaffiliation requirement for independent candidates as “a reasonable ballot access restriction,” stating that the statute “[did] not exclude independent candidates from the ballot. It merely insure[d] that one who files for office as an ‘independent’ is in fact nonpartisan.” Id. at 934. See also Rosario v. Rockefeller, 410 U.S. 752, 758, 93 S.Ct. 1245, 1250, 36 L.Ed.2d 1 (1973) (court held that voter affiliation requirement served the legitimate state purpose of deterring party “raiding” and “did not constitute a ban on their freedom of association, but merely a time limitation on when they had to act in order to participate in their chosen party‘s next primary.“). Similarly,
Appellants cite Tashjian v. Republican Party, 479 U.S. 208, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986), and Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 109 S.Ct. 1013, 103 L.Ed.2d 271 (1989), in support of their argument that
The statute in Storer was designed to protect the parties and the party system against the disorganizing effect of independent candidacies launched by unsuccessful putative party nominees. This protection, like that accorded to parties threatened by raiding in Rosario v. Rockefeller, 410 U.S. 752 [93 S.Ct. 1245, 36 L.Ed.2d 1] (1973), is undertaken to prevent the disruption of the political parties from without, and not, as in this case, to prevent the parties from taking internal steps affecting their own process for the selection of candidates. The forms of regulation upheld in Storer and Rosario imposed certain burdens upon the protected First and Fourteenth Amendment interests of some individuals, both voters and potential candidates, in order to protect the interests of others. In the present case, the state stat-
ute is defended on the ground that it protects the integrity of the Party against the Party itself.
Id. at 224, 107 S.Ct. at 553-54.7
In Eu, certain California election laws prohibited the official governing bodies of political parties from endorsing candidates in party primaries, and dictated the internal organization of political parties. The Court invalidated the challenged laws because they burdened the first amendment rights of political parties and their members without serving a compelling state interest. Eu, 489 U.S. at 233, 109 S.Ct. at 1025. We find Eu inapplicable since it addresses intra-political party concerns and not the situation in the present case where a political organization‘s lack of any affiliation requirement for prospective candidates has a disorganizing effect on other political parties or organizations.
The appellants’ reliance on Tashjian and Eu is misplaced in that they do not address the issue of whether the state may make distinctions between political organizations and political parties in maintaining the integrity of the political process of its ballot access system in order to promote the overall stability of the state‘s election process. See Storer, 415 U.S. at 733, 737, 94 S.Ct. at 1280, 1282; see also Munro, 479 U.S. 189, 107 S.Ct. 533. We conclude that Colorado‘s one-year unaffiliation requirement preserves the state‘s compelling interest in maintaining a fair election process, without unfairly or unnecessarily impinging upon Heid‘s and the CLP‘s associational rights.
B.
We now address the appellants’ claim that
The Colorado election code distinguishes political organizations from political parties. A political organization is defined as “any group of registered electors who, by petition for nomination of an independent candidate as provided in section 1-4-801, places upon the official general election ballot nominees for public office.”
No person shall be placed in nomination by petition unless the person . . . was registered as unaffiliated . . . for at least twelve months prior to the date of filing of the petition.8
It is undisputed that the CLP qualifies as a political organization.
The election code allows a political organization to become a political party if it commands a modicum of support among the electorate. See
Political organizations and political parties are thus not similarly situated under the election code. Political organizations can be accorded dissimilar treatment from political parties, therefore, if they are not unfairly deprived of exercising their fundamental rights. See J. Nowak & R. Rotunda, Constitutional Law 568 (4th ed. 1991) (“[T]he Court has increasingly focused upon the concept of equal protection to guarantee that all individuals are accorded fair treatment in the exercise of fundamental rights. . . .“). The permissibility of this dissimilar treatment is the basis for appellants’ contention that
This court has previously considered whether
With respect to the one-year unaffiliation requirement, we have evaluated the burden that
The election code‘s dissimilar treatment is thus permissible under the federal and state constitutions.
III.
In conclusion, we hold that
LOHR, J., specially concurs.
MULLARKEY, J., specially concurs.
QUINN, J., dissents.
Justice LOHR specially concurring:
I concur in the result reached by the majority but write separately to express the reasons for this agreement.
The rights at issue in this case are those of petitioners Colorado Libertarian Party (CLP) and Robin Heid to political association as guaranteed by the first and fourteenth amendments to the United States Constitution and
Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1973), is dispositive of the arguments of CLP and Heid that the twelve month unaffiliation requirement in
The majority opinion and the special concurrence of Justice Mullarkey adequately demonstrate that political organizations and political parties are not similarly situated for the purpose of the equal protection analysis under the federal constitution. Accordingly, I agree that CLP and Heid have not established that the unaffiliation requirement of
Although CLP and Heid assert in their briefs that the unaffiliation requirement violates their rights to political association under
The language of
I concur in the judgment of the court.
Justice MULLARKEY specially concurring:
The Colorado Libertarian Party (CLP) and Robin Heid appeal the district court‘s ruling upholding the unaffiliation requirement of
I.
I begin by placing the contested statute in its proper context.
No person shall be placed in nomination by petition unless the person . . . was registered as unaffiliated . . . for at least twelve months prior to the date of filing of the petition.
Under Rule 16, 8 C.C.R. 1505-1 (1984), the term “unaffiliated” in the statute means unaffiliated with a political party. Although the CLP calls itself a party, it is not a political party under the election code. The CLP is a political organization, while the only political entities currently qualifying as political parties in Colorado are the democratic and republican parties. Heid, who was a registered republican within the twelve month period, was denied access to the ballot by the secretary of state even though he was the CLP nominee.
A political organization is defined by statute to mean “any group of registered electors who, by petition for nomination of an independent candidate as provided in section 1-4-801, places upon the official general election ballot nominees for public office.”
The statutory scheme, however, allows a political organization to become a political party if that organization manifests a low minimum of support among the electorate. Under
The election code, therefore, enacts a structured yet fluid method for access to the general ballot. A distinction is made between political organizations and political parties, but that distinction does not prevent organizations from becoming parties. Indeed, political parties also could return to being political organizations should their fortunes wane. The election code does not maintain a static political picture; rather, it maintains a “revolving door” through which minority ideologies can enter the mainstream.
These points are important for the analysis of CLP‘s equal protection challenge. Because political organizations and political parties are not similarly situated, political organizations and their prospective candidates can be accorded dissimilar treatment and, in fact, they are accorded different treatment under the election code. The two entities are treated differently because, under the statutes, political parties can override the twelve-month affiliation period by internal party rule, while political organizations enjoy no similar license to
This disparate treatment, however, withstands the equal protection challenge because parties and organizations are not similarly situated, as I will show. That parties and organizations are not similarly situated in turn addresses the associational rights challenge under the First Amendment.
II.
Contrary to appellants’ argument, this case does involve the statutory requirements designed to ensure sound access to the ballot, and not just the right of a political organization to select the candidate of its choice. The issue as to whether it is permissible for the state to make the distinction between political organizations and political parties is at the heart of this case since that distinction is the essential mechanism by which the state regulates the electoral process and restricts access to the ballot. In Storer v. Brown, 415 U.S. 724, 730, 94 S.Ct. 1274, 1279, 39 L.Ed.2d 714 (1974), the Court acknowledged that “as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” More recently, in Munro v. Socialist Workers Party, the Court held that although restrictions upon ballot access “impinge upon the rights of individuals to associate for political purposes, as well as the rights of qualified voters to cast their votes effectively,” these rights of association “are not absolute and are necessarily subject to qualification if elections are to be run fairly and effectively.” 479 U.S. 189, 193, 107 S.Ct. 533, 536, 93 L.Ed.2d 499 (1986) (citing Storer).
Acknowledging the element of a necessary restriction of associational rights is crucial. It means that certain practical regulations of the electoral process, including restrictions on access to the ballot, can1 be accomplished only by qualifying or impinging on the right of association.1 The requirement of having to demonstrate a modicum of public support before being allowed access to the ballot, for example, is at once a constitutionally valid restriction on the ballot and a permissible restriction or qualification of the right of association.
Addressing the validity of the distinction between political organizations and political parties is therefore necessary for any response to appellants’ allegation that the election code violates their associational rights under the First Amendment. The election code is again the point of departure, for it is there that the difference between organizations and parties is explicitly established. By their terms, the statutes set out the difference. A political organization is not a political party if or because its candidate has not received ten percent of the total gubernatorial vote in the preceding election. Consequently, a political organization must petition for access to the ballot with a certain number of qualified signatures, while its candidate must have been unaffiliated for twelve months prior to filing the petition.
This court has already decided that the state has a “substantial interest” in assuring that candidates demonstrate significant support precedent to their placement on the ballot. National Prohibition Party, 752 P.2d at 85. Moreover, the United States Supreme Court has made it “clear that States may condition access to the general election ballot by a minor-party or independent candidate upon a showing of a modicum of support among the potential voters for the office.” Munro, 479 U.S. at 193, 107 S.Ct. at 536. The signature and unaffiliation requirements both serve the state‘s substantial interest in conditioning access to the ballot upon a showing of support. The state‘s “interest, if no other, [is] in avoiding confusion, deception, and even frustration of the democratic process
Appellants concede that gathering 1,000 qualified signatures is no problem for the CLP and/or Heid. Indeed, appellants state that the actual number of signatures required is completely irrelevant. The relative burden of petition signatures is therefore not at issue here. I turn then to the unaffiliation requirement. In Munro, the Court reaffirmed Storer, which
upheld California‘s statutory provisions that denied ballot access to an independent candidate if the candidate had been affiliated with any political party within one year prior to the immediately preceding primary election. [The Court] recognized that California had a “compelling” interest in maintaining the integrity of its political processes, and that the disaffiliation requirement furthered this interest and was therefore valid, even though it was an absolute bar to attaining a ballot position.Munro, 479 U.S. at 195, 107 S.Ct. at 537.2 In fact, under Colorado law there is no absolute bar to Heid‘s future CLP candidacy. Heid merely has to gather the requisite number of qualified signatures and remember to register to vote as anything but a republican or democrat (i.e., unaffiliated). This calls for nothing more than a “reasonably diligent independent candidate.” Storer, 415 U.S. at 742, 94 S.Ct. at 1285.
Furthermore, the Munro Court held that a state does not shoulder “the burden of demonstrating empirically the objective effects on political stability that were produced by the 1-year disaffiliation requirement.” 479 U.S. at 195, 107 S.Ct. at 537. Neither is the state required to “prove actual voter confusion, ballot overcrowding, or the presence of frivolous candidacies as a predicate to the imposition of reasonable ballot access restrictions.” Id. Thus, appellants’ arguments that the secretary of state has failed to demonstrate the possibility of disarray and confusion are futile.
I again emphasize that the code affords ample opportunity both for political organizations to reach the status of political parties and for existing political parties to exit the political stage. The burden on the right of association, therefore, is not fixed, but may be shed or assumed depending on electoral success or failure. The danger of political monopoly by the major parties is thus avoided under Colorado‘s election code. Storer, 415 U.S. at 729, 94 S.Ct. at 1278. That the two existing major parties have lately monopolized political life in Colorado may perhaps be due to their ability to adapt to the changing attitudes of their partisans and/or to adopt the promising platforms of rising political organizations. I note that here, Heid himself, by his dual candidacy, aspired to meld CLP ideology with that of the republican party. Thus, the election code‘s “revolving door” is the means by which the state provides a feasible means of access to the general election ballot, pursuant to constitutional mandate. Storer, 415 U.S. at 728, 94 S.Ct. at 1278.
The election code‘s different treatment of parties and organizations is permissible under the federal and state constitutions. Hence, I agree that the trial court‘s judgment should be affirmed.
Justice QUINN dissenting:
The predominant constitutional interest at stake in this case is not the interest of Robin Heid in obtaining access to the ballot. Although Heid‘s interest in ballot access is not without significance, it clearly is secondary to the far more important associational interests of the members of the Colorado Libertarian Party in designating and selecting their candidate for a state-wide office in accordance with the party‘s own rules of governance. The majority,
I.
The facts are undisputed. On April 21, 1990, the Colorado Libertarian Party, in convention, nominated Robin Heid, who was a member of the party, as its candidate for Governor of Colorado. Under the Libertarian Party‘s constitution and bylaws, a person can become a member either by registering as a Libertarian voter or by paying dues. Heid became a member of the Libertarian Party by paying dues, and he also was a registered member of the Republican Party.
Following his nomination for Governor, Heid submitted a petition to the Secretary of State for placement of his name on the November 1990 ballot. When Heid filed his petition, the Colorado Libertarian Party satisfied the criteria for a “qualified political organization” pursuant to rules promulgated by the Secretary of State. See rules 16-1 to 16-9, 8 C.C.R. 1505-1 (1984). Rule 16.1 defines a qualified political organization as “one which has placed on the ballot at a congressional vacancy or general election a candidate for district or state office and whose officers have filed under oath with the Secretary of State the required proof of organization and which continues to meet the requirements of 16.3 and 16.4.” The required proof of organization, as defined by Rule 16.2, must include the bylaws of the political organization, its method for selecting officers and delegates to political conventions, and its method of “selecting candidates planning to petition onto the state‘s general election ballot,” as well as “the names, addresses, and telephone numbers of the officers or committee members of the organization.” Rule 16.3 requires a qualified political association to meet once a year, and Rule 16.4 requires the organization to place a candidate or candidates on the general election ballot every two years. The rules promulgated by the Secretary of State also include procedures for voter registration that permit an individual to register in a manner that reflects the voter‘s affiliation with a qualified political organization. See Rule 16.5, 8 C.C.R. 1505-1 (1984). Rule 16.6 requires candidates “wishing to represent a qualified political organization on the general ballot to be placed in nomination by independent nominating petition pursuant to C.R.S. 1-4-801.”
Heid‘s petition contained the requisite number of voter signatures for nomination of an independent candidate by petition. See
II.
Partisan political organizations enjoy freedom of association protected by the First and Fourteenth Amendments to the United States Constitution. Eu v. San Francisco County Democratic Central Committee, 489 U.S. 214, 224, 109 S.Ct. 1013, 1020, 103 L.Ed.2d 271 (1989); Tashjian v. Republican Party of Connecticut, 479 U.S. 208, 214, 107 S.Ct. 544, 548, 93 L.Ed.2d 514 (1986); Anderson v. Celebrezze, 460 U.S. 780, 787, 103 S.Ct. 1564, 1569, 75 L.Ed.2d 547 (1983). This same associational interest is protected by various provisions of the Colorado constitution.
Because the right of a political organization‘s nominee to ballot access is intertwined with the associational interests of the organization‘s members, the legal standard for determining the validity of state restrictions on ballot access is not susceptible of mechanical application. Indeed, the determination is one in which few answers are written in black and white. Rather, the grays are dominant, and the shades are many.
A.
One line of cases, as noted by the majority, emphasizes the state‘s interest in ensuring political stability by imposing restrictions on minor political candidates seeking access to the ballot in a general election. For example, in Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974), the Supreme Court considered a California statutory scheme which required an independent candidate to file nomination papers signed by voters not less than five percent in number of the entire vote cast in the preceding general election in the area for which the candidate seeks to run, and which also prohibited ballot access to an independent candidate if the candidate had a registered affiliation with a qualified political party within one year immediately preceding the primary election. The Court upheld the five-percent petition requirement on the basis that the independent candidacy route was “but a part of the candidate-nominating process, an alternative to being nominated in one of the direct party primaries.” Id. at 733, 94 S.Ct. at 1280. Addressing the statutory unaffiliation requirement, the Court concluded that it was “expressive of a general state policy aimed at maintaining the integrity of the various routes to the ballot,” and that the state‘s interest in the stability of its political system was compelling and outweighed the interest which “the candidate and his
Subsequent to Storer, the Supreme Court decided Munro v. Socialist Workers Party, 479 U.S. 189, 107 S.Ct. 533, 93 L.Ed.2d 499 (1986), in which the Court upheld a Washington statutory requirement that a minor-party candidate for partisan statewide office receive at least one percent of all votes cast for that office in the state‘s primary election as a condition for placement of the candidate‘s name on the general election ballot. Because the Socialist Workers Party‘s candidate for United States Senator received less than one percent of the total votes cast for the office of United States Senator in the state‘s primary election, the candidate‘s name was not placed on the general election ballot. The Supreme Court analyzed the Washington statute in light of the following two basic principles: first, that “[r]estrictions upon the access of political parties to the ballot impinge upon the rights of individuals to associate for political purposes, as well as the rights of qualified voters to cast their votes effectively,” 479 U.S. at 193, 107 S.Ct. at 536; and second, that states “may condition access to the general election ballot by a minor-party or independent candidate upon a showing of a modicum of support among the potential voters for the office.” Id. Assessing the impact of the Washington statute on the associational interests of the minor-party candidate‘s supporters, the Court concluded that the statute was “more accommodating of First Amendment rights and values” than was the statute in Storer:
Here . . . Washington virtually guarantees what the parties challenging the . . . California election laws so vigorously sought—candidate access to a statewide ballot. This is a significant difference. Washington has chosen a vehicle by which minor-party candidates must demonstrate voter support that serves to promote the very First Amendment values that are threatened by overly burdensome ballot access restrictions. It can hardly be said that Washington‘s voters are denied freedom of association because they must channel their expressive activity into a campaign at the primary as opposed to the general election. It is true that voters must make choices as they vote at the primary, but there are no state-imposed obstacles impairing voters in the exercise of their choices. Washington simply has not substantially burdened the “availability of political opportunity.”
479 U.S. at 199, 107 S.Ct. at 539 (citation omitted).
In the instant case, neither Heid nor the Colorado Libertarian Party challenge Colorado‘s right to require a candidate to demonstrate a modicum of support among potential voters in order to qualify for a place on the ballot in the general election. Indeed, it is undisputed that the Secretary of State denied Heid a place on the ballot not because he failed to demonstrate the requisite amount of voter support, but because he was not registered as unaffiliated for at least twelve months prior to the filing of the petition. Under these circumstances, Storer and Munro are meager authority for resolving the associational interests at issue here.3
B.
Given the fact that the only basis for the Secretary of State‘s denial of ballot access to Heid was the unaffiliation requirement, the controlling authority for this case can
In Anderson, the Supreme Court considered whether an Ohio statutory restriction on ballot access for an independent candidate burdened the associational interests of the candidate and his supporters. The statute in question required the independent candidate to file a statement of candidacy and a nominating petition in March in order to appear on the general ballot in November. The March filing date preceded the date at which major political parties were required to name their candidates. In invalidating the Ohio statute, the Court stated:
Constitutional challenges to specific provisions of a State‘s election laws . . . cannot be resolved by any “litmus-paper test” that will separate valid from invalid restrictions. . . . Instead, a court must resolve such a challenge by an analytical process that parallels its work in ordinary litigation. It must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it must also consider the extent to which those interests make it necessary to burden the plaintiff‘s rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional. . . . The results of this evaluation will not be automatic; as we have recognized, there is “no substitute for the hard judgments that must be made.”
460 U.S. at 789-90, 103 S.Ct. at 1570 (citations and footnotes omitted). Application of this standard led the Court to conclude that the early filing date did not sufficiently advance the interests put forth by the state to justify such a significant restriction on the voters’ freedom of association.
Subsequent to Anderson, the Court more fully developed the associational component of state restrictions on the governance of political organizations in Tashjian and Eu. Both cases concerned the associational rights of political organizations and attempted to delineate the extent to which a state may interfere with the internal structure of the organization or with an activity integral to the association‘s political goals. In Tashjian, the Court struck down a state statute which had the effect of overriding a Republican Party rule that permitted independent voters to vote in Republican primaries. In describing the burden placed on the Republican Party by the statute, the Court stated:
The statute here places limits upon the group of registered voters whom the Party may invite to participate in the “basic function” of selecting the Party‘s candidates. The State thus limits the Party‘s associational opportunities at the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community.
Subsequent to Tashjian, the Court in Eu invalidated California statutes that prohibited the official governing bodies of political parties from endorsing candidates in party primaries and that prescribed regulations for the internal organization of political parties. Reiterating the principle that a state statute that burdens the rights of political parties and their members can survive constitutional scrutiny “only if the State shows that it advances a compelling state interest . . . and is narrowly tailored to serve that interest,” id. at 222, the Court outlined the scope of the associational interests of political organizations as follows:
Freedom of association means not only that an individual voter has the right to associate with the political party of her choice, . . . but also that a political party has a right to “identify the people who constitute the association,” . . . and to select a “standard bearer who best represents the party‘s ideologies and preferences. . . .”
Depriving a political party of the power to endorse suffocates this right. The endorsement ban prevents parties from promoting candidates “at the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community“. . . . Even though individual members of the state central committees and county central committees are free to issue endorsements, imposing limitations “on individuals wishing to band together to advance their views on a ballot measure, while placing none on individuals acting alone, is clearly a restraint on the right of association.”
489 U.S. at 224-25, 109 S.Ct. at 1021 (citations omitted).
Because the unaffiliation requirement utilized by the Secretary of State to deny ballot access to Heid directly implicated the associational interests of members of the Colorado Libertarian Party, I believe that the principles enunciated in Anderson, Tashjian, and Eu provide the analytical framework for resolving this case.
III.
The majority acknowledges that the one year unaffiliation requirement imposes a significant burden on the constitutionally protected associational interests of members of the Colorado Libertarian Party. Maj. op. at 1002. With that observation I certainly agree. The majority further identifies the governmental interests underlying the one year unaffiliation requirement as “the state‘s compelling interest in ‘maintaining the integrity’ of its ballot access system” and promoting the overall stability of the state‘s election process. Maj. op. at 1004. I have no disagreement with the compelling nature of these interests. Where I part company with the majority is in its assessment of the primacy of these interests over the constitutionally protected associational interests of members of the Colorado Libertarian Party and in the majority‘s apparent assumption that the one year unaffiliation requirement is narrowly tailored to effectuate the identified state interests.
The majority concludes that the one year unaffiliation requirement “does not exclude CLP candidates from the ballot,” but merely discourages political candidates prompted by short range political goals and prevents the practice of “diverting votes that might go to another political party or organization.” Maj. op. at 1004-1005. The underlying assumption of the majority‘s analysis seems to be that so long as a
I have no quarrel with the majority‘s suggestion that the state has a valid interest in seeking to curtail the practice of “raiding.” See maj. op. at 1004. “Raiding” occurs when “voters in sympathy with one party designate themselves as voters of another party so as to influence or determine the results of the other party‘s primary.” Tashjian, 479 U.S. at 219, 107 S.Ct. at 551 (quoting Rosario v. Rockefeller, 410 U.S. 752, 760, 93 S.Ct. 1245, 1251, 36 L.Ed.2d 1 (1973)). Party raiding, however, while a legitimate concern in party primaries, is not implicated in a general election where voters can vote for whichever candidate they desire. Anderson, 460 U.S. at 801-02 n. 29, 103 S.Ct. at 1577 n. 29.
Although the interests identified by the majority—namely, maintaining the integrity of the ballot access system and promoting the overall stability of the state‘s election process, maj. op. at 1004—may properly be characterized as compelling. I am at a loss to understand how the one year unaffiliation requirement is narrowly tailored to effectuate those interests or why less burdensome restrictions could not further those same interests. Since Heid is legitimately a member of the Libertarian Party, there is no risk of voter confusion in placing his name on the ballot. As the Supreme Court observed in Anderson, individual voters are well able to inform themselves about campaign issues and candidates. 460 U.S. at 797, 103 S.Ct. at 1574.
The integrity of the ballot access system can certainly be protected by alternative measures less drastic than preventing a political organization from designating its own standard bearer in accordance with its own rules of governance. Preventing a defeated primary candidate from running as the candidate of another party in the general election or prohibiting a candidate from running on more than one ticket would certainly serve the state interests identified by the majority. Moreover, if the state‘s interests in maintaining the integrity of the ballot access system and promoting the stability of the election process are not jeopardized by the statutory requirement that a major political party‘s candidate need only satisfy the party‘s membership rule in order to qualify for ballot access,
I would reverse the judgment of the district court and declare the one year unaffiliation requirement violative of the constitutional right to freedom of political association guaranteed to members of the Colorado Libertarian Party by the United States and Colorado Constitutions.
The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Barry D. WILHITE, Defendant-Appellant.
No. 91SA58.
Supreme Court of Colorado, En Banc.
Oct. 7, 1991.
Notes
Petitioners’ Reply Brief at 1 n. 1, 90SA382. This relationship does not hold of course for other fundamental rights, such as free speech. See Eu v. San Francisco County Democratic Comm., 489 U.S. 214, 222-23, 109 S.Ct. 1013, 1020, 103 L.Ed.2d 271 (1989). A major political party is defined as any political organization which cast for its candidate for governor at least ten percent of the total votes cast at the last preceding gubernatorial election,[P]etitioners’ rights to political association and equal protection under Article II, Sections 5 and 25 of the Colorado Constitution have also been violated; however, the analysis for those violations parallels the federal constitutional analysis.
A “political organization” is defined by statute as “any group of registered electors who, by petition for nomination of an independent candidate as provided in section 1-4-801, places upon the official general election ballot nominees for public office.”one which has placed on the ballot at a congressional vacancy or general election a candidate for district or state office and whose officers have filed under oath with the Secretary of State the required proof of organization and which continues to meet the requirements of 16.3 [meet once a year] and 16.4 [place a candidate or candidates on the general election ballot every two years].
TheAll elections shall be free and open; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.
In a fashion similar to Storer, the federal district court‘s opinion in Thournir v. Meyer, 708 F.Supp. 1183 (D.Colo.1989), aff‘d on other grounds, 909 F.2d 408 (10th Cir.1990), focuses exclusively on the state‘s interest in regulating ballot access of the independent candidate and does not address the associational interests of the candidate‘s supporters. I therefore find the majority‘s reliance on Thournir as equally misplaced as its reliance on Storer.Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
When any controversy arises between any official charged with any duty or function under [the Colorado Election Code of 1980] and any candidate, the officers or representatives of any political party, persons who have made nominations, or any other person, the district court, upon the filing of a verified petition by any such official or person setting forth in concise form the nature of the controversy and the relief sought, shall issue an order commanding the respondent in such petition to appear before the court and answer under oath to such petition. The court shall summarily hear and dispose of any such issues with a view to obtaining substantial compliance with the provisions of this code by the parties to such controversy, shall make and enter orders and judgments, and shall issue the writ or process of such court to enforce all such orders and judgments.
Tashjian, 479 U.S. at 224-25 n. 13, 107 S.Ct. at 553-54 n. 13. Under this rationale, a state could restrict a person to becoming a candidate for only one political entity in an election year. Thus, it is not impermissible for Colorado to prevent Heid from presenting himself to the voters as a Libertarian-Republican candidate as he had apparently intended.[did] not establish that state regulation of primary voting qualifications may never withstand challenge by a political party or its membership. A party seeking, for example, to open its primary to all voters, including members of other parties, would raise a different combination of considerations. Under such circumstances, the effect of one party‘s broadening of participation would threaten other parties with the disorganization effects which the statutes in Storer v. Brown, 415 U.S. 724 [94 S.Ct. 1274, 39 L.Ed.2d 714] (1974), and Rosario v. Rockefeller, 410 U.S. 752 [93 S.Ct. 1245, 36 L.Ed.2d 1] (1973), were designed to prevent.