Pontikes v. Kusper

navigable (1929) sup- It struc- waters. L.Ed. 426 prohibition unless—the as a flat tured port contention: this approval being the issuance of unless of Con- of the Act true intent “The Army] Secretary after [of gress obstruc- unreasonable was Engi- recommendation of Chief navigable navigation ca- tions to Although the Act has neers . . . prohibited, pacity to be tempering always been read as in the second described the cases outright prohibition by the rule of [here, of section third clauses against arbitrary action, the reason War, 403], Secretary § U.S.C. flatly Act does obstruction.” forbid the acting recommendation 430 F.2d at 207. Engineers, authorized Chief of Accordingly, particular Court holds that the cases' this determine what government required allege obstruc- unreasonable constituted an the information that defendant unrea- 49 S.Ct. tion.” 278 U.S. navigable sonably obstructed water of 170. the United States. pertinent statement The above prosecution under the Riv- to a criminal PLACE Wiscon- ers and Act Harbors 1899. proceeding Illinois, supra, sin v. was a its conten- Defendant has abandoned complainant equity con- in which the does not ade- tion that the information Secretary tended that of War was quately place where the al- describe the power approve without authorize is, leged committed. It offense was navigable an obstruction of a water of therefore, (33 under United States Section adjudged: Ordered 403) of the because that U.S.C. Act § dismiss motion Defendant’s provided Congress by section hereby denied. information criminal affirmatively statute or otherwise could authorize “obstructions.” rejected con- by holding

tention “af- that the words firmatively Congress” authorized light

should be construed in “adminis- exigencies.” is, trative exceptions, Congress That with certain delegated had Plaintiff, PONTIKES, power Secretary Harriet G. of War to author- navigable capacity ize obstructions to the waters the United States. Stanley al., et Defendants. KUSPER quotation above v. Illi- Wisconsin Lombardo, Peter

nois cited ly the defendant means mere- KLAETSCH Donna Plaintiffs, Secretary that the should be of War guided making by the rule of reason in administrative his determination. County Clerk, STERN, Mary Grace Defendant. quotation The above does not mean government allege Nos. 71 C 71 C 2415. must prove that an unauthorized obstruction Court, United States District prevail was unreasonable in order to Illinois, E. N. D. D. a criminal or civil action under 33 U.S. March 1972. C. As 406. in Zabel §§ stated Tabb, (5 1970) 430 F.2d 199 an ac- Cir. brought compel the issuance of a dredge permit: and fill building “The Act covers both excavating

structures and the and fill- Leahy, Leahy,

Mary Lee Andrew J. Chicago, 111., plaintiff for Klaetsch. Chicago, Ill., Ray Jeffrey Cohen, plaintiff Pontikes. Mitchell, Miller, 1971 and that v. Stern So Klaetsch Howard Aldus S. request Ill., for a

phia Hall, Chicago, defend October 1971. A three- H. granted, judge subsequently court was ants. two consolidated. and the actions were SWYGERT, Chief Circuit Before charge plaintiffs principally BAUER, Judge, MAROVITZ and (d), 7-43 which outlines the so- section Judges. District “twenty-three rule, un- called month” Judge. SWYGERT, impinges upon Chief Circuit constitutional because right right to vote and the asso- the actions, two case consolidates This They claim further sec- ciation. the constitution- each of which attacks 7-44, (a) re- tions 7-43 and the sections (d), 7-43(a), 7-44 ality and of sections party quiring a declaration of affilia- 7- Chapter 46, Sections Ill.Rev.Stat. right tion, fall of the should as violative any voting in 43(a) and condition 7-44 right vote, right privacy, the to to public upon primary declaration association, provisions and the of the prohibits party 7-44 Section affiliation. Rights Voting Act of 42 U.S.C. § if primary judgment They summary 1971. seek primary of in the voter has voted based these contentions. The on defend- preceding party within the another complaint ants to on move dismiss twenty-three seek Plaintiffs months.1 controversy” ground that no “case or injunctive declaratory relief under presented, has been substantial no and 42 U.S.C. § U.S.C. §§ question has been raised to vest federal 1983. jurisdiction court, in even this and that parties bringing are the action sustained, jurisdiction feder- County qualified Chicago vot- and Lake exercising al abstain from courts should Lombardo, (plaintiffs ers Pontikes find merit these conten- it. We to par- respectively) voted in one who had deny accordingly, the de- tions and we ty’s February primary who 1971 and grant plain- fendants’ motion. We party’s different now seek vote judgment summary tiffs’ motion for primary a Lake in March (d) 7-43 is concerned. where section Klaetsch) who, County (plaintiff voter overturning sec- find no basis for We any though eligible primary, to vote (a) or tions 7-43 7-44. challenges at- that will the restrictions voting in Defendants tend her March. I responsible are officials for those primary elections conduct raised in the defend issues area, each the Commissioners been con motion to dismiss have ants’ Chicago Board Elections and rejected by this court sidered County. Clerk of Lake held that others. Numerous cases have Kusper regula complaint primary on Pontikes v. constitutional attacks affected, September immediately filed in district court those tions provide: (cl) 1. voted after and 7-44 If he have [shall Sections 7-43 person January 1, primary un- be held 1939] 7-43. No shall entitled § political primary of another to vote at a- : der this Article 7 (a) period calendar he his af- of 23 Unless declares within Article; required preceding calendar filiations this next months primary signed (b) petition in which Who shall have month any for of a . nomination candidate held. ty affiliate, # H« % he does not Hs desiring Any person to vote is to be voted for at such candidate 7-44. § name, primary; resi- state his at a shall pri- signed (c) the nomi- affiliation Who shall have dence person independent judges. nating mary papers . who . No of an candi- . shall for his affiliation date office for which office to state refuses primary. at a nomination are to to vote candidates allowed primary ; voted at such prior right date, do the of the meet to vote in the March 1972 requirements controversy.” primary they “ease or of a should choose to switch Rhodes, parties eligi- See v. this time. Even Williams voters (1968); any primary ble vote 21 L.Ed.2d 24 Rosario this March Rockefeller, No. v. affected are forced 71-C-1573 — Eisner since (E.D.N.Y., right Rockefeller, 71-C-1621 between to vote and No. choose Bendinger 10, 1972); Ogil right freely filed their twenty-three Feb. affiliate within the vie, 1971); F.Supp. (N.D.Ill., following period F.Supp. (N. Ogilvie, Jackson D.Ill.1971). election. The counter defendants right protected vote Con- right stitution include the does not Moreover, action sev raises primary. They vote characterize significant princi questions, eral pally federal primaries proce- purely internal challenged impact stat private organizations. We dures find plaintiffs’ utes holding Classic, in United States right Bendinger of In association. v. 299, 1031, 313 85 U.S. 61 S.Ct. L.Ed. Ogilvie, supra,, which involved a statute dispositive: (1941), 1368 barring running from candidates pri- the made the Where state law has primary par in voted who had another proce- mary integral part an of ty’s primary preceding within the twen choice, dure where fact of ty-four months, did this court not con effectively primary controls the primaries subject were test fact that choice, right of the elector to have to federal constitutional standards primary, his ballot counted at only these considered standards whether right protect- likewise included in the jurisdiction Similarly, were met. 318, I, at ed 2. 313 Article U.S. § properly found in two recent federal cas added.) (Emphasis 61 at S.Ct. 1039. primary es which procedures election dealt supra; Rhodes, See Williams Moore v. comparable v. to those at issue Ogilvie, 814, 1493, here, 394 89 23 U.S. S.Ct. Gordon v. Executive Comm. of Sanders, (1968); Gray L.Ed.2d 1 Party City v. 372 of Democratic 367, 801, Charleston, F.Supp. (D.S.C. 9 L.Ed.2d 821 S.Ct. (1962); Allwright, 1971), Rockefeller, Smith 321 U.S. su Rosario v. (1944); 649, pra. 88 L.Ed. S.Ct. supra; Comm., Rosario Illinois, Gordon v. Exec. Finally, no to we see reason supra. Rockefeller, Since exercising jurisdiction. abstain from our primaries subject state to extensive questions There are no unsettled of state regulation, fall Ill.Rev.Stat. ch. law require at issue here which would squarely the test Classic. within interpretation. state court The statutes addition, agree the contest- that In we unambiguous. only involved are significant incur- represents ed a statute point question conformity is their to plaintiffs’ rights of as- free sion on the Constitution, question the federal a we attaching It sociation. has the effect are mandated to resolve. penalties and disaffiliation to affiliation change parties may dur- since voters ing II period twenty-three month with- being out disenfranchised against plaintiffs’ attack primary of choice. (d) grounded upon section 7-43 both right right deprivation right a of association and the to Where right agree to is at vote “twenty-three vote. or the We that the to association upheld only stake, substantially plain will rule” the statute burdens right derogation proves it serves “com tiffs’ that vote in Ar the state Williams, I, pelling” In Constitution, state ticle 2 of interest. § S.H.A. challenge several Those considered who have voted the March 1971 claimed to primary deprived were laws which are now Ohio election one danger constitutionally protected impossible” “virtually a new it make rights There is often occurs. placed however political party on state bal- to be raiding is indicate choosing evidence purpose electors lots place likely “honest” than presidential more take particular pledged for Forty-four switches of affiliation. vice-presidential The Court candidates. impose post-election re- states do not stated: changing This straints on affiliation. determining has whether raiding not a seri- would indicate unequal power place burdens system. multi-party ous threat to the rights groups minority where stake, say Moreover, kind decisions this are at cannot we consistently raiding im held more possibility this Court have mere ‘only deprivation portant potential state interest than the subject regulation within of a first amendment regu- power State’s constitutional effects. state’s limiting justify multi-party maintaining late First Amend- can “compelling” at ment 393 U.S. freedoms.’ been found to be primary only 11. where constitutional level who raised candidates claims were District, Kramer Union Free School running party’s barred L.Ed.2d 89 S.Ct. they had voted in another (1969), “compelling used a party’s previous two within the depriva- terest” standard where years, Bendinger Ogilvie, supra, or tion of the rather than Lippitt years, previous within v. four rights charged. first amendment Cipollone, Bendinger recently More in this court v. by 1972), can (U.S., 30 L.Ed.2d 725 Ogilvie, supra, applied the identical test. sign required oaths to didates who were Rockefeller, supra. Rosario See presi affirming support for 7-43(d) is interest section which vice-presidential candidates dential protect claimed to is the interest state’s they party alle to claimed which guarding against any in distortions of Blair, giance, Ray 72 S. process the maintaining in and in electoral (1952). Ct. 96 L.Ed. 894 integrity of the two- in the case—the Where—as instant party system particular. in The statute against weighed interest state’s preventing by serves these a interests party political constitutional claims of practice “raiding.” “Raiding” known as members, differ- the outcome has been party occurs of one when members Rhodes, supra, ent. bur- Williams primary party of another for capa- party dens to form purpose bringing sole about the nomi- competing effectively other ble of parties with nation of But the weakest candidate. justified by the not could be sweeps broadly, impeding the statute too promoting multi- state’s interest deceptive both conduct and constitution- Rockefeller, party system. In Rosario v. protected ally If activities. 7- section Comm., supra, su- v. Exec. Gordon 43(d) effect, party were not in massive pra, constitu- state laws which affected switching could occur either because of rights tional in the same fashion as well-planned raiding party’s the primary of one identical also fell where the Illinois law by party, of another members Indeed, justifications dic- were offered. or because of massive dissatisfaction Bendinger specif- Ogilvie, supra, inta prevailing policies with of an exist- ically distinguish the associa- between ing party. upon The state’s interest voting rights of members tional grounded which this could be rights political parties candi- and the “compelling” only characterized if the dates : likely former alternative is more to oc- limiting latter, raiding cur than candi- interest in The state’s consti- danger important switching parties, tutes a de- more than the dates from above, greater years. scheduling, coupled inter- tailed than its bered This switching limiting twenty-three est voters from month rule of sec- pre- (d), parties. preclud- tion The state’s 7-43 the effect serving competitive vigorous participating pri- a voter in a two-party mary by township, city, is fostered of one requirement village regu- candidates election and demon- another at the loyalty primary lar and attach- strate a certain level. We find this result untenable. ment whose Whatever are the advan- tages maintaining running; party stability be same cannot however, given voters, any govern- said of who should elections ment, they level of changes apply national, freer to demonstrate their political do not by state, popular and local attitude contests are considered together. ought against unpopular required A candidates or candi- voter not be single party’s primary dates in election. hold himself every bound to government. on level of distinguished These cases cannot characterizing sec- the state’s interest Ill (d) protection 7-43 of the terms process rather electoral than Plaintiffs claim that sections 7- preservation system. two-party 43(a) 7-44, require a declara The difference is semantic. Distortion prior voting, tion of affiliation process oc- the electoral would here be rights privacy, freely burdens their associate, proce- casioned a distortion of the vote, addition to namely, selection, dures of candidate violating Voting Rights ofAct procedures sys- two-party selection of a agree. do U.S.C. 1971. We § tem. The voter’s choice of in sin candidates gle party’s primary disclosed. justifications We find none of the of- only public declaration he called sufficiently fered com- the state to be upon to make is to choose which" outweigh pelling to the costs to constitu- Any participate imposi in. rights. tionally protected places tion this voter is minimal. free association the vote are at Moreover, whatever is burden suffered important today they least as as outweighed by “compel is the state’s the time the Constitution written. ling” preventing election pace change political greatly of has Membership political party fraud. may in a variety impor- accelerated. A wide of distinguished membership be from political likely tant events are take any organization other because of the place during two-year period even regulating role of the state in and en single which voters must affiliate with a forcing party procedures. selection Moreover, or be disenfranchised. Cf. v. Alabama, NAACP primaries during 78 S. period held this (1958). Ct. 2 L.Ed.2d likely Sec range impor- to reflect a broad of 7-43(a) only tions and 7-44 serve to tant pro- issues. The Illinois statutes twenty-three rule, enforce the as vide for elections in each the even of plaintiffs claim, but years also buttress numbered for various and state requirement participate county that voters These offices. elections coincide party’s only one at a time. President, with the elections for Vice- President, Congress. and members of The motion of defendants to dismiss Other provided elections are complaint denied, is and motion for, including special fill elections to plaintiffs judgment summary of is vacancies, certain township elections, granted (d) insofar as 7-43 section is city village and and elections. These are (d) concerned. Section of Illi- 7-43 years,” conducted in the so-called “off Statutes, Chapter 46, nois is Revised period regular primary between the hereby declared to be of the violative and elections in the even num- Constitution the United States freely without Defendants, offi- of all citizens choose null and void. always governmental cers, agents, servants, employees, at- interference —has purity torneys, persons act in remained the same. It and those who protected from unwar- participation with core that is or this concert active unjustified enjoined, permanently state interven- ranted them are without enforcing only executing the elec- bond, sec- Yet need look at or tion. one any 7-43(d) to- Revised in the Union Illinois tion code state of the regulato- Chapter day Statutes, realize that some sort 46. justi- ry procedure election is not fied and warranted but is moreover es- (dissent- Judge MAROVITZ, District voting preserve purity and to sential to ing). anarchy. prevent electoral What must disagree with I dissent not because I then, pinpointed, fine line be is that be- majority’s characterization impermis- the right permissible tween the or freely associate to vote sible. “compelling test interest” with the state majori- concur is because I It ought employed in determin- be that ing “compelling ty’s general in- view of the or unconstitutional whether not an I do not terest” test my because wish infringement rights has taken of those any dissent be misconstrued applied having place rather because altering way adulterating that or test present situation, unlike that test to the alleged permitting violations majority no such I have found the fringement. any voting with scrutinized being tested, care than less are now briefly necessary I find it trace fully might concur note that I here [I development law in jurisdictional findings the ma- rights cases. controversy” jority; that a “case exist; does federal that a substantial basically criteria There are two question raised; ab- been constitutionality an election which improper in case. stention would be objective judged, can be points and has The law is clear on these subjective. objective test other adequately by the ma- been documented ques- simply comparison supra, pp. jority. Majority Opinion, See regulation constitutional tionable with 1106-1107.] previous pronouncements dictate and Supreme majority opinion If the Court. crux specifically prohibited a cer- proposition Court has wholly based on the valid practice that the infringement no doubt tain there state directly regulation “compel- grounded conflicts must to vote ling jus- prohibition fully But objective fall. must interest” whose pre- precedentially never tampering law has been so so funda- tifies with right in all cover times to vote cise as to all situations mental and hallowed procedure Indisputa- quite specific and often a and freedom of association. right upon bly very and the at the Constitution to vote lies yet spoken attacked. process is a have and Courts not heart democratic development principles by Thus, parallel of fundamental with element categories prohibited governed. specific of conduct Al- Nation which this right though Supreme growing out of manifestation of subjective gone through social, usage, political, there evolved has a vast instances that demographic geographic is used for those transfor- test that assuming any preconceived consti- years fit into do not mations over the test, subjective shapes to the slots. This various suitable tutional forms exigencies partic- matured from practicalities of a used election cases has “compelling stripped era, “rational ular basis” its essential core of right gloss periodical interest” test. historical and —the

lili years country the In earlier of our the last decade the In the courts have also Congress concerned been faced the narrower and the Courts were more lim expand- segments problem of ited with the exclusions smaller formative suffrage population. basically a Often re limited these lesser suffrage. very strictions are a localized and re The most blatant universal gional obviously disen- unconstitutional nature unlike nationwide ex ago. quantitative century clusions of ex- a At franchisement was times larger segments popula- poll these clusion exclusions such as or lit taxes eracy guise people and women. tests such as black come cloaked general regulation reality a Both of cured these exclusions amendments, racially having pro oc- constitutional the latter motivated more curring time, quite minority groups; nounced un- affect on within our oth derstandably simply er state cannot claim times the now state is regulation convinced “compelling that a certain it has a to ex- interest” is desirable and permissible. example: Carring groups. clude those Disenfran- See for Rash, easily ton 89, 775, v. chisements of 380 this sort are dis- U.S. 85 S.Ct. 13 (1965): may L.Ed.2d deny into clear-cut constitu- 675 cernible fit State not categories. opportunity tional to vote a bona fide resident because he is member dealing years more In recent cases Harper Virginia armed forces. Board v. quanti- qualitative rather than with the Commissioners, 663, Election 383 U.S. aspects of vote have reached tative 1079, (1966): 86 S.Ct. 16 L.Ed.2d 169 instances Court. In these may impose poll tax; State not Kra right outright there denial of the was District, mer Union v. Free School 395 question raised rather the vote but 621, 1886, U.S. 89 S.Ct. 23 L.Ed.2d 583 suffrage de- was whether the (1969): may require State citizens nied dilution or debasement of vote realty own lease taxable in order to Reynolds mal-apportionment. cast City a local election. also See 1362, Sims, 12 533, v. 377 84 U.S. S.Ct. Kalodziejski, 204, Phoenix v. 399 U.S. 90 (1964) apportionment L.Ed.2d 506 1990, (1970); S.Ct. 26 L.Ed.2d 523 Ev Legislature’s Alabama two houses Cornman, 419, ans v. 398 90 U.S. S.Ct. challenged protection equal 1752, (1970): 26 L.Ed.2d 370 State can grounds. living persons permit not refuse to 186, Carr, See also Baker v. vote; 369 U.S. federal enclave to Affeldt v. Whit 691, 663; Gray 82 7 v. Judge S.Ct. L.Ed.2d comb, F.Supp. (Three 319 69 801, Sanders, 368, 9 372 83 S.Ct. Court, N.D.Ind.1970): may U.S. 821; Sanders, Wesberry L.Ed.2d v. 376 impose residency year require a one 481; 1, 526, 84 U.S. S.Ct. 11 L.Ed.2d Amos, v. 320 ment. See also Hadnott , 383, Mosely United (Three Judge States v. 238 F.Supp. Court, U.S. M.D. 904, 1349; 968, S.Ct. 59 L.Ed. United Ala.1970), aff’d 401 U.S. S.Ct. Classic, 299, States v. 1031, (one year 313 U.S. S.Ct. 1189, (1971) 28 L.Ed.2d 318 1368; parte Siebold, 85 L.Ed. Ex down) residency requirement struck 717; United Keppel U.S. L.Ed. Donovan, F.Supp. 15 Saylor, (Three Judge D.Minn.1970) (6 States 322 U.S. 64 S.Ct. Court, 1341; Light 88 L.Ed. down). Gomillion requirement struck foot, 364 L.Ed. specific practices Thus have ex- these 110; Herndon, 2d Nixon plicitly Supreme by the been outlawed 536, 446, 759; 47 L.Ed. Nixon S.Ct. 71 Court and Federal Courts. some lower 484, Condon, 73, v. 286 52 76 S.Ct. U.S. implicit cri- Yet as indicated earlier an 984; Allwright, L.Ed. Smith v. 321 U.S. developed to teria out of cases these 649, 987; 757, Terry 64 88 L.Ed. S.Ct. yet in uncharted be used those areas Adams, 461, 809, v. 345 73 97 U.S. S.Ct. Supreme L.Ed. 1152. the Court.

1112 support in Court drew in New York The the use District Court The al., Rockefeller, Rosario, et 71 C. of this test from a which had not case et al. v. right vote, 1972) February 10, spent Op. involved to but the was (Slip 1573 tracing solely great concerned First Amend- the devel- with deal time rights “compelling in- . subjective ment of association opment the Sims, supra, Reynolds v. In terest” test. by saying that The Court concluded “any al- said that the Court “The failed show State has here to right leged infringement of citi- any ‘compelling justi- interest’ which carefully metic- zens vote must to be imposing heavy on fies such burdens at 561- ulously scrutinized.” 377 U.S. right associate,” to to vote and “ 1381, A 562, 506. 12 L.Ed.2d 84 S.Ct. totality . Ohio . . Rash, Carrington U. year 380 later in im- restrictive laws taken as a whole 780, 775, 13 L.Ed.2d 96, S.Ct. S. at 85 poses voting a burden on and associa- may Court stated that “States 675 the rights tional which we hold an in- casually deprive of individu- class discrimination, vidious violation remote of some because als of the vote Equal (393 Protection Clause.” to the State” benefit administrative 34, at 31 and U.S. at 11 S.Ct. Virginia Harper 12). 670, Elections, 663 at Board of 383 U.S. opinion Rhodes, in Williams v. L.Ed.2d 1079 at S.Ct. supra, left one as to some doubt funda- “where indicated that the Court compelling whether the state interest rights and liberties asserted mental applied test would to be involv- cases Equal Clause, clas- Protection under the ing having no might re- or invade sifications First Amendment overtones. Later closely scrutinized strain them must however, Term, that same confined.” decided Kramer v. Union Free School District, 395 U.S. 89 S.Ct. say: on Court in Rosario went (1969), L.Ed.2d did [23 583] Term “At the October Su- clarify opinion much in Kramer preme enlarge the Court continued to appropriate its view of the to be test divergence the treatment between involving right used when statutes accorded most state statutes challenged equal protec- to vote are Equal violating Pro- attacked as grounds. and the treatment to be tection Clause challenged Kramer, statute specifically af- accorded those statutes restricted local school fecting vote. In Williams board to those otherwise elections Rhodes, 5, 21 S.Ct. qualified who either voters (1968), the Court was L.Ed.2d attending ents of children schools challenge presented to a set public local within the school extremely Ohio statutes which made prop- or were real owners lessees any party than the difficult other erty within district . school Party Republican Democratic or compelling Court held that established achieve status an applied to vot- state interest test name and its and to have its finding issue, and, restrictions placed on candidates the ballot interest, voided the ap- . . . The election test . The Court said: however, plied by Court, merely agrees any Appellant basis whether rational the States imagined justify power impose the enact- could be have the reasonable statutes, age, residency citizenship, re ment of whether quirements availability not there was Carrington Rash, justify terest existence Cf. ballot. 89, 91, 775, 777,

1113 Pope infringement by (1965); compelled a L.Ed.2d 675 as the is 13 Williams, 573, rights and affects 24 S.Ct. state interest practicable (1904). little 48 L.Ed. 817 Statutes the voters as as under granting the circumstances. in the franchise residents This fact always pose part Bendinger, rationale su- on a selective basis danger pra, denying any pp. 574-575: some citizens governmental in effective voice place any “Before state can restric- a substantially affect affairs which upon the freedom tions to associate their omitted.] lives. [Footnote freely it vote, must be shown Therefore, challenged a state compelling justi- that state a interest grants to vote regulation. fies such Williams requi- fide some bona residents Rhodes, 89 21 L. U.S. S.Ct. age citizenship site and denies (1968); But- Ed.2d N.A.A.C.P. v. others, the franchise the Court ton, L. U.S. S.Ct. must determine whether exclu- Ogil- (1963); Ed.2d 405 Jackson v. necessary promote sions are a supra. vie, it Further, must be shown (395 compelling state interest. question the state statute in 625-627, 1888-1890). 89 S.Ct. possible, as also fair [Emphasis original.] infringes upon First opin- It evident from the Court’s Amendment those affected ion Kramer that once a has practicable as little as under cir- voting imposed requirements basic Rhodes, su- Williams v. cumstances. pra citizenship, age, residency, all fur- 32, 33, 5, 21 U.S. at requirements (which by ther their na- 24; Kusper, 435 L.Ed.2d Briscoe v. restrictions) must ture be viewed as (7th 1970); F.2d 1046 Jackson Cir. necessity by supported must of be a supra.” [Emphasis Ogilvie, add- compelling state interest. This in ef- ed] places proof fect burden asserted state, the reverse of the situation prevention inter-par- the State is the ap- where the rational basis test ty “raiding” that would result plied. requirements The basic of citi- Raiding open primaries. occurs where age zenship, residency, are to be party pri- members of one tested, challenged, by are mary opposition party in the traditional, “rational relation” electing hopes weak candidate test, garden-variety equal pro- used in easily could defeat- “straw man” who tection cases.” party true ed the candidate might hap- This election. clearly We therefore have before us pen candidate of their true where the subjective apply defined test our running unopposed pri- given specific case the absence of needed; mary are votes and their pronouncement candidate in their where a certain constitutionality of a 23-month rule. challengers stronger mak- than all is far must What be determined is whether unnecessary and better their votes State of Illinois has carried the burden of the other utilized in the proving merely it has not a ra- ty ; party in of one where members prohibiting tional basis the mem- certain far outnumber district of one citizen who great opposition and a bers of the has pri- voted within 23 months expendable portion votes are mary of another it has a but that up a “straw to set can be allocated “compelling interest”. What must also man”. kept voting rights mind is that degree “raiding” not absolute can occur and that there ais That infringement recognized by of constitutional several Courts. short of been Bendinger Ogilvie, F.Supp. permissible long invidiousness Judge rule’, party swapping (N.D.Ill.) and a Three Court dealt month changing might statutory requirement conceivably become so Illinois with the eligible average political prevalent an candidate order to be longer person party proper- political party primary a could function no ly. resulting disruption “requested primary a ballot of have With the cannot political party party unity discipline, election and of other years party on which date would to decide within 2 of the be unable who held person petition support whom be filed.” Ill.Rev.Stat. to must because today support found 8-8. The Court did or not 46 Section did Ch. and said: could on other side of aisle statute constitutional Thus, tomorrow. is obvious policy limit- “In addition to the protects rule’ the ‘24 the elec- manageable ing process to the elective process tive from subversion proportions, there and realistic many pro- thereby serves to and sides compelling rea- serious even more compelling of state the most mote legislation. underlying The sons terests.” preven- important most of these applying stopped short the entire subversion of compelling voter this same keystone process. of our elective in fact cases and rather than candidate system poli- democracy party is the might differ- indicated that the case election, any general Before tics. Bendinger, ent the voter situation. go through party man- each must its however, and the case was a candidate power find a order to resources in opportunity to ade- Court had real represents candidate who “raiding” implica- quately consider the opinions mem- consensus of This Court tions voter cases. ap- party, bers of his own pealing but will be opportunity ample other hand had majority of vot- to a the entire hear oral all and to consider the evidence ing population as If there were well. argument precise I on this issue system rule’, no ‘24 month then this prevention of find that the State’s could be For thrown into total chaos. “raiding” compelling an interest is as instance, Party suppose A had a voter is in candidate cases cases as it strong post candidate for a certain the re- met all of that the State has and it was clear receive that he would quirements “compelling interest” party’s his spare. nomination with votes (See Gunder- test as out also set above. effect Without deterrent (W.D.I11. al., Ghent, son v. et 69 C. ‘24 month rule’ it would be 1970) Slip February Op. also which relatively Party simple A to matter upheld regarding candidates the statute regulars have one or more its grounds that “it reflects State Party hope run in B’s policy stability and lend foster Party pri-B win one would organization”.) ty political structure put op- mary up or no and then little F.Supp. position Lippitt Cipollone, Party A candidate (N.D. ensuing general 1971) Ohio, also The re- 1405 the Court the sulting election. regulating candi- considered a confusion and subversion obvious, and, dacy process based on affiliation. the elective rule’, could not Court said: without ‘24 month be controlled. interests “The Legislature protect obvious reason Ohio seeks There another integrity clearly compelling contested which is its statutes membership legislation. too, political parties It, of all underlies this grounded protection seek the elec- therein. These Ohio statutes ‘raiding’ prevent process. question one That is the tive pre- protecting as we members another . . alter- ‘24 clude from’ . know like the candidates it. Without rules political party question merely affiliations ute opportunistic hypothetical specula- ex reasons.’ State the realm of the or Elections, my 22 application O. rel v. Board of tive. Thus of the com- Bible pelling (1970). present Pro S.2d interest test 258 N.E.2d situa- produces party membership tection of ly uniform tion a different than result parties applied single, majority all cannot be that of on the the based substantiality characterized as discrimi critical factor of the and ‘invidious probability raiding. inter-party The nation’ as in Williams. of defined Supreme rec United Court has States might We note here that result in the ognized ‘protect the need to supra Rosario, the invalidation was of from intrusion with adverse those designed procedure pre- that was also political principles’ legitimate to be a raiding. vent In that case however the legislature. Ray purpose for said procedure box” failed to “enrollment Blair, S.Ct. “compelling the meet interest” test be- (1952).” L.Ed. 894 not cause it was the least drastic mea- requirement challenged of the objec- accomplish sure available to the insuring party integrity statutes and sought proven tive and it not that was party political affiliation, together necessary the was for its accom- exemptions with the aid enacted to plishment. Court did not however emerging political parties, simple, are raiding possibility discount the of reasonable, procedures uniform determined that there invidi- was less designed accomplish re- desired the I, preventing ous of it. method how- sult.” ever, sweep of the 23- that the believe enough is narrow to conform rule Lippitt The U. Court in S. compelling Cipollone, least the invidious and (1972) interest test. affirming L.Ed.2d 725 the opinion lower Court decision without im- Furthermore that I do not believe plicitly possibility conceded the of raid- contrary Executive decision Gordon v. of recognized prevention as its Party Committee Democratic being Preventing a valid State interest. Charleston, (D.S.C. F.Supp. 166 raiding compelling is a valid interest finding. 1971) my opposite forecloses applicable, believe, the State and is I prevented a that case also in voter cases as it is candidate cases. primary citizen from Juxtaposing another invalidated compelling the Court grounds arbitrary against dep- it was temporary that it the State compelling justified by right plaintiffs’ rivation not vote particular under- in this ing State must be interest. What consider- “compelling plaintiffs’ interest” deprived stood is fact are that acutely subjective per- their nature they of fectly test is of an to vote since are given political climates free to the fact that they geographic climates a which as variable as voted in the Febru- ary might primary, than I find no for State interest that less basis overturning compelling in one panel lo- these statutes. to a Judicial may proportions compelling cale take on While majority that finds panel in to a a different district. “[tjhere is no evidence to that indicate raiding likely the constitu- place is more I need not to take elaborate than 7-43(a) tionality ‘honest’ Sec- switches Section affiliation” raiding regarding “that not a declaration 7-44 serious threat multi-party system” Opin- party them- (Majority defendants affiliation since ion, p. 1108) compelled I means am evi- that it selves admit political dence en- and Illinois 23-month restriction circumstance very Having 23- believe that such a found threat is a forced. real and we likewise stat- month rule is constitutional imminent absent the stituting procedures did in- where find same State such “raiding” political justifies not before exist. Thus

terest the declara- accompanying pro- does and their tion of affiliation and it ties might be it cedures were nonexistent not violate the Amendments, and Fourteenth First Rights beyond validly posited Voting Acts. province majority, to lend assistance which has of this Court addition however, twenty-three This, found the un- creation. month rule upheld being by the asked a case where we are constitutional nevertheless declaratory judgment por- for a the declaration affiliation put grounds junctive would create or tion of the that relief that the statute on system infringement party as the mini- effect rules the voter is into on regula- suf- the affiliation mal that “whatever burden is 23-month or outweighed by ana- ‘com- task been fered is the tions. Rather our has state’s pelling’ weigh, lyse con- prescribed the preventing election interest existing already fraud”, criteria, and that it also an furthermore stitutional legislature necessary requirement that its considered “to law the buttress the participate par- judgment the one best that has determined voters (See Majority preservation of ty’s method the available for time”. 1109.) if Opinion p. purity even sides Thus that electoral that both raiding earnestly It far we not to consider threat case desire. this so beyond to find Court we would be bound the role intended this nevertheless leg- portion adopt posture the of the statute declaration a microeosmic the majority’s design on meth- constitutional based islature that better would preserving purity reasons. where ods electoral adequate an the com- statute that meets applying then, in summarize, To already pelling been interest test de- as current signed interest test legislature. promulgated In the state voting rights I have cases attempting preserve purity as that 23-month rule both the found that embodied and manifested in the statutes affiliation the fully justified by declaration it under attack remiss would be interest judicial Court not to take notice of preventing inter-party raid- inescapable parties and fact that re- that would these result absent they are do and that lines indeed exist strictions; infringement that the inseparable electoral elements given plaintiffs’ its minimal ' equally remiss We would be scene. temporary nature the existence cognizant that we were not of the fact avenues; and that alternate electoral allegiances powerful can measures avail- these are the least drastic inter-party quite easily lead nefarious able. raiding [See absent restrictions. finding my I need not deci- so base Chicago Dreiske, Primary Ploy, GOP solely grounds pres- sion that Sun-Times, p. March 40 which integrity ervation of and the mul- being Republicans are indicates that urged system ti-party proper large into to cross over scale Lippitt v. Bendinger, as Gunderson and Primary on March the Democratic Cipollone do The ar- indeed indicate. there are real contests 1972 since gument ought not in- that this Primary. Republican in- The article preserving strumental in artificial those greater an dicates even crossover procedures and en- extra-constitutional place not for the were it would take cumbrances, party politics, that such as adoption twenty-three month rule.] engrafted unwisely wisely have been reality position com- so of such a puri- development upon the historical pels so dictate circumstances ty process of the American electoral jaun- more I take a mean that does not might valid were we be more untrusting being view or more diced asked to take initiative voting public majority than does phe- I

rather indicates that believe the raiding inescapable nomenum of an to be outgrowth engen- competitiveness multi-party

dered ought go competitiveness inject any impurities or so far as process

fraud into electoral day. election itself on

manifests

My determination, then, moti-

is not is much unconstitutional by my preserve the

vated desire mul- prevent ti-party system is to as it conceivably

shambles that could result general elections, irrespective ty considerations, any prophylac- absent raiding. prevent

tic measure to

I would therefore find Sections 7-43

and 7-44 constitutional and dismiss minority Being case.

Plaintiff’s vigorous

I must dis- be contented with

sent. INN, MOTOR

In re RANCHERO Ward, Clark, Langroise, C. John INC., Bankrupt. Boise, Idaho, pe- Smylie, & for Sullivan titioner. Trustee, Petitioner, WETZEL, Loren Copple, Copple Davison, Don & E. Boise, Copple, Idaho, respondent. for ECKERT, Respondent.

Garth No. 70-640. AND MEMORANDUM ORDER ON Court, United States District TO MOTION DISMISS D. Idaho. ANDERSON, BLAINE J. District July 24, 1972. Judge. The motion to dismiss here is involved

brought by respondent, Eck- Garth ert, who was the owner of all bankrupt Ranchero and its stock of brought president. It was under about these Eckert circumstances: filed as against his creditor-claimant the trustee approximately $27,000.00 claim owing he to him claims is Upon money bankrupt. loaned to the claim, filing respondent’s by denying any sum answered trustee then Eckert and counterclaimed due bankrupt owed the estate that Eckert

Case Details

Case Name: Pontikes v. Kusper

Court Name: District Court, N.D. Illinois

Date Published: Mar 7, 1972

Citation: 345 F. Supp. 1104

Docket Number: 71 C 2363, 71 C 2415

Court Abbreviation: N.D. Ill.