WILLIAMS ET AL. v. RHODES, GOVERNOR OF OHIO, ET AL.
No. 543
Supreme Court of the United States
Decided October 15, 1968.
393 U.S. 23
*Together with No. 544, Socialist Labor Party et al. v. Rhodes, Governor of Ohio, et al., also on appeal from the same court.
Charles S. Lopeman argued the cause for appellees in both cases. With him on the briefs was William B. Saxbe, Attorney General of Ohio.
MR. JUSTICE BLACK delivered the opinion of the Court.
The State of Ohio in a series of election laws has made it virtually impossible for a new political party, even though it has hundreds of thousands of members, or an old party, which has a very small number of members, to be placed on the state ballot to choose electors pledged to particular candidates for the Presidency and Vice Presidency of the United States.
Ohio Revised Code,
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress . . . .”
The Ohio American Independent Party, an appellant in No. 543, and the Socialist Labor Party, an appellant in No. 544, both brought suit to challenge the validity of these Ohio laws as applied to them, on the ground that they deny these Parties and the voters who might wish to vote for them the equal protection of the laws, guaranteed against state abridgment by the Equal Protection Clause of the Fourteenth Amendment. The three-judge District Court designated to try the case ruled these restrictive Ohio election laws unconstitutional but refused to grant the Parties the full relief they had sought, 290 F. Supp. 983 (D. C. S. D. Ohio 1968), and both Parties have appealed to this Court. The cases arose in this way:
The Ohio American Independent Party was formed in January 1968 by Ohio partisans of former Governor George C. Wallace of Alabama. During the following six months a campaign was conducted for obtaining signatures on petitions to give the Party a place on the ballot and over 450,000 signatures were eventually obtained, more than the 433,100 required. The State contends and the Independent Party agrees that due to the interaction of several provisions of the Ohio laws, such petitions were required to be filed by February 7, 1968,
The Socialist Labor Party, an appellant in No. 544, has all the formal attributes of a regular party. It has conventions and a State Executive Committee as required by the Ohio law, and it was permitted to have a place on
I.
Ohio‘s claim that the political-question doctrine precludes judicial consideration of these cases requires very little discussion. That claim has been rejected in cases of this kind numerous times. It was rejected by the Court unanimously in 1892 in the case of McPherson v. Blacker, 146 U. S. 1, 23-24, and more recently it has been squarely rejected in Baker v. Carr, 369 U. S. 186, 208-237 (1962), and in Wesberry v. Sanders, 376 U. S. 1, 5-7 (1964). Other cases to the same effect need not now be cited. These cases do raise a justiciable controversy under the Constitution and cannot be relegated to the political arena.
II.
The State also contends that it has absolute power to put any burdens it pleases on the selection of electors
We turn then to the question whether the court below properly held that the Ohio laws before us result in a denial of equal protection of the laws. It is true that this Court has firmly established the principle that the Equal Protection Clause does not make every minor difference in the application of laws to different groups a violation of our Constitution. But we have also held many times that “invidious” distinctions cannot be enacted without a violation of the Equal Protection Clause.4 In determining whether or not a state law violates the Equal Protection Clause, we must consider 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.5 In the present situation the state laws place burdens on two different, although overlapping, kinds of 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. Both of these rights, of course, rank among our most precious freedoms. We have repeatedly held that freedom of association is protected by the First Amendment.6 And of course this freedom protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same
No extended discussion is required to establish that the Ohio laws before us give the two old, established parties a decided advantage over any new parties struggling for existence and thus place substantially unequal burdens on both the right to vote and the right to associate. The right to form a party for the advancement of political goals means little if a party can be kept off the election ballot and thus denied an equal opportunity to win votes. So also, the right to vote is heavily burdened if that vote may be cast only for one of two parties at a time when other parties are clamoring for a place on the ballot. In determining whether the State has power to place such unequal burdens on minority groups where rights of this kind are at stake, the decisions of this Court have consistently held that “only a compelling state interest in the regulation of a subject within the State‘s constitutional power to regulate can justify limiting First Amendment freedoms.” NAACP v. Button, 371 U. S. 415, 438 (1963).
The State has here failed to show any “compelling interest” which justifies imposing such heavy burdens on the right to vote and to associate.
The State asserts that the following interests are served by the restrictions it imposes. It claims that the State may validly promote a two-party system in order to en-
Ohio makes a variety of other arguments to support its very restrictive election laws. It points out, for example, that if three or more parties are on the ballot, it is possible that no one party would obtain 50% of the vote, and the runner-up might have been preferred to the plurality winner by a majority of the voters. Concededly, the State does have an interest in attempting to see that the election winner be the choice of a majority of its voters. But to grant the State power to keep all political parties off the ballot until they have enough members to win would stifle the growth of all new parties working to increase their strength from year to year. Considering these Ohio laws in their totality, this interest cannot justify the very severe restrictions on voting and associational rights which Ohio has imposed.
The State also argues that its requirement of a party structure and an organized primary insures that those who disagree with the major parties and their policies “will be given a choice of leadership as well as issues” since any leader who attempts to capitalize on the disaffection of such a group is forced to submit
Finally Ohio claims that its highly restrictive provisions are justified because without them a large number of parties might qualify for the ballot, and the voters would then be confronted with a choice so confusing that the popular will could be frustrated. But the experience of many States, including that of Ohio prior to 1948, demonstrates that no more than a handful of parties attempts to qualify for ballot positions even when a very low number of signatures, such as 1% of the electorate, is required.9 It is true that the existence of multitudinous fragmentary groups might justify some regulatory control but in Ohio at the present time this danger seems to us no more than “theoretically imaginable.”10 No such remote danger can justify the immediate and crippling impact on the basic constitutional rights involved in this case.
IV.
This leaves only the propriety of the judgments of the District Court. That court held that the Socialist Labor Party could get relief to the extent of having the right, despite Ohio laws, to get the advantage of write-in ballots. It restricted the Independent Party to the same relief. The Independent Party went before the District Court, made its challenge, and prayed for broader relief, including a judgment declaring the Ohio laws invalid. It also asked that its name be put on the ballot along with the Democratic and Republican Parties. The Socialist Labor Party also went to the District Court and asked for the same relief. On this record, however, the parties stand in different positions before us. Immediately after the District Court entered its judgment, the new Independent Party brought its case to this Court where MR. JUSTICE STEWART conducted a hearing. At that hearing Ohio represented to MR. JUSTICE STEWART that the Independent Party‘s name could be placed on the ballot without disrupting the state election, but if there was a long delay, the situation would be different. It was not until several days after that hearing was concluded and after MR. JUSTICE STEWART had issued his order staying the judgment against the Independent Party that the Socialist Labor Party asked for similar relief. The State
It is so ordered.
MR. JUSTICE STEWART concurs in the judgment in No. 544 insofar as it denies equitable relief to the appellants.
MR. JUSTICE DOUGLAS.
I.
Ohio, through an entangling web of election laws, has effectively foreclosed its presidential ballot to all but Republicans and Democrats. It has done so initially by abolishing write-in votes so as to restrict candidacy
A candidate who seeks a place on the Ohio presidential ballot must first compile signatures of qualified voters who total at least 15% of those voting in the last gubernatorial election. In this election year, 1968, a candidate would need 433,100 such signatures. Moreover, he must succeed in gathering them long before the general election, since a nominating petition must be filed with the Secretary of State in February.4 That is not all: having compiled those signatures, the candidate must further show that he has received the nomination of a group which qualifies as a “political party” within the meaning of Ohio law.5 It is not enough to be an independent candidate for President with wide popular support; one must trace his support to a political party.6
To qualify as a party, a group of electors must participate in the state primary, electing one of its members from each county ward or precinct to a county central committee; two of its members from each congressional district to a state central committee;7 and some of its members as delegates and alternates to a na-
Having elected a central committee, the group has it convene a state convention attended by 500 delegates duly apportioned throughout the State according to party strength.11 Delegates to the state convention then go on to choose presidential electors for certification on the November ballot, while elected delegates to the national convention go on to nominate their candidate for President.12 Ohioans, to be sure, as a result of the decision below, enjoy the opportunity of writing in the man of their choice on the ballot. But in a presidential election, a vote for a candidate is only operative as a vote for the electors representing him; and where the State has prevented that candidate from presenting a slate of electors for certification, the write-in vote has no effect. Furthermore, even where operative, the write-ins are no substitute for a place on the ballot.
To force a candidate to rely on write-ins is to burden him with disability. It makes it more difficult for him to get elected, and for the voters to elect him.
II.
The selection of presidential electors is provided in
III.
The First Amendment, made applicable to the States by reason of the Fourteenth Amendment, lies at the root of these cases. The right of association is one form of “orderly group activity” (NAACP v. Button, 371 U. S. 415, 430), protected by the First Amendment. The right “to engage in association for the advancement of beliefs and ideas” (NAACP v. Alabama, 357 U. S. 449, 460), is one activity of that nature that has First Amendment protection. As we said in Bates v. Little Rock, 361 U. S. 516, 523, “freedom of association for the purpose of advancing ideas and airing grievances is protected by the Due Process Clause of the Fourteenth Amendment from invasion by the States.” And see Louisiana v. NAACP, 366 U. S. 293, 296. At the root of the present controversy is the right to vote—a “fundamental political right” that is “preservative of all rights.” Yick Wo v. Hopkins, 118 U. S. 356, 370. The rights of expression
In our political life, third parties are often important channels through which political dissent is aired: “All political ideas cannot and should not be channeled into the programs of our two major parties. History has amply proved the virtue of political activity by minority, dissident groups, which innumerable times have been in the vanguard of democratic thought and whose programs were ultimately accepted. . . . The absence of such voices would be a symptom of grave illness in our society.” Sweezy v. New Hampshire, 354 U. S. 234, 250-251 (opinion of WARREN, C. J.).
The Equal Protection Clause of the Fourteenth Amendment permits the States to make classifications and does not require them to treat different groups uniformly. Nevertheless, it bans any “invidious discrimination.” Harper v. Virginia Board of Elections, 383 U. S. 663, 667.
That command protects voting rights and political groups (Carrington v. Rash, 380 U. S. 89), as well as economic units, racial communities, and other entities. When “fundamental rights and liberties” are at issue (Harper v. Virginia Board, supra, at 670), a State has less leeway in making classifications than when it deals with economic matters. I would think that a State has precious little leeway in making it difficult or impossible for citizens to vote for whomsoever they please and to organize campaigns for any school of thought they may сhoose, whatever part of the spectrum it reflects.
Cumbersome election machinery can effectively suffocate the right of association, the promotion of political ideas and programs of political action, and the right to vote. The totality of Ohio‘s requirements has those effects. It is unnecessary to decide whether Ohio has an interest, “compelling” or not, in abridging those
A three-judge district court held that appellants were entitled to the use of write-in ballots. Yet it refrained from ordering the Ohio American Independent Party to be placed on the ballot, relying partly on laches and partly on the presence of what it deemed to be so-called “political” questions. 290 F. Supp. 983. First Amendment rights, the right to vote, and other “fundamental rights and liberties” (Harper v. Virginia Board, supra, at 670) have a well-established claim to inclusion in justiciable, as distinguished from “political,” questions; and the relief the Court grants meets the practical needs of appellees in preparing and distributing the ballots.
The Socialist Labor Party, with a lineage that goes back to the presidential contest in 1892, by 1964 was on the ballot in 16 States. Today, although it has only 108 members in Ohio, it earnestly presses its claim for recognition. Yet it started the present action so late that concededly it would now be impossible to get its name on all the ballots. The relief asked is of such a character that we properly decline to allow the federal courts to play a disruptive role in this 1968 state election. On the merits, however, the Socialist Labor Party has as strong a case as the American Independent Party, as my Brother HARLAN states and as the Court apparently
Hence I concur in today‘s decision; and, while my emphasis is different from the Court‘s, I join its opinion.
MR. JUSTICE HARLAN, concurring in the result.
I agree that the American Independent Party is entitled to have the names of its Presidential and Vice Presidential candidates placed on the Ohio ballot in the forthcoming election, but that, for the practical reasons stated by the Court, the Socialist Labor Party is not. However, I would rest this decision entirely on the proposition that Ohio‘s statutory scheme violates the basic right of political association assured by the First Amendment which is protected against state infringement under the Due Process Clause of the Fourteenth Amendment. See NAACP v. Button, 371 U. S. 415 (1963); Bates v. Little Rock, 361 U. S. 516 (1960); NAACP v. Alabama, 357 U. S. 449 (1958). It is true that Ohio has not directly limited appellants’ right to assemble or discuss public issues or solicit new members. Compare Thomas v. Collins, 323 U. S. 516 (1945); De Jonge v. Oregon, 299 U. S. 353 (1937); Near v. Minnesota, 283 U. S. 697 (1931). Instead, by denying the appellants any opportunity to participate in the procedure by which the President is selected, the State has eliminated the basic incentive that all political parties have for conducting such activities, thereby depriving appellants of much of the substance, if not the form, of their protected rights. The right to have one‘s voice heard and one‘s views considered by the appropriate governmental authority is at the core of the right of political association.
It follows that the particular method by which Presidential Electors are chosen is not of decisive importance
Of course, the State may limit the right of political association by invoking an impelling policy justification for doing so. But as my Brother BLACK‘S opinion demonstrates, Ohio has been able to advance no such justification for denying almost half a million of its citizens their fundamental right to organize effectively for political purposes. Consequently, it may not exclude them from the process by which Presidential Electors are selected.
In deciding this case of first impression, I think it unnecessary to draw upon the Equal Protection Clause.1
A decision resting solely upon the Due Process Clause would permit such an accommodation—for such a holding fully respects the original purposes and early development of the Electoral College. When one looks beyond the language of
The constitutional grant of power to the States was intended for a different purpose. While Madison reports that the popular election of Electors on a district-by-district basis was the method “mostly, if not exclusively, in view when the Constitution was framed and adopted,” 3 M. Farrand, The Records of the Federal Convention of 1787, p. 459 (1911), it is quite clear that a significant, if not dominant, group4 at the Convention contemplated that Electors would be chosen by other methods. It was to accommodate these members that the state legislatures were given their present leeway.5 While during the first four decades of the Republic, the States did in fact adopt a variety of methods for selecting their Electors,6 the parties in this case
Nothing in the history of the Electoral College from the moment of its inception, then, indicates that the original understanding of that institution would at all be compromised if we refuse to read the language of
A word should be added about the constitutional status of Ohio‘s requirement that a third party, to qualify for ballot position, must collect the signatures of eligible voters in a number equal to 15% of those voting аt the last gubernatorial election. As I do not understand the State to contest the fact that Mr. Wallace and his partisans have successfully gathered more than the 433,100 signatures required by law, we can only properly reach this issue in the Socialist Labor Party case—for this Party did not even attempt to comply with the
In my view, this requirement, even when regarded in isolation, must fall. As my Brother BLACK‘S opinion suggests, the only legitimate interest the State may invoke in defense of this barrier to third-party candidacies is the fear that, without such a barrier, candidacies will proliferate in such numbers as to create a substantial risk of voter confusion.8 Ohio‘s requirement cannot be said to be reasonably related to this interest. Even in the unprecedented event of a complete and utter popular disaffection with the two established parties, Ohio law would permit as many as six additional party candidates to compete with the Democrats and Republicans only if popular support should be divided relatively evenly among the
141, 146-149 (1943); Thornhill v. Alabama, 310 U. S. 88, 96 (1940); Schneider v. State, 308 U. S. 147 (1939), this interest cannot support Ohio‘s 15% requirement.
MR. JUSTICE STEWART, dissenting in No. 543.*
If it were the function of this Court to impose upon the States our own ideas of wise policy, I might be inclined to join my Brethren in compelling the Ohio election authorities to disregard the laws enacted by the legislature of that State. We deal, however, not with a question of policy, but with a problem of constitutional power. And to me it is clear that, under the Constitution as it is written, the Ohio Legislature has the power to do what it has done.
I.
The Constitution does not provide for popular election of a President or Vice President of the United States, either nationally or on a state-by-state basis. On the contrary, the Constitution explicitly specifies:
“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress . . . .”1 (Emphasis supplied.)
“The Electors shall meet in their respective states and vote by ballot for President and Vice-President . . . .”2
Chief Justice Fuller, therefore, was stating no more than the obvious when he wrote for a unanimous Court in McPherson v. Blacker, 146 U. S. 1, more than 75 years ago:
“The Constitution does not provide that the appointment of electors shall be by popular vote, nor that the electors shall be voted for upon a general ticket, nor that the majority of those who exercise the elective franchise can alone choose the electors. It recognizes that the people act through their representatives in the legislature, and leaves it to the legislature exclusively to define the method of effecting the object.
. . . .
“In short, the appointment and mode of appointment of electors belong exclusively to the States under the Constitution of the United States . . . .” Id., at 27, 35.
A State is perfectly free under the Constitution to provide for the selection of its presidential electors by the legislature itself. Such a process of appointment was in fact utilized by several States throughout our early history, and by one State, Colorado, as late as 1876.3 Or a state legislature might nominate two slates of electors, and allow all eligible voters of the State to choose between them. Indeed, many of the States formerly provided for the appointment of presidential electors by
Here, the Ohio Legislature has gone further, and has provided for a choice by the State‘s eligible voters among slates of electors put forward by all political parties that meet the even-handed requirements of longstanding state laws. We are told today, however, that, despite the power explicitly granted to the state legislatures under
I agree with my Brethren that, in spite of the broad language of
II.
In view of the broad leeway specifically given the States by
“The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State‘s objective. State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” McGowan v. Maryland, 366 U. S. 420, 425-426.
The laws of Ohio classify political parties, for purposes of access to that State‘s ballot, according to size and strength.6 Those that timely demonstrate widespread support in the State may submit a slate of presidential electors to Ohio‘s voters, while those that neither have participated in past elections nor can show the support of 15% of the voting public 90 days before a primary election may not.7 The appellants claim that these provisions discriminate against them. They assert that although Ohio may establish “reasonable” qualifying standards so that ballots do not become unwieldy, the
Ohio for its part concedes that the legislative objective underlying the statutes in question is to prevent the appearance on its ballot of slates of presidential electors whose substantial party support has not been timely demonstrated. That the basic classification drawn by the provisions is not “irrelevant to the achievement of the State‘s objective“—the traditional standard for judging the validity of a legislative classification under the Equal Protection Clause—is clear. The Court seems to concede as much, but nonetheless holds that the Ohio provisions are invalid—a result which may rest in part, I believe, upon possible doubts regarding the permissibility of the legislative objective itself. The propriety of that objective is, then, a critical issue for determination.
III.
I can discern no basis for the position that Ohio‘s objective is in any way an illegitimate one. Surely a State may justifiably assert an interest in seeing that its presidential electors vote for the candidate best able to draw the support of a majority of voters within the State. By preventing parties that have not demonstrated timely and widespread support from gaining places on its ballot, Ohio‘s provisions tend to guard against the possibility that small-party candidates will draw enough support to prevent either of the major contenders from obtaining
In pursuing this interest Ohio has, at the same time, not completely prevented new parties from gaining access to that State‘s ballot. It has authorized ballot position for parties that can demonstrate by petition the support of 15% of the voting public 90 days before a primary election is to be held. My Brethren seem to suggest that the percentage figure is set too high, and the date too early. But I cannot join in this kind of second-guessing. While necessarily arbitrary, Ohio‘s standards can only be taken to represent reasonable
Although Ohio‘s provisions do not freeze the Republican and Democratic Parties into the State‘s election structure by specific reference to those parties, it is true that established parties, once they become participants in the electoral process, continue to enjoy ballot position so long as they have polled 10% of the vote in the most recent Ohio gubernatorial election. It is suggested that the disparity between this figure and the 15% requirement applicable to new parties is invidiously discriminatory. But I cannot accept the theory that Ohio is constitutionally compelled to apply precisely the same numerical test in determining whether established parties enjoy widespread support as it applies in determining that question with regard to new parties.
It is by no means clear to me that as an abstraсt matter there are no differences between parties that have long been on the ballot in a State and those that have not, such as might justify disparate standards for determining in those two classes of cases when widespread support, required for ballot position, has been demonstrated. In any event, I cannot conclude that the disparity involved here denies equal protection of the laws. The difference in figures is a difference between the requirements for getting on and staying on the ballot. It seems to me to be well within the State‘s powers to set somewhat different standards for those two requirements, so long as it applies them uniformly to all political parties. The only remaining argument would seem to be that the Republican and Democratic Parties never had to meet the 15% requirement: they were on the ballot in Ohio at the time the statutory scheme was
IV.
The Court‘s opinion appears to concede that the State‘s interest in attempting to ensure that a minority of voters do not thwart the will of the majority is a legitimate one, but summarily asserts that this legitimate interest cannot constitutionally be vindicated. That assertion seems to echo the claim of my concurring Brethren—a claim not made by the appellants—that Ohio‘s statutory requirements in some way infringe upon
As the language of
In Thomas v. Collins and De Jonge v. Oregon, supra, the very design of the statutes in question was to prevent persons from freely meeting together to advance political or social views. Ohio‘s laws certainly are not of that nature. In the other three cases cited, all involving the activities of the National Association for the Advancement of Colored People, the statutes challenged were not on their face calculated to affect associational rights. We were able to determine with a good deal of certainty in those cases, however, (1) that application of the statutes to the NAACP would clearly result in a considerable impairment of those rights, and (2) that the interest said to underlie the statutes was insubstantial in the contexts presented. I believe that those conclusions should as a general matter be regarded as prerequisites to any holding that laws such as those involved here, which serve a lеgitimate state interest but are said to have some impact on
In NAACP v. Alabama, supra, for instance, where the NAACP was ordered in accord with state law to disclose its membership lists, we outlined the issues as follows:
“We think that the production order, in the respects here drawn in question, must be regarded as entailing the likelihood of a substantial restraint upon the exercise by petitioner‘s members of their right to freedom of association. Petitioner has made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and
other manifestations of public hostility. Under these circumstances, we think it apparent that compelled disclosure of petitioner‘s Alabama membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure. . . . .
“We turn to the final question whether Alabama has demonstrated an interest in obtaining the disclosures it seeks from petitioner which is sufficient to justify the deterrent effect which we have concluded these disclosures may well have on the free exercise by petitioner‘s members of their constitutionally protected right of association. . . .
. . . .
“The exclusive purpose [of the state authorities] was to determine whether petitioner was conducting intrastate business in violation of the Alabama foreign corporation registration statute, and the membership lists were expected to help resolve this question. The issues in the litigation commenced by Alabama by its bill in equity were whether the character of petitioner and its activities in Alabama had been such as to make petitioner subject to the registration statute, and whether the extent of petitioner‘s activities without qualifying suggested its permanent ouster from the State. Without intimating the slightest view upon the merits of these issues, we are unable to perceive that the disclosure of the names of petitioner‘s rank-and-file members has a substantial bearing on either of them. . . .” 357 U. S., at 462-464.
“On this record it sufficiently appears that compulsory disclosure of the membership lists of the local branches of the National Association for the Advancement of Colored People would work a significant interference with the freedom of association of their members. There was substantial uncontroverted evidence that public identification of persons in the community as members of the organizations had been followed by harassment and threats of bodily harm. There was also evidence that fear of community hostility and economic reprisals that would follow public disclosure of the membership lists had discouraged new members from joining the organizations and induced former members to withdraw. This repressive effect, while in part the result of private attitudes and pressures, was brought to bear only after the exercise of governmental power had threatened to force disclosure of the members’ names. . . . Thus, the threat of substantial governmеnt encroachment upon important and traditional aspects of individual freedom is neither speculative nor remote.
“Decision in this case must finally turn, therefore, on whether the cities as instrumentalities of the State have demonstrated so cogent an interest in obtaining and making public the membership lists of these organizations as to justify the substantial abridgment of associational freedom which such disclosures will effect. . . .
“In this record we can find no relevant correlation between the power of the municipalities to impose occupational license taxes and the compulsory disclosure and publication of the membership lists of the local branches of the National Association for the
Here, there certainly is no comparable showing that Ohio‘s ballot requirements have any substantial impact on the attempts of political dissidents to organize effectively. Such persons are entirely free to assemble, speak, write, and proselytize as they see fit. They are free either to attempt to modify the character of the established major parties or to go their own way and set up separate political organizations. And if they can timely demonstrate that they have substantial support within the State—according to Ohio‘s reasonable standards for deciding that question—they may secure ballot position for the candidates they support. Ohio has restricted only their ability to secure ballot position without demonstrating that support. To me the conclusion that that single disability in any way significantly impairs their
Nor, I think, can we with any confidence conclude that Ohio‘s interest in attempting to ensure that the will of the majority shall prevail is an insubstantial one. It requires more insensitivity to constitutional principles of federalism than I possess to tell Ohio that that interest is, ac-
V.
It is thought by a great many people that the entire electoral college system of presidential selection set up by the Constitution is an anachronism in need of major overhaul.13 As a citizen, I happen to share that view. But this Court must follow the Constitution as it is written, and
MR. JUSTICE WHITE, dissenting in No. 543 and concurring in No. 544.
I agree with much of what my Brother STEWART says in his dissenting opinion in No. 543. In my view, neither
In the face of such requirements, which neither alone nor in combination are unconstitutional, I do not understand how the American Independent Party may be ordered on the ballot over the objections of the State. The Independent Party has not complied with the provision that it show a sufficient base of popular support in time for participation in a primary. Indeed, the Party made no effort whatsoever to comply with these provisions. It claims it secured the necessary number of signatures but admits it wholly ignored the requirement that the petitions be filed prior to the primary election date. Had it filed them, and been denied participation in the primary or the election for failure to meet some other requirement, the case would be very different. But it did not even commence judicial challenge of the signature requirement, not to mention gathering signatures, in time to participate in the primary. The Independent Party is in no position to complain that it would have been impos-
That other Ohio provisions related to later phases of the election process might have imposed unconstitutional barriers to ballot position is no reason to excuse the Independent Party from complying with those preconditions which the State may validly impose. Why a majority of the Court insists on holding the primary petition requirement impermissible, not on its own demerits, but because it appears in the statute books with more questionable provisions is the major mystery of the majority position. Neither the Independent nor the Socialist Labor Party is entitled to relief in this Court.
MR. CHIEF JUSTICE WARREN, dissenting.
We have had but seven days to consider the important constitutional questions presented by these cases. The rationale of the opinion of the Court, based both on the Equal Protection Clause and the
I.
I cannot agree that the State of Ohio should be compelled to place the candidates of the American Independent Party on the ballot for the impending presidential election. Nor can I draw a distinction between this Party and the Socialist Labor Party. Both suits were filed in July of this year, and both were decided on August 29, 1968. The following week the American Independent Party petitioned the Circuit Justice for its Circuit for provisional relief, which was granted on September 10. The Socialist Labor Party sought similar relief only three days after the September 10 order was issued. MR. JUSTICE STEWART granted provisional relief to one, but denied it to the other. No Ohio statutory deadline compelled that result, and presumably Ohio could have complied with an order granting the same relief to both Parties.2 Both Parties should be treated alike; otherwise, we are bowing to a show of strength rather than applying constitutional principles.
Appellants have invoked the equity jurisdiction of the federal courts. Placed in this context, the litigation be-
The Socialist Labor Party has been an organized political party in Ohio since the end of the 19th century, and although it has not achieved ballot position since the enactment in 1948 of the laws it challenges,4 not until July 2, 1968, did it press its claims for equitable relief. Similarly, the supporters of George C. Wallace did not institute their action until July 29, 1968, although early in 1967 Governor Wallace had expressed interest in the Presidency,5 and, in the spring of that year, he voiced concern for the restrictive nature of Ohio‘s qualifying laws.6
Nevertheless, neither the American Independent Party nor the Socialist Labor Party made an effort to comply with Ohio‘s election laws. Nor has either timely invoked the jurisdiction of the courts. That both had the opportunity to do so cannot be denied. Because the
Despite these delays in instituting suit and the failure of either party to make an effort to comply with any of Ohio‘s election laws, the District Court ordered Ohio to provide for write-in voting. This relief guaranteed that each Ohio voter would have the right to vote for the candidate of his choice, including the candidates of these two Parties. At worst, therefore, denying appellants a position on the ballot for the 1968 election prevented their candidates from competing on a completely equal basis with the candidates of the two major parties.
The imminence of the election, the Parties’ failure to comply with Ohio law and the District Court‘s grant of partial relief must be considered in conjunction with the need to promote orderly federal-state relationships. Our reports are replete with decisions concerning the nature of the relief to be afforded in these sensitive areas, yet the opinion of the Court does not address itself to the principles of these cases. In the analogous area of legislative apportionment, we have often tolerated a temporary dilution of voting rights to protect the legitimate interests of the States in fashioning their own elec-
For example, in WMCA, Inc. v. Lomenzo, 377 U. S. 633 (1964), holding unconstitutional the apportionment of New York‘s Legislature, we stated that on remand the District Court “acting under equitable principles, must now determine whether, because of the imminence of that election and in order to give the New York Legislature an opportunity to fashion a constitutionally valid legislative apportionment plan, it would be desirable to permit the 1964 election of legislators to be conducted pursuant to the existing [unconstitutional] provisions, or whether under the circumstances the effectuation of appellants’ right to a properly weighted voice in the election of state legislators should not be delayed beyond the 1964 election.”8 Id., at 655. (Emphasis added.)
The result achieved here is not compatible with recognized equitable principles, nor is it compatible with our traditiоnal concern, manifested in both the reapportionment and school desegregation cases, for preserving the properly exercised powers of the States in our federal system. Moreover, in none of these analogous areas did we deal with an express constitutional delegation of power to the States. That delegation is unequivocal here.
The net result of the Court‘s action is that this Court is writing a new presidential election law for the State of Ohio without giving the Legislature or the courts of that State an opportunity to appraise their statutes in litigation9 or to eliminate any constitutional defects
II.
Although I believe that the court below properly exercised its discretionary equitable powers, this litigation involves far more than a resolution of whether either Party is entitled to ballot position for the 1968 election. Appellants’ request for declaratory relief, challenging the constitutionality of Ohio‘s system of conducting presidential elections, has raised a question which may be fairly classified as one of first impression:10 to what extent may a State, consistent with equal protection and the
Both the opinion of this Court and that of the District Court leave unresolved what restrictions, if any, a State can impose. Although both opinions treat the Ohio statutes as a “package,” giving neither Ohio nor the courts any guidance, each contains intimations that a State can by reasonable regulation condition ballot posi-
Whatever may be the applicable constitutional principles, appellants and the State of Ohio are entitled to know whether any of the various provisions attacked in this litigation do comport with constitutional standards. As demonstrated by Zwickler v. Koota, 389 U. S. 241 (1967),11 this matter should be first resolved by the court below. Given the magnitude of the questions presented and the need for unhurried deliberation, I would dispose of appellants’ request for declaratory relief in a manner consistent with Zwickler by a remand to the District Court for a clearer determination of the serious constitutional questions raised in these cases.
I must therefore dissent from the failure of the Court‘s opinion to explore or dispose adequately of the declaratory judgment actions, as well as from the grant of extraordinary relief in No. 543.
Notes
”First, at the primary election, the new party, or any political party, is required to elect a state central committee consisting of two members from each congressional district and county central committees for each county in Ohio. [
I do not think any significance should be given to the fact that the interim relief granted by MR. JUSTICE STEWART made it physically possible to place the American Independent Party on the ballot. This relief, as explicitly recognized by MR. JUSTICE STEWART, was granted solely to allow Ohio to comply with all possible orders of this Court.
| Signatures Required as a % of Electorate | No. of States |
| De minimis to 0.1% | 16 |
| 0.1% to 1% | 26 |
| 1.1% to 3% | 3 |
| 3.1% to 5% | 4 |