Ramsay WOOD et al., Plaintiffs, v. Felix PUTTERMAN et al., Defendants.
Civ. No. 70-864-W.
United States District Court, D. Maryland.
Argued Aug. 4, 1970. Decided Aug. 31, 1970. Judgment Affirmed Oct. 19, 1970.
316 F. Supp. 646 | See 91 S.Ct. 104.
H. Thomas Sisk, Rockville, Md., for defendants.
Before WINTER, Circuit Judge, WATKINS, Chief District Judge and KAUFMAN, District Judge.
WINTER, Circuit Judge:
Plaintiffs allege that they are members of the Nonpartisans for a Better Montgomery County (NBMC), allegedly a political party, and that they have been nominated for county office by that party for the general election to be conducted in Montgomery County, Maryland and elsewhere throughout the state on November 3, 1970. They sue to obtain a declaration that certain provisions of the general election laws of the State of Maryland are unconstitutional because they deny due process and equal protection. They seek to enjoin the enforcement of those provisions. The complaint also prays a preliminary injunction and is accompanied by a motion for that relief. The main objective of the suit is to have plaintiffs’ candidacies for county office appear on the ballot at the November, 1970 general election.
Because of the claim of unconstitutionality and the prayer for injunctive relief against enforcement of a state statute, a three-judge court was convened under
I.
We take the facts well pleaded as established for purposes of deciding the motion:
NBMC was organized as a political party which confines its activities to the affairs of Montgomery County. Currently there are approximately 166 registered voters of Montgomery County who are members of NBMC. Most of NBMC‘s members are federal employees who are restricted by the Hatch Act,
At the last election of Montgomery County officials, which took place as part of the general election in November, 1966, NBMC nominated candidates for county council. Its nominees were placed on the ballot by the petition procedure as set forth in
Although not alleged, it is conceded that NBMC did not participate in the general election held in November, 1968, and no candidates of that alleged political party appeared on the ballot by nominating petition or otherwise. The reason for NBMC‘s non-participation was the absence of any Montgomery County offices to be filled at that election.
On June 22 and July 1, 1970, NBMC held a dual primary meeting and primary election convention at which it nominated
II.
The manner by which candidates may appear on the ballot in Maryland is prescribed by
Method of Nomination
§ 4-1. In general.
(a) Nominations for offices which are filled by elections under the provisions of this article may be made by primary election, primary meeting, or petition.
(b) Nominees of political parties which polled 10% or more of the entire vote cast in the State in the last preceding general election shall be nominated by primary election as hereinafter provided.
(c) Nominees of political parties which polled more than 1% but less than 10% may be nominated by primary meeting as hereinafter provided.
(d) Nominees other than of political parties as provided for in (b) or (c) above may be nominated by petition as hereinafter provided.
* * * * * *
We recently had occasion to discuss this section, as well as other provisions of Maryland‘s election laws, in Barnhart v. Mandel, 311 F.Supp. 814 (D.Md.1970). There we held that the American Party must be afforded the opportunity to nominate candidates by primary meeting for the November, 1970 general election.
A careful reading of
The heart of this case, and the issue which we think determinative, is the validity of the provision of Maryland law which limits access to the primary election or primary meeting route for obtaining a position on the ballot only to political parties which participated in the last preceding general election. Stated otherwise, may Maryland in any general election year permit access to the ballot by the primary election or primary meeting route to parties which participated in the last preceding general election and deny it to others which only participated four years before, or earlier? We think the Maryland limitation or classification valid; hence the complaint must be dismissed.
III.
The principles which control this case are set forth in Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), discussed and applied by us in Barnhart, which held that the difference in treatment by the Ohio election laws of the two major parties on the one hand and all other parties on the other hand, making it “virtually impossible” for a third party to obtain a position on the ballot, constituted a denial of equal protection of the laws. Ohio permitted a new party to obtain access to the ballot only by petition signed by qualified voters representing 15% of the number of ballots cast in the last preceding gubernatorial election. But persons qualified to sign the petition were limited to those who had never voted before, and if the requisite number of signatures was obtained, other onerous requirements would come into play. These included the necessity of fielding a slate of candidates for state central committee and the election of delegates to a national convention, the candidates for which must not have voted under other party designation in the preceding four years. Williams v. Rhodes, 393 U.S. at 25, n. 1. By contrast,
We need not repeat the extended discussion of Williams contained in Barnhart. There, Judge Kaufman writing for the court characterized Williams: ”Williams teaches that a third party must have a reasonable opportunity to place its candidates on the ballot in a general election.” 311 F.Supp. at 825. In the context of the contention advanced there—that Maryland must permit the American Party to appear on the ballot in a primary election, Judge Kaufman added:
But nothing in Williams would seem to require that every party must be given the opportunity to hold a primary election. Plaintiffs seem to contend that it is a violation of federal constitutional standards for the State of Maryland to afford and require the use of the primary election route by a political party which polled 10% or more of the ‘entire vote’ in the last general election and at the same time to deny that route to a political party which polled more than 1% but less than 10% of such vote and to make available to the latter only the primary meeting procedures set forth in section 6-1. Such a classification is unconstitutional only if it is unreasonable. (emphasis supplied, footnote eliminated). 311 F.Supp. at 825.
The “reasonable” test, properly deduced by Judge Kaufman from Williams, is as applicable to the circumstances under
Application of the equal protection test to election matters is generally governed by the same principles which control application of the equal protection test in other situations. The latest pronouncement of the Supreme Court with reference to the equal protection test, contained in Dandridge v. Williams, 397 U.S. 471, 90 S.Ct. 1153, 25 L.Ed.2d 491 (1970), is pertinent. In that case it was stated that “if the classification has some ‘reasonable basis,’ it does not offend the Constitution simply because the classification ‘is not made with mathematical nicety or because in practice it results in some inequality.‘” 397 U.S. at 485. Borrowing from a statement in an earlier case, the Court added “‘[a] statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.‘” 397 U.S. at 485. The Court said further that “[i]t is enough that the State‘s action be rationally based and free from invidious discrimination.” 397 U.S. at 487. See also McGowan v. Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961); Salsburg v. Maryland, 346 U.S. 545, 74 S.Ct. 280, 98 L.Ed. 281 (1954).
IV.
A variety of state interests, sufficient to satisfy the tests set out in Dandridge and our previous analysis of Williams, are present in this case. At the outset we note that NBMC is different from the major political parties and from any third party which has heretofore appeared on the Maryland political scene. The difference lies in its restricted scope of interest and activity, both geographically and politically. For purposes of this case, we assume, without deciding, that it is a “political party,” within the meaning of
If NBMC is recognized as a political party and given access to the ballot simply upon a showing of local support at elections in alternate years, there is no reason why its counterparts may not be organized in Baltimore City and other counties throughout the state. More importantly, the possibility, if not the probability, that there will arise competing local political organizations in a single county, or Baltimore City, or even a political subdivision thereof (such as a legislative district, a congressional district, or a councilmanic district) will be greatly enhanced. The presence of a plethora of political parties would necessarily be a source of confusion to the electorate. Numerous political parties would also make increasingly difficult the election of candidates with majority support from the electorate without resort to run-off elections and the attendant expense to the state that they would create. In Williams it was said that “the State does have an interest in attempting to see that the election winner be the choice of the majority of its voters“, and “the existence of multitudinous fragmentary groups might justify some regulatory control.” Williams v. Rhodes, 393 U.S. at 32, 33. The limitation
Williams pointed out that “[c]ompetition in ideas and governmental policies is at the core of our electoral process and of the First Amendment freedoms. New parties struggling for their place must have the time and opportunity to organize in order to meet reasonable requirements for ballot position, just as the old parties have had in the past.” 393 U.S. at 32. As we have pointed out, Maryland‘s petition procedure to obtain initial access to the ballot, unlike Ohio‘s, is not unduly onerous and was successfully followed by NBMC in 1966. In an age of federal aid to states, state aid to municipalities and, in Maryland where absolute home rule has not yet been given to political subdivisions, political ideas and governmental policies may not be neatly compartmentalized on a federal, state and municipal level. There is a legitimate state interest, therefore, in encouraging new parties to take part in the entire political process and not to limit their scope of activities solely to one level of governmental organization in order to make them more truly effective. This objective is furthered by limiting the primary election and primary meeting avenues to the general election ballot to political parties which take an active part in all general elections.
Although we conclude that Maryland‘s discrimination is “reasonable” and “rational,” and not “invidious,” because there are reasons to justify it, we recognize that views may differ as to the wisdom of adopting election laws effectuating the state interests that we have discussed. Much may undoubtedly be said in defense of the concept of a “local political party“—a party which chooses not to participate in every general election. However, Maryland does not preclude the existence of such parties; it only relegates them to a different and more difficult procedure of placing their candidates on the general election ballot. In applying equal protection principles, we are not empowered to decide pure questions of policy. We review only to the extent of deciding if permissible policy has been pursued.
V.
In summary, Maryland‘s classification between political parties which have participated in the next preceding general election and made a minimal showing of support from the electorate and those which have not, the former being permitted to obtain access to the ballot by primary election or primary meeting and the latter limited to access to the ballot by petition, is not unreasonable, in violation of the equal protection clause and invalid as denying First Amendment freedoms.
The motion to dismiss is granted. Counsel may submit an order dismissing the complaint with costs.
FRANK A. KAUFMAN, District Judge (dissenting):
Maryland‘s Constitution provides that county officers shall be elected once every four years for four-year terms.
The majority fears that “[t]he presence of a plethora of political parties would necessarily be a source of confusion to the electorate,” and that “[n]umerous political parties would also make increasingly difficult the election of candidates with majority support from the electorate without resort to run-off elections and the attendant expense to the state that they would create.” In Williams v. Rhodes, 393 U.S. 23, 33, 89 S.Ct. 5, 12 (1968), Mr. Justice Black wrote:
* * * 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.” No such remote danger can justify the immediate and crippling impact on the basic constitutional rights involved in this case. [Footnote omitted.]
It is true that in Williams, Mr. Justice Black‘s above-quoted words were written in the context of issues posed by the Ohio law which differ from those presented herein. But those words would seem equally applicable in this case. The permanent and continuing statutory denial to a county-wide party of the opportunity to get on the ballot other than by way of the petition route imposes a very heavy burden on the achievement by a county-wide party of that cohesiveness and permanency of organization and existence which the Maryland law makes possible for a state-wide party in the county involved. That denial also makes it most difficult for any county-wide party to compete with state-wide parties, within the county in question, on anything like an equal basis. Such unequal treatment of a county-wide party as contrasted with a state-wide party establishes the type of unreasonable classification which Williams teaches is forbidden by the equal protection principles inherent in the Fourteenth Amendment. The Supreme Court‘s application of the one man-one vote principles of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), to units of local government, such as county governing bodies (Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968)) and school boards (Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970)), would seem to illustrate the importance of subjecting local and state-wide voting issues to the same standards. And the heavy burden which must be borne to carve out and justify a special classification in a local election contest is illuminated by Kramer v. Union Free School District, 395 U.S. 621, 89 S.Ct. 1886, 23 L.Ed.2d 583 (1969), involving voter qualifications for local school board elections.1 The possible dangers of fragmentation discussed herein in the majority opinion do not, in my judgment constitute a showing sufficient to shoulder that burden.
The majority opinion cites and discusses Barnhart v. Mandel, 311 F.Supp. 814 (D.Md.1970), in which our decree bends certain statutory language to avoid facial unconstitutionality. In this
In Williams, 393 U.S. at 32, Mr. Justice Black concluded that the State must establish a “compelling interest” before it may be permitted to impose “unequal burdens” on political parties. The majority opinion in this case concludes that there are compelling interests which permit the State of Maryland to impose permanently on a county-wide party the petition route as that party‘s only method of getting on the ballot, and at the same time to make the primary election route or the primary meeting route available to a state-wide party competing for county offices with the county-wide party. I respectfully dissent because I conclude that such a difference in classification creates an unduly onerous burden which is not justified by any compelling state interest and which therefore constitutes a violation of equal protection principles.
FRANK A. KAUFMAN
UNITED STATES DISTRICT JUDGE