SUTTLE, District Judge.
The various plaintiffs, comprised of minor political parties, their candidates for public office, qualified voters wishing to vote for candidates of these political parties, and individuals desiring to run for public office as independent candidates, bring class actions seeking to have this Court declare invalid certain provisions of the Texas Election Code,
The District Court granted an Order restraining the Secretary of State from refusing to accept any signatures gathered on nominating petitions by the Raza Unida and American Parties between June 30, 1972 and September 1, 1972. The validity of any signatures obtained during this period was conditioned upon the determination on the merits by this three-judge Court. While the individual cases involved herein do not raise identical issues, the general nature of their challenges against the Texas Election laws are similar, and by Order of July 28, 1972, the cases were consolidated for hearing and determination before this three-judge Court.
Texas affords four alternative methods of nominating candidates to the ballot for a general election. First, candidates of parties whose gubernatorial candidate polled more than 200,000 votes in the last general election may be nominated by primary election only.
Plaintiffs Raza Unida Party, the American Party of Texas, the Socialist Workers Party, and the Texas New Party all fall into the third category. Therefore, the thrust of these plaintiffs' attack goes to the constitutionality of article 13.45(2). The other plaintiffs represented by Laurel N. Dunn are independent candidates who challenge the constitutionality of article 13.50. Several of the candidates individually challenge the filing requirements of article 13.47a; the age and residency requirements of article 1.05 and Article IV, §§ 4 & 16 of the Texas Constitution, Vernon's Ann.St.; the loyalty oath required by article 6.02; the prohibition in article 13.09(b) against write-in candidates; the "anti-raiding" statute, article 13.11a; and the uniform primary test required by article 13.11. Finally, the American Party of Texas seeks to have this Court declare unconstitutional the McKool-Stroud Primary Financing Law of 1972.
This is another one of those cases where we as Judges are expected to don the "awesome mantle of omnipotence and unerring clairvoyance" to determine if Texas legislation operates to unconstitutionally burden the rights of voters, political parties, and their candidates.
Defendants move to dismiss the complaints in Raza Unida Party v. Bullock and Socialist Workers Party v. Bullock wherein they challenge art. 13.45 (2) of the Texas Election Code. Defendants argue that plaintiffs in the two suits lack standing, and that their cases are moot, because, after their suits were filed, the Texas Secretary of State on August 8, 1972 certified that Raza Unida Party and the Socialist Workers Party had complied with the provisions of art. 13.45(2) and should be placed on the ballot for the November general election. The plaintiffs admit that they could receive no further relief from this Court in this election year. Nevertheless, plaintiffs maintain that they are proper parties who continue to present a justiciable "case or controversy" because excessive funds were spent by them this year in order to comply with the burdensome procedures of the Texas Election Code, and they want assurance that they will not have to repeat the process in the next election year.
The issues presented by the Raza Unida Party and Socialist Workers Party suits with regard to art. 13.45(2) are the same as those presented by the other parties to this suit who have not met the requirements. Thus, the issues are preserved for this Court's determination. Nevertheless, the Court finds that these two parties now lack the requisite "personal stake in the outcome" necessary to preserve jurisdiction in this Court.
Since Yick Wo v. Hopkins,
Although the respondent in this case urges that the traditional "rational basis" test
In Bullock v. Carter, supra, the Court for the first time applied the compelling state interest test to restrictions on candidacy.
In order to have the names of its nominees printed on the general election ballot, a new or minority party must meet the following requirements of article 13.45(2):
1. A list of participants in each precinct convention must be signed and certified by the temporary chairman listing the names, addresses (including street or post-office address), and registration certificate numbers of qualified voters attending such precinct conventions. The names on this list must total at least 1% of the total votes cast for governor at the last preceding general election. This year, the total needed was approximately 22,000 signatures.
2. If the number of qualified voters attending the precinct conventions is less than the required 1%, there must be filed, along with the precinct lists, a petition requesting that the names of the party's nominees be printed on the general election ballot, signed by a sufficient number of additional qualified voters to make a combined total of at least 1% of the total votes cast for governor in the last preceding general election. The address and registration certificate number of each signer must be shown on the petition.
3. No person who, during the voting year, voted at any primary election or participated in any convention of any other party may attend the minority party convention or sign the petition or the signature will be void and that person subject to criminal penalties.
4. The petition may not be circulated for signatures until after the date set for the holding of the major parties' primaries.
5. Each person who signs a petition must be administered an oath
Plaintiffs contend that these requirements, singly and in totality, impede the election process, the right of association guaranteed by the First Amendment, and are violative of the Equal Protection and Due Process Clauses of the Fourteenth Amendment.
Certainly the minimal 1% required by Texas to show voter support as a condition for ballot position serves a legitimate state objective. Percentage requirements of 15%, 7%, and 2% have been struck down by some Courts.
The Court in Jenness, 403 U.S. at 441, 91 S.Ct. 1970, 1975-1976, 29 L.Ed. 2d 554, pointed out that "a large reason" for the invalidation of the Ohio election scheme in Williams was Ohio's requirement that small parties establish "elaborate statewide, county-by-county, organizational paraphernalia." The Texas requirement of precinct, county, and state conventions is obviously more burdensome than the Georgia scheme upheld in Jenness, but is clearly more hospitable to new or small parties than was the "entangling web of election laws" invalidated in Williams. Following the Jenness command to look to the "totality" of a state's requirements, and balancing Texas' burdensome organization requirements against its lenient 1% petition requirement, we hold that the organization requirements are constitutionally permissible.
Plaintiffs challenge the provisions of article 13.45(2) which prevent the circulation of minority party nominating petitions until the day following the majority parties' primary elections, and then prohibit anyone who has voted in a primary from signing a minority party petition. The State argues that the requirement that a new party hold a precinct convention on primary day affords that party an equal opportunity with all other parties to attract the voter to its political process. Thus, if the party has at least 1% support, and the people attend the convention, there is no need for the petition requirement at all. Additionally, if the petitions are
We agree with the State's contentions. The Courts recognize a state's compelling interest to preserve the integrity of its election process.
Likewise, the provision of article 13.45(2) which requires the administering of a prescribed oath before a notary to those signing the petitions serves a compelling interest to insure that participants in one party's nominating process do not participate in another's. When questioned by the Court in oral argument, counsel for Raza Unida Party admitted that the oath and notary requirements did not hinder their efforts to secure signatures. There is apparently no workable alternative to the requirement that each person who signs a petition be administered an oath if the state is to be able to enforce its criminal penalties against cross-over voting and apprize the voters of these possible penalties. Given the state's interest in insuring that different candidates for the same office are supported by different voters, we uphold the oath requirement for want of a feasible alternative.
The State advances two arguments in support of its requirement that a new party circulate and obtain within a 55-day period (120 days before the general election) the required signatures to be filed with the Secretary of State. First, a failure to obtain the required 1% at precinct conventions, and in the 55 days thereafter by petition, indicates that the political party involved lacks political support or initiative. The Court agrees
Of course, "administrative convenience . . . alone may not be invoked to impinge upon the exercise of important constitutional rights."
Nor does the Court find a violation of Equal Protection. The states have broad discretion in formulating election policies. Williams v. Rhodes, 393 U.S. at 34, 89 S.Ct. 5, 21 L.Ed.2d 24. The Supreme Court in Jenness v. Fortson, 403 U.S. at 441, 91 S.Ct. 1970, 29 L.Ed.2d 554, recognized that holding primary elections involved burdens equal to those encountered in circulating nominating petitions. But, as demonstrated by the successful attempt of the Raza Unida and Socialist Workers Parties, the provisions of article 13.45(2) do not operate to "freeze the political status quo." Jenness v. Fortson, supra. As the Court aptly stated in Tansley v. Grasso:
Accordingly, plaintiffs' challenges to the constitutionality of article 13.45(2) are found to be without merit and are denied.
Plaintiffs, American Party of Texas and Texas New Party, challenge the constitutionality of article 13.47a, which requires that a person comply with the provisions of article 13.12 in filing his intention to become a candidate. Article 13.12 provides that the application may not be filed later than 6 p. m. on the first Monday in February (or February 7, 1972 this year), three months preceding the primary or convention. Because the American Party does not allege that any of its candidates were
The State requires all persons, including those who seek election in party primaries, to file on the same date. Therefore, plaintiff's contentions that the provision is violative of equal protection and due process are without merit. Similar contentions were recently rejected in Socialist Workers Party v. Rhodes:
Accordingly, plaintiff Hale's prayer to enjoin the defendant from refusing to place his name on the ballot due to his failure to comply with articles 13.47a and 13.12 is denied.
Plaintiff Debby Leonard, Socialist Workers Party candidate for Governor of Texas, and plaintiff Meyer Alewitz, Socialist Workers Party candidate for Lt. Governor of Texas, challenge the constitutionality of the age and residency requirements for those offices imposed by Article IV, §§ 4 & 16 of the Texas Constitution. Because neither of these plaintiffs have alleged that they were denied access to the ballot for failure to meet the residency requirement, they have no standing to challenge this provision, and we cannot entertain the issue. They do, however, present a justiciable question regarding the age requirement.
Article IV, §§ 4 & 16 of the Texas Constitution provides that the Governor and Lt. Governor of the State of Texas "shall be at least thirty years of age . . . ." Plaintiff Meyer Alewitz is presently 21 years of age. Plaintiff Debby Leonard was 29 years old when she filed, but will be 30 on September 11, 1972 before the general election. Otherwise, each are qualified to hold these elective offices. The parties have not informed the Court whether the Secretary of State interprets the provision as requiring a candidate for these offices to be 30 years of age at the time of filing; the statute is also silent on the matter. For purposes of this discussion, the Court will assume that plaintiff Leonard is not presently qualified as a candidate for Governor.
Plaintiffs claim that it is constitutionally impermissible to deny a citizen who is over 18 years of age elective office simply because he has not reached the age of 30 years. Plaintiffs contend that such invidious discrimination against otherwise qualified citizens cannot be justified by any compelling state interest and thus denies those persons between the ages of 18 and 30 the equal protection of the laws, as well as First Amendment freedoms of association, petition, and speech.
The only case in point which we have been able to find supports plaintiffs' position. In Manson v. Edwards,
We respectfully decline to follow the Manson decision. We find that the state has an interest, whether compelling or otherwise,
Several of the plaintiffs allege that the Texas Election Code is invidiously discriminatory because it does not provide absentee balloting for minority and independent candidates while it does allow absentee ballots to be cast for candidates of majority parties. We find plaintiffs' contentions to be without merit.
The Supreme Court in McDonald v. Board of Election Comm'rs
Conceivably, Texas has a rational basis in refusing to expend the time, money, and effort required to print and distribute absentee ballots at state expense for minority parties.
Plaintiff Laurel N. Dunn, independent candidate for the United States House of Representatives, represents himself and several other independent candidates in their challenge of article 13.50 of the Texas Election Code, which sets out the requirements independent candidates must meet in order to get on the general election ballot.
Other than a general allegation that the requirements of article 13.50 are "unduly burdensome" as to them, plaintiffs present absolutely no factual basis in support of their claims. We reject outright plaintiffs' argument that states can impose no additional election requirements other than those found in the United States Constitution.
The American Party of Texas challenges the constitutionality of the McKool-Stroud Primary Financing Law
The McKool-Stroud Act was passed to provide financing for party primaries after the Supreme Court held the Texas filing fee requirements unconstitutional in Bullock v. Carter,
The State supports the validity of the Act by arguing that only those major parties required to hold primary elections by article 13.02 of the Texas Election Code incur the large expense entailed in conducting a party primary election. The convention and petition procedure available for small or new parties carries with it none of the expensive election requirements burdening those parties required to conduct primaries. There exists no need for expenditures of state funds for political groups which may have little if any voter support. If, however, minority parties reach a size where they are forced to conduct party primary elections, they will, in turn, be the recipients of the State's financial assistance. Such an arrangement is constitutionally permissible.
The only conclusion that can be drawn from the Court's statement is that they anticipated that only those political parties required to engage in the expensive primary elections would receive State financial aid. This Court will not invalidate the Texas Legislature's reasonable attempt to comply with that directive.
In sum, this Court finds that the Texas Election Code is not comprised of "an entangling web of election laws" of the type referred to by Mr. Justice Douglas and invalidated in Williams v. Rhodes, 393 U.S. at 35, 89 S.Ct. at 13. Obviously, it does not operate to "freeze the status quo" since two minority parties have qualified and been certified to the ballot in Texas. Compare Jenness v. Fortson, 403 U.S. at 431, 91 S.Ct. 1970, 29 L.Ed.2d 554. After close scrutiny, this Court cannot say that, in serving its compelling interests, Texas has chosen the way of greater interference in establishing alternative routes to the ballot. Dunn v. Blumstein, 405 U.S. at 343, 92 S.Ct. 995, 31 L.Ed.2d 274.
It is, therefore, ordered, adjudged and decreed:
1. That articles 1.05, 13.11a, 13.45 (2), 13.47a, and 13.50 of the Texas Election Code; the minimum age requirement of Article IV, §§ 4 & 16 of the Texas Constitution; and the McKool-Stroud Primary Financing Law of 1972 are not violative of the First and Fourteenth Amendments to the United States Constitution. Therefore all relief requested by plaintiffs is denied and the complaints are dismissed.
2. That the temporary restraining order heretofore entered extending the time to gather signatures on nominating petitions from June 30, 1972 to September 1, 1972 is hereby dissolved. All signatures obtained during this period are null and void.
3. That all motions not heretofore acted upon by this Court are hereby denied.
An appropriate order will enter accordingly.
The Supreme Court, 1968 Term, 83 Harv.L.Rev. 60, 93 n. 30 (1969).
Because the plaintiffs have failed to allege or show that they were denied access to the ballot through the operation of any of these statutes, the issues presented are not properly before this Court and are not decided.
403 U.S. at 439-442, 91 S.Ct. at 1975, 1976 (emphasis supplied) (footnotes omitted).