MR. CHIEF JUSTICE BRUGER delivered the opinion of the Court.
Under Texas law, a candidate must pay a filing fee as a condition to having his name placed on the ballot in a primary election.
Appellee Pate met all qualifications to be a candidate in the May 2, 1970, Democratic primary for the office of County Commissioner of Precinct Four for El Paso County, except that he was unable to pay the $1,424.60 assessment required of candidates in that primary.
After being denied places on the Democratic primary ballots in their respective counties, these appellees instituted separate actions in the District Court challenging the validity of the Texas filing-fee system. Their actions were consolidated, and a three-judge District Court was convened pursuant to 28 U. S. C. §§ 2281 and 2284. Appellee Jenkins was permitted to intervene as a voter on his claimed desire to vote for Wischkaemper, and appellee Guzman and others were permitted to intervene as voters desiring to cast their ballots for Pate. On April 3, 1970, the District Court ordered that Wischkaemper and Pate be permitted to participate in the primary conducted on May 2, 1970, without pre-payment of filing fees.
Under the Texas statute, payment of the filing fee is an absolute prerequisite to a candidate's participation in a primary election. There is no alternative procedure by which a potential candidate who is unable to pay the fee can get on the primary ballot by way of petitioning voters,
Candidates for most district, county, and precinct offices must pay their filing fee to the county executive committee of the political party conducting the primary;
The record shows that the fees required of the candidates in this case are far from exceptional in their magnitude.
The filing-fee requirement is limited to party primary elections, but the mechanism of such elections is the creature of state legislative choice and hence is "state action" within the meaning of the Fourteenth Amendment. Gray v. Sanders, 372 U.S. 368 (1963); Nixon v. Herndon, 273 U.S. 536 (1927).
In Harper v. Virginia Board of Elections, 383 U.S. 663 (1966), the Court held that Virginia's imposition of an annual poll tax not exceeding $1.50 on residents over the age of 21 was a denial of equal protection. Subjecting the Virginia poll tax to close scrutiny, the Court concluded that the placing of even a minimal price on the exercise of the right to vote constituted an invidious discrimination. The problem presented by candidate filing fees is not the same, of course, and we must determine whether the strict standard of review of the Harper case should be applied.
The initial and direct impact of filing fees is felt by aspirants for office, rather than voters, and the Court has not heretofore attached such fundamental status to
Unlike a filing-fee requirement that most candidates could be expected to fulfill from their own resources or at least through modest contributions, the very size of the fees imposed under the Texas system gives it a patently exclusionary character. Many potential office seekers lacking both personal wealth and affluent backers are in every practical sense precluded from seeking the nomination of their chosen party, no matter how qualified they might be, and no matter how broad or enthusiastic their popular support. The effect
Because the Texas filing-fee scheme has a real and appreciable impact on the exercise of the franchise, and because this impact is related to the resources of the voters supporting a particular candidate, we conclude, as in Harper, that the laws must be "closely scrutinized" and found reasonably necessary to the accomplishment of legitimate state objectives in order to pass constitutional muster.
Appellants contend that the filing fees required by the challenged statutes are necessary both to regulate
The Court has recognized that a State has a legitimate interest in regulating the number of candidates on the ballot. Jenness v. Fortson, 403 U. S., at 442; Williams v. Rhodes, 393 U. S., at 32. In so doing, the State understandably and properly seeks to prevent the clogging of its election machinery, avoid voter confusion, and assure that the winner is the choice of a majority, or at least a strong plurality, of those voting, without the expense and burden of runoff elections.
There is no escape from the conclusion that the imposition of filing fees ranging as high as $8,900 tends to limit the number of candidates entering the primaries. However, even under conventional standards of review, a State cannot achieve its objectives by totally arbitrary means; the criterion for differing treatment must bear some relevance to the object of the legislation. Morey v. Doud, 354 U.S. 457, 465 (1957); Smith v. Cahoon, 283 U.S. 553, 567 (1931). To say that the filing fee requirement tends to limit the ballot to the more serious candidates is not enough. There
Instead of arguing for the reasonableness of the exclusion of some candidates, appellants rely on the fact that the filing-fee requirement is applicable only to party primaries, and point out that a candidate can gain a place on the ballot in the general election without payment of fees by submitting a proper application accompanied by a voter petition.
In addition to the State's purported interest in regulating the ballot, the filing fees serve to relieve the State treasury of the cost of conducting the primary elections, and this is a legitimate state objective; in this limited sense it cannot be said that the fee system lacks a rational basis.
We also reject the theory that since the candidates are availing themselves of the primary machinery, it
Appellants seem to place reliance on the self-evident fact that if the State must assume the cost, the voters, as taxpayers, will ultimately be burdened with the expense of the primaries. But it is far too late to make out a case that the party primary is such a lesser part of the democratic process that its cost must be shifted away from the taxpayers generally. The financial burden for general elections is carried by all taxpayers and appellants have not demonstrated a valid basis for distinguishing between these two legitimate costs of the democratic process. It seems appropriate that a primary system designed to give the voters some influence at the nominating stage should spread the cost among all of the voters in an attempt to distribute the influence without regard to wealth. Viewing the myriad governmental functions supported from general revenues, it is difficult to single out any of a higher order than the conduct of elections at all levels to bring
Since the State has failed to establish the requisite justification for this filing-fee system, we hold that it results in a denial of equal protection of the laws. It must be emphasized that nothing herein is intended to cast doubt on the validity of reasonable candidate filing fees or licensing fees in other contexts. By requiring candidates to shoulder the costs of conducting primary elections through filing fees and by providing no reasonable alternative means of access to the ballot, the State of Texas has erected a system that utilizes the criterion of ability to pay as a condition to being on the ballot, thus excluding some candidates otherwise qualified and denying an undetermined number of voters the opportunity to vote for candidates of their choice. These salient features of the Texas system are critical to our determination of constitutional invalidity.
MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case.
No fees are assessed against candidates in general elections.
Former Art. 13.08c (repealed, Acts 1967, 60th Leg., p. 1932. c. 723, § 77) permitted write-in votes in primary elections and provided that if a write-in candidate in the first primary either received a majority of the votes or was one of the two highest vote getters in a race in which no candidate received a majority of the votes, he could not be the party's nominee in the general election or participate in the run-off primary, unless and until he paid the filing fee he would have been assessed had he originally sought a place on the primary ballot.
It should be noted, however, that amounts not needed to finance the primary are refunded to the candidates, and that in some counties refunds tend to run as high as 50% or more of the assessed filing fee.
Population of County Filing Fee less than 650,000................................... $150 650,000 to 900,000.................................. $600 900,000 to 1,000,000................................ $300 1,000,000 or more................................... $500
It is not clear from the face of the statute why candidates from counties having populations between 650,000 and 900,000 must pay more than candidates from counties of larger sizes.
An additional provision requires that candidates for State Representative from districts encompassing either eight or nine counties must pay $25 per county as a filing fee. Art. 13.08a, Tex. Election Code Ann. (Supp. 1970-1971).
Population of County Filing Fee 650,000 to 900,000
*............................. $1,000 900,000 to 1,000,000................................ $ 300 1,000,000 or more................................... $1,000 *If part of such county is joined to two or more counties to constitute a senatorial district, the filing fee is fixed at $250.
There is a ceiling on the filing fee if nomination is sought in a senatorial district encompassing counties with less than 650,000 in population. Art. 13.16 subd. 1, Tex. Election Code Ann. (Supp. 1970-1971):
Filing Fee Population of County per County less than 5,000..................................... $ 1 5,000 to 10,000..................................... $ 5 10,000 to 40,000.................................... $ 10 40,000 to 125,000................................... $ 50 125,000 to 200,000.................................. $ 75 200,000 to 650,000.................................. $100
Persons seeking nomination in a senatorial district constituting exactly two counties must pay a filing fee of $200.
The Act provides that it is to go into effect only if "(1) the Supreme Court of the United States does not dispose of the appeal [in this case] . . . before January 1, 1972; or (2) the Supreme Court of the United States affirms or refuses to review the judgment of the district court in the aforesaid case . . ." (§ 7 (b)). The Act expires of its own force on December 31, 1972, at which time the prior law goes back into effect.
Although the Act has gone into effect due to the absence of decision by the Court on this appeal before January 1, 1972, the change in the law does not render this case moot. The effect of the "contingent, temporary law" enacted by the Texas Legislature is to suspend enforcement of the strict filing-fee requirement during calendar year 1972. Since enforcement of the filing-fee requirement under the prior law was permanently enjoined by the court below, that injunction would continue to have force and effect after December 31, 1972. Furthermore, there is a continuing controversy with respect to appellees' obligation to pay the filing fees for participation in the Democratic primary held on May 2, 1970. The order of the District Court allowing appellees Pate and Wischkaemper to run in the primary without payment of fees stated that they would be liable for the fees if they did not ultimately prevail in this action. See n. 3, supra.
We take note of the fact that in Johnston v. Luna, 338 F.Supp. 355 (ND Tex. 1972), the same three-judge court that issued the injunction appealed from in this case, declared the new law unconstitutional and enjoined its enforcement. Our attention is confined to the case before us, and we intimate no view on the merits of that controversy.