HENLEY, Circuit Judge.
Harley McLain, an independent candidate for the United States Congress from North Dakota in the November, 1978 election, appeals the district court's
The district court reviewed each of the statutes under the rational basis standard and concluded that they can withstand constitutional scrutiny. For reasons to be stated, we reverse in part and affirm in part.
In summer, 1978 McLain organized the political group "Chemical Farming Banned," registering it with the Federal Election Commission.
Two weeks before the 1978 election, McLain first viewed the ballot which would be used.
The defendants in this case, the Secretary of State for North Dakota and the State Attorney General (hereinafter "the State"), subsequently moved to dismiss McLain's complaint for failure to state a claim upon which relief could be granted. The district court, after considering the motion and various exhibits, on December 28, 1978 rendered what amounted to a summary judgment in favor of the defendants. On appeal this court vacated the district court's decision and remanded the case for further proceedings, specifying that the district court should permit a clarifying amendment of McLain's pro se complaint so as to draw North Dakota statutes §§ 16-04-20 and 16-11-05 clearly into the controversy. McLain v. Meier, 612 F.2d 349 (8th Cir. 1979).
With the aid of counsel, on remand McLain filed an amended complaint which was followed by additional discovery and a hearing in district court. Ultimately, the district court again entered judgment, accompanied by an as yet unpublished opinion, dismissing McLain's complaint. McLain v. Meier, No. A78-3075 (D.N.D. July 15, 1980). [McLain v. Meier, 496 F.Supp. 462 (D.N.D.1980)]
McLain appeals the judgment of dismissal pursuant to 28 U.S.C. § 1291.
A. The Ballot Access Statute: N.D.C.C. § 16-04-20(4).
The North Dakota access statute, N.D.C.C. § 16-04-20(4), provides a single method of ballot access for a "new" political party. Such a party may field candidates designated as its nominees "if a petition signed by fifteen thousand or more electors of this state is filed with the secretary of state before four o'clock p. m. on June first of any primary election year." N.D.C.C. § 16-04-20(4).
The district court found that these filing requirements did not have a "real and appreciable impact on the exercise of the franchise," McLain v. Meier, supra, at 468, citing Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972). In the absence of a substantial burden on the fundamental rights of voting and political association,
Ballot access statutes are not susceptible of easy analysis, nor is the appropriate standard of review always easy to discern. See, e. g., Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 188-90, 99 S.Ct. 983, 992-994, 59 L.Ed.2d 230 (1979) (opinions of Blackmun, J., concurring, and Stevens, J., concurring in the judgment); Rosario v. Rockefeller, supra, 410 U.S. at 767, 93 S.Ct. at 1254 (Powell, J., dissenting); Socialist Workers Party v. March Fong Eu, 591 F.2d 1252, 1261 n.5 (9th Cir. 1978), cert. denied, 441 U.S. 946, 99 S.Ct. 2167, 60 L.Ed.2d 1049 (1979). However, our reading of decisional law in this area leads us to conclude that the district court erred both as to the appropriate standard of review and as to the merits of the access statute.
The district court correctly noted that statutes affecting the right to vote must cause a discrimination "of some substance" before the compelling state interest test is triggered. American Party of Texas v. White, 415 U.S. 767, 781, 94 S.Ct. 1296, 1306, 39 L.Ed.2d 744 (1974); see also Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); McDonald v. Bd. of Election Comm'rs. of Chicago, 394 U.S. 802, 89 S.Ct. 1404, 22 L.Ed.2d 739 (1969). However, this burden of proof has not been difficult to meet because "voting is of the most fundamental significance under our constitutional structure" and requires jealous protection. Illinois State Bd. of Elections v. Socialist Workers Party, supra, 440 U.S. at 184, 99 S.Ct. at 990. We have noted in the past that access restrictions must be reasonable, must be justified by reference to a compelling state interest, and may not go beyond what the state's compelling interests actually require, MacBride v. Exon, supra, 558 F.2d at 448, because the fundamental right to vote is inseparable from the right to place the candidate of one's choice on the ballot.
Accordingly, we cannot avoid a hard and realistic review of North Dakota's access statute, in which we "consider the facts and circumstances behind the [access] law, the interests which the State claims to be protecting, and the interests of those who are disadvantaged by the classification." Storer v. Brown, supra, 415 U.S. at 730, 94 S.Ct. at 1279, citing Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) and Dunn v. Blumstein, supra, 405 U.S. at 335, 92 S.Ct. at 999. See also Mandel v. Bradley, 432 U.S. 173, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977) (remanding for further findings regarding the burden imposed on independent candidates, as determined by such variables as the time allowed for collection of signatures, the pool of potential signers, the filing deadline, and the experience of past candidates). Under this exacting standard of scrutiny, we conclude that North Dakota's access restrictions are unnecessarily oppressive, and hence unconstitutional.
Admittedly, argument can be made that North Dakota's 3.3% signature requirement is valid. Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971) (upholding 5% signature requirement); Rock v. Bryant, 459 F.Supp. 64 (E.D.Ark.), aff'd mem., 590 F.2d 340 (8th Cir. 1978) (upholding signature requirement of 3% of qualified electors or 10,000, whichever is less). However, the number of signatures required by North Dakota is significantly higher than that required in most states. See Williams v. Rhodes, supra, 393 U.S. at 47 n.10, 89 S.Ct. at 19 n.10; Storer v. Brown, supra, 415 U.S. at 739 n.10, 94 S.Ct. at 1283 n.10; Developments in the Law-Elections, 88 Harv.L.Rev. 1111, 1124 n.11 (1975).
Moreover, as is evident from the Supreme Court's analysis in Mandel v. Bradley, supra, 432 U.S. 173, 97 S.Ct. 2238, 53 L.Ed.2d 199, the facial validity of a signature requirement is but one indication of the constitutionality of a state's access provisions. As we indicated in MacBride, supra, 558 F.2d at 449, and as has been recognized in other contexts, American Party of Texas v. White, supra, 415 U.S. at 785, 94 S.Ct. at 1308; Rock v. Bryant, supra, 459 F.Supp. at 73-74, the time at which nominating petitions are filed can have an equal if not greater impact on the viability of third party candidacy.
North Dakota's filing deadline of June 1, more than ninety days before the primary election and more than one hundred fifty days before the general election
In the present instance, North Dakota's filing deadline more than ninety days in advance of the primary election impresses us as unnecessarily removed from the time of the major parties' most active campaigning. We have previously noted that a filing deadline ninety days in advance of the primary requires a third party candidate to qualify at a time when the individual's candidacy may be purely potential and contingent upon developments that may occur months later. MacBride v. Exon, supra, 558 F.2d at 449; see also Anderson v. Celebrezze, 499 F.Supp. 121 (S.D.Ohio 1980) (75-day preprimary deadline is unconstitutional). Given North Dakota's relatively high signature requirement, the North Dakota ballot access scheme in its totality
Finally, our decision is influenced by the experience of other third party groups, which has not been particularly happy in North Dakota. In Storer v. Brown, supra, the Supreme Court suggested that the experience of a "reasonably diligent ... candidate" is a helpful if not unerring guide to the constitutionality of access requirements. "[I]t [is] one thing if independent candidates have qualified with some regularity and quite a different matter if they have not." 415 U.S. at 742, 94 S.Ct. at 1285 (emphasis added).
Here, the record shows that third parties have not qualified for ballot position in North Dakota with regularity, or even occasionally. The American Party is apparently the only third party to field party candidates in the past three decades. By affidavit in the record on appeal, it is reflected that the American Party's successful petition drive in 1976 was an exhausting, even crippling effort, and that a second petition drive is beyond the resources of the group. Especially telling is the statement of the American Party affiant that "[i]n order to obtain 15,000 signatures, you have to contact many, many more than that number of people in order to obtain the required number," and that approximately 1,500 man hours are needed to obtain 15,000 signatures.
In sum, it seems clear to us that North Dakota's access requirements go beyond what is required by the State's valid interest in the effective functioning of the electoral process. The State may understandably and properly seek to prevent the clogging of its election machinery with frivolous, fraudulent or confusing candidacies. Storer v. Brown, supra, 415 U.S. at 732, 733, 94 S.Ct. at 1280. However, as the Supreme Court has noted, 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. Williams v. Rhodes, supra, 393 U.S. at 33, 89 S.Ct. at 11. The remote danger of multitudinous fragmentary groups cannot justify an immediate and crippling effect on the basic constitutional right to vote for a third party candidate. Accordingly, we reverse the judgment of the district court upholding as constitutional North Dakota's ballot access requirements.
B. The Incumbent First Statute: N.D.C.C. § 16-11-06.
McLain's next two contentions involve the treatment of independent, as opposed to party-backed, candidates on North Dakota's general election ballot. Appellant concedes that independent candidates have fair access to the ballot but alleges that they are disadvantaged by their placement on it.
McLain perceives in this ballot format the problem of the "donkey" vote, less insultingly known as the capricious or indifferent vote. He alleges that if all other factors are equal, the undecided or uninformed voter will be drawn to the name appearing first on the ballot. McLain contends that in a close election, victory may in fact turn on the windfall vote which accompanies an advantageous ballot position.
The effect of ballot placement on voting is a matter of fact. Accordingly, we turn first to the question whether the district court's finding on this matter was clearly erroneous within the meaning of Fed.R.Civ.P. 52(a). The district court found an inference that some advantage may accrue to the candidate whose name appears first, relying primarily on the affidavit of an expert statistician for McLain, who reviewed various studies and concluded that there is "a definitive statistical advantage accruing to a candidate whose name appears first ... on an election ballot ... an advantage of at least five (5) percent." No contrary evidence was introduced.
The State contends that the district court's finding was erroneous because two
However, a finding that advantage accrued to the incumbent party on the 1976 North Dakota ballot does not end our inquiry. The unequal effect flowing from the ballot design gives rise to the equal protection question whether the inequality is such as offends the fourteenth amendment.
The standard of review which applies to this question is anything but clear, particularly because the placement of candidates on a ballot does not involve absolute exclusion. Thus, although ballot format has an effect on the fundamental right to vote, the effect is somewhat attenuated. In these circumstances, most courts have applied the rational basis test. Krasnoff v. Hardy, 436 F.Supp. 304 (E.D.La.1977); Clough v. Guzzi, supra, 416 F.Supp. at 1067; cf. Seventh Circuit analysis requiring a showing of "intentional or purposeful discrimination by authorities" and actual disadvantage, Bd. of Election Comm'rs. v. Libertarian Party of Illinois, 591 F.2d 22, 24-25 (7th Cir.), cert. denied, 442 U.S. 918, 99 S.Ct. 2840, 61 L.Ed.2d 285 (1979), citing Bohus v. Bd. of Election Comm'rs., 447 F.2d 821 (7th Cir. 1971), and Sangmeister v. Woodard, supra, 565 F.2d 465.
In the present case, we find that North Dakota's "incumbent first" statute does not withstand even this minimal standard of review, because the justification offered for North Dakota's ballot arrangement is unsound. The district court, citing Bd. of Election Comm'rs. v. Libertarian Party, supra, 591 F.2d at 27, reasoned that North Dakota has an interest in making the ballot as convenient and intelligible as possible for the great majority of voters. This justification virtually admits that the state has chosen to serve the convenience of those voters who support incumbent and major party candidates at the expense of other voters. Such favoritism burdens the fundamental right to vote possessed by supporters of the last-listed candidates, in violation of the fourteenth amendment. For this reason, we join the numerous other courts which have held "incumbent first" ballot procedures to be constitutionally unsound. Netsch v. Lewis, 344 F.Supp. 1280 (N.D.Ill.1972); Gould v. Grubb, supra, 14 Cal.3d 661, 122 Cal.Rptr. 377, 536 P.2d 1337; Holtzman v. Power, supra, 313 N.Y.S.2d 904, 62 Misc.2d 1020; see also Sangmeister v. Woodard, supra, 565 F.2d 460 (placing Republicans first is unconstitutional); Weisberg v. Powell, supra, 417 F.2d 388 (intentional manipulation of ballot placement by Secretary of State so as to give certain candidates first placement is unconstitutional); Culliton v. Bd. of Election Comm'rs., supra, 419 F.Supp. 126 (placing Republicans first is unconstitutional); Mann v. Powell, 333 F.Supp. 1261 (N.D.Ill.1969) (unconstitutional to break ties for ballot position so as to favor incumbents); Kautenburger v. Jackson, supra, 85 Ariz. 128, 333 P.2d 293 (alphabetical listing unconstitutional). The few decisions favoring or declining to decide the validity of incumbent first provisions involve evidentiary considerations which do not apply here. E. g., Bd. of Election Comm'rs. v. Libertarian Party, supra, 591 F.2d 22 (no showing that two tier ballot was designed to favor major parties); Clough v. Guzzi, supra, 416 F.Supp. 1057 (plaintiff failed to prove a substantial advantage in first ballot position alone); Ulland v. Growe, 262 N.W.2d 412 (Minn.), cert. denied sub nom. Berg v. Growe, 436 U.S. 927, 98 S.Ct. 2822, 56 L.Ed.2d 770 (1978) (expert testimony was inconclusive as to advantage of placing party candidates ahead of independents and positional bias was justifiable under rational basis standard).
C. The "Independent Column" Statute: N.D.C.C. § 16-11-05(4).
McLain's final challenge to North Dakota's ballot design involves N.D.C.C. § 16-11-05(4), which allots party candidates their own column on the ballot while grouping all
Although the issue may be close, we conclude on the present record that North Dakota's provision of a single column for independent candidates meets the rational basis test. Socialist Workers Party v. March Fong Eu, 591 F.2d 1252, 1261 (9th Cir. 1978), cert. denied, 441 U.S. 946, 99 S.Ct. 2167, 60 L.Ed.2d 1049 (1979); Krasnoff v. Hardy, supra, 436 F.Supp. at 308.
Our affirmance of the decision of the district court is based not only on the weight of this authority, but also on additional considerations. First, there is little support for McLain's belief that the ballot design diminishes in any substantial way the status of independent candidates. The affidavit of McLain's expert statistician addresses only the effect of top placement on the ballot. By contrast, there is evidence to support the State's contention that the grouping of independents is necessary to maintain a manageable ballot. The record shows that in 1976 there were eleven candidates listed on the ballot for President, and it is not unreasonable to conclude that an eleven-column ballot would be unwieldy. The State has a legitimate interest in avoiding such a ballot by grouping independents in a single column.
Second, we note that the independent column may serve to identify those candidates who have not demonstrated the modicum of support required for qualification as a party candidate.
425 F.Supp. at 1364.
Let it be clear that we are not saying that single column grouping is the only permissible arrangement of names of independents, or, indeed, that it is the best arrangement. There are many ways to accommodate a number of candidates and still treat all relatively fairly. For example, all candidates could be listed in one column on a rotating basis.
Within constitutional limits, however, the ballot arrangement of independent candidates is a matter of choice for the State and, as indicated, on the record before us we hold that North Dakota's single column arrangement is constitutionally permissible.
The final problem before the court is that of fashioning relief. From what has been said, it follows that declaratory relief should have been granted with respect to "ballot access" and "incumbent first" issues.
We have mentioned the importance of the interplay between the statutory signature requirement and the filing deadline and we will add, perhaps gratuitously, that a relatively high signature requirement may be constitutionally acceptable when coupled with an opportunity to approach voters for signatures at a date less remote from the general election and at which date the major parties' activities may have crystalized the issues. American Party of Texas v. White, supra, 415 U.S. at 784, 94 S.Ct. at 1307.
In similar vein we note that the fairest remedy for a constitutionally defective placement of candidates would appear to be some form of ballot rotation whereby "first position" votes are shared equitably by all candidates. Our preliminary research suggests that the most effective rotation system is one which rotates names from one ballot to the next. However, due to cost and efficiency factors and voting machine design, this system has proved difficult to implement. See Culliton v. Bd. of Election Comm'rs., supra, 419 F.Supp. at 129 n.7; cf. State ex rel. Roof v. Bd. of Comm'rs. of Hardin County, 39 Ohio St.2d 130, 314 N.E.2d 172, 177-81 (1974) (finding precinct by precinct rotation unconstitutional under state constitution and suggesting machine-by-machine rotation); Note, Position of Candidates' Names and Special Designation on Ballots: Equal Protection Problems with the Massachusetts Election Law, IX Suffolk U.L.Rev. 694, 713-15 (1975). In any case, we do not now undertake on this record to determine which rotation arrangement is financially and administratively feasible, although we feel obliged to stress the constitutional requirement that position advantage must be eliminated as much as is possible.
At oral argument appellant admitted that he would not attempt to qualify as a party candidate in the November, 1980 election and we are not advised that he has qualified or expects to qualify as an independent. Thus, so far as any party plaintiff in the case now before us may be concerned, no injunctive relief is necessary either as to access or placement issues.
Since the general election is less than a month away, we have no hope that either the North Dakota Legislature or the district court on remand could devise and put into effect an interim procedure for placement on the November, 1980 ballot. Therefore, reluctantly we must conclude
Generally speaking, ballot requirements and procedures within constitutional limits are primarily the responsibility of the State, and we have no reason to believe the State of North Dakota will not promptly address the questions of ballot access and ballot placement for elections subsequent to November, 1980. We do not deem it appropriate to undertake at this juncture to dictate to the Legislature the full extent to which its election statutes should be amended if they are to be constitutionally tolerable or to specify precise terms of new enactments. There are options and initially the State has the choice of the options it may select.
If new legislation is enacted there will be time enough for its validity to be determined judicially.
In sum, we reverse the judgment of the district court in part and affirm in part. The denial of relief as to the third party access statute, N.D.C.C. § 16-04-20(4), and as to the incumbent first statute, N.D.C.C. § 16-11-06, is reversed and the cause remanded for award of declaratory relief consistent with this opinion. As indicated, McLain needs no permanent injunctive relief and his prayer therefor should be dismissed without prejudice. The judgment of the district court as to the independent column statute, N.D.C.C. § 16-11-05(4), is affirmed.
N.D.C.C. § 16-04-20 (1971 Repl.) [Third Party Access]:
N.D.C.C. § 16-11-06 [Incumbent First]:
N.D.C.C. § 16-11-05 [Independent Column]:
McLain has challenged only the requirements of § 16-04-20(4), which pertain to a "new" party. He does not argue that the access provisions of § 16-04-20(1), (2) and (3) are unconstitutional.
Signatures Required as a Percent of Electorate Number of States ----------------------- ---------------- De minimis to 0.1% 16 0.1% to 1% 26 1.1% to 3% 3 3.1% to 5% 4
Storer v. Brown, supra, 415 U.S. at 737, 94 S.Ct. at 1282.