upholding a two-year disaffiliation requirement out of fear that “party swapping and changing might become so prevalent that the average political party could no longer function properly”
How later courts described this case
- upholding a two-year disaffiliation requirement out of fear that “party swapping and changing might become so prevalent that the average political party could no longer function properly”
- noting that without such requirements “party swapping and changing might become so prevalent that the average political party could no longer function properly”
- upholding two-year disaffiliation requirement for candidates, and discussing compelling reasons in support thereof
- “The state’s interest in limiting candidates from switching parties *** is greater than its interest in limiting voters from switching parties.”
Written by the judges who cited it.
The opinion
McMILLEN, District Judge
(concurring).
I concur with the result. However, I do not believe that the plaintiffs plead an actual case or controversy with the defendants which justifies a declaratory judgment, and I would therefore dismiss the complaint for this reason.
*577 The plaintiff Oberman has not yet attempted to qualify as a candidate for the legislature. The other plaintiffs may or may not be deprived of the opportunity to support him at the election on March 21, 1972. A number of things could happen before the filing date of December 21, 1971 or before the election which would resolve the matter.
Although the three-judge court’s decision in Jackson v. Ogilvie, 325 F.Supp 864 (N.D.Ill.1971) allowed ’a declaratory action to be filed by a prospective candidate, the first opinion by the United States Supreme Court reveals that the date for filing Jackson’s election petition had passed by the time of the Supreme Court’s opinion. There was therefore an actual controversy with the Election Board ( 401 U.S. 904 , 91 S.Ct. 642 , 27 L.Ed.2d 803 (1971)).
Nevertheless the Supreme Court declined to advance this ease, stating at 401 U.S. 904 , 91 S.Ct. 642 -643:
The court properly stays its hand in this election case that comes to us with the customary plea for emergency action. It was not entirely clear that the three-judge court was properly convened. But assuming it was, the case is peculiarly appropriate for application of the abstention doctrine which we recently applied in Reetz v. Bozanich, 397 U.S. 82 , 90 S.Ct. 788 , 25 L.Ed.2d 68 . . . .
What appellants ask us in substance to do is to sit in direct review of the Election Board. . . . Federal courts cannot act responsibly in those situations.
The three-judge court’s opinion was eventually affirmed without opinion ( 403 U.S. 925 , 91 S.Ct. 2247 , 29 L.Ed.2d 705 ), but the existence of a justiciable controversy was not again discussed by either court. The cases cited by the three-judge court on this point in the Jackson case (Baker v. Carr, 369 U.S. 186 , 82 S.Ct. 691 , 7 L.Ed.2d 663 , and Wesberry v. Sanders, 376 U.S. 1 , 84 S. Ct. 526 , 11 L.Ed.2d 481 ) are not persuasive in the case at bar where the plaintiffs are seeking the invalidation of a statute which has not yet been applied to any of them.
Therefore I would heed the caveat of the United States Supreme Court by dismissing the complaint for lack of present jurisdiction over the subject matter. 28 U.S.C. § 2201 .