Tsongas v. Secretary of the Commonwealth

Kaplan, J.

(dissenting in part). I have a high respect for the careful opinion of the majority and regret that I cannot concur in it. I believe a declaratory decree should be rendered: although the immediate controversy has become moot, the question is alive and is likely to recur in the same form unless a decision is made. Moore v. Ogilvie, 394 U. S. 814, 816 . Cf. Reilly v. School Comm. of Boston, ante, 689-695. The essential question is upon the validity of the statutory procedure which, in an ordinary system of contested elections, places the incumbent first in the listing of candidates on the ballot. I think the procedure is invalid, accepting as I do the finding of the single justice that first place confers an advantage and thereby creates an inequality. The decided cases can no doubt be distinguished in particulars, but courts that have accepted the proposition that first place gives an advantage have thought the advantage impermissible. That appears to be the general effect of the authorities. The majority opinion suggests that the inequality can be palliated or justified by a number of practical or prudential considerations and it declines to go ahead to a conclusion because these considerations have not been fully explored in the record. But the opinion pays too little attention to the fact that we are dealing with a procedure that relates to suffrage. We were reminded in the last *722 Term of the United States Supreme Court that statutes which tend to produce inequality among voters may not be sustained if they can be shown to have merely “some rational basis” • — • they must rather withstand “a more rigid standard of review”; and, further, “the rights of voters and the rights of candidates do not lend themselves to neat separation . . ..” Bullock v. Carter, 405 U. S. 134, 142,143 . These ideas are as congenial to our Declaration of Rights as they are to the Constitution of the United States. Can it be said that the present statute is “reasonably necessary to the accomplishment of legitimate state objectives” ( 405 U. S. at 144 ) when we know that there are procedures available, feasible, and in current use which do not suffer at all, or suffer far less, from the reproach of inequality. I would add that the muddle of the double litigation in which the parties are involved would be largely disposed of if we should hold the present procedure invalid, and something can be said for doing the particular job without looking to the Federal Building.