Carter v. Dies

THORNBERRY, Circuit Judge

(concurring specially):

At issue in the instant case is whether the State of Texas through the imposition of primary filing fees has unduly impinged upon the right of its citizens to associate for the advancement of political beliefs and the right of its qualified voters to vote and to cast their votes effectively. Because I am of the belief that it has, I concur in the result of this judgment.

The standard by which the constitutionality of these controverted election code provisions is to be measured is, as the majority points out, the Williams test: 1 Bearing in mind that only a compelling state interest can justify a state’s limiting First Amendment freedoms, the Court must consider the facts and circumstances behind the law, the interests that the state claims to be protecting, and the interests of those who are disadvantaged by the classification. Accordingly, I examine, first, the interests of those disadvantaged by the provisions, and, secondly, the interests of the State.

At the very core of this dispute lies the First Amendment’s guarantee of the right to engage in association for the advancement of beliefs and ideas 2 and the “fundamental political right” that constitutes the essence of a democratic society and is “preservative of all rights” — the right to vote. 3 In the State of Texas there is simply no way that a person can obtain the Democratic Party nomination other than by paying the filing fee and being elected. The election code includes no provision for nominating petitions at the party level. Moreover, under article 13.09 4 write-in votes may not be counted in primary elections, and no space on the ballot is provided for them. Consequently, voters are deprived of the opportunity to have their candidate considered for the Democratic Party nomination if he cannot post the filing fee.

Since in the overwhelming majority of Texas political offices nomination by the Democratic Party is tantamount to election, it is clear that restriction on entry into the primary may significantly impair the right to cast one’s vote ef *1364 fectively. In addition, the right of association is abridged significantly in that a person unable to pay the filing fee must, with the aid of those desirous of supporting him, form a new party or run as an independent: They are precluded by the high filing fee from associating within the established party. Undeniably, then, the State’s high primary filing fees impose significant burdens on the right to vote and to associate. The question determinative of this controversy is whether there lies behind the high fees a State interest sufficiently compelling to justify the burdens.

Three State policies allegedly are furthered by this fee system. First, the State contends that the fees serve to limit candidacy to “serious” candidates. To discriminate against voters or candidates on the basis of the depth of their pocketbooks, however, is to wade into unconstitutional waters. Harper v. Virginia State Board of Elections, 383 U.S. 663 , 86 S.Ct. 1079 , 16 L.Ed.2d 169 (1966); Cipriano v. City of Houma, 395 U.S. 701 , 89 S.Ct. 1897 , 23 L.Ed.2d 647 (1969); Turner v. Fouche, 396 U.S. 346 , 90 S.Ct. 532 , 24 L.Ed.2d 567 (1970). It is no answer to proclaim that those candidates without substantial financial backing cannot seriously hope to win. The seriousness and legitimacy of a political effort is not to be measured by the bullion with which it is bulwarked. Though modern politics may dictate that low budgets do not win elections, it cannot be doubted that those with low budgets are entitled to try. Thomas v. Mims, 317 F.Supp. 179 (S.D.Ala.1970). Clearly, this first alleged justification is without sufficient merit to warrant the imposition of these burdens.

Secondly, Texas seeks to ground these high fees in the State interest of regulating the ballot to prevent confusion of voters. Although courts have indeed approved the objective of regulating the ballot, 5 the approval has been bestowed within the context of nominal or reasonable fees. 6 Defendants have pointed to no instance in which fees of the magnitude here challenged — up to $8,900 — have received judicial sanction. The fact that virtually all states assess filing fees smaller by a factor of ten or more than those of Texas, and some states none at all, quite strongly indicates that other states have not found the imposition of exorbitant filing fees a sine qua non of regulating the ballot. 7 I do not deny that Texas may have a compelling interest in regulating its ballot, but I am of the opinion that the interest can justify, at the very most, only reasonable fees; it cannot impart validity to the amounts here challenged.

Texas also asserts that the filing fee scheme pays for the primary and thus not only avoids draining the State treasury but also allows Parties to remain entities independent of the State. The justification of keeping the Parties private and unsubjected to State interests is, under the circumstances of this case, not a strong one. The Party’s role in conducting the primary is, after all, purely ministerial and quite extensively regulated by the State. Nor, in light of the interests at stake, would the burden on the State treasury be onerous if Texas were to assume a substantial portion of the primary expenses. Indeed, as the majority points out, eighteen states require of candidates no filing fee to support the primary. Furthermore, *1365 although filing fees have been judicially sanctioned on grounds of contribution, defendants have pointed to no cases other than Texas cases that place the entire burden of primary expense upon the candidates. If Texas has a compelling interest in requiring primary fees for revenue purposes, the interest can justify no more than requiring a candidate to contribute a reasonable portion of the primary expenses attributable to his candidacy. The fees here challenged clearly do not fall within that ambit and must be invalidated.

I do not here undertake the task of determining what constitutes a reasonable fee. I would emphasize, however, that two of our most precious freedoms are at stake, and thus the dimensions of reasonableness within which the State may safely impose a fee are indeed low and narrow. 8

. Defendants, relying primarily on Snowden v. Hughes, 321 U.S. 1 , 64 S.Ct. 397 , 88 L.Ed. 497 (1944), contend that this Court should not set aside the election code provisions unless they are grounded in a rationale wholly irrelevant to the achievement of a legitimate state interest. or unless they incorporate an element of intentional or purposeful discrimination. It is tru'e that Snowden stated that “an element of intentional or purposeful discrimination” needs to be shown to demonstrate a denial of equal protection. Snowden , however, has been modified pro tanto by the language of Williams v. Rhodes, 393 U.S. 23 , 89 S.Ct. 5 , 21 L.Ed.2d 24 (1968), and by the rationale of Turner v. Fouche, 396 U.S. 346 , 90 S.Ct. 532 , 24 L.Ed.2d 567 (1970), wherein the Supreme Court found a denial of equal protection without an “invidious or purposeful discrimination.”

. The Supreme Court has repeatedly held that freedom of association is protected by the First Amendment. See, e. g., Williams v. Rhodes, 393 U.S. 23 , 89 S.Ct. 5 , 21 L.Ed.2d 24 (1968); United Mine Workers of America, Dist. 12 v. Illinois State Bar Assn., 389 U.S. 217 , 88 S.Ct. 353 , 19 L.Ed.2d 426 (1966); NAACP v. Button, 371 U.S. 415 , 83 S.Ct. 328 , 9 L.Ed.2d 405 (1963).

. Yick Wo v. Hopkins, 118 U.S. 356, 370 , 6 S.Ct. 1064, 1071 , 30 L.Ed. 220 (1886).

. Tex.Election Code Ann. Art. 13.09 (1967).

. See, e. g., Williams v. Rhodes, 393 U.S. 23 , 89 S.Ct. 5 , 21 L.Ed.2d 24 (1968); Wetherington v. Adams, 309 F.Supp. 318 (N.D.Ela.1970); Jenness v. Little, 306 F.Supp. 925 (N.D.Ga.1969), appeal dismissed Matthews v. Little, 397 U.S. 94 , 90 S.Ct. 820 , 25 L.Ed.2d 81 (1970).

. See, e. g., Bynum v. Burns, 8th Cir. 1967, 379 F.2d 229 ; Kenneweg v. Allegany County Com’rs, 102 Md. 119 , 62 A. 249 (1905); Socialist Party v. Uhl, 155 Cal. 776 , 103 P. 181 (1909); State ex rel. Riggle v. Brodigan, 37 Nev. 492 , 143 P. 238 (1914); Bodner v. Gray. 129 So.2d 419 (Fla.1966); State v. Nichols, 50 Wash. 508 , 97 P. 728 (1908); Wetherington v. Adams, 309 F.Supp. 319 (1970).

. See Office of the Secretary of State, Proposed Election Law Changes, A Report to the 62nd Legislature of the State of Texas, December 10, 1970, at Appendix A.

. This is especially true where, as in the instant case, the State lias provided no alternative, such as a petition, to the filing fee.